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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CONSTITUTION PETITION NO.134 OF 2012 AND CIVIL MISC. APPLICATION NO.1864 OF 2010 IN CONSTITUTION PETITION NO.9 OF 2005 AND CIVIL MISC. APPLICATIONS NO.1939 OF 2014, 5959 OF 2016, 4095, 1793, 2876, 2996, 3014 AND 6672 OF 2018 IN CONSTITUTION PETITION NO.134 OF 2012 AND CIVIL MISC. APPLICATIONS NO.3034, 3048, 3051 AND 6247 OF 2018 IN CIVIL MISC. APPLICATION NO.1864 OF 2010 Const.P.134/2012: Pakistan Bar Council through its Chairman v. Federal Government through Establishment Division and others C.M.A.1864/2010: Article by Aredshir Cowasjee in Daily Dawn dated 27.06.2010 titled “Looking the Future” regarding standards of professional ethics in the legal profession. C.M.A.1939/2014: Application by Pakistan Bar Council for Impleading Universities as respondents. C.M.A.5959/2016: Application in Respect of Shaheed Zulfiqar Ali Bhutto University of Law (SZABUL) through its Registrar v. Federal Government through Establishment Division and others C.M.A.1793/2018: Impleadment application by Muhammad Amin Sandhila C.M.A.2876/2018: Concise Statement by KPK Law Colleges in reply to show cause notices issued vide order dated 6.3.2018. C.M.A.2996/2018: Impleadment application by Pakistan Bar Council through Chairman Legal Education Committee v. The Federal Government thr. Secretary Establishment and others C.M.A.3014/2018: Impleadment application by Islamabad Bar Council C.M.A.3034/2018: Concise Statement on behalf of respondent No.2 College of Legal & Ethical Studies (Coles), Abbottabad. C.M.A.3048/2018: Additional Documents (copies of show cause notices issued to the private law colleges of KPK) on behalf of respondent No.10. C.M.A.No.1864 of 2010 -: 2 : C.M.A.3051/2018: Impleadment application by Zahid Hussain C.M.A.4095/2018: Impleadment application by Muhammad Umar Jatoi C.M.A.6247/2018: Impleadment application by City Law College v. Federal Government through Secretary M/o Education etc. Islamabad and others C.M.A.6722/2018: Impleadment application by Muhammad Shafique In attendance: Mr. Hamid Khan, Sr. ASC Mr. M. Anwar Kamal, Sr. ASC Mr. Zafar Iqbal Kalanori, ASC Mr. Muhammad Arshad, Secy. PBC Mr. Muhammad Ahsan Bhoon, ASC Mr. M. Shoaib Shaheen, ASC Ch. Zulfiqar Ahmed Khan, ASC Ms. Bushra Qamar, ASC (Chairperson Executive Committee, Punjab Bar Council) Mr. Bilal Ahmed Qazi, ASC (For Islamia University BWP) Syed Iftikhar Hussain Gillani, Sr. ASC Mr. M. Akhtar Ali, ASC (For K.P. Private Law Colleges) Mr. Zafar Iqbal, Ch. ASC (Topper Law College) Rai Bashir Ahmed, ASC (In CMAs 1844 & 6247/2018) Rai M. Nawaz Kharral, ASC (CMA. No. 6722/18) Mr. Zafarullah Khan Khakwani, ASC Dr. Amanullah, Chairman, Affiliation Committee, BZU Ch. Muhammad Umar, Registrar BZU (For BZU) Mr. Munir Ahmed Khan Kakar, ASC Raja Abdul Rehman, ASC (For Zargoon Law College) Mr. Riasat Ali Azad, ASC (Alfalah Law College/Kashmor Law College) Mr. M. Ikram Chaudhry, Sr. ASC (In C.M.As.4012 & 4013/2018) Mr. M. Qasim Mirjat, AOR (In C.M.A.4094/2018) C.M.A.No.1864 of 2010 -: 3 : Mr. Junaid Akhtar, ASC (In C.M.A.2996/2018) Mr. Waseem-ud-Din Khattak, ASC (for University of Peshawar) Mr. Zulfiqar Ahmed Bhutta, ASC (For Pakistan College of Law) Mr. M. Amin Sandhela, in-person (In CMA 1793/2018) Mr. Fawad Saleh, ASC (For Coles Law College) Mr. Shaukat Ali, Principal, (Shaheed Benazir Bhutto Law College, Nausheroferoz). Mr. Abdul Ali, Owner of Ali Law College Sanghar, Sindh. (CMA-6898/18) Mr. M. Faseeh ud Din Wardag, ASC (For Jalawan Law College, Khuzdar) Mr. Amanullah Qazi, Director, Intelligence Law College, Moro, Sindh Mr. Faisal Javed, VC School of Law, Lahore Mr. Hassan Fareed, Legal Advisor, University of Management & Technology, Lahore. Mr. Saleem Akhtar Warraich, ASC Mr. Aftab Sohail, College of Law, Gujranwala. Mr. M. Afzal Khan, ASC (For Pakistan Law College, Lahore) Mr. Nafeer A. Malik, ASC (Principal Quaid e Azam Law College, Lahore.) Rana Ali Akbar, Adv. (For Topper Law College) Mr. Mushtaq Ahmed Mohal, ASC Sh. Irfan Akram ,ASC Mrs. Tasneem Amin, AOR (For Institute of Law) Mr. Ahmed Qayyum, ASC (For Lahore Law College) Mr. Abbas Mirza, ASC (For Farabee Law College) C.M.A.No.1864 of 2010 -: 4 : Dr. Khalid Ranjha, Sr. ASC (For Punjab University) Mr. Anwar ul Haq Pannu, ASC Mr. Qaiser Amin Rana, ASC Mian Tariq Manzoor, ASC Sardar Muhammad Aslam, ASC Mr. Faiz Ahmed Jandran, ASC Mr. Kifayat Ali Jaskani, Principal Shan-e-Ali Law College, Tando Adam Barrister Adnan Sheikh, ASC (For Topper Law College, Lhr.) Mr. Mushtaq Ahmed Mohal, ASC (For PSC) Malik Matiullah, ASC (For Asian Law College) Malik Anique Khattana, ASC (CMA-3046/18) Rana M. Arif, ASC (CMA-2475-L/18) Mr. Ashfaq Bhullar, ASC Rai M. Nawaz Khan Kharral, ASC (For Qarakuram Law College/CMA-6722/18) Usama Shafique, Assistant Registrar, University of South Asia. On Notice: Mr. Sajid Ilyas Bhatti, Addl.Attorney General for Pakistan. assisted by: Barrister Menal Tariq Mr. Qasim Ali Chohan, Addl. A.G. Pb. Mr. Shehryar Qazi, Addl. A.G. Sindh Malik Akhtar Hussain Awan, Addl. A.G. KP Mr. Ayaz Swati, Addl. A.G. Balochistan Syed Naveed Abbas, ASC Mr. Aftab Mustafa, ASC (for respondent No.7) Mr. Waseem Hashmi, Advisor, HECP Mr. Asif Munir, Director, HECP Raja Abdul Ghafoor, AOR (For HECP) Date of hearing: 20.08.2018 & 24.8.2018 at Lahore and 28.8.2018 at Islamabad. C.M.A.No.1864 of 2010 -: 5 : O R D E R Umar Ata Bandial, J. – CONSTITUTION PETITION NO.134 OF 2012 & CIVIL MISC. APPLICATION NO.1864 OF 2010 IN CONSTITUTION PETITION NO.9 OF 2005. The Rule of law in our country is a bedrock of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”). The Judicature has a Constitutional duty to enforce the Rule of law to safeguard the Constitution. In our legal system the Courts perform dispute resolution in accordance with the Constitution and the substantive and procedural law laid down thereunder. The system flourishes by positive and productive cooperation between the Bar and the Bench for the ascertainment of the truth and decision of controversies according to the relevant and applicable law. An independent, competent, honest and industrious Judicature requires an equally independent, dynamic, honest and dedicated Bar in order to effectively provide justice in accordance with law to all members of the society. 2. Over the years, the legal profession has attracted more and more people as a career of choice. This has led to a growing demand for institutions imparting legal education to train lawyers for the Bar and the Judiciary. Notwithstanding that the standards of proficiency for entry to the Bar since the last 45 years is regulated by Legal Practitioners and Bar Councils Act, 1973 (“Act”), careful monitoring, supervision and enforcement of such standards has been lacking due to complacency and neglect. It was in these circumstances that this Court considered the matter of declining standards of legal education in Pakistan Bar Council vs. The Federal Government & Others (PLD 2007 SC 394) (“PBC Judgment”) and delivered a momentous judgment mandating sound professional training and skill in both academic and vocational disciplines to be essential attributes for ensuring good advocacy. In this behalf, it was identified that the Pakistan Bar Council (“PBC”) established under the Act and the Higher C.M.A.No.1864 of 2010 -: 6 : Education Commission of Pakistan (“HECP”) established under the Higher Education Commission Ordinance, 2002 are the key regulators to supervise and enforce professional standards in legal education. 3. Pursuant to the views expressed in the PBC Judgment and based upon its own deliberations, the PBC framed the Pakistan Bar Council Legal Education Rules, 2015 (“Rules”). These Rules lay down detailed provisions on several matters concerning legal education in particular, criteria for recognition of degree awarding institutions and for affiliation of law colleges thereto. It may be observed that the Rules were framed during the proceedings for the implementation of the aforementioned PBC Judgment of this Court. The Rules lay down, inter alia, the eligibility for admission to LL.B programme, inspection of law faculties and departments of law colleges for establishing their qualifying status as affiliates of recognized degree awarding university or their disaffiliation for failing to comply with the Rules. It is in the said backdrop that by order dated 21.01.2018 of this Court, the PBC constituted a Special Committee for Structural Reforms in Legal Education. Four Provincial commissions and one for Islamabad Capital Territory (“ICT”) were formed for this purpose by the Court. Their task was to inspect affiliated law colleges that have mushroomed in the market and to report on the standard of legal education, training and services imparted by them. Based on the findings of these inspections, the Special Committee of the PBC has submitted recommendations to the Court. These recommendations were examined, deliberated, considered by the Court during the proceedings held at the Branch Registry at Lahore on 20.08.2018 & 24.08.2018 and at the Principal Seat on 28.08.2018. The recommendations are well thought out and have been approved by this Court with minor modifications. 4. For the reasons to be recorded later CONSTITUTION PETITION NO. 134 OF 2012 & CIVIL MISC. APPLICATION NO.1864 OF 2010 IN C.M.A.No.1864 of 2010 -: 7 : CONSTITUTION PETITION NO.9 OF 2005 stands disposed of and the following declarations and directions are issued in light of the recommendations submitted by the Special Committee of PBC: Court’s declarations & directions: 1. Restoration of Bar Entrance Examination [Law Graduate Assessment Test (LAW-GAT)]. A Law Graduate Assessment Test (LAW-GAT) of law graduates seeking enrollment to the Bar shall be held on quarterly basis by HECP as the executing institution throughout Pakistan based on a question bank prepared for the Assessment Test. 2. Test for Entry to Law College (Law Admission Test) (LAT). A law admission test for all law colleges in Pakistan shall be held biannually by the HECP. The outline of such a law admission test is given below: “LAW ADMISSION TEST (LAT) Division of Questions Marks Nature of Questions Essay (either in English or Urdu) 15 200 words maximum Personal Statement (either in English or Urdu) 10 200 words maximum MCQs: MCQs: English 20 Synonyms/Antonyms/Pre- positions MCQs: General Knowledge 20 MCQs: Islamic Studies 10 MCQs: Pak Studies 10 MCQs: Urdu 10 Vocabulary MCQs: Math 05 Basic Math Total Marks 100 3. Specification of Affiliating Universities and their territorial jurisdiction. The following universities are recognized and authorised by the PBC under the Rules to be law degree awarding institutions. The territorial jurisdiction of each such university is indicated against its name: C.M.A.No.1864 of 2010 -: 8 : Sr. No. Affiliating University Area of Jurisdiction 1. University of Baluchistan Whole of the Province 2. University of Peshawar Districts & Civil Divisions of Peshawar, Malakand and Mardan. 3. Gomal University, D.I.K Districts & Civil Divisions of D.I.Khan, Bannu and Kohat. 4. University of Hazara, Mansehra All the District of Hazara Division. 5. University of the Punjab, Lahore Districts & Civil Divisions of Lahore, Gujranwala, Sargodha, Faisalabad, Sahiwal and Rawalpindi. 6. BahauddinZakriya University, Multan District & Civil Divisions of Multan and Dera Ghazi Khan. 7. Islamia University, Bahawalpur All Districts of Bahawalpur Division. 8. Karachi University All Districts & Civil Division of Karachi. 9. University of Sindh, Hyderabad All Districts & Civil Divisions of Hyderabad, Mirpur Khas and Shaheed Benazirabad. 10. Shah Abdul Latif University, Khairpur Districts & Civil Divisions of Sukkur and Larkana. 11. Quaid-e-Azam University, Islamabad. Islamabad Capital Territory. 4. Ban against conducting LL.M and Ph.D. in law classes by the Universities / Colleges / institutions that are not allowed to hold LL.B. classes. The universities and institutions that are not recognized and authorised by the PBC to confer LL.B degree shall not impart legal education to students at LL.M and Ph.D levels or to admit students to either of such programmes. The same rule applies to law colleges affiliated to such universities and institutions. 5. Limit on admission to LL.M. and Ph.D. programmes in law and ban on mushroom admissions to these programmes as per criteria of HECP. Admission to LL.M. and Ph.D. programmes by an authorised law college/ university/institution shall be granted on the criteria laid down by HECP, including, the ceiling on the number of students fixed for admission to such programmes. 6. Designing of Curriculum for five year LL.B. Programme – annual and semester. The HECP National Curriculum Review Committee alongwith the representative of the PBC sub-committee shall finalize the Curriculum for C.M.A.No.1864 of 2010 -: 9 : five years LL.B programme to be run on the basis of an annual or semester system of examinations. The salient aspects of such Curriculum shall be stated in the detailed reasons. 7. Qualification of faculty (permanent and visiting) at law colleges. The university/Degree Awarding institution/law college imparting legal education at the level of LL.B programme shall hire law faculty members/teachers as under: (i) The Dean Law Faculty/Head of Law Department/Principal of law college shall be Ph.D. in law with 8 years law teaching experience/practice experience in High Court or Masters Degree in Law with 15 years law teaching experience/practice experience in High Court or a retired Judge of the Supreme Court or a High Court or a retired District & Sessions Judge having 5 years of judicial service to his credit; (ii) At least five permanent/whole time faculty members/teachers having a Masters degree in law with 5 years law teaching experience/practice experience in High Court or having a Bachelors degree in law with 10 years law teaching experience/ practice experience in High Court; & (iii) There shall be at least five part time/visiting faculty members/ teachers having 5 years standing as Advocates of High Court. (ii) The above standard ratio of permanent and visiting faculty shall be followed to meet the needs of upto 100 students. Additional students shall be catered by increasing faculty strength according to the said ratio. 8. Affiliating Universities to constitute separate Affiliating Committees for law colleges within their territorial jurisdiction. Every affiliating university shall constitute a separate Affiliating Committee for initial and annual inspection of its affiliate law colleges and to take immediate action against those affiliate law colleges which are C.M.A.No.1864 of 2010 -: 10 : non-compliant with the rules framed by the PBC and the applicable rules of the affiliating university itself. 9. Ban on admission to 3 year LL.B. programme. A five years LL.B. programme shall be introduced in September, 2019. The current three years LL.B. programme shall be phased out and law colleges throughout Pakistan shall not admit students to their three years LL.B. programme after 31 December 2018. 10. Ban against holding of evening classes Colleges/Universities. There shall be a complete ban on evening classes being offered at all law colleges/universities across Pakistan. 11. Introduction of Special Equivalence Examination for Law Graduates of foreign universities (by HECP). No law graduate from any foreign university recognized by the Punjab Bar Council shall be allowed to take the Law Graduate Assessment Test (LAW–GAT) unless he or she passes a Special Equivalence Examination for law graduates of foreign universities which shall be held periodically by HECP in the following five subjects: 1) Constitution of Pakistan 2) Civil Procedure Code 3) Criminal Procedure Code 4) Qanoon-e-Shahadat 5) Specific Relief Act 12. Bar Vocational Course: The Provincial/Islamabad Bar Councils may introduce “Two Weeks Bar Vocational Course” during the six months training/pupillage period that a law graduate intending to join the legal profession must undergo for being enrolled as an Advocate for practicing law. The Provincial/ Islamabad Bar Councils may, however, consider and decide modalities for C.M.A.No.1864 of 2010 -: 11 : introducing the said course through respective Federal/Provincial Judicial Academies. 13. Allocation of Funds in Federal and Provincial Budgets for promotion of legal education: The Federal and Provincial Governments may be canvassed by the PBC and Provincial/ICT Bar Councils for allocation of substantial funds in the annual Federal and Provincial Budgets for promotion of legal education by the PBC. 14. Salary package and payment of non-practicing allowance for permanent members law faculties: For securing services of competent and experienced law faculty on a permanent basis, concerned authorities in the Federal and Provincial Governments and the universities and law colleges shall ensure that a reasonable salary package and non-practicing allowance is paid to the qualified law teachers in the respective universities/law colleges. This is necessary for enhancing and maintaining the standard and quality of legal instruction. The HECP being the apex regulatory authority of the recognized and authorised universities shall play a guiding role in the foregoing regard. 15. Assessment/Evaluation of Examination: The HECP shall, in collaboration with universities imparting legal education and the PBC, shall consider the matter of assessment/ evaluation of the examinations for LL.B classes exhaustively and make recommendations for updating and improving the current system of such examination to make it more relevant, practicable and reflective of the real talent and potential of candidates. C.M.A.No.1864 of 2010 -: 12 : 16. Establishment of autonomous Secretariat/Directorate of Legal Education in the Pakistan Bar Council: For improvement of the standard and quality of legal education in the country, concerted and well planned efforts shall be made to establish a full-fledged and adequately equipped autonomous Secretariat/ Directorate of Legal Education in the PBC. For this purpose active and meaningful logistic and financial support of the Federal Government shall be secured by the PBC. The Supreme Court of Pakistan shall for this purpose endeavour to project the need for an autonomous Secretariat/ Directorate of Legal Education. 17. Constitution of Implementation/Monitoring Committee: An Implementation/Monitoring Committee for enforcing the directions given herein shall be constituted by the PBC which shall be chaired by Chairman, HECP or a senior functionary nominated by him. 18. Immediate closing down of unauthorised law colleges: A university that neither offers a law programme nor is recognized by the PBC shall not unauthorisedly grant affiliation to any institution pretending to be a law college. Accordingly, the following law colleges shall immediately be closed down for the reason that their affiliating university/Shaheed Benazir Bhutto University, Benazirabad is not recognized or authorised by the PBC to offer a LL.B programme: (1) Leons Law College, Shaheed Benazirabad. (2) Intelligentia Law College, Moro. (3) Shaheed Benazir Bhutto Law College, NaushahroFeroze. (4) Ali Law College, Sanghar. (5) Shah-e-Ali Law College, Tando Adam. 19. Disaffiliation of sub-standard law colleges: The following law colleges affiliated to their corresponding universities having been found below the mark and for being outside the territory of C.M.A.No.1864 of 2010 -: 13 : their affiliating university have been recommended by the special Committee of PBC to be disaffiliated: (a) University of Peshawar: (1) Abbot Law College, Abbottabad. (2) Abbott Law College, Mansehra. (3) Ayub Law College, Hairpur. (4) Frontier Law College, Peshawar. (5) Islamia Law College, Peshawar. (6) Jinnah Law College, Peshawar. (7) Justice Law College, Abbottabad. (8) Kohat Law College, Kohat. (9) Mardan Law College, Mardan. (10) Muslim Law College, Swat. (11) Peshawar Law College, Peshawar. . (12) Quaid-e-Azam Institute of Legal Studies, Nowshera. (13) Sanni Islamia Law College, Haripur. (14) Supreme Law College, Peshawar. (15) Swabi Law College, Swabi. (b) University of Hazara, Mansehra: COLES-College of Legal & Ethical Studies, Abbottabad. (c) Gomal University, D.I. Khan: (1) Danish Kada Law College, Miryan Gate Bannu. (2) Frontier Law College, D.I. Khan. (3) Institute of Legal and Management Sciences, Islamabad. (4) Luqman Law College, D.I. Khan. (d) University of Baluchistan, Quetta: (1) Zarghoon Law College, Quetta. (2) Jhalawan Law College, Khuzdar. (e) University of Sindh, Hyderabad: (1) Everest Law College, Hyderabad. (2) SISTEC, Sukkur. (f) Shah Abdul Lateef University, Khairpur: (1) Al-Falah Law College, Kashmore. (2) Abdul Wahid Soomro Law College, Kashmore. (3) Mirza Khan Law College, Panu Aqil. (4) Mashal Law College, Dahrki, Dahrki. (5) Bilawal Bhutto Law College, Jaccobabad. (6) Faiz Muhammad Sehto College, Kandiaro. (7) Bilawal Bhutto Zardari Law College, Qambhar. C.M.A.No.1864 of 2010 -: 14 : (g) BahauddinZakriya University, Multan: (1) South Punjab Law College, Multan, (2) Professional Law College, Multan, (3) Multan Law College, Multan, (4) Times Institute, Multan, (5) Muhammadan Law College, Multan, (6) Central Law College, Multan, (7) Merit Law College, Multan, (8) Pakistan Law College, Multan, (9) Sargodha Toppers Law College, Multan, (10) Kaims International Law College, Multan, (11) Ayan Law College, Multan, (12) Sir Syed Law College, Multan, (13) Justice Law & Education College, Multan, (14) International Law College, Multan, (15) Noor Law College, Multan, (16) Quaid-e-Azam Law College, Sahiwal, (17) Montgomery Law College, Sahiwal, (18) Muhammadan Law College, Sahiwal, (19) Command Law College, Sahiwal, (20) Multan Law College, Sahiwal, (21) Johar Law College, Sahiwal, (22) Limit Law College, Sahiwal, (23) Leads Universal Law College, Khanewal, (24) Progressive Law College, Vehari, (25) Askari Law College, Burewala, (26) Justice Law College, Pakpattan, (27) Pakistan Law College, Pakpattan, (28) Jinnah Law College, Dera Ghazi Khan, (29) Multan Law College, Dera Ghazi Khan, (30) Ghazi Khan Law College, Dera Ghazi Khan, (31) Indus Law College, Dera Ghazi Khan, (32) Justice Law & Education College, Muzaffargarh. (h) University of the Punjab, Lahore: (1) Capital Law College, 313-A, Murree Road, Rawalpindi. (2) Muslim Law College, 89-A, Satellite Town, Rawalpindi. (3) East & West Education System, Department of Legal Studies, House# 18, Street # 60, -11/4, Islamabad. (4) Islam Law College, Pasrur Road, Sialkot. (5) The College of Law, G.T. Road, Gujranwala. (6) Muhammadan Law College, Sharqpur Road, Sheikhupura. (7) Muhammadan Law College, 3-Km Sargodha Road, Sheikhupura. (8) The Jurists College of Law Gulberg Town, Opp. Honda Show Room, Lahore Road, Sargodha. (9) Chenab Law College, Jalalpur Jattan Road, Gujrat. (10) The College of Law, Kanjrur Road, Narowal. (11) CIMS School of Law, Lahore. (12) Leads Law College, Township, Lahore. (13) PSE Law College, Nain Sukh, Saqian, Lahore. C.M.A.No.1864 of 2010 -: 15 : (14) Farabee Law College, Hafizabad. (15) Allama Iqbal Law College, Sialkot. (16) Premier Law College, Gujranwala. (17) Quaid-e-Azam Law College, Okara. (18) National Law College, Lahore. (19) Global Law College, Shahdara, Lahore. (20) Institute of Law, Gulberg, Lahore. (21) Asian Law College, Gulberg Town, Lahore. (22) City Law College, Allama Iqbal Road, Lahore. (23) Lahore Law College, Gulberg, Lahore. (24) Shams Tabriz Law College, Ferozepur Interchange, Lahore. (25) The National Institute of Legal Studies, Attock. (i) Islamia University, Bahawalpur: (1) Narowal Law College, Narowal, (2) Heritage International College, Hafizabad (3) Cambridge Law College, Wazirabad (4) M.A. Law College, Gujrat (5) Al-Mizan Institute of Legal Studies, Islamabad (6) Jinnah Muslim Law College, Islamabad (7) Cornelius Law College, Sargodha (8) Zain Law College, Bhakkar (j) Before disaffiliation of any of the above said colleges is implemented, they shall be issued notice of fault or deficiency by the concerned affiliating university thereby granting them opportunity to be heard and being provided with reasons of the order passed by the concerned university in accordance with its rules of affiliation that are available to law colleges established and functioning within the territorial limits prescribed hereinabove. 20. Accommodation of law students in eventuality of disaffiliation of some law colleges: The adjustment of law students who are affected by the disaffiliation of their law colleges shall be pursued by the concerned affiliating universities which shall be responsible to assure that such students are enabled to pursue their ongoing LL.B programme till completion. C.M.A.No.1864 of 2010 -: 16 : 21. Law departments of Universities and law colleges which need improvements in their weak areas within six months: The following law colleges which are run by or affiliated to universities need to overcome weak areas of their LL.B programmes offered by them are given six months for doing so: (a) University of Baluchistan: (1) City Law College, Quetta; (2) University of Baluchistan Law College Peshin Campus (3) School of Law, University of Turbat; and (4) Law College of University of Balochistan Kharan Campus. (b) University of Karachi: (1) Department of Law, University of Karachi. (2) Government Islamia Law College, Karachi. (c) Shaheed Benazir Bhutto, University, Malir-Karachi: (1) Shaheed Zulfiqar Ali Bhutto Law College, Malir. (d) University of Sindh: (1) Dinsh Mehran Institute of Law (SMIL), Jamshoro. (e) Shah Abdul Lateef University, Khairpur: (1) Shaheed Zulfiqar Ali Bhutto, College of Law, Khairpur. (2) Qazi Mian Ahmed Law College, Moro. (3) Law College, Ghotki, (4) SDK Law College, Jaccobabad. (f) Federal Urdu University, Karachi: The Federal Urdu University having violated Rules and instructions of the Pakistan Bar Council was firstly placed under suspension and then was de-recognized; it is presently non- functional. It shall remain suspended till its application for restoration of recognition by the Pakistan Bar Council is decided by the Legal Education Committee of the Pakistan Bar Council. The following campuses have been found lacking: (1) Department of law, Gulshan Campus. (2) Department of law, Abdul-Haq Campus (g) University of the Punjab: (1) The Best Law College, Rawalpindi. (2) Rawalpindi Law College, Rawalpindi. C.M.A.No.1864 of 2010 -: 17 : (3) Himat-i-Islam Law College, Lahore. (4) Superior College of Law, Lahore. (5) Toppers Law College, Gulberg, Lahore. (6) Gujrat Law College, Gujrat. (7) Institute of Legal Studies, Gulberg, Lahore. (8) Faisalabad College of Law, Faisalabad. (9) Muhammad Ali Jinnah Law College, Gujranwala. 22. Sole recourse before the Supreme Court: Any university or affiliated college that is aggrieved by a final order/ action taken in pursuance of these directions after exhausting any remedy under the University Rules shall avail as the first judicial remedy, appropriate relief from this Court. Recourse to any other judicial forum without permission of this Court is barred. 5. All the ancillary Misc. Applications to this matter and listed in the title of this case also stands disposed of accordingly. CHIEF JUSTICE Islamabad, the 31st of August, 2018. JUDGE JUDGE Irshad Hussain/* NOT APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Syed Hasan Azhar Rizvi Mr. Justice Shahid Waheed CONSTITUTION PETITIONS NO. 14 TO 17 OF 2023 (Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973) Abid Shahid Zuberi, Advocate Supreme Court of Pakistan (in Const. P. 14 of 2023) Muqtedir Akhtar Shabbir (in Const. P. 15 of 2023) Imran Ahmad Khan (in Const. P. 16 of 2023) Riaz Hanif Rahi, Advocate Supreme Court of Pakistan (in Const. P. 17 of 2023) …Petitioner(s) Versus Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others (in Const. P. 14 & 15 of 2023) Federation of Pakistan through its Secretary Cabinet, Pak Secretariat, Islamabad and others (in Const. P. 16 of 2023) Government of Pakistan through Secretary Cabinet Division, Islamabad and another (in Const. P. 17 of 2023) …Respondent(s) For the petitioner(s) : Mr. M. Shoaib Shaheen, ASC Mr. Haseeb Jamali, ASC Mr. Umar Lakhani, ASC Mr. Ayan Memon, ASC Mr. Maqsood Buttar, ASC (in Const. P. 14/23) Const.P.14 of 2023, etc. 2 Malik Shakeel-ur-Rehman, ASC Mr. Muqtedir Akhtar Shabbir, ASC (in Const. P. 15/23) Nemo (in Const. P. 16/23) In-person (in Const. P. 17/23) For the Federation : Mr. Mansoor Usman Awan, Attorney General for Pakistan Assisted by: Mr. Saad Javaid Satti, Adv. Ms. Maryam Rasheed, Adv. Ms. Maryam Ali Abbasi, Consultant. Date of hearing : 26.05.2023 O R D E R UMAR ATA BANDIAL, CJ. We have heard Mr. Shoaib Shaheen, ASC learned counsel for the petitioner at length and have also heard the brief submissions in response by Mr. Mansoor Usman Awan, the learned Attorney General for Pakistan. The petitioner’s challenge is to Notification No.SRO.596(I)/2023 dated 19.05.2023 (impugned notification) issued by the Federal Government for appointment of an Inquiry Commission (Commission) in exercise of its power under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017 comprising Justice Qazi Faez Isa, Hon’ble Senior Puisne Judge Supreme Court of Pakistan, Mr. Justice Naeem Akhtar Afghan, Chief Justice High Court of Balochistan and Mr. Justice Aamer Farooq, Chief Justice Islamabad High Court. The terms of reference (TORs) of the Commission, inter alia, are to determine whether certain alleged audios leaked on 16.02.2023 and thereafter subsequently broadcast on the electronic media, involving alleged conversations between persons connected to or including Judges of the superior Courts, constitute material whereby public trust and confidence in the credibility, uprightness, impartiality and independence of the superior judiciary is eroded. Const.P.14 of 2023, etc. 3 2. The essence of the submissions made by Mr. Shoaib Shaheen, ASC, learned counsel for the petitioners are as follows: i) The impugned notification violates fundamental rights by breaching the principle of separation of powers on the basis of which the constitutional framework of our country is established. The Executive cannot transgress into the area of the judicial function. While Article 209 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) enables the President of Pakistan (acting on advice i.e. the Executive branch) to present a Reference in respect of any alleged misconduct by a Judge of the superior Courts, the determination and all matters and aspects relating thereto whether directly or indirectly are exclusively vested in the judicial branch, as embodied in the constitutional body known as the Supreme Judicial Council (SJC). Thus, the constitutional principle of trichotomy of powers has placed these functions in mutually exclusive zones i.e. the two branches of the Executive and the Judiciary. However, in appointing senior sitting Judges as the Commission of Inquiry to investigate and enquire upon the matters which are the subject matter of the TORs of the Commission, prima facie, the principle of separation of powers has been breached. The Federal Government, in what tentatively appears to be a complete misdirection of law, has thus trenched upon a constitutional domain exclusive to the Judiciary and demarcated exclusively for the latter under Article 209 ibid. Const.P.14 of 2023, etc. 4 ii) The TORs for the Commission are specified in the impugned notification in sub-paras (iii) to (ix) of paragraph-6, being the questions upon which the Commission is to render its determination. These questions include in paragraph-6(v) the determination whether any disciplinary proceedings are attracted by virtue of the matters under inquiry. Keeping in view paragraph-6 (viii) which concerns the genuineness and the correctness of the alleged audios leaked, it appears, prima facie, that paragraph-6(v) is addressing judicial misconduct in veiled terms. This function is reserved by Article 209 of the Constitution to be performed solely by the Judiciary through the SJC. In this way, the TORs of the Commission appear to extend its jurisdiction into an area falling within the domain of the SJC at the instance of the Executive which is an arrangement that is, prima facie, unconstitutional and void. iii) A perusal of paragraph-6(i) and (ii) of the TORs of the Commission setting out the subject matter of enquiry by the Commission, prima facie, overlaps or at the very least appears to fall within the penumbra of the constitutional jurisdiction vesting in the SJC under Article 209 of the Constitution. This jurisdiction is an integral component of the independence of the Judiciary enunciated, inter alia, in Article 175(3) of the Constitution which is not only a fundamental right but also a Salient Feature of the Constitution. Const.P.14 of 2023, etc. 5 3. Learned counsel for the petitioner also emphasised on the apparent violation of Article 14 of the Constitution relating to dignity of man and the rights of privacy that are inherent therein. Learned counsel submitted that such rights extended not just to the person but also to the communications made by him. Illegal and unlawful surveillance of such communication or the targeting of any person in this regard was clear cut violation of the said fundamental rights. In this regard reference was made to certain laws, including principally, the Investigation for Fair Trial Act, 2013 (Act) to show that it is the only law which permits surveillance under strictly limited circumstances in terms of the elaborate regime set out in the Act and only in relation to the offences appearing in the Schedule thereof which relate to terrorism and such like offences. Learned counsel read out various sections of the said Act and in particular drew attention to Section 10(2)(b) where even if surveillance for such limited purposes could be lawfully carried out, rights of privacy and property were always to be respected. It was submitted that the subject matter of the present proposed inquiry could not conceivably fall within the ambit of the said Act. Learned counsel also placed reliance on the judgment of Justice Syed Mansoor Ali Shah (concurring in part) and reported as Justice Qazi Faez Isa and others vs. The President of Pakistan (PLD 2021 SC 1). Various paragraphs in relation to the concept of privacy were read out from this judgment and in particular reliance was strongly placed on the following passage from para-48: “48. … While the fundamental right to personal liberty and privacy guaranteed by Articles 9 and 14 of the Constitution are subject to law, there is no law in our country that authorizes any law enforcement or intelligence agency to pry into the privacy of any person through surveillance and interception, except the IFTA. The scope of the IFTA, as discussed above, is also restricted to the surveillance and interception of a person who is suspected to be involved in any terrorist or anti- state activity. Besides this limited scope under the IFTA, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception. Thus, in the remaining Const.P.14 of 2023, etc. 6 sphere the right to privacy is absolute, until law is enacted to regulate it. The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation. …” (emphasis supplied) 4. It was submitted that since there was, and could not possibly be, any law that allows for surveillance or hacking of any communication of Judges or their family members, the bar, as noted in the extract above, was absolute and that therefore, at a very fundamental level there could hardly be any point in light of the forgoing observations to the inquiry envisaged by the impugned notification being held. In addition, it was also submitted that in respect of the petitioner in Const. P. 14 of 2023, who is an Advocate, the alleged audio (the veracity of which was directly challenged) would amount to illegal disclosure of privileged communication which could not form the subject matter of any inquiry. Reliance was also placed in this regard on Ishtiaq Ahmed Mirza vs. Federation of Pakistan (PLD 2019 SC 675), which lays down detailed parameters as to admissibility of any audio or video material. Given that the alleged audios in the present case were all leaks made by a so called “black hat hacker” operating under the twitter handle “indibell”, the first and primary question was the very veracity, credibility and legality of, and authorization for the alleged audios and so also the identity of the person or “hacker” engaged in or abetting such acts. 5. On any view of the matter, therefore, learned counsel submitted, further proceedings by the Commission in terms of the impugned notification would amount to a continued serious breach of fundamental constitutional principles and rights. 6. At the outset, learned Attorney General for Pakistan had sought permission to make a preliminary submission which was to the effect that one of us (Umar Ata Bandial, CJ) ought to consider recusing himself from the Bench. Reason given in this regard was that the constitution of the Commission and in Const.P.14 of 2023, etc. 7 particular the appointment of its Chairman could not have been done by the Hon’ble Chief Justice, in view of the stated subject matter of the reference. The contention was repelled, inter alia, for the reason that it was an accepted and settled constitutional principle, acted upon several times in the constitution of Commissions whenever a sitting Judge was intended to be made a member thereof, that the permission of the Hon’ble Chief Justice of Pakistan had first to be sought. Since this power was peculiar to the said office, the incumbent for the time being of the same could neither divest himself nor be divested by the Federal Government from discharging the constitutional duty. Inasmuch as the Federal Government appeared to have acted unilaterally in this matter, a constitutional principle of the highest importance had been, prima facie, breached. We may note in this regard that even though the other two members of the Commission are Chief Justices of respective High Courts as noted above, the subject matter of the reference transcends any particular High Court and involves at the very least a sitting Judge of the Supreme Court and a Chief Justice of a third High Court. Therefore, keeping in mind the settled principles of federalism, prima facie, the aforementioned constitutional principle would apply even in regard to the other two members of the Commission and therefore, the permission of the Hon’ble Chief Justice of Pakistan was required for their appointment. Prima facie, therefore, the very constitution of the Commission is cast in doubt. In this regard reliance is placed on: a) Federation of Pakistan vs. Muhammad Akram Sheikh [PLD 1989 SC 689 @ para-28(ii) to (iv)] b) Gen.(R) Parvez Musharraf vs. Nadeem Ahmed (Advocate) & another (PLD 2014 SC 585 @ para-26) c) The President vs. Justice Shaukat Ali (PLD 1971 SC 585 @ page 605) d) Malik Asad Ali vs. Federation of Pakistan (PLD 1998 SC 161 @ para 66) Const.P.14 of 2023, etc. 8 7. In view of the above, let notice be issued to the respondents in all petitions. Notice be also issued to the learned Attorney General for Pakistan in terms of Order XXVIIA of the Civil Procedure Code. 8. CMA NO.3663 OF 2023 IN CONST.P.14 OF 2023. Learned counsel for the petitioner also prayed for interim relief since the Commission has already started functioning and has made an order on 22.05.2023 and the next meeting of the Commission is scheduled for 27.05.2023. In the circumstances, till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19.05.2023 issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed. To come up on 31.05.2023. Sd/- Chief Justice Sd/- Judge Sd/- Judge Sd/- Judge Islamabad 26.05.2023 Sd/- Judge APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Maqbool Baqar Mr. Justice Manzoor Ahmad Malik Mr. Justice Faisal Arab Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed CONSTITUTION PETITION NO.17 & 19 OF 2019 & C.M.A. NO.7417 OF 2019 IN CONST. P. 19 OF 2019 & CONSTITUTION PETITION NO.20-30, 32 & 34 OF 2019. Justice Qazi Faez Isa … Petitioner(s) (in Const.P.17/2019) Supreme Court Bar Association thr. its President … Petitioner(s) (in Const.P.19/2019) Abid Hassan Minto & another … Petitioner(s) (in Const.P.20/2019) Pakistan Bar Council thr. its Vice Chairman … Petitioner(s) (in Const.P.21/2019) Abdul Basit, President High Court Bar Association, Quetta. … Petitioner(s) (in Const.P.22/2019) Muhammad Asif Reki, President Quetta Bar Association … Petitioner(s) (in Const.P.23/2019) Sindh High Court Bar Association thr. its President … Petitioner(s) (in Const.P.24/2019) Balochistan Bar Council thr. its Vice Chairman Haji Atta Ullah Langove … Petitioner(s) (in Const.P.25/2019) Sindh Bar Council thr. it Secretary … Petitioner(s) (in Const.P.26/2019) Const. P.17 of 2019, etc. 2 Hafiz Abdur Rehman Ansari, ASC … Petitioner(s) (in Const.P.27/2019) Karachi Bar Association through its President & other … Petitioner(s) (in Const.P.28/2019) KPK Bar Council through its Vice Chairman … Petitioner(s) (in Const.P.29/2019) Peshawar High Court Bar Association thr. its President … Petitioner(s) (in Const.P.30/2019) Shahnawaz Ismail, Vice Chairman Punjab Bar Council … Petitioner(s) (in Const.P.32/2019) Pakistan Federal Union of Journalists (PFUJ) thr. its President … Petitioner(s) (in Const.P.34/2019) VERSUS The President of Pakistan and others …Respondent(s) (in Const.P.17, 19, 21-25, 27-30, 32 & 34 of 2019) The Supreme Judicial Council thr. its Secretary and others … Respondent(s) (in Const.P.20&26/2019) Const. P. No.17 of 2019. For the petitioner(s) : Mr. Munir A. Malik, Sr. ASC. Mr. Salahuddin Ahmed, ASC. Ch. Atif Rafiq, ASC. assisted by Barrister Kabir Hashmi. Syed Kazim Hassan, ASC. (through video link from Karachi). Const. P. No.19 of 2019. For the petitioner(s) : Mr. Hamid Khan, Sr. ASC. assisted by: Mr. Naseebullah Tareen, ASC. Mr. Munir Kakar, ASC. Mr. Ajmal Ghaffar Toor, Advocate. Syed Qalb-e-Hassan, ASC. Mr. Amanullah Kanarani, ASC. Mr. Rasheed A. Rizvi, Sr. ASC. (through video link from Karachi). Const. P.17 of 2019, etc. 3 Const. P. No.20 of 2019. For the petitioner (s) : Nemo. Const. P. No.21 of 2019. For the petitioner (s) : Sardar Muhammad Aslam, ASC. Syed Rifaqat Hussain Shah, AOR. Const. P. No.22 of 2019. For the petitioner (s) : Mr. Naseebullah Tareen, ASC. Const. P. No.23 of 2019. For the petitioner (s) : Mr. Hamid Khan, Sr. ASC. assisted by: Mr. Naseebullah Tareen, ASC. Mr. Munir Kakar, ASC. Mr. Ajmal Ghaffar Toor, Advocate Sh. Ahsan-ud-Din, ASC. Const. P. No.24 of 2019. For the petitioner (s) : Mr. Rashid A. Rizvi, Sr. ASC. (through video link from Karachi). Mr. Qasim Mir Jat, AOR. Const. P. No.25 of 2019. For the petitioner (s) : Mr. Hamid Khan, Sr. ASC. assisted by: Mr. Naseebullah Tareen, ASC. Mr. Munir Kakar, ASC. Mr. Ajmal Ghaffar Toor, Advocate Mr. Rashid A. Rizvi, Sr. ASC. (through video link from Karachi). Const. P. No.26 of 2019. For the petitioner (s) : Mian Raza Rabbani, Sr. ASC. Mr. Saalim Salim Ansari, ASC (through video link from Karachi). assisted by: Mr. Zeeshan Abdullah, Adv. Const. P.17 of 2019, etc. 4 Const. P. No.27 of 2019. For the petitioner (s) : Mr. Taufiq Asif, ASC. Syed Rifaqat Hussain Shah, AOR. Const. P. No.28 of 2019. For the petitioner (s) : Mr. Rashid A. Rizvi, Sr. ASC. (through video link from Karachi). Const. P. No.29 of 2019. For the petitioner (s) : Syed Iftikhar Hussain Gillani, Sr. ASC. Assisted by: Barrister Saad M. Buttar & Barrister Jibran Gillani. Const. P. No.30 of 2019. For the petitioner (s) : Syed Iftikhar Hussain Gillani, Sr. ASC. Assisted by: Barrister Saad M. Buttar & Barrister Jibran Gillani. Const. P. No.32 of 2019. For the petitioner (s) : Mr. Hamid Khan, Sr. ASC. assisted by: Mr. Naseebullah Tareen, ASC. Mr. Munir Kakar, ASC. Mr. Ajmal Ghaffar Toor, Advocate. Const. P. No.34 of 2019. For the petitioner (s) : Mr. Rashid A. Rizvi, Sr. ASC. (through video link from Karachi). For respondents (2&8) : Dr. Farogh Naseem, Sr. ASC. a/w Ch. Ishtiaq Ahmed Khan, Addl. AG Mr. Sajeel Sheryar Swati, ASC. assisted by: Barrister Maleeka Ali Bukhari Ch. Hasssan Murtza Mann, Adv. Mr. Shahid Naseem Gondal, Adv. For respondents No. 1 : Mr. Sohail Mehmood, DAG. For respondent No.3 : Mr. Aamir Rehman, Addl. AG. For respondent No. 4 : Mr. Irfan Qadir, ASC (through video link from Lahore) Const. P.17 of 2019, etc. 5 For respondent No.9 : Dr. Khalid Ranjha, ASC. a/w Mr.Sajeel Sheryar Sawati, ASC. For Supreme Judicial Council : Khawaja Daud Ahmad, Secretary SJC. Date of hearing : 19.06.2020. O R D E R For detailed reasons to be recorded later and subject to any orders made or directions given therein (if any), these petitions are allowed and disposed of in the following terms: 1. Subject to what is stated below, the Order of the Court is that Reference No. 1 of 2019 is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council (“Council”) against the Petitioner in CP 17/2019 (including the show-cause notice dated 17.07.2019 issued to him) stand abated. 2. Mr. Justice Yahya Afridi dismisses CP 17/2019 and disposes of the other petitions in terms as stated in para 1 herein above. 3. Mr. Justice Umar Ata Bandial, Mr. Justice Manzoor Ahmad Malik, Mr. Justice Faisal Arab, Mr. Justice Mazhar Alam Khan Miankhel, Mr. Justice Sajjad Ali Shah, Mr. Justice Munib Akhtar and Mr. Justice Qazi Muhammad Amin Ahmed make the following orders as the further Order of the Court (paras 4 to 11 herein below): 4. Within 7 days of this Order, the concerned Commissioner of Inland Revenue shall himself (and not some other officer exercising delegated powers) issue appropriate notices under the Income Tax Ordinance, 2001 (“2001 Ordinance”) to the spouse and children of the Petitioner Const. P.17 of 2019, etc. 6 to offer an explanation regarding the nature and source of the funds (separately for each property) whereby the three properties in the United Kingdom (viz., No. 40, Oakdale Road, London E11 4DL; No. 90, Adelaide Road, London E10 5NW; and No. 50, Coniston Court, Kendal Street, London W2 2AN) that are in the names of the spouse and the children were acquired. For purposes of this Order the Commissioner Inland Revenue having jurisdiction over the spouse of the Petitioner (who must be a Commissioner exercising jurisdiction and performing functions at Islamabad) shall be deemed also to be the Commissioner having jurisdiction over the children. (The spouse and children are herein after referred to as “the respondents”.) Any notices issued or proceedings taken (or proposed to be issued or taken) under the 2001 Ordinance in relation to any of the respondents in respect, or on account, of the properties aforesaid prior to the date of this Order stand terminated forthwith. 5. The notices shall be served at the official residence of the Petitioner at Islamabad through courier service and such other means as may be considered appropriate and shall be deemed served on the respondents when received at the said address. 6. The respondents shall furnish their replies to the notices along with such material and record as is deemed appropriate. In case any of them is outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non- availability in Pakistan of such person. 7. Upon receipt of the replies (and of such additional material/record as may be filed in response to such clarification or explanation, if any, as the Commissioner may, in writing, have sought), the Commissioner shall give an opportunity of hearing to the respondents in Const. P.17 of 2019, etc. 7 person or through an authorized representative/counsel and shall thereupon make an order in accordance with the 2001 Ordinance. 8. The proceedings shall be concluded before the Commissioner within 60 days of the date of receipt of the notices as aforesaid, and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given as affects or extends the aforesaid periods. 9. Within 7 days of the issuance of the order by the Commissioner, the Chairman, Federal Board of Revenue (“FBR”) shall submit a report (to be personally signed by him) to the Council through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings as aforesaid, appending thereto the entire record of the said proceedings. The Secretary shall forthwith place such report before the Chairman of the Council (i.e., the Hon’ble Chief Justice of Pakistan) who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine. The receipt of the report, the laying of it before the Council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the Council. 10. If, within 100 days from the date of this Order, no report as aforesaid is received by the Secretary from the Chairman, FBR, he shall inform the Chairman of the Council accordingly and shall, if so directed by him, write to the Chairman, FBR requiring an explanation as to why the report has not been received. If in reply the report is filed, then the matter shall proceed in terms of para 9 Const. P.17 of 2019, etc. 8 herein above. If a reply is received without the report or no reply is received, then the Secretary shall bring such fact to the attention of the Chairman of the Council who may direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner (or any other person as deemed appropriate) as the Council may determine. The action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the Council. Without prejudice to the foregoing, if at any stage the report is received from the Chairman, FBR, then the matter shall in any case proceed (or be deemed to proceed, as the case may be) in terms of para 9 herein above. 11. For the removal of any doubts, it is clarified that any of the proceedings under the 2001 Ordinance as herein contemplated on the one hand, and before the Council in terms of paras 9 or 10 herein above on the other, are distinct and separate from each other. Accordingly, nothing contained in this Order shall affect or prejudice the right(s) of appeal of any of the respondents under the 2001 Ordinance, if they feel aggrieved by the order made by the Commissioner or (as the case may be) any order made or decision taken at any appellate stage. Any such appeal(s) shall be decided on the merits, in accordance with the 2001 Ordinance. At the same time (and needless to say), the consideration by the Council of any matter placed before it under either paras 9 or 10 herein above shall not be affected by the filing or pendency of any appeal as aforesaid. But the Council may, if it deems appropriate, notice such appellate proceedings or orders/decisions and may (for purposes only of the matter before it) make such orders or give such directions in relation thereto as it deems appropriate. Const. P.17 of 2019, etc. 9 12. Mr. Justice Maqbool Baqar, Mr. Justice Mansoor Ali Shah and Mr. Justice Yahya Afridi join in the Order of the Court only to the extent of para 1 herein above, and also make their own order. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE Const. P.17 of 2019, etc. 10 Order per Maqbool Baqar, Syed Mansoor Ali Shah and Yahya Afridi, JJ. 13. For the reasons to be recorded later and without limiting our jurisdiction in any manner to appropriately enlarge the scope of or make appropriate declarations and directions in the detailed judgment, subject to para 15 hereunder, we hold the above petitions maintainable and allow the same. One of the outcomes of such declaration is that the Reference filed by the President of Pakistan against the Petitioner (Mr. Justice Qazi Faez Isa) is quashed, and as a result the proceedings alongwith the Show Cause Notice issued by Supreme Judicial Council stand abated. 14. One of our pivotal Constitutional values is that the independence of judiciary shall be fully secured. The same Constitution also ordains that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Therefore, it is reiterated that in our constitutional democracy, neither the petitioner judge, nor any other judge, or any individual or any institution, is above the law. The doors of the constitutional forum i.e., Supreme Judicial Council are always open, either on its own motion or for anyone who has a genuine and a bonafide grievance, amenable to the jurisdiction of the Council against a Judge of the Constitutional Court. At the same time, it is equally important, that a Judge like any other citizen of Pakistan enjoys the inalienable constitutional right to be treated in accordance with law. These fundamental values are to be protected at all cost in order to uphold the majesty and supremacy of the Const. P.17 of 2019, etc. 11 Constitution and to honour the people of Pakistan who have adopted and given to themselves this Constitution. 15. Yahya Afridi, J. has however found Constitutional Petition No. 17/2019 as non-maintainable. Maqbool Baqar, J. Syed Mansoor Ali Shah, J. Yahya Afridi, J. Islamabad 19.06.2020. APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE KHILJI ARIF HUSSAIN Suo Moto Case No. 18 of 2010 (Suo moto action regarding violation of Public Procurement Rules, 2004 in procurement loss of billions of rupees to public exchequer caused by National Insurance Company Ltd.) On Court Notice Maulvi Anwar-ul-Haq, AGP Captain (R) Zafar Ahmed Qureshi, Additional D.G. FIA. Date of Hearing: 07.07.2011 ORDER Learned Attorney General placed on record the following:- (i) Notification dated Ist of July, 2011, a perusal whereof indicates that members of the investigation team working under the supervision of Captain (R) Zafar Ahmad Qureshi, Additional Director General, FIA, were transferred to different places. It is worth noting that Captain (R) Zafar Ahmad Qureshi and his team had succeeded in making breakthrough in the NICL scandal case as a result whereof Rs. 1.75 billions belonging to national ex-chequer had been recovered. They had also succeeded in collecting evidence to the effect that out of the alleged amount of NICL scam, a considerable amount has been deposited in the United Kingdom. They had collected this evidence Suo Moto Case No. 18 of 2010 2 through Mirza Sultan Baig, Deputy Director, FIA through Serious Criminal Issues Agency. No sooner the order was passed by this Court on Ist of July, 2011 suspending the notification dated 18th of April, 2011 in pursuance whereof Mr. Zafar Ahmad Qureshi, Additional Director General FIA was disassociated from the investigation, his team members were transferred although in the said order Director General FIA was directed “to extend all necessary assistance to Captain (R) Zafar Ahmad Qureshi for carrying out investigation of the cases registered at Lahore in respect of N.I.C.L scam and any other matter connected and related thereto in terms of earlier notification dated 24.1.2011 issued by the Establishment Division.” This order was dictated in the presence of Muhammad Azam, Director FIA and copy thereof was also served upon the Director General, FIA by the Implementation Branch of this Court. Despite of this, following persons out of the investigating team of Captain (R) Zafar Ahmad Qureshi have been transferred as per notification dated 1.7.2011:- (1) Dr. Javed Hussain, Deputy Director (BS-18). (2) Mr. Muhammad Ahmed, Assistant Director (BS-17). (3) Mr. Khalid Anees, Assistant Director (BS-17). (4) Mr. Muhammad Sarwar, Inspector (BS-16). Prima facie, we are of the opinion that transfer of above named officers had taken place in order to undermine the authority of this Court and to influence the course of investigation which Suo Moto Case No. 18 of 2010 3 is in clear violation of the directions of this Court. Had the transfer of those officers taken place in the ordinary course of manner, we would have not questioned the same but in the background of the case, details of which have been mentioned in the earlier order dated Ist of July, 2011, it seems that in order to prevent those officers from performing duties according to their conscience, with honesty and dedication and in order to keep them away from the NICL scam, they were transferred. We, therefore, direct the Director General, FIA, through learned Attorney General, to reverse the transfer orders of the afore-named officers/members of the investigating team of Captain (R) Zafar Ahmad Qureshi immediately and post them at the places where they were earlier performing their duties, pending decision of this matter. (ii) Learned Attorney General has also placed on record order of suspension of Captain (R) Zafar Ahmad Qureshi dated 4th of July, 2011 and as directed also provided copy of explanation dated 2nd of July, 2011, in pursuance whereof Captain (R) Zafar Ahmad Qureshi was called upon by the Joint Secretary (Establishment) to explain within 24 hours of the receipt of explanation about the allegations that he had written a letter to Director General FIA to the effect that transfer order of various officers of FIA by him are irregular and illegal and had asked the Director General, FIA to withdraw the said order forthwith. It was further alleged in the letter dated 2.7.2011 that this news was also flashed in the electronic media on the evening of 2nd of July 2011 but he failed to Suo Moto Case No. 18 of 2010 4 contradict the same giving the impression that the said news reports were correct. Mr. Zafar Ahmed Qureshi was directed to submit his explanation within 24 hours whereas under the E&D Rules, 1973, such explanation is to be called for by a competent authority or an authorized officer within the minimum period of seven days and maximum 14 days. At this stage, learned Attorney General submitted that the explanation was not issued under rule 6 of the E&D Rules, 1973, therefore compliance of this was not mandatory. However, explanation was called to know about the stand of the officer. This explanation was followed by suspension order of 4th of July, 2011. It seems, prima facie, that an attempt has been made not to allow Mr. Zafar Ahmed Qureshi to continue the investigation of the case of NICL inasmuch as the accused persons who are outside the country have not been brought back as yet nor interim challans against them have been submitted in those cases, nor the alleged amount deposited by them outside the country has been brought back. In this scenario, Mr. Zafar Ahmed Qureshi was required to continue with the investigation of the case and also to further probe the matter in depth because allegedly in the province of Punjab, there is a scam of Rs. 5.00 billions and so far Rs. 1.74 billions have been recovered. It is also pertinent to note here that some of the reputed newspapers of print media including ‘The News International’, ‘Dawn’, ‘Express Tribune’ and ‘The Nation’ etc had widely published this Suo Moto Case No. 18 of 2010 5 news. Some of the newspapers have also written editorials in this behalf, perusal whereof indicates that perhaps on account of some political intervention, action against Mr. Zafar Ahmed Qureshi had been taken and he was placed under suspension. There are also serious allegations against the Interior Minister to the effect that he had summoned the officer and, according to the reports in the newspapers, had given him following four options which allegedly are: (i) leave the country immediately; (ii) go on a long leave; (iii) tell the Supreme Court in writing that he cannot continue with NICL investigation for personal reasons; and (iv) if all the three are not possible then bail out Ch. Monas Elahi son of Ch. Pervez Elahi, the new coalition partner of PPP government. This news item was published in the ‘The News International’ on 5th of July, 2011. This statement was contradicted but ‘The News’ stands by its story. When we confronted the learned Attorney General with the above news material appeared in various newspapers, etc., he stated that some time be given to him to seek instructions. We have informed him that this is a very grave and serious matter and has its own repercussions and that this Court, otherwise, would be appointing some retired Judge of this Court or of the High Court who would probe in to the matter, record evidence and thereafter would give findings. Suo Moto Case No. 18 of 2010 6 Prima facie, we are of the opinion that a person who has stood for rule of law and has been performing his duties with commitment and dedication in compliance with the directions of this Court is being punished just for doing the right job. We enquired from the learned Attorney General as to whether any proceedings have been started against Mr. Zafar Ahmad Qureshi to which he stated that so far an authorized officer has been appointed and till he takes instructions, departmental proceedings against Captain (R) Zafar Ahmad Qureshi will not be undertaken. Order accordingly. The case is adjourned for 13th of July, 2011. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 7th of July, 2011. Khurram Anis

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Maqbool Baqar Mr. Justice Faisal Arab CONSTITUTION PETITION NO. 18 OF 2019 (Transfer of cases from Sindh High Court, Karachi and Lahore High Court, Lahore to Islamabad High Court) Altaf Ibrahim Qureshi and another … Petitioner(s) VERSUS Aam Log Ittehad & others … Respondent(s) For the petitioner(s) : Mian Abdul Rauf, ASC. Respondent No.2 : In-person Date of hearing : 26.09.2019 O R D E R UMAR ATA BANDIAL, J. This petition under Article 186A of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) seeks the transfer, inter alia, of a petition bearing Constitution Petition No.D-444 of 2019, titled Aam Loeg Ittehad and another vs. The Election Commission of Pakistan and others from the Sindh High Court where it is pending to the Islamabad High Court. The said petition prays for the disqualification of four Members of the Election Commission of Pakistan (“ECP”) including the two petitioners. It is claimed therein that the petitioners’ Const.P.18 of 2019. 2 appointment as Members of the ECP was made contrary to Article 207(2) of the Constitution prior to the expiry of two years after they ceased to hold the office of a Judge of the High Court. Learned counsel for the petitioners objects that one of the requirements for entertaining such a challenge to the qualification to an incumbent of public office under Article 199(1)(b)(ii) of the Constitution is that the disputed office holder should be a person available within the territorial jurisdiction of the Court. As the petitioners work at the principal office of the ECP in Islamabad, therefore, the learned Sindh High Court is claimed to lack jurisdiction in the matter. 2. The Constitution Petition No.D-444 of 2019 was filed in the Sindh High Court on 29.12.2018. Notices to the petitioners, who are impleaded as respondents No.3 & 4 therein, were issued and on 23.04.2019. Ms. Rohaila Nazar, Advocate filed Waqalat Nama of Mian Abdul Rauf, ASC, Islamabad on behalf of the respondent No.4, who is petitioner No.1 before us. On 07.05.2019 Mr. Safdar, Advocate filed his Waqalat Nama on behalf of the respondent No.3 who is petitioner No.2 before us. Thereafter, Mr. Safdar, Advocate appeared in the High Court on 28.05.2019 on behalf of both the petitioners before us. However, on 10.06.2019 and the subsequent dates of hearing, Ms. Rohaila Nazar, Advocate appeared for respondent No.3 & 4 whilst holding the brief for Mian Abdul Rauf, ASC. Const.P.18 of 2019. 3 3. At one stage of the proceedings, arguments of the petitioners were concluded on 27.06.2019 by the learned counsel for the petitioners in Constitution Petition No.D-444 of 2019 but on 28.06.2019, the matter was adjourned to 19.08.2019 after the vacations. Thereafter, the matter was fixed before another learned Bench and arguments by the learned counsel for the petitioners in Constitution Petition No.D-444 of 2019 were addressed again on 19.08.2019, 27.08.2019 and 28.08.2019. On all these dates of hearing, the petitioners before us (respondents No.3 and 4 in Constitution Petition No.D-444 of 2019) were not represented by their appointed counsel but by his proxy, Ms. Rohaila Nazar, Advocate, who did not hold a Waqalat Nama of either of the petitioners before us. We are informed by the respondent No.2 that the submissions by counsel for the two other challenged members of ECP were addressed on 28.06.2019 and 02.09.2019 when Ms. Rohaila Nazar, Advocate adopted those arguments on behalf of the petitioners before us. At the end of the arguments on 02.09.2019, the learned Bench of the High Court reserved their judgment in the matter. 4. Learned counsel for the petitioners urges that the judgment in the case has been reserved without grant of hearing to the petitioners. The respondent No.2 has responded that notwithstanding a clear direction that the arguments in the matter shall be heard, the learned counsel for the petitioners did not show up even once throughout the Const.P.18 of 2019. 4 proceedings and he was represented by a person holding his brief. It is in the said circumstances that the learned counsel for the petitioners pleads for the Constitution Petition No.D- 444 of 2019 pending before the Sindh High Court be transferred to the Islamabad High Court. 5. Although comments by the petitioners were filed in the Constitution Petition No.D-444 of 2019, however, it is apparent that their counsel never attended such proceedings on their behalf. In the ordinary course, the learned High Court Bench would have in such a situation, issued a direction to the learned counsel to attend the proceedings to argue his case failing which the matter would be decided in his absence. This was not done; instead, it appears that the Bench treated Ms. Rohaila Nazar, Advocate as the counsel for the petitioners and closed the hearing after her statement adopting the arguments by the counsel for the respondents No.2 & 5. These respondents are the two other members of the ECP who are disputed in Constitution Petition No.D-444 of 2019. On that basis the hearing was closed and the judgment was reserved. 6. We notice that the present petition is filed to overcome the consequence of default in appearance by the learned counsel for the petitioners before the Sindh High Court. Otherwise, the petitioners’ objection to the alleged lack of jurisdiction of the Sindh High Court in Constitution Petition No.D-444 of 2019 has already been taken in their pleadings/comments filed in the Court. That objection has also Const.P.18 of 2019. 5 been argued on behalf of the two other disputed Members of the ECP. Therefore, it is premature and inappropriate for us to hear that objection presently because the High Court seized of the matter shall soon be pronouncing its judgment thereon. However, such judgment when delivered shall lack the attribute of being passed after grant of an opportunity of a hearing to the petitioners. The absence of an opportunity being granted expressly is a deficiency that would seriously impair the effectiveness of the judgment. The right of hearing of a party to a lis is one of the fundamental principles of our jurisprudence which is guaranteed by Article 10A of the Constitution in its assurance of a “fair trial and due process” to a litigant. Accordingly, on the one hand, for the lack of an express opportunity of exercising such a right being expressly granted to the petitioners before us (respondents No.3 & 4 in the proceedings of Constitution Petition No.D-444 of 2019) and on the other hand, for the default of the petitioners to produce their counsel for making submissions before the Sindh High Court, we observe that it would suffice if the learned High Court Bench that has reserved the judgment may whilst writing the same take into consideration written submissions that are filed on behalf of the petitioners on or before 30.09.2019. These written submissions shall not include any new material or plea. In case the petitioners do not file their submissions on or before such date in the office of the Registrar of the High Court of Sindh (for their placement on Const.P.18 of 2019. 6 the case file of Constitution Petition No.D-444 of 2019), the learned High Court Bench that has heard the matter may forthwith proceed to announce its judgment at an early date. This petition stands disposed of in above terms. JUDGE JUDGE Islamabad, 26.09.2019. Irshad Hussain /* JUDGE NOT APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, HCJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CONSTITUTION PETITION NO.19 OF 2022 (Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 for enforcement of fundamental rights contained in the Constitution for the protection of the citizen of Pakistan) & CIVIL MISC. APPLICATION NO. 3447 OF 2022 (Application filed by Attorney General for Pakistan) Islamabad High Court Bar Association through its President Muhammad Shoaib Shaheen, Islamabad … Petitioner(s) Versus Federation of Pakistan through Secretary Ministry of Interior, Islamabad and others … Respondent(s) For the Petitioner : Mr. M. Shoaib Shaheen, ASC a/w Ch. Ishtiaq Ahmed Khan, ASC Mr. Niaz ullah Khan Niazi, ASC Syed Rifaqat Hussain Shah, AOR On Court’s call : Mr. Ashtar Ausaf Ali, A.G.P. Ch. Aamir Rehman, Addl. A.G.P. Assisted by: Mr. Munawar Iqbal Duggal, ASC Barrister M. Usama Rauf, Adv. Mr. Jehangir Jadoon, A.G, ICT Barrister Qasim Ali Chohan, Addl. A.G., Punjab Const. P.19/2022 -:2:- Mr. Ayaz Khan Swati, Addl. A.G., Balochistan Mr. Salman Talib-ud-Din, A.G., Sindh (V.L Karachi) Mr. Fauzi Zafar, Addl. A.G., Sindh Mr. Shumail Butt, A.G., KP. Mr. Atif Ali Khan, Addl. A.G., KP. (V.L Peshawar) Mr. Yousaf Naseem Khokhar, For PTI : Dr. Babar Awan, Sr. ASC Mr. Fasil Fareed, ASC a/w Mr. M. Ali Bokhari, ASC Date of Hearing : 26.05.2022 O R D E R UMAR ATA BANDIAL, CJ. In a petition filed by the Islamabad High Court Bar Association under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”), it was complained that in anticipation of a protest march into Islamabad by the workers of a political party on 25.05.2022, the Federal Government had blocked highways to and roads within the Capital to prevent entry and movement of the protestors. As a result the general public was prevented from conducting their daily lives contrary to the guarantees under Article 9 and Article 15 of the Constitution. As explained later, after being conveyed the assurances by the top party leadership that a peaceful Const. P.19/2022 -:3:- assembly will take place at a specific venue in Islamabad, a learned three Member Bench directed all concerned Executive authorities to prepare the venue including providing security for the holding of the rally. Likewise, all protesting political workers were directed to disengage and remain peaceful. These directions were issued by the order of the learned Bench passed at about 6:00 pm on 25.05.2022. 2. Later, an application being CMA No. 3447 of 2022 was filed at about 10:30 pm on 25.05.2022 by the learned Attorney General for Pakistan (“AGP”). It alleged that the Pakistan Tehreek-e-Insaf (“PTI”) leadership, in particular its Chairman Mr. Imran Khan, had contrary to his assurances given to the Court directed his party members and supporters to march into Islamabad and reach D-Chowk located in the sensitive Red Zone area of the Capital. He has read from the order of this Court passed on 25.05.2022. The Court had directed Dr.Babar Awan, Sr. ASC and Mr. Faisal Fareed, ASC appearing for the PTI leadership to seek assurance from their client that PTI workers/supporters would remain peaceful and follow the guidelines issued by the Court from time to time. That they will neither obstruct road traffic or cause damage to private/public property nor take the law into their own hands. In this respect the two learned counsel on instructions from the top leadership of PTI gave a categorical Const. P.19/2022 -:4:- assurance that the party rally would neither block the Sirinagar Highway nor otherwise cause inconvenience to the public and citizens at large and that their rallies shall be conducted in a peaceful and lawful manner without causing any damage to public or private property. 3. In view of these commitments, the Court by its aforesaid order passed on 25.05.2022 directed the Chief Commissioner, Islamabad Capital Territory (“ICT”) to provide the ground located in the area between Sectors H-9/G-9 of Islamabad for the political rally; and also directed the Inspector General of Police (“IGP”), ICT to forthwith take measures including making security arrangements to prepare the venue for holding the PTI rally. Furthermore, the Court directed that the lawyers and other persons reportedly placed under arrest in raids conducted without any complaint or FIR being recorded against them shall be released from custody forthwith. The AGP undertook that houses, offices and private premises shall neither be raided in an attempt to arrest nor shall political workers or supporters of PTI or any other political party be arrested unless an FIR was lodged against them or the commission of any heinous or cognizable offence by them was suspected. Accordingly, a direction in the said terms was issued by the Court. Finally, the Court recorded its expectation that the top leadership of all concerned political Const. P.19/2022 -:5:- parties shall direct their workers and supporters to remain calm, disengage and not to create law and order situation under any circumstances. Equally, it was noted that the top functionaries of the Government including the Interior Ministry shall ensure that excessive or disproportionate use of force against the political workers is discontinued immediately. 4. In the foregoing background the AGP argued that having agreed to hold the PTI rally at the ground in the H-9/ G-9 area of Islamabad as recorded by the order of the Court, Mr. Imran Khan shortly thereafter instructed PTI supporters to reach D-Chowk in the Red Zone of Islamabad. To establish this retraction a video recording of Mr. Imran Khan’s statement made after the passing of the above said order was played on the multimedia screen before the Court. He contended that in the above circumstances, Mr. Imran Khan appears to have invited his supporters to dishonor the assurance given on his behalf to the Court. As a result, private and public properties were damaged and destroyed. Some trees in the greenbelt of Blue Area of Islamabad were put on fire. 31 Police Officers were injured by the stones pelted by the crowd and Article 245 of the Constitution had to be invoked in the middle of the night by calling the armed forces in aid of civil power. The learned AGP accordingly Const. P.19/2022 -:6:- requested the Court to take action against Mr. Imran Khan for breach of his assurances given to the Court. 5. Finally, the AGP informed that Mr. Imran Khan had issued a statement this morning at a location on Jinnah Avenue (leading to D-Chowk) that after witnessing the teargas shelling by the law enforcement agencies he will not proceed with the sit-in at D-Chowk. He gave six days’ time to the Government to dissolve the assemblies and announce a date for elections. 6. The Court views the foregoing events with concern. It is apparent that the assurances conveyed to the Court by the learned counsel for the top leadership of the PTI may have been dishonored by the workers/supporters/sympathizers of the party by proceeding to the D-Chowk in the Red Zone area and by allegedly committing acts of arson and destruction of public and private properties on the way. However, we note that in the early morning today Mr. Imran Khan reached Jinnah Avenue leading to D-Chowk and announced the postponement of his sit-in at Islamabad for six days. As a result, further damage to property or injury to human life has been averted. 7. Nevertheless, there remains the lurking question whether the responsibility for the events of yesterday evening comprising reckless acts of mob anger can be blamed upon Const. P.19/2022 -:7:- the senior leadership of the PTI. So far there is no evidence or allegation that such acts were committed on the instigation of any party or happened randomly. At its most elementary level the PTI leader appears to have assured the holding of a political rally at the G-9/H-9 ground and therefore not to assemble and sit in another venue including at D-Chowk in G-5 Islamabad. However, the AGP claims that the PTI workers and supporters moved forward to the D-Chowk area in response to the call made by their leader. Notwithstanding the said request by the AGP, we exercise restraint for the time being for a number of reasons. Firstly, Mr. Imran Khan has called off the rally/public meeting. That gives a recess to the charged mob witnessed last night. Secondly, prudence advises that time be given for sanity to prevail among the stakeholders. In any event, facts and materials need to be collected to establish the sequence of events, the identity of the perpetrators and of the instigators, if any. At this stage therefore it is directed that the IGP ICT, the Chief Commissioner ICT, the Secretary Ministry of Interior, the Director General Intelligence Bureau, the Director General ISI shall file reports answering, inter alia, the following questions: a) At what time did Mr. Imran Khan make the announcement for party workers to reach D- Chowk? b) When, where and how did the crowd cross the barricade to enter a hitherto closed area? Const. P.19/2022 -:8:- c) Was the crowd entering the Red Zone organized or supervised or did it move randomly? d) Were there any acts of provocation or breach of assurance by the Government? e) Was any action or treatment meted out by the ICT police against the protesters disproportionate to the actual or perceived wrong committed by the protesters? f) How many protesters managed to enter the Red Zone? Which security arrangements, if any, were relaxed by the Executive authorities? Whether any security barrier cordons were broken or breached by protestors? Did any protestor/party worker reach the G-9/ H-9 ground? g) How many civilians were injured/killed/ hospitalized/arrested? The said reports shall be filed within one week for perusal in chambers by the learned members of this larger Bench. 8. There is need for verification of, inter alia, factual aspects of the events that occurred in order for the Court to evaluate and decide whether action for violation of assurances/undertaking given to the Court and recorded in our order dated 25.05.2022 ought to be initiated and against whom. It may be observed that the disregard of assurances/ undertakings given to the Court involves separate proceedings from the present one. Therefore, the prayer made by the learned AGP in these proceedings is misconceived. Accordingly, CMA No.3447 of 2022 is dismissed. For independent proceedings to be maintained, relevant and credible material must be presented to the Court for it to Const. P.19/2022 -:9:- assess whether there are valid grounds to justify appropriate action against the offending persons, if any. 9. Be that as it may, our order dated 25.05.2022 issues directions to the Government authorities to protect the constitutional rights of the people of Pakistan as guaranteed in Article 15, which secures the right of free movement, and Article 16, which protects their right of freedom of assembly. These constitutional provisions are to be read in conjunction with the most crucial right guaranteed by the Constitution, namely, the right to life. The violation of the right to life of citizens under Article 9 of the Constitution caused by the arrest of hundreds of political workers across the country without recording FIRs or serving detention orders were accordingly quashed by our aforesaid order as a protective measure under the Constitution. However, it must be understood that each of the foregoing fundamental right is subject to corresponding qualifications. The provisions of Articles 9, 15 and 16 of the Constitution may be read to appreciate the point. The right to life and liberty is interpreted widely and the same cannot be interfered except as authorized by law. Likewise, the freedom of movement can be subjected to reasonable restrictions imposed by law in the public interest. The freedom of assembly may be regulated by similar restrictions applied in the interest of public order. The Const. P.19/2022 -:10:- foregoing limitations on the rights granted by the Constitution empower the State to take only such reasonable, proportionate and lawful action that is necessary in aid of public interest and public order so that public place, public life and property are not disturbed, disrupted or destroyed. 10. By acting upon assurances given on behalf of the top leadership of PTI and issuing directions to the Government, our order dated 25.05.2022 created a balance between the mutual rights and obligations of the protesting people, the ordinary public and the duties of the State. This balance was recorded in good faith by the Court whilst trusting the representations made on behalf of the two opposing parties before it. We are disappointed to note that the bona fide effort made by the Court was disrespected. Although it was meant to create harmony between the two opposing sides for the sake of protecting public interest and the constitutional rights of the people, such order was passed by trusting the representations made and assurances given to the Court. The judicial trust reposed by the Court on the parties before it confers moral legitimacy and authority upon their actions. The resulting high moral ground lends credibility to the entitlement and to the propriety of actions taken by such parties. In the present case, to say the least, the moral high ground held by the parties has diminished Const. P.19/2022 -:11:- because public rights, interests, and property of the disinterested public have been breached and damaged badly. We expect that the high functionaries of the Executive throughout the country and the top leadership of the PTI and other political parties shall abide and settle a fair code of securing free, fair, and peaceful political activity in the country leading to the holding of the national election. It may be reiterated that whilst right of peaceful protest is a constitutional right it must be exercised subject to permission by the State. Such permission must be granted unless there are reasonable restriction imposed on valid grounds in terms of Articles 15 and 16 of the Constitution. In other words, the right of protest cannot be denied without lawful, reasonable and proportionate grounds nor can such Executive authority hamper public life or injure public or private property. [Ref: Suo Motu Case No.7 of 2017 (PLD 2019 SC 318)]. Any violation of the balance envisaged in this behalf by the Constitution and the law is cognizable by the competent Courts for enforcement. 11. In the present case, the PTI leadership and supporters have presently withdrawn from indulging in any political protest and rallies in Islamabad and the roads and pathways are open allowing for free movement of the public within and to the city. We accordingly consider that the Const. P.19/2022 -:12:- purpose of this petition filed by the Islamabad High Court Bar Association has been served and the same has borne fruit. It has therefore become infructuous. Accordingly, we dispose of the same as having become infructuous. Sd/- Chief Justice Sd/- Judge Sd/- Judge I have appended my separate note. Sd/- Judge Sd/- Judge Islamabad 26.05.2022 Irshad Hussain /* NOT APPROVED FOR REPORTING Const. P.19/2022 -:13:- Yahya Afridi, J.- I have had the privilege of reading the order authored by his lordship, the Hon’ble Chief Justice of Pakistan, and agree with the conclusion that the Constitution Petition No.19 of 2022 filed by the Islamabad High Court Bar Association has become infructuous. I also agree with the order dismissing the Civil Miscellaneous Application No. 3447/2022 filed by the learned Attorney-General for Pakistan as being misconceived. 2. Respectfully, I would like to add some observations on the maintainability of the very prayer made by the learned Attorney-General for Pakistan in his miscellaneous application. The learned Attorney-General for Pakistan has, in the application, after alleging violation of the court-order dated 25.05.2022 by the PTI leadership, made the following prayer: [T]his Court may pass prohibitory and regulatory orders so as to allow the law enforcement agencies to take action against the miscreants including but not limited to causing arrest of the miscreants. Indeed, it is a surprising prayer. The learned Attorney-General for Pakistan, who is the principal law officer of the Federal Government, has asked this Court to pass “prohibitory and regulatory orders” to maintain the law and order situation in Pakistan. The prayer made is against the very principle of trichotomy of powers enshrined in our Constitution, which has assigned separate roles to the three organs of the State: the legislature, the executive and the judicature. To maintain law and order in the country is the domain and mandate of the executive. Thus, the very prayer is contrary to the constitutional mandate and is, therefore, not legally entertainable. 3. However, with profound respect, I disagree that there is no credible material before this Court for initiating independent contempt proceedings against Mr. Imran Khan, who allegedly Const. P.19/2022 -:14:- disobeyed1 the court-order dated 25.05.2022. The video-recording of Mr. Imran Khan’s statement was played on multimedia screen in open court during the court proceedings. The said statement is reproduced hereunder: ﯽﮭﺑ ﺮھﺪﺟ ےرﺎﺳ ۔ ﮟﯿﮨ ﮯﮨر ﮭﮑﯾد ہﯾ ﯽﻧﺎﺘﺴﮐﺎﭘ ﮯﮨ ﺎﯾد ﺮﮐ ہﻠﺼﯿﻓ ﮯﻧ ٹرﻮﮐ ﻢﯾﺮﭙﺳ ہﮐ ﮯﮨ ہﯾ یﺮﺒﺨﺷﻮﺧ ﯽﺴﮐ با ہﮐ ﯽﮔ ﻮﮨ ﮟﯿﮩﻧ ٹوﺎﮐر ﯽﮐ ﻢﺴﻗﺋﻮﮐﯽ ﮍﮑھد ﮍﮑﭘ ہﮩﮐ جٓا ﻮﮐ ںﻮﯿﻧﺎﺘﺴﮐﺎﭘ ےرﺎﺳ ﮟﯿﻣﮯﯿﻟ سا ﯽﮔ ﻮﮨ ﮟﯿﮩﻧ ۔ﮟﯿﻠﮑﻧ ﯽﮭﺑ ﮟﯿﻣ ںوﺮﮩﺷ ﮯﻨﭘا مﺎﺷ جٓا ہﮐ ںﻮﮨ ﺎﮨر رواﮟﯿﻣ یﮉﻨﭘ روا دﺎﺑٓا مﻼﺳا یڈ ﮟﯾﺮﮐ ﺶﺷﻮﮐ حﺮﻃ یرﻮﭘ ﭼ ﷲ ءﺎﺸﻧا ﮟﯿﻣ ہﮑﻧﻮﯿﮐ ۔ﻮﮐ مﺎﺷ جٓا ﯽﮐ ﮯﻨﭽﻨﮩﭘ کﻮ ۔ﺎﮔ ںؤﺎﺟ ﭻﻨﮩﭘ ںﺎﮨو ﮏﺗ ھﮍﯾڈ ﮯﭩﻨﮭﮔ The above statement of Mr. Imran Khan, coupled with his conduct that followed thereafter in proceeding beyond the venue decided in the order dated 25.05.2022 for the political gathering, is in my opinion, sufficient to prima facie show that Mr. Imran Khan disobeyed the order of this Court dated 25.05.2022. 4. With profound respect, instead of calling for reports from the named officials of the State Agencies/Departments, as directed by my learned brother, I am of the opinion that there is sufficient material before this Court to proceed against Mr. Imran Khan for the alleged disobeyance of the court order dated 25.05.2022 passed in Constitution Petition No.19, which warrants the issuance of notice by this Court to Mr. Imran Khan to explain why contempt proceedings should not be initiated against him. I order accordingly. Sd/- Judge 1 Article 204 (2) (a) of the Constitution of the Islamic Republic of Pakistan, 1973.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ CONSTITUTION PETITION NO. 1 OF 2012 Mst. Rohaifa … PETITIONER VERSUS Federation of Pakistan through Secretary Ministry of Defence & others … RESPONDENTS For the petitioner: Mr. Tariq Asad, ASC On Court notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan Mr. Asadullah Chamkani, AG, KPK Imtiaz Ahmad, DSP City, Peshawar For respondent No. 1: Ch. Muhammad Yaqoob, J.S. Comdr. Muhammad Hussain Shahbaz, Director Legal, Ministry of Defence Respondents No. 2 – 4: Raja Muhammad Irshad, Sr. ASC (absent) Respondent No. 5: Not represented. Date of hearing: 10.02.2012 -.-.- ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In response to order dated 30.01.2012, four detenus, namely, CONST.P 1/2012 DT 10.02.2012 2 Dr. Niaz Ahmad, Abdul Maajid, Gulroze and Abdul Basit, reportedly admitted in the Lady Reading Hospital, Peshawar (LRH) and Mazharul Haq, Shafiqur Rahman and Muhammad Shafique who are stated to be in the Internment Centre, Para Chinar have not been produced. Raja Muhammad Irshad, Sr. ASC had filed caveat on behalf of respondents No. 2 to 4. Before Juma prayer, case was taken up and he was made to understand that the Court order has to be complied with, with a further direction to him to make arrangement for their production before the Court. 2. When the case was taken up again, in view of its importance, at about 5.00 p.m., Raja Muhammad Irshad, learned Sr. ASC was not in attendance. The learned Attorney General for Pakistan, on our query, stated that at about 3.30 p.m., the former had informed him that the detenus who were in the Internment Centre, Para Chinar could not be brought as they had to cover a long distance while travelling from Para Chinar to Islamabad and at the same time, he informed that the detenus reportedly admitted in the LRH shall also be brought along with them. The learned Advocate General, Khyber Pakhtunkhwa is also present in Court. He was asked to explain that if the statement/information so recorded by them is accepted to be correct, it means that the detenus are in the custody of the Civil Administration because the persons who are in the Internment Centre, Para Chinar cannot be kept over there without the sanction of the competent authority/Governor, Khyber CONST.P 1/2012 DT 10.02.2012 3 Pakhtunkhwa. Similarly, the detenus in the LRH are in a civil hospital, therefore, the Civil Administration ought to have inquired about their detention over there. Imtiaz Ahmad DSP City, Peshawar appeared and stated that he had no knowledge of the admission/detention of the four above named persons in the LRH. Be that as it may, on the last date of hearing, Raja Muhammad Irshad, Sr. ASC, who appeared on behalf of respondents No. 2 to 4 along with Ch. Muhammad Yaqoob, Joint Secretary and Commander Muhammad Hussain Shahbaz, Director Legal, Ministry of Defence was directed to produce all the seven persons before the Court. Although reply has been filed, but compliance has not been made. Under the circumstances, we are of the opinion that it is the responsibility of respondents No. 2 to 4, namely, Director General, ISI, Director General, MI and Judge Advocate General, JAG Branch, to comply with the order of the Court in letter and spirit. Non-appearance of their counsel also suggests that reluctance is being shown from producing the detenus before the Court. This fact may not be out of context that initially when this case came up before this Court on 06.01.2011 statement was made by Raja Muhammad Irshad on behalf of respondents No. 2 to 4 that the said persons had been taken from Adiala Jail for the purpose of trial under the Army Act. And reportedly, four persons, namely, Muhammad Amir, Tahseenullah, Said Arab and Abdul Saboor, in the meantime, had passed away. According to the learned counsel, dead bodies of two out of above four persons were handed over CONST.P 1/2012 DT 10.02.2012 4 in the LRH while the third, namely, Said Arab was alive at that time, but he subsequently died in the LRH and his dead body was also handed over to his heirs. As far as the dead body of Abdul Saboor is concerned, his dead body was found lying in an ambulance parked near Haji Camp, Peshawar. Therefore, production of left over persons named above before the Court was all the more necessary. In the circumstances, we direct respondents No. 2 to 4, severally and jointly, as well as the Chief Secretary, Government of Khyber Pakhtunkhwa, who is the head of the Civil Administration over there to ensure production of these persons before this Court in safe custody without fail on 13.02.2012. 3. The instant order be communicated to respondents No. 2 to 4 through Secretary Defence. Copy of the process shall be collected by the representatives of the Ministry of Defence mentioned above from the office during the course of the day and after effecting service upon respondents No. 2 to 4 they shall send compliance report to the Registrar. 4. In the meanwhile, notice be also issued to the Governor, Khyber Pakhtunkhwa through the Chief Secretary to apprise this Court as to whether in terms of Article 14 of the Actions (in Aid of Civil Power) Regulation, 2011 as to whether the Oversight Board had been constituted, and if so, he should procure report from the Board as to whether they had visited the persons who were allegedly detained in the Internment Centre CONST.P 1/2012 DT 10.02.2012 5 for the purpose of ascertaining their condition. The Chief Secretary shall appear in person. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J. Islamabad, the 10 February, 2012

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Constitution Petition No.1 of 2013 (Regarding Killing of 20 years old Shahzeb Khan in Karachi) Voluntarily appeared : Mr. Abdul Hafeez Pirzada, Sr. ASC, with Sikandar Jatoi. On Court Notice : Mr. Abdul Fateh Malik, A.G.Sindh. Mr. Muhammad Qasim Mirjat, Addl.A.G. Mr. Fayyaz Leghari, IGP Sindh. Mr. Shahid Hasnat, DIG, South Karachi. Mr. Ali Sher Jhakrani, AIG Legal, Karachi. Mr. Faizullah Korejo, SSP (Inv). Mr. Mubeen, SIO, Boat Basin. Date of Hearing : 10.01.2013 ORDER Mr. Abdul Hafeez Pirzada, Sr. ASC stated that Sikandar Jatoi appeared and had obtained bail before arrest for one day from the Lahore High Court with a commitment that he would appear before the Supreme Court of Pakistan. We have pointed out to him that this Court has not issued notice for his appearance, he has to join investigation with the police and besides making this observation, we cannot give any further relief to him. 2. Report has been submitted by Mr. Shahid Hasnat, DIG who stated that Shah Rukh Jatoi has been traced in Dubai, efforts Const.P.No.1 of 2013 - 2 - are being made for bringing him back to Pakistan, therefore, they need some time. Adjourned to 16.01.2013. CJ. Islamabad J. 10.01.2013 *Hashmi* J.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE GULZAR AHMED MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CONSTITUTION PETITIONS NO.1, 2 AND 10 OF 2016 (Petitions under Article 184(3) of the Constitution, 1973) 1. Syed Shabbar Razi Rizvi and another Vs. Federation of Pakistan, Ministry of Law and Justice Division, through its Secretary, Islamabad and another In Const.P.1/2016 2. Syed Shabbar Razi Rizvi and another Vs. Federation of Pakistan, Ministry of Law and Justice Division, through its Secretary, Islamabad and others In Const.P.2/2016 3. Syed Sajjad Hussain Shah Vs. Federation of Pakistan, Ministry of Law and Justice Division, through its Secretary and others In Const.P.10/2016 For the petitioner(s): Mr. Ali Sibtain Fazli, ASC Petitioners in person Ch. Akhtar Ali, AOR (In Const.Ps.1 & 2/2016) Sh. Zamir Hussain, ASC Syed Rifaqat Hussain Shah, AOR (In Const.P.10/2016) For the respondent(s): Not represented (In all cases) Date of hearing: 5.1.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- These petitions under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) have been filed by the former Judges of the Lahore High Court with the prayer, inter alia, that the judgment reported as Sindh Constitution Petitions No.1, 2 and 10 of 2016 -: 2 :- High Court Bar Association through its Secretary and another Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), may be declared per incuriam and of no legal effect to the extent of removal of petitioners/Judges and the subsequent judgment reported as Justice Hasnat Ahmed Khan Vs. Federation of Pakistan (PLD 2011 SC 680) may also be revisited, reviewed and set aside, and the judgments reported as Proceedings Against: Justices (R) Iftikhar Hussain Chaudhry, etc. (PLD 2011 SC 197) and Justice Abdul Hameed Dogar, Former Judge/CJP and others Vs. Federation of Pakistan/State (PLD 2011 SC 315) may be declared per incuriam and of no legal effect. 2. The brief background of the case is that on 3rd November, 2007 the then President of Pakistan, in his capacity as the Chief of Army Staff whilst declaring an emergency put the Constitution in abeyance and issued the Provisional Constitution Order No.1 of 2007 (PCO, 2007) followed by the Oath of Office (Judges) Order, 2007 (Oath Order, 2007), making most of the Judges of the superior judiciary dysfunctional. On that fateful day i.e. 3rd November, 2007, a 7-Member Bench of this Court, in the case of Wajihuddin Ahmed v. Chief Election Commissioner (PLD 2008 SC 25) passed an order, inter alia, restraining the Judges of the superior Courts from taking oath under the PCO, 2007 or any other unconstitutional instrument. The petitioners (former Judges of the Lahore High Court), having taken oath under the Oath Order, 2007, continued to perform duties/act as Judges of the Lahore High Court. But on account of the decision of this Court rendered by a 14-Member Bench on 31st July, 2009 reported as Sindh High Court Bar Association’s Constitution Petitions No.1, 2 and 10 of 2016 -: 3 :- case (supra), the petitioners, along with other Judges of the superior Courts who had taken oath under the Oath Order, 2007, were declared to have violated the above said restraint order and notices for contempt of Court under Article 204 of the Constitution read with relevant provisions of the Contempt of Court laws were issued to them, therefore, they (the Judges) ultimately had to resign from their offices as the Judges of the High Court. Being aggrieved of the judgment in Sindh High Court Bar Association’s case (supra), the petitioners as well as other Judges moved review petitions before this Court against the said judgment. Office objections were raised in respect of the said review petitions and the same were returned. The petitioners, as also the other Judges, filed Civil Misc. Applications (C.M.A. No.2750/2009 in C.R.P. No.Nil of 2009 in Const.P.No.8 of 2009 by Mr. Justice Syed Shabbar Raza Rizvi, CMA No.2747/2009 in C.R.P. No.Nil of 2009 in Const.P.No.8 of 2009 by Mr. Justice Hasnat Ahmed Khan and C.M.As. No.2776 & 2782 of 2009 in C.R.P. No.Nil of 2009 in Const.P.No.8 of 2009 by Mr. Justice Syed Sajjad Hussain Shah)for permission to file review petitions against the said judgment. However, the applications were dismissed by a 14-Member bench of this Court, with a majority of 13 to 1, through judgment reported as Justice Khurshid Anwar Bhinder and others Vs. Federation of Pakistan and another (PLD 2010 SC 483). However, the notices for contempt of Court issued to the Judges who had expressed regrets and repentance and either retired or tendered resignations were discharged; whereas the Judges, who were contesting notices and neither tendered resignations nor filed replies, or had not filed replies and/or had prayed for grant of time were directed to be proceeded against. In light of the said judgment, contempt proceedings were initiated against the Judges, including the petitioners. The petitioners contested the notices and vide judgment Constitution Petitions No.1, 2 and 10 of 2016 -: 4 :- reported as Justices (R) Iftikhar Hussain Chaudhry’s case (supra) it was held that the petitioners (respondents therein), despite being Judges of the superior Courts, were not immune from proceedings under Article 204 and the Contempt of Court law as far as committing contempt of this Court. It was directed that the cases be fixed for framing of charge(s) against the aforesaid respondents on 21.2.2011. The said judgment was challenged by the petitioners and others through Intra Court Appeals before a larger Bench of this Court. By means of judgment reported as Justice Abdul Hameed Dogar’s case (supra) the appeals filed by Justice (R) Abdul Hameed Dogar (I.C.A. No.9 of 2011) and Justice (R) Sayed Zahid Hussain (I.C.A. No.10 of 2011), on showing regret, were allowed and the proceedings for contempt of Court to their extent were terminated. However, the counsels of the other Judges against whom contempt proceedings were pending, were allowed two weeks’ time to take instructions from them (appellants therein) in view of the orders/observations made. The remaining appeals were then disposed of vide judgment reported as Justice Hasnat Ahmed Khan’s case (supra) wherein it was declared that the petitioners and other Judges (appellants therein) had ceased to be the Judges of the High Courts, therefore, they could not claim immunity from trial for contempt of Court under Article 204 of the Constitution read with relevant laws. After availing all the constitutional remedies, the petitioners remained silent till the year 2016 and ultimately filed the present petitions challenging the validity of the judgment in Sindh High Court Bar Association’s case (supra) and other subsequent judgments, primarily on the ground that the said judgments are per incuriam. Constitution Petitions No.1, 2 and 10 of 2016 -: 5 :- 3. In the following background, Mr. Ali Sibtain Fazli, learned counsel for the petitioners (in Constitution Petitions No.1 & 2/2016) referred to the judgment in Sindh High Court Bar Association’s case (supra) and his opening salvo is that the petitioners were condemned unheard in the matter; besides, notwithstanding the fact that they had taken oath under the Oath Order, 2007, when the PCO, 2007 as well as Oath Order, 2007 were declared to be unconstitutional and void ab initio, they remained and continued to be the judges of the High Court under the Constitution, and the passing of Eighteenth Constitutional Amendment, whereby the PCO, 2007 as well as other instruments issued thereunder were not validated, had no effect upon their position as Judges of the High Court; therefore, the judgment cannot affect their right to be the Judges. Sh. Zamir Hussain, learned counsel for the petitioner (in Constitution Petition No.10/2016) has raised an additional argument that the judgment in Sindh High Court Bar Association’s case (supra) was objective as far as others are concerned but subjective with regard to the Judges of the superior Courts, therefore, the Judges should not have been condemned unheard. According to him, the said judgment was a bold step and played a positive role in the socio-political history of the Country, which (aspect) has to be appreciated, but at the same time the positivity should not be used against the petitioners. In a nutshell the case of the petitioners is that it is the cardinal principle of natural justice that no one should be condemned unheard, but the petitioners were denied the said right; inasmuch as notices were issued to General (R) Pervez Musharraf, as is evident from para 145 of the judgment in Sindh High Court Bar Association’s case (supra) but no such notice was issued to the petitioners. Further, this Court has unlimited jurisdiction to reopen, revisit or review any judgment earlier Constitution Petitions No.1, 2 and 10 of 2016 -: 6 :- pronounced to set the law correct, to cure injustice and to save abuse of process of law, especially when the judgment is per incuriam. Reliance in this behalf has been placed on the judgments reported as Sindh High Court Bar Association’s case (supra) and In Re.: Matter Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829). The judges of the superior Court can only be removed under Article 209 of the Constitution, which fact has been pointed out in the judgments in Sindh High Court Bar Association’s case (supra) as well as Justice Khurshid Anwar Bhinder’s case (supra) but despite that through the judgment reported as Justice Hasnat Ahmed Khan’s case (supra) the petitioners were removed from their office by declaring them to have ceased to be Judges simply because they took oath under the PCO/Oath Order, 2007, which is a violation of Article 209 of the Constitution. It was further argued that it is a universal law and practice that the judges of superior Courts are never tried under the Contempt of Court laws. Reliance in this regard has been placed on the cases reported as Mujibur Rahman Shami Vs. A Judge of the High Court (PLD 1973 Lah. 805), K.L. Gauba ah 42 Vs. The Hon’ble the Chief Justice and Judges of the High Court of Judicature at Lahore & anr. (AIR 1942 FC 1), States of Rajasthan Vs.Prakash Chand & ors. (AIR 1998 SC 1344), Rachapudi Subba Rao Vs. The Advocate General, Andhra Pradesh (AIR 1981 SC 755) = (1991 Cri. Law J. 613) and Shri Harish Chandra Mishra and anr. Vs. The Hon’ble Mr. Justice S. Ali Ahmed (AIR 1986 Pat. 65). 4. First of all let us consider the question of issuance of notice to the Judges of the superior Courts in terms of the principles of audi alteram partem and natural justice. The question of issuance Constitution Petitions No.1, 2 and 10 of 2016 -: 7 :- of notices to the Judges was considered by the full Bench of this Court in Sindh High Court Bar Association’s case (supra), when after due consideration of facts and case-law, it was decided not to issue notice to them, relevant para wherefrom reads as under: - “146. However, we did not issue notices to the concerned Judges of the Supreme Court and High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed’s case, as also the Judges who were appointed in consultation with Abdul Hameed Dogar, J, inter alia, on a consideration of the law laid down in Supreme Court Bar Association’s case where this Court examined the question of issuance of notice in a somewhat similar situation with reference to the law laid down in the cases of Al-Jehad Trust and Asad Ali (supra) and Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 SC 179). It was held that the principle of natural justice would not be violated if no notices were issued to the concerned Judges. Relevant portion from the judgment is reproduced below: - “32. This brings us to the next common contention that the senior Judges of the Lahore High Court were condemned unheard and even in these petitions notices have not been issued to them. … … 33. As regards the question of notices we are of the considered view that issuance of notices to the concerned Judges will do more harm than good. This question was considered in the Judges’ case also and it was clearly held at page 534 of the judgment that the principle of natural justice is not violated if notice is not issued to the concerned Judges. The observations in Asad Ali’s case at page 327 of the judgment are also relevant which read as under: - “It must be borne in mind that Judges of superior Courts by their tradition, maintain high degree of comity amongst themselves. They are not expected to go public on their differences over any issue. They are also not expected to litigate in Constitution Petitions No.1, 2 and 10 of 2016 -: 8 :- Courts like ordinary litigant in case of denial of a right connected with their offices. Article VI of the Code of Conduct signed by every Judge of the superior Courts also enjoins upon them to avoid as far as possible any litigation on their behalf or on behalf of others. Therefore, in keeping with the high tradition of their office and their exalted image in the public eye, the Judges of superior Courts can only express their disapproval, resentment or reservations’ on an issue either in their judgment or order if the opportunity so arises……….”.” Then the said question as well as the arguments of the petitioners, identical to the arguments made in the instant case, were considered by another full Bench of this Court in Justice Khurshid Anwar Bhinder’s case (supra) as is evident from the following portion of the said judgment: - “4. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court entered appearance on behalf of Mr. Khurshid Anwar Bhinder in C.M.A. No.2745 of 2009 and addressed the Court at length on the question of maintainability whose prime contention remained that no such decision could have been given without affording proper opportunity of hearing in violation of the well entrenched doctrine of ‘audi alteram partem’ and the fundamental rights guaranteed in the Constitution coupled with the judicial precedents which ought to have been followed but were ignored. In order to substantiate his contention it is argued that it is a cardinal principle of law that no person should be condemned unheard and besides that the principle of audi alteram partem has also been jealously guarded by this Court. It is contended that the petitioner and all other removed judges were neither impleaded as party in the above mentioned Constitutional Petitions nor any opportunity of hearing was afforded which resulted in serious miscarriage of justice. It is next contended that this Court has ample powers as conferred upon it under Constitution Petitions No.1, 2 and 10 of 2016 -: 9 :- Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) to hear the review petitions and besides that no bar whatsoever has been imposed in the provisions enumerated in Order XXVI of the Supreme Court Rules, 1980 and even otherwise the petitioner may not be knocked out on the basis of sheer technicalities in the absence of any restraints imposed by law. … It is further argued that in the matter of removal of a Judge of a superior Court, Articles 4, 9 and 25 of the Constitution would be attracted. … It is next contended that the applicant was an aggrieved person within the contemplation of Order XXVI, Rule 1 of the Supreme Court Rules 1980, read with Order XLVII, Rule 1 of the CPC and had a right to file the review petition against the judgment of the Hon’ble Supreme Court, which adversely affected him.” Mr. Farooq Amjad Meer, Dr. A. Basit and Sheikh Zamir Hussain made further arguments along this theme of lack of notice and took various other grounds too. The respective contentions/submissions were dealt with in detail and decided as under: - “24. First of all we intend to deal with the prime contention of Mr. Wasim Sajjad, learned Senior Advocate Supreme Court that in view of the provisions as enumerated in Article 188 of the Constitution and Order XXVI of the Supreme Court Rules these C.M.As. are maintainable and the applicants cannot be knocked out on sheer technicalities which has always been considered undesirable. 30. In our view decision once given cannot be reviewed subject to certain legal exceptions pursuant to the provisions as enumerated in Order XLVII, Rule 1, C.P.C., scope whereof can neither be enlarged nor it can be farfetched in such a manner as argued by the learned Advocate Supreme Courts for the petitioners in view of the language as employed in Order XLVII, Rule 1, C.P.C. its application would be only up to that limited extent and it cannot be unlimited. Constitution Petitions No.1, 2 and 10 of 2016 -: 10 :- 35. On the touchstone of the criterion as laid down in the above mentioned cases we are firmly of the view that allowing the review applications would not be in aid of justice and besides that the judgment impugned is not in conflict with the Constitution or law of the land in any manner and hence no lawful justification is available for its review as it has protected, preserved and defended the Constitution being supreme law of the land. 42. … … The doctrine of ‘audi alteram partem’ is further subject to maxim ‘nemo inauditus condemnari debet contumax’. Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdrawn/ cancel such order without affording an opportunity of personal hearing to the affected party. … … It has been elucidated in the detailed reasoning of the judgment of 31.7.2009 how the order passed by a seven Member Bench of this Court has been flagrantly violated. Besides that the applicants had no vested right to be heard and furthermore they have acted illegally and in violation of the order of seven Member Bench for obtaining illegal gains and benefits which cannot be ignored while examining the principle of ‘audi alteram partem’. 44. It is also well acknowledged by now that “rules of natural justice are principles ingrained into the conscience of men. …” …… While natural justice is universally respected, the standard vary with situations contacting into a brief, even post-decisional opportunity, or expanding into trial-type trappings. As it may always be tailored to the situation, minimal natural justice, the bares notice, ‘littlest’ opportunity, in the shortest time, may serve. In exceptional cases, the application of the rules may even be excluded.” 45. The concept of audi alteram partem cannot be invoked in view of the peculiar circumstances of the case as it would be Constitution Petitions No.1, 2 and 10 of 2016 -: 11 :- an aid to and violation of the Constitution, which can never be the object of natural justice. 55. In fact the judgment impugned has been considered in the country as well as on global level as a triumph of democratic principles and a stinging negation of the dictatorship. It is the first instance of the Supreme Court stating in a categoric, loud and abundantly clear manner that military interventions are illegal and will hardly find any colluder in future within the judiciary. The impugned judgment provides much needed redress as it will render considerable help in blocking the way of adventurers and dictators to creep in easily by taking supra Constitutional steps endorsed, supported and upheld under the garb of the principle of necessity in the past which will never happen again. Had our superior judiciary followed the path of non-PCO Judges, the course of Pakistan’s political and judicial history would have been different. The verdict has been appreciated by all segments of society for being issue oriented rather than individual specific and therefore, no individual including the petitioners should be aggrieved. The judgment impugned would encourage future justices to take the firm stand against usurpers. The judgment impugned being in the supreme national interest hardly needs any justification for review. …” As noted from the above paras, while dismissing the applications of the petitioners for filing review petitions, elaborate and extensive reasoning was given and in view of the judgment rendered therein, which is a judgment in rem, we do not find that the petitioners are entitled to be heard again in the instant petition, as far as ordinary adversarial litigation is concerned. 5. With regard to the submission of the learned counsel for the petitioners that the petitioners could not be removed from their office except under Article 209 of the Constitution and that the contempt notices also could not be issued to them, suffice it to say that in Sindh High Court Bar Association’s case (supra) these aspects were dilated upon in the following terms: - Constitution Petitions No.1, 2 and 10 of 2016 -: 12 :- “122. … Thus, on 3rd November, 2007 certainly it was the first time in the history of Pakistan that the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past. A seven-member Bench of this Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed’s case. This was the most striking distinction between the action of 3rd November, 2007 on the one hand and those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior courts rejected the actions of 3rd November, 2007 and did not make oath in pursuance with the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed’s case. The lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country. Abdul Hameed Dogar, J, and some other Judges violated the aforesaid order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed’s case. These Judges, whether they were in this Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of 3rd November, 2007. 128. … In the first instance, the purported appointment of Abdul Hameed Dogar, J, or for that matter the appointments of other Judges have already been declared to be unconstitutional, illegal and void ab initio. Further, the above recital in the Notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the Notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd November, 2007. It was a loud and clear recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Article 209 Constitution Petitions No.1, 2 and 10 of 2016 -: 13 :- of the Constitution and the said position, on the same considerations, was reversed in totality. A wrong stood declared wrong with no mincing of words, for all times to come.” Ultimately it was held as under: - “22. As a consequence thereof: - (iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly”. These aspects of the matter were again considered by this Court in Justice Hasnat Ahmed Khan’s case (supra) and re-affirmed as under: - 35. Thus, in view of above background it is to be seen whether the appellants are still Judges so as to be liable to be dealt with under Article 209 of the Constitution or had ceased to be Judges after they had taken oath on 3.11.2007 under the PCO, 2007 read with the Oath Order, 2007, which, inter alia, provided that a person holding office immediately before the issuance of said instruments as a Judge of the Supreme Court, the Federal Shariat Court or a High Court would cease to hold office with immediate effect, particularly after the passing of the Eighteenth Constitutional Amendment whereby no validation was provided to the actions of 3.11.2007 because in the past, the Parliament had, on each such occasion, granted validation to such actions i.e. the extra-constitutional steps of 5.7.1977 were validated by the Parliament through the Eighth Constitutional Amendment whereas the extra-constitutional steps of 12.10.1999 were validated by the Parliament under the 17th Constitutional Amendment. 36. It is to be noted that much emphasis has been laid on behalf of the appellants that notwithstanding the fact that Constitution Petitions No.1, 2 and 10 of 2016 -: 14 :- indemnity/validity has not been granted to the unauthorized actions of the then Chief of Army Staff dated 3.11.2007, they continued to be the Judges in view of the observations of this Court, in pursuance whereof they were ordered to be dealt with under Article 209 of the Constitution and in the order dated 5.10.2010 though they were ordered to be proceeded under Article 204 of the Constitution but it was never held that they were no more Judges of the Supreme Court or the High Courts. Reliance in this behalf has also been placed on the stand taken by the Government of Pakistan in the statement reproduced hereinabove wherein reference of paragraph No.17 of the Sindh High Court Bar Association’s case has been made. The arguments so advanced on behalf of the appellant as well as the Attorney General for Pakistan required to be examined in different context because in Sindh High Court Bar Association’s case PCO as well as Oath Order, 2007 had been declared unconstitutional and void ab-initio, whereas in Khurshid Anwar Bhinder’s case permission was not accorded to some of the applicants (Judges) who wanted to seek the review of the main judgment for expunging the observations of whatsoever nature made therein against them. 44. … However, under the so called proclamation of Emergency and PCO, 2007 read with Oath Order, 2007 some of the Judges including the appellants, who both expressly and impliedly agreed that under the new dispensation i.e. proclamation of emergency and PCO, 2007 they ceased to hold their offices under the Constitution, as such, made fresh oath under the PCO, foregoing their earlier appointments under the Constitution of 1973. 50. … Thus, all the Judges including the appellants, who opted to make oath under the said dispensation accepted that they ceased to hold office the moment the said instruments were promulgated, i.e. 3.11.2007. Admittedly, under PCO, 2007 appointment was not under the Constitution. They deviated not only from their appointments, but also from their oath. Mere making of fresh oath under the Constitution on its revival would make no difference. Notably, there is a marked distinction between the oath under the Constitution, and the oath under the PCO/Oath Order. In the former case, one takes oath to perform Constitution Petitions No.1, 2 and 10 of 2016 -: 15 :- one’s functions in accordance with the provisions of the Constitution, whereas in the latter, one commits oneself to abide by the provisions of the PCO/Oath Order and the orders passed from time to time by the person issuing the said instruments. A Constitutional document is not an ordinary legislative instrument, rather it is the supreme law of the land, being an accord among the people. It is an instrument for running the affairs of the country. It governs the rights and obligations of the citizens. Even a child born today is a subject of the Constitution. Thus, appellants in presence of oath made under the Constitution accepted oath under PCO, 2007 and in this way violated their oath under the Constitution in letter and spirit. It was finally held as under: - 65. As a result of above discussion appeals are disposed of as follows:- (1) The appellants and others constitutionally are not holders of the office as Judges of the High Courts in absence of validation, rectification and legitimization of unconstitutional acts, deeds, omissions and commissions of the then Chief of Army Staff, General Pervez Musharraf (Retd.) whereby he imposed the martial law in the name of Emergency on 3.11.2007, which continued up to 15.12.2007 and the appellants because of making oath under PCO, 2007 read with Oath Order, 2007 ceased to hold the office because the PCO and the Oath Order, 2007 have been declared unconstitutional in Sindh High Court Bar Association’s case and by legislative interference in Eighteenth and Nineteenth Constitutional Amendments no validation has been provided to such unconstitutional actions, omissions and commissions.” The petitioners contested the notices in Justices (R) Iftikhar Hussain Chaudhry’s case (supra) and the questions formulated therein were as under: - (i) Is it constitutionally permissible for this Court to proceed under Article 204 of the Constitution against Judges of the Supreme Constitution Petitions No.1, 2 and 10 of 2016 -: 16 :- Court and of the High Courts, for committing contempt of this Court? (ii) If the aforesaid question is answered in the affirmative then, as a matter of propriety, should the Supreme Court proceed against the said Judges or should it, bearing in mind the status of the respondents as Judges of the Supreme Court and High Courts, discontinue these proceedings and discharge the notices issued to them? (iii) If it is decided that the Constitution does not place restrictions on contempt proceedings against Judges and if it is also found that questions of propriety do not stop this Court from proceeding against the respondents under Article 204 of the Constitution, then is there sufficient material available before the Court to charge the respondents for committing contempt of the Supreme Court on account of disobedience of the order dated 3.11.2007? The above noted questions were answered as under: - (i) In the facts and circumstances of these matters, the Constitution and law does not prohibit proceedings under Article 204 of the Constitution against the respondents even though they may be Judges of the Supreme Court and the High Courts. We hold that they are not immune from proceedings under Article 204 and the Contempt of Court Ordinance V of 2003, for committing contempt of this Court. (ii) Having considered the submissions of learned counsel as to the propriety of initiating contempt proceedings against the respondents and being fully conscious of the status of the respondents, we hold that in the circumstances of these matters, propriety requires that proceedings should be taken against the respondents and they, with the exception of Mr. Zafar Iqbal Chaudhry and Khurshid Anwar Bhindar, be put to trial in accordance with the aforesaid law. (iii) Having considered the record, facts and circumstances and replies in these matters and after due consideration of the arguments advanced on behalf of respondent, we find that there is sufficient material available before us to justify charging the respondents Constitution Petitions No.1, 2 and 10 of 2016 -: 17 :- (other than Mr. Khurshid Anwar Bhinder and Mr. Zafar Iqbal Chaudhry,) for committing contempt of the Supreme Court on account of their disobedience of the order dated 3.11.2007 passed by a seven member Bench of this Court. The remaining appeals were disposed of vide judgment in Justice Hasnat Ahmed Khan’s case (supra) as under (@ para 65): - (1) The appellants and others constitutionally are not holders of the office as Judges of the High Courts in absence of validation, rectification and legitimization of unconstitutional acts, deeds, omissions and commissions of the then Chief of Army Staff, General Pervez Musharraf (Retd.) whereby he imposed the martial law in the name of Emergency on 3.11.2007, which continued up to 15.12.2007 and the appellants because of making oath under PCO, 2007 read with Oath Order, 2007 ceased to hold the office because the PCO and the Oath Order, 2007 have been declared unconstitutional in Sindh High Court Bar Association’s case and by legislative interference in Eighteenth and Nineteenth Constitutional Amendments no validation has been provided to such unconstitutional actions, omissions and commissions. (2) The appellants, however, shall cease to hold office of the Judges of the High Court with effect from the date of passing of Eighteenth Constitutional Amendment. The Secretary Law, Government of Pakistan is hereby directed to issue necessary notifications that they ceased to hold the office with effect from the said date. (3) As far as appellants and others are concerned, they shall be entitled for the service and pensionary benefits up to 20.4.2010 when Eighteenth Constitutional Amendment was passed. However, if ultimately they are found to be guilty for the contempt of court by this Court, their cases for affecting the recovery of pensionary benefits in future shall be dealt with accordingly. (4) As appellants and others are not Judges of the High Courts, therefore, they cannot claim immunity for holding their trial for Constitution Petitions No.1, 2 and 10 of 2016 -: 18 :- contempt of Court under Article 204 of the Constitution read with relevant laws. 6. The judgments relied upon by the petitioners were previously referred to in Justice Khurshid Anwar Bhinder’s case (supra) but were not followed by the 14-Member Bench of this Court being distinguishable. However, we would like to discuss them in detail, in order to satisfy the petitioners. In Mujibur Rahman Shami’s case (supra) notices for contempt of court were issued to the petitioner No.1 (therein), who then filed a petition for contempt of court against the sitting Judge of the High Court, which was heard by a 7-Member Bench of the High Court and was dismissed in limine holding that the petitioner had filed the said petition with an ulterior motive to harass the aforesaid judge and to pressurize him. If such petitions are encouraged then no Judge of a superior Court would be able to function freely because as and when he decides a case against a litigant there will at once be filed an application of the type. It was observed that in the same way that one High Court Judge cannot issue a writ to another Judge of the same Court, no process of contempt of Court can lie (for example) for taking action against a Judge for disobeying the order of another Judge. In K. L. Gauba’s case (supra) the petitioner therein filed petition for contempt of Court alleging that the High Court Judges had committed contempt in refusing to him a certificate to file an appeal. The question for consideration before the Court was thus whether the Federal Court could take action for contempt of Court against the High Court for was observed tant Constitution Petitions No.1, 2 and 10 of 2016 -: 19 :- Even Mr. Gauba does not suggest punishment by fine or imprisonment; he would be content that the High Court should be served with an order to grant the certificate hitherto perversely or maliciously withheld. But what is that but to ask this Court to do by indirect means what it is admitted that it cannot do directly? The law of contempt of Court has at times been stretched very far in British India; but no one has ever contended that a Court could use its power to punish for contempt for the purpose of extending its jurisdiction in other matters.” In Prakash Chand’s case (supra) the powers and authority of the Chief Justice of the High Court were highlighted, inter alia, that the administrative control of the High Court vests in the Chief Justice alone; on the judicial side, however, he is only the first amongst equals; the Chief Justice is the master of the roster. Consequently, the direction given by a Judge of the High Court to issue show cause notice to the Chief Justice of the High Court (Respondent No.2 therein), was quashed and set aside, being wholly unwarranted, unjustified and legally unsustainable. In Rachapudi Subba Rao’s case (supra) the trial Court decreed the suit against the appellant/defendant (therein) who issued a notice to the Judge asking him to pay damages for, inter alia, deciding the case with bad faith and maliciously disordering the existing oral and documentary evidence. The notice was sent to the High Court for necessary action and ultimately contempt proceedings were initiated against the appellant and he was convicted for committing gross contempt of Court, which was maintained by the Supreme Court. In Harish Chandra’s case (supra), N.P. Singh, J., observed that “whenever a contempt is committed in presence of a Judge of the Supreme Court or High Court it is not the contempt of the particular court in which such Judge is presiding but of the Supreme Court or the High Court, as the case may be. As such, when Section 16(1) says that “a Judge … shall Constitution Petitions No.1, 2 and 10 of 2016 -: 20 :- also be liable for contempt of his own court” it obviously does not refer to the Supreme Court or High Court. In respect of Supreme Court or High Court there is no question of any Judge being liable for contempt of his own court, in other words, the courtroom in which such Judge is presiding. Only a Judge of subordinate court can be said to have committed contempt of his own court, i.e., the court in which such judge is presiding. … The framers of the constitution in order to maintain the independence of high judiciary kept them immune from the criticism in respect of their conduct even in the Parliament and Legislature of the State by saying so in Articles 131 and 211 of the Constitution. They prescribed a special procedure for their removal under Articles 124(4) and 217(1)(b).” It was further observed that “there cannot be two opinions that Judges of the Supreme Court and High Courts are expected to conduct the proceedings of the Court in dignified, objective and courteous manners and without fear of contradiction it can be said that by and large the proceedings of the higher courts have been in accordance with well settled norms.” P.S. Sahay, J. observed that “A Judge has every right to control the proceedings of the Court in a dignified manner and, in a case of misbehaviour or misconduct on the part of a lawyer proceedings in the nature of contempt can be started against the lawyer concerned. But, at the same time a Judge cannot make personal remarks and use harsh words in open Court which may touch the dignity of a lawyer and bring him to disrepute in the eyes of his colleagues and litigants.” 7. After considering the above referred judgments, we are of the view that in none of the cases, was there a specific order of the Supreme Court, issuing certain directions to the Judges of the superior Courts, which (order) had been violated by them. The ratio of Constitution Petitions No.1, 2 and 10 of 2016 -: 21 :- the above case-law is that the Judges of the High Courts are immune from action under the contempt of Court laws by another Judge of the same Court, on the application of a person who is/was a party to the proceedings pending/decided by a Judge of the High Court, with regard to a decision in that case, but in none of the cases has it been held that no proceedings could be initiated against a Judge of the High Court for violating the order of this Court. In the instant case, notices for contempt of Court were issued to the petitioners as well as other Judges for violating the order of this Court whereby a specific direction was issued to the Judges of the High Court not to take oath under the PCO or any other unconstitutional instrument. Sanctity has always been attached to a judicial order passed by this Court in a pending case and no one can be allowed to frustrate it, or refuse to accede to it or fail to follow a direction issued therein. Any person, who intentionally and deliberately violates any order of this Court, makes himself liable to be proceeded against and punished for contempt of Court. On any count and score, it cannot be presumed that a Judge of the High Court is immune from the consequences of violation or willful defiance of an order of this Court; if that were so, the whole judicial structure would be disturbed and fall to the ground, as the orders of this Court could not be implemented in letter and spirit. Thus, the said cases are of no use in advancing the cause of the petitioners, being distinguishable on facts as also on law. 8. With regard to the submission made by the learned counsel for the petitioners that the judgment in Sindh High Court Bar Association’s case (supra) is per incuriam, it is to be noted that in the said judgment, while considering the validity of the judgments in Tikka Iqbal Muhammad Khan v. General Pervez Musharraf and Constitution Petitions No.1, 2 and 10 of 2016 -: 22 :- others (PLD 2008 SC 178) and Tikka Iqbal Muhammad Khan v. General Pervez Musharraf, Chief of Army Staff, Rawalpindi and 2 others (PLD 2008 SC 615) the Court observed that “subsequently, another 7-Member Bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of ‘Salus Populi Supreme Lex’ and granted that relief which was even not prayed by the petitioner. This judgment is/was, ex facie, per incuriam, coram-non- judice, illegal and unlawful. Later, a time barred Review Petition was filed by Tikka Iqbal Khan which was heard by 13-Member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).” At some other place it was observed that “the learned counsel for the petitioners next submitted that the decisions in Tikka Iqbal Muhammad Khan’s case were rendered in violation of the provisions of Articles 209 and 2A of the Constitution and were also per incuriam in view of the law laid down in Zafar Ali Shah’s case wherein at page 1211 it was laid down in clear terms that the Judges of the superior judiciary enjoyed constitutional guarantee against arbitrary removal. They could be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise. There is force in the submissions of the learned counsel. The decision appears to have been rendered in haste to confer validity on the acts of 3rd November, 2007 and onward for the illegal and unlawful personal benefit of General Pervez Musharraf and for the illegal and unlawful personal benefit of the persons rendering it, without application of judicial mind.” The Court, Constitution Petitions No.1, 2 and 10 of 2016 -: 23 :- ultimately held that “the decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incuriam, coram-non-judice, without any legal basis hence, of no legal consequences”. Further, the grounds and parameters for declaring a judgment to be per incuriam have been highlighted by this Court in the judgment reported as Matter Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829) as under: - “4. … … As it is a cardinal principle of justice, that the law should be worn by the Judge in his sleeves and justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard. Therefore, if any law which has been invalidly pronounced and declared by this Court, which in particular is based upon ignorance of any provisions of the Constitution, and/or is founded on gross and grave misinterpretation thereof; the provisions of the relevant law have been ignored, misread and misapplied; the law already enunciated and settled by this Court on a specific subject, has not been taken into account, all this, inter alia, shall constitute a given judgment(s) as per incuriam; and inconsistent/conflicting decision of this Court shall also fall in that category. Such decision undoubtedly shall have grave consequences and repercussions, on the State, the persons/ citizens, the society and the public at large as stated above. Therefore, if a judgment or a decision of this Court which is found to be per incuriam (note: what is a judgment per incuriam has been dealt with by my brother), it shall be the duty of this Court to correct such wrong verdict and to set the law right. And the Court should not shun from such a duty (emphasis supplied). … … In my candid view the approach to leave such a decision to stay intact shall be ludicrous and shall lead to drastic effects as indicated above. Rather in such a situation this Court, having special position in our judicature (judicial system as highlighted above) shall have the inherent, intrinsic and inbred power (jurisdiction) vested in it, (a) to declare a judgment per incuriam; (b) decline to follow the same as a valid precedent, (c) and/or to set it aside. For the exercise of Constitution Petitions No.1, 2 and 10 of 2016 -: 24 :- jurisdiction in that regard and for the discharge of the duty as mentioned earlier, it is absolutely irrelevant and immaterial vide (via) which source it (decision) has come to the notice of the Court. The Court once attaining the knowledge of such a blemished and flawed decision has the sole privilege, to examine the same and to decide about its fate, whether it is per incuriam or otherwise. In this context, it may be mentioned, for example, if while hearing some case, it is brought to the attention of the Court by the member(s) of the Bar; or during the hearing of any matter, the Court itself finds an earlier judgment to be per incuriam; or if a Judge (Judge of this Court) in the course of his study or research, comes across any judgment which in his view is per incuriam or if any information through the Registrar of the Court is passed on to the honourable Chief Justice of the Court or to any other Judge (of this Court), by any member of the Bar, or the member of the civil society (any organization/group of the society) that a judgment is per incuriam (note: without the informant having any right or locus standi of hearing or the audience, until the matter is set out for hearing in the Court and the Court deems it proper to hear him), the Court in exercise of its inherent suo motu power and the duty mentioned above (emphasis supplied) shall have the due authority and the empowerment to examine such a judgment, in order to ascertain and adjudge if the law laid down therein is incorrect or otherwise. And if the judgment is found to be per incuriam, it shall be dealt with accordingly. In such a situation (as earlier stated) it shall not be of much significance, as to who has brought the vice of the judgment to the notice of the Court or through which channel it has reached there. Rather, the pivotal aspect, the object, the concern and the anxiety of this Court should be to examine the judgment and if it is per incuriam to set the law right with considerable urgency.” 9. We have considered the judgment in Sindh High Court Bar Association’s case (supra), which is delivered by a 14-Member Bench of this Court, and find that the same is a well-reasoned judgment, wherein all the factual aspects, legal and constitutional provisions as also the case-law have been considered, dealt with and Constitution Petitions No.1, 2 and 10 of 2016 -: 25 :- correctly decided. The same was reconsidered and upheld by another 14-Member Bench of this Court in Justice Khurshid Anwar Bhinder’s case (supra). Then again, the said judgments and the law laid down therein were reconsidered and upheld in Justices (R) Iftikhar Hussain Chaudhry’s case (supra) and Justice Hasnat Ahmed Khan’s case (supra). 10. After applying the ratio of the above judgments on the facts of the instant case, we find that none of the grounds settled by this Court, as mentioned above, for declaring a judgment per incuriam, including that the judgment was invalidly pronounced; based upon ignorance of any provisions of the Constitution or law; founded on gross and grave misinterpretation thereof; or that the law already enunciated and settled by this Court on a specific subject has not been taken into account, are to be found in the judgments challenged through the instant petitions. We are not convinced, on account of any principle relevant for the purposes of rendering a judgment per incuriam, that the same could conceivably be attracted to the facts and circumstances of the instant case. Resultantly, we are not inclined to declare the above referred judgments per incuriam. 11. There is another aspect of the matter which is of considerable importance i.e. the maintainability of these petitions. In this context, it is held that the petitioners had the remedy of challenging the judgment, if they were aggrieved of the same, by filing review petitions, which they did attempted so to do but could not succeed. They were a party in Khurshid Anwar Bhinder’s case (supra) and their respective submissions were rejected and the review applications were accordingly dismissed as being not maintainable; Constitution Petitions No.1, 2 and 10 of 2016 -: 26 :- besides observing that the judgment impugned, being in the supreme national interest, there hardly appeared any justification for review. Further, the petitioners contested the contempt notices in Justices (R) Iftikhar Hussain Chaudhry’s case (supra) and then Intra Court Appeals in Justice Hasnat Ahmed Khan’s case (supra) but without any measure of success. All the points raised in the said cases/judgments have been re-agitated through the present petitions. In such a situation, the petitions under Article 184(3) are absolutely incompetent and not maintainable. Where a person has/had the opportunity of filing a review or appeal against a judgment, and either files a review/appeal and fails, or does not avail that opportunity, or fails to become a party in any pending review/appeal filed by another person against the same judgment, then he has no right to re-agitate the matter through a petition under Article 184(3) ibid. Article 184(3) ibid is a constitutional provision which is meant for the purposes of enforcement of fundamental rights, where there is a question of public importance involved. It cannot be exercised as a parallel review jurisdiction by the court, especially when the remedy of review has already been availed or declined. Yes, a judgment of this Court can be considered to be per incuriam but it is for the Judges to revisit any such judgment, if and when pointed out by any person during the course of hearing of any other case. Such a finding would be premised on the Court finding the same judgment to be against any provision of the Constitution or the law, or the principle(s) already settled by a larger Bench of the Court. It is not the right of a person, who would have no locus standi under Article 184(3) of the Constitution, to file such a petition, particularly in the situation where the review jurisdiction has been invoked and the same (review) has been dismissed; thus, such judgment (under review) can never be challenged Constitution Petitions No.1, 2 and 10 of 2016 -: 27 :- by virtue of filing independent proceedings under Article 184(3) of the Constitution. This would be an abuse of the process of law and is absolutely impermissible. Resultantly, we do not find any merit in these petitions which are accordingly dismissed. 12. Above are the reasons for our short order of even date, whereby the titled petitions were dismissed. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE Islamabad, the 5th of January, 2018 Approved For Reporting Waqas Naseer

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Muhammad Sair Ali Mr. Justice Jawwad S. Khawaja Constitution Petitions No. 20 to 27 of 2009 The Bank of Punjab …Petitioner Versus Haris Steel Industries (Pvt) Ltd & others …Respondents (Const. P 20/09) Sheikh Muhammad Afzal, etc. …Respondents (Const. P 21/09) Haris Afzal, etc. …Respondents (Const. P 22/09) Hamesh Khan & others. …Respondents (Const. P 23/09) Muhammad Zia-ul-Haq, etc. …Respondents (Const. P 24/09) Haroon Aziz, etc. …Respondents (Const. P 25/09) Muhammad Shoaib Qureshi, etc. …Respondents (Const. P 26/09) Aziz-ur-Rehman, etc. …Respondents (Const. P 27/09) For the petitioner: Kh. Haris Ahmad, ASC Mr. Arshad Ali Chaudhry, AOR For respondents 1-3: Mr. Uzair Karamat Bhindari, ASC (Const. P. 20/2009) Mr. M.S. Khattak, AOR For respondents No.1, 4 to 6: (Const. P. 22/2009) On Court’s notice: Mr. Salahuddin Manager, M/S Iqbal A. Nanji Co. For respondent 1: Mr. Talib H. Rizvi, Sr.ASC (Const. P. 23/2009) For respondent 1 & 2: Mr. Ghulam Sabir, ASC (Const. P. 24/2009) For respondent 1: Mr. Ashtar Ausaf Ali, ASC (Const. P. 25/2009) For respondent 1: Mr. Ahmad Awais, ASC (Const. P. 26/2009) For respondent 1: Mr. Abid Aziz Sheikh, ASC (Const. P. 27/2009) On behalf of State Raja Abdul Ghafoor, ASC/AOR Bank of Pakistan On behalf of NAB: Dr. Danishwar Malik, Prosecutor General, NAB Mian Muhammad Bashir, DPG, NAB Abdul Rehman, S.I., P.S. Defence, Lahore Date of hearing: 14.7.2009 2 ORDER Pursuant to the preceding order, following persons representing their Organisations, have entered appearance:- Waris Malik ( Respondent No.3 in Const. P. 20/2009) (CNIC No. 35202-9233959-7) Irfan Ahmad Sheikh (Respondent No.3 in Const. P. No. 21/2009) Muhammad Munir Sh. ( CNIC No. 35202-4541788-1) Noman Arif (Respondent No.2 in Const. P. No. 24/2007) (CNIC No. 35200-1424207-7) Muhammad Zia-ul-Haq ( Respondent No.1 in Const. P. No. 24/2009) (35201-1578154-7) Haroon Aziz (Respondent No. 1 in Const. P. No. 25/2009) (CNIC No. 35202-9878627-5) Aziz-ul-Hameed (Respondent No.1 in Const. P. No. 27/2009) (CNIC No. 35202-2418938-5) Shoaib Qureshi ( Respondent No.1 in Const. P. 26/2009) (CNIC No. 35202-8482330-1) whereas neither Ali Ijaz, Sh. Muhammad Afzal, Noman Iqbal, Asad Ashraf, Suhail Tufail, Muhammad Suhail and Hamesh Khan have attended the Court nor any one is present on behalf of Hamza Rice Mills, respondent No.7 in Const. Petition No.22/2009. It is reported by Muhammad Munir Sheikh that his brother, Sh. Muhammad Afzal and nephew, Haris Afzal are out of country being in United Kingdom. He is directed to produce their complete addresses alongwith Passport numbers. As far as remaining persons who have not attended the Court, their service shall be effected through the Deputy Registrar, Lahore. Notices be sent to him today by fax. He shall be free to involve any agency for effecting service so that they may attend the Court on the next date of hearing. 2. Learned counsel for Hamesh Khan stated that he has obtained a concise statement duly signed by his client and notarized in U.S.A. It is pertinent to mention that despite directions of this Court, Hamesh Khan is not in attendance. The learned counsel may obtain his complete address by tomorrow, inasmuch as, if he is not willing to avail the facility of protection of this Court provided to him vide order dated 29.6.2009, then process as envisaged under the law, shall be issued for ensuring his attendance. 3. Kh. Haris Ahmad, learned counsel for the petitioner stated that no serious efforts have been made by the individual respondents or the respondent-Companies and they are trying to prolong the matter on one or the other pretext. He further stated that the Bank of Punjab got evaluation of its collateral security from M/S Iqbal A. Nanji & Company whereas Mr. Uzair Karamat Bhindari, learned counsel for some of the respondents stated 3 that the said evaluation is not proper as according to evaluation of their own evaluators, the valuation of the property was much higher, therefore, on account of this reason negotiation between the parties could not be finalized. 4. We have seen the evaluation reports prepared by the evaluators engaged by the respondents but without hearing them and understanding the basis on which they have evaluated the property, it would not be possible to accept the said valuation. Therefore, all the evaluators engaged by the respondents as well as M/S Iqbal A. Nanji & Company are required to attend the Court on the next date of hearing. 5. Learned counsel for the petitioners contended that the controversy between the parties cannot be settled unless a true picture in respect of the status and the names of the persons who mortgaged the properties with the Bank with particulars, is not brought before the Court. According to him, some of the properties are situated on the border of Pakistan and India but at the time of taking loans this was not pointed out. Moreover, preparing fictitious Identity Cards in certain cases, the same were mortgaged by playing fraud with the Bank and indirectly 9000 depositors who had deposited their money had factually been deprived of their money. 6. There being two sets of evaluators showing their respective evaluations, as noted hereinabove, to satisfy ourselves as to the status of the properties and to obtain the names of the mortgagees with full particulars, etc, we direct the Chief Secretary, Government of the Punjab to depute a competent officer from the Board of Revenue, Punjab not below the rank of Secretary of the Board, who shall adopt measures by visiting the lands/plots/sites personally and having gone through the records, ownership of the properties, the names of the mortgagees with their particulars and Identity Cards, etc. and value prevalent in the market on the basis of Aust Bai, submit a comprehensive report which must reach the Court on the next date of hearing. 7. The respondents who have not deposited the copies of their Identity Cards are required to do so before the next date of hearing. The Secretary Interior, Government of Pakistan as well as the Director General, F.I.A. may also depute two officers from their respective departments, who shall assist Mr. Shah Khawar, learned Deputy Attorney General and Dr. Danishwar Malik, Prosecutor General, N.A.B. for the purpose of providing information to them to procure the details of the persons whose attendance is to be procured from outside the country by adopting the relevant processes provided by law and those officers shall be available to assist the Court as to whether there is an extradition treaty between Pakistan and the United States of America, where presently Hamesh Khan is 4 residing as well as with the United Kingdom, where Sh. Muhammad Afzal and his son Haris Afzal are statedly residing. The learned Deputy Attorney General will also examine if in such like situations, when a person is disobeying the order of the Court would it be possible for the Government to cancel his Passport/other immigration documents on the basis whereof he has traveled abroad. It is reported that Hamesh Kahn left Pakistan through Peshawar despite the fact that his name was on the exit control list. We were informed that an investigation in this behalf is going on against the concerned officers. We would appreciate if the Director General, F.I.A. expedites the action against them and also submits a report on the next date of hearing. 8. Let this case be adjourned to 16.7.2009. The respondents, present in Court, shall continue appearing on each date of hearing unless otherwise directed. In the meanwhile, no harassment will be caused to them nor will any agency arrest them without Court orders. 9. As the listed petitions cannot be disposed of without perusal of the record of the litigation pending before the Islamabad High Court, the Registrar of the said Court is directed transmit all the files of the cases, details of which shall be furnished by Khawaja Haris Ahmad to the Registrar of this Court during the course of the day. Chief Justice Judge Judge ISLAMABAD 14.7.2009 Ejaz Goraya

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Constitution Petition No.20 of 2013 [Action against distribution of Development Funds by Ex-Prime Minister of Pakistan Raja Parvez Ashraf] ON COURT NOTICE For M/o Cabinet : Ms. Nargis Sethi, Secretary For M/o Finance : Mr. Sajjad Mehmood Butt, ASC/LA Mr. Abdul Rauf Khan, Addl. Secy (Exp) Date of Hearing : 19.04.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.—The Secretary, Cabinet Division, Government of Pakistan, filed the requisite reply (CMA No.2222 of 2013) in pursuance of the earlier order dated 16.04.2013. She has explained the procedure of allocating the funds by the Prime Minister from Peoples Works Programme-II (PWP-II). However, she stated that according to the budgetary provisions, an amount of Rs.22 billion (annual) was made available to the Prime Minister with an authority to sanction the amount in favour of the Parliamentarians and Notables for the development programmes. She further stated that being the Cabinet Secretary, she is not aware about the criteria/preferences of the Prime Minister for making allocation to different development schemes, as this subject is assigned to the Special Secretary of the Prime Minister and no sooner a Const.P.No.20 of 2013 2 sanction letter is issued, the same is processed in the Cabinet Division for onward transmission to the Accountant General Pakistan Revenues (AGPR) and the concerned Executing Agency. Admittedly, there is no system in place for monitoring the sanctioned funds. The AGPR is required to issue cheques to Executing Agency and then ultimately, it is only the Executing Agency, which had to monitor the execution of the development schemes. For our perusal, besides offering explanation about the expenditures of the PWP-II funds, a copy of sanction letter as a sample has also been placed on record. 2. Prima facie, it seems that at the initial stage of sanctioning the funds from the Peoples Works Programme, no preliminary formalities were carried out about the feasibility etc. of the development programmes. It appears from the letter dated 15.04.2013, issued by Mr. Tahir Maqsood, Additional Secretary (P-I), Prime Minister’s Secretariat (Public), and the list attached therewith that on the demand of the Parliamentarians or the “Notables”, who somehow succeeded in approaching the Prime Minister for allocation of the funds for development from PWP, were obliged by making sanctions without following a transparent procedure nor the feasibility of the scheme for which the funds have been sanctioned was considered inasmuch as according to the list which has been furnished, not only the worthy Members of the Const.P.No.20 of 2013 3 Parliament, the Members of the Provincial Assemblies, the “Notables” have succeeded in getting allocation of their schemes from the Prime Minister. The Prime Minister is a person who represents the Government and the citizens, therefore, in sanctioning/allocating funds for the schemes, he is bound to follow the high standard of transparency. In doing so for the well-being of the general public and for this purpose, a system has to be institutionalized following the recognized principles of exercising discretion judiciously. The Prime Minister, being elected representative, is required to follow the procedure to prove equitable distribution of funds for schemes without any discrimination in any manner. In the instant case, what we have noticed as former Prime Minster, Raja Pervaiz Ashraf sanctioned for himself the following amounts from time to time:- S.No. Dir No. Issue date Subject Beneficiary Amount Approved Released / stuck Up 13 0007 27.07.2012 Supply of gas to villages/localities in NA-51, Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 200.000 Released 14 0130 30.08.2012 Supply of gas to villages/localities in NA-51, Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 433.365 Released 15 0148 30.08.2012 Provision of gas to forty (40) villages / seventeen (17) Union Councils for on-going projects in NA-51, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 49.000 Released 16 0776 30.11.2012 Supply of gas to Jungi Dam, Bains & Popur Khurd (enroute villages of operational line) in Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 29.895 Released 17 0810 14.12.2012 Completion of on-going gas supply schemes in 17 Union Councils and 40 villages of NA-51, Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 50.003 Released 18 0846 04.01.2012 Supply of gas to villages in NA-51, Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 300.000 Released 19 0848 04.01.2012 Provision of electricity to the villages of NA-51, Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 50.000 Released Const.P.No.20 of 2013 4 20 0953 07.02.2013 Supply of gas to Jungi Dam, Bains & Popur Khurd (enroute villages of operational line) in Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 7.736 Released 21 1039 15.03.2013 Additional amount for completion of on-going gas schemes in NA-51, Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 300.000 Released 22 1040 15.03.2013 Provision of electricity to the villages of NA-51, Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 40.000 Released Total: Rs.1459.999 In this manner, the above mentioned amount has been allocated for the constituency which he represents himself. 3. Similarly, there are so many other Parliamentarians as well as the Members of the Provincial Assembly of the Punjab and “Notables” not representing any constituency who were obliged by granting funds for the purpose of inter alia the following development schemes:- S.No. Dir No. Issue date Subject Beneficiary Amount Approved Released / stuck Up 185 0377 12.09.2012 Provision of gas to villages & adjoining abadies in District Rawalpindi. Mr. Muhammad Basharat Raja, MPA, PP-05. 71.000 Released 186 0378 12.09.2012 Execution of misc. development schemes in District Rawalpindi. Mr. Muhammad Basharat Raja, MPA, PP-05. 19.000 Released 187 0149 31.08.2012 Execution of development schemes (roads/pcc/drains) in PP-110, District Gujrat. Mr. Moonis Elahi, MPA, PP-110, District Gujrat. 250.000 Released 188 0150 31.08.2012 Execution of development schemes (roads/pcc/drains/ saim nala) and soling) in PP- 118, District Mandi Bahauddin. Mr. Moonis Elahi, MPA, PP-110, District Gujrat. 250.000 Released Total: Rs.590.000 And the “Notables” who perhaps are not elected representatives, as the number of their constituency is not mentioned against their names include the following:- S.No. Dir No. Issue date Subject Beneficiary Amount Approved Released / stuck Up 208 0567 12.10.2012 Electrification schemes in NA-19, District Haripur. Sardar Mushtaq Ahmed 77.245 Released 209 0567 12.10.2012 Electrification schemes in NA-19, District Haripur. Sardar Mushtaq Ahmed 50.000 Released 210 0568 12.10.2012 Execution of misc. development schemes in NA- 19, District Haripur. Sardar Mushtaq Ahmed 16.025 Released 211 0569 12.10.2012 Provision of gas to two (02) villages of NA-19, District Haripur. Sardar Mushtaq Ahmed 6.730 Released 213 0945 31.01.2013 Village electrification schemes in District Haripur. Sardar Mushtaq Ahmed 85.000 Released Total: Rs.235.000 Const.P.No.20 of 2013 5 S.No. Dir No. Issue date Subject Beneficiary Amount Approved Released / stuck Up 214 0857 08.01.2013 Village electrification schemes in District Killa Abdullah, Balochistan. Mr. Mehmood Khan Achakzai, Chairman, PKMAP. 100.000 Released 215 0845 04.01.2012 Supply of gas to village Inayatullah Khan karez, Tehsil Gulistan, District Killa Abdullah, Balochistan. Mr. Mahmood Khan Achakzai, Ex-MNA, District Killa Abdullah. 23.000 Released Total: Rs.123.000 4. It is informed by the Additional Secretary, Finance Division that a further sum of Rs.25 billion were allowed to be expended over and above the budgetary allocation of Rs.22 billion. Out of Rs.25 billion, Rs.15 billion are diverted funds from the PSDP originally allocated for Diamer Basha Dam, High Education Commission, Lowari Tunnel, FATA and Saving Schemes etc, (emphasis provided), whereas Rs.10 billion are three supplementary grants (Rs.5 + Rs.3 + Rs.2 billion), sanctioned by the Finance Division. The Secretary, Cabinet Division further stated that Rs.42.486 billion have already been released whereas balance amount of about Rs.4.5 billion is still available with the Cabinet Division. She informed that there were certain sanctions were made by the former Prime Minister on completion of the tenure of the Government but she declined and they were not processed. 5. It may be noted that in pursuance of an article published in the daily news “Al-Akhbar”, Islamabad, dated 25.03.2013, under the caption ﯽﻟﺪﻧﺎھد لﻮﭘ یﺮﭘ ﯽﮐ ﺖﻣﻮﮑﺣ ﯽﻟاو ﮯﻧﻮھ شوﺪﮑﺒﺳ an application was registered as HRC No.11504-G/2013, and the Secretary Planning and Development Division has filed comments by offering the following explanations:- Const.P.No.20 of 2013 6 “Sub: REPORT IN HRC NO.11504-G/2013- APPLICATION: THE DAILY NEWS AL- AKHBAR, DATED 25TH MARCH, 2013, ISLAMABAD (REGARDING CORRUPTION OF EX-GOVERNMENT The daily Al-Akhbar has reported in the editorial of its publication of 25th March, 2013 that the former Government in its last days has diverted Rs.5 billion from important projects for the schemes of Members of National Assembly and powerful Ministers to facilitate their success in the forthcoming elections. The paper has reported that funds have been diverted from Diamer Basha Dam, Higher Education Commission, Lowari Tunnel, FATA, Saving Schemes along with other important projects and a total of Rs.43 billion have been provided to them (Annex-I) 2. While the contents of the newspaper clipping are not specific, these appear to allude to allocations made for schemes under the Peoples Works Programme-II. Allocation for Peoples Works Programme-II (PWP-II) is kept in Public Sector Development Programme (PSDP) as a block provision in the Demand of Cabinet Division. Funds from the block provision are released by the Cabinet Division on the directives of the Prime Minister issued by the Prime Minister’s Secretariat to the executing agencies for implementation of schemes/projects directly without involvement of Planning and Development Division. An allocation of Rs.22 billion was kept for PWP-II in the PSDP 2012-13. 3. On a request from the Prime Minister’s Secretariat, a summary was moved by the Finance Division on 11th October, 2012, proposing provision of additional funds of Rs.10.00 billion for PWP-II during fiscal year 2012-13. The proposal was approved by the then Prime Minister. Pursuant to the approval of the Prime Minister, Finance Division advised Planning and Development Division on 15th October, 2012 for making necessary adjustments within the allocations of PSDP 2012-13 while ensuring that the overall size of PSDP does not increase beyond its existing size as a result of this supplementary grant (Annex-II). Consequently, the Planning and Development Division issued adjustments letters on 6th November, 2012 and 23rd November, 2012 to allocate Rs.5 billion each (Rs.10 billion) by diverting funds from other PSDP projects, with the approval of the then Finance Minister (Annex-III, IV). 4. The above adjustments included diversion from allocations to Diamer Basha Dam, Lowari Tunnel, FATA & Higher Education Commission. However, on the request of Governor, Khyber Const.P.No.20 of 2013 7 Pakhtunkhwa, the amount of Rs.4 billion was subsequently recouped to FATA by reducing the equivalent allocation of other PSDP projects on 27th December, 2012 (Annex-V). 5. The Finance Division, after having been conveyed verbal directions for approval of additional allocation of Rs.10 billion by the then Prime Minister, moved a summary on 24th December, 2012 proposing another supplementary grant of Rs.10 billion for PWP-II through internal adjustment in the PSDP 2012-13 by the Planning and Development Division, which was approved by the then Prime Minister. Planning and Development Division carried out an exercise and adjusted Rs.5 billion only instead of Rs.10 billion, by reducing the allocations of other PSDP projects with the approval of the then Finance Minister (Annex-VI). As such a total Rs.15 billion was allocated to PWP-II through adjustments during the fiscal year 2012-13. 6. In addition to above internal adjustments in the PSDP 2012-13, Finance Division has also approved an additional allocation of Rs.10 billion for PWP-II through supplementary grant, over and above the existing size of the PSDP 2012-13. Resultantly, allocation for PWP-II increased from Rs.22 billion to Rs.47 billion.” 6. It is interesting to note that along with the report, an Office Memorandum of the Government of Pakistan, Planning Commission, Planning and Development Division, dated 06.11.2012 is appended, under the subject “SUPPLEMENTARY GRANT FOR PEOPLES WORKS PROGRAMME- II (PWP-II) WITHIN THE EXISTING SIZE OF PSDP 2012-13”. It finds mention in the letter that the Federal Minister for Finance, Revenue and Planning & Development has been pleased to accord approval for the provision of additional funds of Rs.5.0 billion through adjustment in PSDP 2012-13, proposed by the Planning & Development Division, to divert it to PWP-II. The approved funds would be surrendered by the concerned Ministries/Divisions in favour of Cabinet Division for Const.P.No.20 of 2013 8 PWP-II. This document is available on the file of HRC No.11504-G of 2013 as Annexure-II, which is hereby directed to be clubbed with the instant case. For convenience, the names of the Ministries/Divisions, who were directed to divert the funds in favour of the Cabinet Division for PWP-II, are noted herein below:- i. States and Frontier Regions Division; ii. Capital Administration and Development Division; iii. Communication Division; iv. Education & Training Division; v. Finance Division; vi. Higher Education Commission; vii. Interior Division; viii. Ministry of Narcotics Control; ix. Railways Division; and x. Water & Power Division (Water Sector) 7. It is true that there were savings as the Ministry/Division indicated in the above Memorandum but the question arises that instead of spending these amounts on any other Public Development Programme, the same have been diverted in favour of the Cabinet Division for PWP-II for the purpose of allocating/distributing these funds to the Parliamentarians and the “Notables” knowing fully well that budgetary allocations of Rs.22 billion under this Head has already been exhausted, therefore, prima facie inference could only be drawn that the object and the purpose was the same as has been captioned in the news item of daily “Al-Akhbar” noted herein above, particularly, knowing well that there is no monitoring system in stricto senso to ensure the expenditure of PWP-II funds in a transparent manner. It is also to be noted Const.P.No.20 of 2013 9 that under the New System of Financial Control and Budgeting in order to maintain the financial disciplines, certain instructions were issued from time to time to be followed including with regard to the power of sanctioning projects, etc. 8. We have also issued notice to the Secretary Finance for the purpose of answering the questions, which have been framed in the order dated 16.04.2013, and are reproduced herein below:- i. As to whether the funds belonging to public exchequer have been allocated/distributed to MNAs/MPAs/ Notables in accordance with the Constitution and the law? ii. What is the phenomenon or procedure to monitor the spending of amount and as to whether the details of such developments are available? iii. Whether the contracts were granted to the contractors by following the PPRA Rules? No reply has been filed except contending that in HRC No.11504-G of 2013, reply was filed. The Finance Division is directed to file the reply of the above forthwith. 9. After having taken into consideration the above- noted facts along with the viewpoint put forward by the Secretary, Cabinet Division, it is necessary to issue notice to the Special Secretary to the Prime Minister to submit SOPs, TORs or any instructions on the basis of which the Prime Minster is persuaded to allocate funds from PWP-II and as to whether there is any system in place for subjecting the schemes to technical scrutiny before allocating funds or it is left for the Prime Minster to exercise his discretion, without Const.P.No.20 of 2013 10 adhering to the Rules of Business and without sanction of the Cabinet, the Prime Minister alone enjoys unfettered powers to make allocations from the programmes on the request of the public representatives, including the Members of the Provincial Assemblies and the “Notables” and if it is so what is the justification available with the Special Secretary or the Prime Minister to accommodate any person being a representative or otherwise, etc. 10. The Accountant General Pakistan Revenues, is hereby directed to put up the details in respect of each development scheme, which finds mention in the list appended with letter dated 15.04.2013, copy of which shall also be supplied to the AGPR along with the names of the Executing Agency to whom the amounts have been allocated for spending for the execution of the schemes. Similarly, each of the Executing Agency in whose favour the cheques were issued, shall submit reply through the AGPR about feasibility of the scheme and also to disclose as to whether the PPRA Rules were followed in order to ensure transparency in the execution of the schemes and to what extent schemes have been executed alongwith details of funds so far utilized for each scheme separately. 11. Apparently, it seems that funds were diverted from the most important projects, like Diamer Basha Dam, Higher Education Commission, Lowari Tunnel, FATA, Saving Schemes Const.P.No.20 of 2013 11 etc noted herein above to the tune of Rs.22 billion, which in fact should not have been so done because of the importance of those projects, which undoubtedly have national importance and if are completed, the same being in the interest of the economic development of the country, ultimate benefit will pass on to the whole Nation. The manner in which the Finance Division and the Planning & Development Division had diverted these funds to the Cabinet Division to increase the budgetary allocation to PWP-II from Rs.22 billion also seems to be non- transparent because in such like situation, when an amount has already been spent for the purpose, the preference should have been given for completion of the projects of national importance, instead of allocating this budget for execution of small schemes, which are meant only for the benefit of individuals and not for the whole Nation. 12. In view of the above, we direct the AGPR to ensure that pending decision of the instant petition the funds which have already been released to the Executing Agencies, including for the schemes enumerated in the list appended with the letter dated 15.04.2013 referred to herein above are not further distributed and the payments in respect of the schemes, details of which have been furnished by the Prime Minister’s Secretariat shall be stopped immediately and a compliance report shall be sent to the Registrar of this Court by the AGPR for our perusal in Chamber within a period of Const.P.No.20 of 2013 12 three days, after receipt of this Order. Similarly, the Executing Agencies to whom the work has been assigned or the process of assigning of work is yet to be completed shall not proceed further with these schemes, till further orders passed by this Court. Similarly, notice to the Secretary, Planning & Development Division, Government of Pakistan, be issued for filing reply of the facts and consideration which have already been noted in the order dated 16.04.2013 as well as in the instant order. Notice to the learned Attorney General for Pakistan be also issued for the next date. 13. Let this case be fixed on 30.04.2013. CJ. Islamabad J. 19.04.2013 *Hashmi* J.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE SH. AZMAT SAEED CONSTITUTION PETITION NO. 22 OF 2013 Orya Maqbool Abbasi …. Petitioner Versus Federation of Pakistan through Secretary Establishment & others …. Respondents Petitioner Mr. Orya Maqbool Abbasi, In Person For the Applicant Mr. Arshad Ali Chaudhry, AOR (in CMA 2903/13) For Estt. Div. & CSB Mr. Shah Khawar, Addl. AGP Raja Abdul Ghafoor, AOR Malik Shakeel, J.S. (Litigation) Mr. Shahbaz Karmani, S.O. For Res. Nos.19,61 & 81 Hafiz S. A. Rehman, Sr. ASC For Respondent No.82 Mr. Rashid A. Rizvi, Sr. ASC For Respdts. 23, 47, 49, Mr. Abdur Rahim Bhatti, ASC 53, 57, 74-76 For Respondents No.28, Syed Iftikhar Hussain Gillani, Sr. ASC 43,52-54 & 58 Mr. Mehr Khan Malik, AOR Respdts In person Mr. Saqib Aleem, Addl. Secy. Wafaqi Mohtasib Capt. Retd. Muhammad Aftab, J.S. (Cabinet) Mr. M. Shabbir Ahmed, Addl. Secy. MOI Date of hearing 12.07.2013 Const.P.22/13 etc. 2 JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, C.J.:- The petitioner has approached this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 for the enforcement of fundamental rights, involving question of public importance of outlining an objective criteria for promotions to make the civil service rewarding for honest officers and free from political pressures. 2. The grievance of the Petitioner, as narrated in the petition, is non-recommendation of his name, along with so many other officers, for promotion from BPS 20 to 21, by the Central Selection Board (CSB), in its meeting held on 11-14.02.2013 and 27.02.2013, who according to his version were eligible for promotion but their cases were deferred or postponed for want of transparent objective criteria embodied in principle of rewarding honest officers instead of penalizing them by withholding their due rights contrary to Articles 3, 9 and 14 of the Constitution. In this regard, he has made the following prayer:- “(a) A free and fair enquiry of the assets of the Civil Servants in promotion zone and their families by comparing with their assets at the time when they joined the service. Their life style, expense on children education, expenses on children marriages, foreign tours etc., should be taken into account to measure the level of corruption and honestly. The Const.P.22/13 etc. 3 enquiry should be made by an independent body or commission constituted by the Honourable Supreme Court. The assets of all the Civil Servants should be open for public scrutiny. (b) To check the political affiliations and to make the bureaucracy free and fair from political affiliations; efficiency should be linked with the level of independence an officer has secured during his service. The entire career records of each Civil Servant should be scrutinized before promotion, to check as who enjoyed better posting in which political party’s tenure. This will certainly present a clear picture of a majority of civil servants divided/loyal with different political groups, leaving a few independent and honourable officers aside.” 3. Brief but relevant facts of the case are that the petitioner, Orya Maqbool Abbasi, joined government service on 18.10.1984 in the District Management Group (now “Pakistan Administrative Service” (PAS)). He was promoted to BPS 18 in the year 1990, BPS 19 in the year 1998 and BPS 20 in the year 2006. For the purpose of promotion of the petitioner along with others from grade 20 to 21, a meeting of Central Selection Board (CSB) was held on 03.10.2011, but the petitioner among others was not recommended for promotion. As in the instant case, a larger question involving the fundamental right of government servants to be promoted from Grade 20 to 21 was involved, therefore, being aggrieved from the decision of the CSB, left- Const.P.22/13 etc. 4 over candidates invoked constitutional jurisdiction of the High Courts, including Islamabad High Court by instituting Writ Petition No. 3483/2011 wherein orders were passed restraining CSB from undertaking further proceedings and the writ petition was ultimately disposed of. Relevant para therefrom is reproduced hereinbelow:- “In this view of the matter instant writ petitions are allowed, formula of award of 15 marks on the discretion of CSB is declared as illegal, superficial, unconstitutional, against the dictums of court of apex, non-transparent, result of adamant approach, whimsical, sham, unprecedented, infringement to constitutional guarantees and principle of natural justice, therefore, same is set aside. The respondent Establishment Division is directed to implement the judgment of honourable Supreme Court, delivered in Civil Petitions Nos. 1083, 58 to 60, 443 and 444 of 2010, in is letter and spirit and restructure the formula of award of 15 marks, in accordance with guidelines provided therein. All the meetings of CSB, therefore, are declared unconstitutional without jurisdiction and unjust which are held to be of no consequence”. 4. It is to be pointed out that in another case Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways (PLD 2013 Lahore 413) the learned Lahore High Court on setting aside some of the recommendations of CSB, issued directions to formulate a well thought out Objective Criteria in accordance with the Revised Const.P.22/13 etc. 5 Promotion Policy and consider the cases of the petitioners (before the High Court) and private respondents (therein) afresh. 5. As a result wheroef, two meetings of the CSB were held on 11th to 14th February, 2013 and 27th February, 2013, to consider and recommend promotions of officers from Grade 20 to Grade 21 of All Pakistan United Grades (APUG). Break up whereof is noted in the summary dated 20th November, 2012, moved by Secretary Establishment for the approval of the Prime Minister vide following paras of the summary: - 3. To compute the vacancies for promotion of PAS officers to BS-20 & BS-21, the following factors have been taken into account: (i) Number of posts as per cadre strength in the Provinces. (ii) Difference between cadre strength and staffing position. (iii) Anticipatory vacancies due to retirements till 31.01.2013. 4. Based on the above factors, the following vacancy position in respect of PAS has been reckoned for promotion of PAS officers to BS=-21 and BS-20: BS-21 BS-20 22 68 6. It is to be noted that 22 vacancies were got approved on 27th November, 2012. A second summary was moved on 9th January, 2013 and 37 vacancies were got approved from the Prime Minister on 24th January, 2013. Again a third summary dated 30th January, 2013 was forwarded for approval of the Prime Minister, in view of the following para: - Const.P.22/13 etc. 6 “34. Keeping the above factors into account, the vacancy position in respect of PAS/BS-21 has been worked out and is added at Annexure-XIII, which comes to 56 against the earlier 37 vacancies already approved. Similarly, the revised vacancy position for promotion to BS-21 in Secretariat Group comes to 31 against 28 already approved. As such 2/3rd share for Secretariat Group officers comes to 21 against 19 already approved and 1/3rd vacancies i.e. 10 would go to other Groups/Services against 09 already approved.” And Prime Minister gave its approval on 1st February, 2013. Breakup whereof is as under: - Annex-XIII REVISED VACANCY POSITION FOR PROMOTION OF PAS OFFICERS FROM BS-20 TO BS-21 A) Departments/Organizations of the Federal Government where manning is done by the Establishment Division Number of BS-21 Vacancy Positions Prime Minister Secretariat 01 Wafaqi Mohtasib 02 FBR 01 NPF 01 NDMA 01 TCP 01 NHA 01 PMDC 01 Agriculture Policy Institute 01 National School of Public Policy 01 B) Retirement of BS-22 officers belonging to PAS by 30.04.2013 05 C) Retirement of PAS/BS-21 officer by 30.04.2013 01 D) Additional BS-21 position reported by 02 Const.P.22/13 etc. 7 Provincial Governments Already approved vacancies 37 Total 56 7. A perusal of above breakup makes it clear that 19 vacancies were added in the revised list, object is understandable, namely, to accommodate maximum persons from PAS by promoting them to Grade 21 against 22+56+10=88 vacancies. 8. It is an admitted position that against above vacancies, candidatures of the officers out of the seniority list of Pakistan Administrative Service (PAS) serial No.133 were examined by CSB in its meetings held on 11th to 14th February and on 27th February, 2013. As a result whereof 49 candidates were deferred, including the petitioner. In his case following reasons have been assigned by Secretary Establishment in his concise statement: - “Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that professionally not sound and unfit to hold higher responsibility. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as outstanding/very good with integrity as above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1(a)(iv) of Revised Promotion Policy, 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of complete 12 months, required under Policy.” 9. Surprisingly, despite realizing that petitioner’s PER’s had not supported his supersession of 23rd, 24th September and 3rd Const.P.22/13 etc. 8 October, 2011, as he is an outstanding officer and also very good integrity wise, but he was again deferred. Perhaps, he did not have PER for the year 2012-13 though he had special report in his favour and according to revised policy dated 11th January, 2013, special report for the period of deficiency, earned in the next calendar year would be taken in to account to complete the 12 month’s requirement for the purpose. 10. It is to be observed that not only the petitioner but few other candidates were also subjected to the following arbitrary and discriminatory treatment:- OFFICERS RECOMMENDED FOR DEFERMENT FOR PROMOTION OF BS-20 OFFICERS OF PAKISTAN ADMINISTRATIVE SERVICE (PAS) TO BS-21 Sl. NO SEN . NO. NAME OF OFFICERS REASONS 6 14 Mr. Muhammad Rashid Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that this integrity was not above board & professionally not sound. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as very good/good with integrity as honest, reliable and above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1(a)(iv) of Revised Promotion Policy 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of complete 12 months after supersession, as required under Policy. 7 17 Mr. Muhammad Rizwan Taqi Capt. (R) Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that his score was below required threshold. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as very good/good with integrity as honest, reliable and above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1(a)(iv) of Revised Const.P.22/13 etc. 9 Promotion Policy 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of complete 12 months after supersession, as required under Policy. 8 19 Mian M. Zulqarnain Aamir Maj. (R) Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that most unreliable, professionally not sound and connected with agencies. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as very good/good with integrity as honest, reliable and above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1(a)(iv) of Revised Promotion Policy 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of complete 12 months after supersession, as required under Policy. 10 25 Mr. Manzar Hayat Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that thoroughly corrupt and professionally not sound. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as very good/good with integrity as honest, reliable and above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1(a)(iv) of Revised Promotion Policy 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of complete 12 months after supersession, as required under Policy. 12 29 Mr. Iftikhar Hussain Earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that morally & professionally not sound. The Board now noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia, rated him as very good/good with integrity as honest, reliable and above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1 (a) iv of Revised Promotion Policy 2007. The Board decided to defer him. He is to be reconsidered on the basis of PER of Const.P.22/13 etc. 10 complete 12 months after supersession, as required under Policy. Whereas, to achieve the object for which 88 vacancies were created following officers were promoted: - OFFICERS RECOMMENDED FOR PROMOTION OF BS-20 OFFICERS OF PAKISTAN ADMINISTRATIVE SERVICE (PAS) TO BS-21 Sl. NO. SEN . NO. NAME OF OFFICERS TOTAL SCORE OF PER & TRAINING AWARD OF MARKS BY CSB TOTAL SCORE CATE- GORY MARKS 1. 1. Mr. Farooq Ahmed Khan 66.98 B 10 76.98 2. 2. Mr. Tariq Javed Afridi Maj. (R) 61.46 B 15/24 76.46 3. 5. Mr. Abdul Jalil 63.21 A 12 75.21 4. 8. Mr. Rashid Bashir Mazari Capt. (R) 69.57 B 10 79.57 5. 11. Mr. Tipu Mahabet Khan 69.64 A 11 80.64 6. 12. Mr. Athar Hussain Khan 69.71 B 10 79.71 7. 13. Mr. Aftab Habib 66.48 B 10 76.48 8. 15. Mr. Aijaz Ahmed 66.65 B 10 76.65 9. 20. Mr. Ahmed Yar Khan Sq. Ldr. 77.12 A 12 89.12 10. 21. Mr. Tariq Masud Capt (R) 67.15 B 10 77.15 11. 23. Mr. Ali Zaheer Hazara 60.48 B 15/24 75.48 12. 24. Mr. Shujat Ali 74.97 A 12 86.97 13. 26. Mr. Aftab Ahmad Maneka 68.31 B 10 78.31 14. 27. Mr. Usman Ali 64.51 A 11 75.51 15. 30. Mr. Muhammad Aslam Hayat 71.38 B 10 81.38 16. 31. Mr. Javaid Nisar Syed 68.66 B 09 77.66 17. 33. Mr. Mohsin S. Haqqani 72.83 B 10 82.83 18. 34. Mr. Ajaz Ali Khan 77.24 A 11 88.24 19. 35. Mr. M. Tariq Mahmood Pirzada 67.30 B 15/24 82.30 20. 37. Mr. Shoaib Ahmad Siddiqui 74.25 A 11 85.25 21. 38. Mr. Zahid Saeed Capt. (R) 73.94 A 12 85.94 22. 41. Dr. Hammad Uwais Agha 68.64 B 10 78.64 23. 42. Mr. Altaf Ezid Khan 71.71 B 10 81.71 24. 43. Mr. Shah Sahib 65.69 B 10 75.69 25. 45. Mr. Sajjad Ahmed 75.34 A 11 86.34 26. 46. Mr. Arbab Muhammad Arif 76.28 A 12 88.28 27. 49. Mr. Hassan Iqbal 75.35 A 12 87.35 Const.P.22/13 etc. 11 28. 50. Mr. Imran Afzal Cheema 72.49 B 10 82.49 29. 51. Mr. Sardar Ahmed Nawaz Sukhera 80.91 A 12 92.91 30. 52. Mrs. Yasmin Masood 70.25 A 12 82.25 31. 53. Mr. Saqib Aleem 68.67 B 10 76.67 32. 54. Mr. Muzaffar Mehmood 70.80 B 10 80.80 33. 55. Dr. Allah Bakhsh 69.09 B 10 79.09 34. 56. Mr. Muhammad Ijaz 70.14 B 10 80.14 35. 58. Mr. Mohammad Younus Dagha 80.40 A 12 92.40 36. 59. Mr. Naveed Kamran Bluch 74.35 A 11 85.35 37. 60. Mr. Shmail Ahmed 76.98 A 11 87.98 38. 61. Mr. Mohammed Misbah 70.22 B 10 80.22 39. 62. Mr. Mukhtar Hussain 7..40 A 11 84.40 40. 64. Mr. Aurangzeb Haque 69.41 B 10 79.41 41. 66. Mr. Muhammad Tariq Hayat, Capt. 69.00 B 10 79.00 42. 67. Dr. Syed Sohail Altaf 73.80 A 12 88.80 43. 68. Mr. Ghulam Qadir Khan 69.25 B 10 79.25 44. 69. Maj. Rizwan Ullah Beg 72.11 A 11 83.11 45. 70. Mr. Azam Suleman Khan 78.68 A 12 90.68 46. 71. Mr. Abid Ali Sq. Ldr. (R) 67.65 B 10 77.65 47. 72. Mr. Muhammad Ifran Elahi Sq. Ldr. (R) 73.82 A 12 85.82 48. 73. Mr. Amjad Ali Toor Sq. Ldr. (R) 73.71 A 12 85.71 49. 74. Mr. Qaiser Majeed Malik Maj. (R) 72.50 A 12 84.50 50. 75. Mr. Malik Tahir Sarfraz Awan Capt. (R) 74.64 A 11 85.64 51. 76. Mr. Atta Muhammad Khan Capt. (R) 73.60 B 10 83.60 52. 77. Mr. Fazeel Asghar Capt. (R) 72.85 B 10 82.85 53. 78. Mr. Amjad Shahid Afridi 70.66 B 10 80.66 54. 79. Mr. Shabbir Ahmed 70.38 A 12 82.38 55. 80. Mr. Yousaf Naseem Khokar 78.76 A 12 90.76 56. 81. Mr. Allam ud Din Bullo 72.05 A 11 83.05 57. 82. Dr. Syed Hyder Ali 7.71 A 11 84.71 58. 84. Dr. Fida Muhammad Wazir 70.45 B 10 80.45 59. 85. Mr. Rizwan Malik 74.42 A 11 84.42 60. 86. Mr. Imran Ahmed 72.84 B 10 82.84 61. 87. Mr. Muhammad Ashraf 7..82 B 10 83.82 62. 88. Ms. Shaista Sohail 77.20 A 12 89.20 63. 89. Ms. Rabiya Adila Javeri 77.49 A 12 89.49 Const.P.22/13 etc. 12 64. 90. Mr. Muhammad Ilyas 70.75 B 10 80.75 65. 92. Mr. Mummtaz Ali Shah 74.61 A 12 86.61 66. 93. Mr. Jamil Ahmed 70.51 B 10 80.51 67. 94. Mr. Muhammad Asif 73.36 A 12 85.36 68. 95. Mr. Sheikh Zia ul Haq 71.36 A 11 82.36 69. 96. Mr. Muhammad Javed Hanif 76.78 A 12 88.78 70. 102. Mr. Rashid Ahmed 67.55 A 18/24 75.55 71. 103. Mr. Shoaib Mir Memon 78.98 A 12 90.98 72. 107. Mr. Jalal Sikandar Sultan 77.28 A 11 88.28 73. 118. Mr. Babar Hassan Bharwana 68.56 B 10 78.56 74. 119. Mr. Imran Nasir Khan 67.99 B 10 77.99 75. 112. Mr. Shfaqut ur Rehman Ranjha 71.61 B 10 81.61 76. 118. Mr. Tariq Feroze Khan 66.92 B 12/24 78.92 77. 119. Mr. Munir Ahmed 60.70 B 15/24 75.70 78. 125. Mr. Nasrullah Khan 65.72 B 10/24 75.72 79. 132. Dr. Fazlullah Pechuho 77.30 A 11 88.30 80. 133. Mr. Rizwan Ahmed 69.82 B 10 79.82 11. It has been informed that against originally created 22 vacancies of Grade 21 approved on 27th November, 2012, officers noted in the seniority list of PAS at serial Nos. 1, 2, 5, 8, 11, 12, 13, 15, 20, 21, 23, 24, 26, 27, 30, 31, 33, 34, 35, 37, 38 & 41 were accommodated in the meeting held in February, 2013. It is to be noted that M/S Liaqat Ali Chughtai, Syed Hassan Mehmood, Imtiaz Hussain Rizvi and Ahsan Mehmood Mian whose cases were remanded by the learned Lahore High Court vide judgment noted above were not included in the above lists. 12. It may be observed that the manner in which 88 vacancies were created are self explanatory; otherwise object of accommodating junior officers, who were at serial No.132 and 133, could not have been possible. 13. A bird eye view of the above promotee officers suggest that mostly senior officers were recommended for deferment, reasons Const.P.22/13 etc. 13 of the same have already been noted above. In this manner, 80 out of 133 officers were promoted on the recommendation of CSB. 14. When the matter was taken up, Mrs. Seema Najeeb and Mr. Iqbal A. Bablani jointly filed an application for impleadment as party through Arshad Ali Ch. AOR, wherein it has been stated that applicants joined the Government Service on 22.10.1985 in the then DMG in BPS 17, and are now placed at Sr. 45 and 60 respectively in the seniority list of PAS Officers in BPS 20. It has been further stated in the application that PERs are due on 31st January of each year. As such, at the date of the meeting even PER for the year 2012 were available with Establishment Division for consideration. It was asserted that no person can be condemned for fault of others and it was for others to furnish PERs by 31st January each year. They argued that, the promotion of both the applicants was deferred for no fault on their part, as their PERs for the year 2012 were available with the Establishment Division at the time of both the CSB Meetings held on 11.02.2013 and 27.02.2013. 15. Another application for impleadment as party vide CMA No. 4298/2013 was field on behalf of Hafiz Muhammad Abdul Hayee, an ex-officer of in Administrative Services serving in BPS 20, 16. More than one concise statements, including CMA Nos. 3358/2013, 4431/2013 and 4445/2013 on behalf of Establishment Division and CMA No. 3989/2013 on behalf of former secretary establishment, have been filed. Const.P.22/13 etc. 14 17. Mr. Taimur Azmat Osman, former Secretary Establishment filed his reply through CMA No.3989/2013; relevant paras therefrom are reproduced hereinbelow for reference:- “8. The CSB in its decisions is guided by the common wisdom and recommendations of the presenting Secretary, but option of the presenting Secretary may not be agreed by the CSB. The cases of all officers who were superseded in October, 2011, including Mr. Orya Maqbool Abbasi were presented by me before the Board. 9. The case of the petitioner was deferred not on the basis of record, but on technicalities relating to the eligibility criteria for consideration for promotion. Under revised Promotion Policy 2007 read with earlier Policy of 1985 “an officer superseded earlier shall be considered after earning PER for full one year. In case the officer has earned part PER for less than 12 months in a calendar year then a special report for the period of deficiency earned in next calendar year shall be taken into account to complete the requirement of 12 months for this purpose”. 10. Mr. Orya Maqbool Abbasi had not earned a full PER of one year after supersession at the time when the matter was considered by the Board since PER up till December, 2011 were being considered. He had a shortfall of around 1½ month in his PER for the year 2011. However, a special report for completing mandatory one calendar year was received in the Establishment Division and presented before the Board. As such the requirements of the policy quoted above were completed. However, the Board in its collective wisdom decided not to consider the petitioner as well as number of officers of the PAS with similar requirements because, in their view point, they should be even handed with all other services as they had not considered cases of similar nature of other services. The Board thought that they should not give special dispensation to the PAS officers. On my insistence as presenting Secretary, the Board agreed to at least reserve equal number of vacancies for officers of similar category of PAS, including the petitioner, for consideration of their cases in the next CSB’s meeting.” Const.P.22/13 etc. 15 18. Similarly, another concise statement has been filed on behalf of Establishment Division through CMA No.3358/2013. Relevant paras therefrom are reproduced hereinbelow:- “4. One view was that the said Special Reports for the period of deficiency (part or whole 2012) be obtained and cases of officers concerned be submitted in next session of CSB’s meeting. The other view was that the proposed Special Reports pertaining to part/whole of 2012 should not be considered mainly for the reason that the entire proceedings had taken place on the basis of PER record upto 2011. The Board advised that requisite Special Reports in the said cases be obtained. Final decision for consideration OR otherwise to be taken in the next session. On 27-02-2013, the CSB after detailed deliberation, in its collective wisdom decided not to consider the said Special Reports. The CSB, however, agreed to convene next regular meeting to consider promotion from BS-19 to BS- 20 and from BS-20 to BS-21 in all the Ministries/Divisions/Department, shortly upon receipt of PER 2012 of the officers on the panel. 5. The name of Mr. Orya Maqbool Abbasi was placed before the Central Selection Board (CSB) held on 11th–14th & 27th February, 2013. The Board observed that the officer was earlier superseded on 23rd–24th September & 3rd October, 2011 for the reason that professionally not sound and unfit to hold higher responsibility. His score of PERs, TERs and marks awarded by Board was below the prescribed score of 75. The Board noted that said supersession was not supported by his PERs record particularly for the last five years which, inter-alia rated him as outstanding/very good with integrity as above board. He did not earn PER one full year (12 months) after his last supersession. His PER for the year 2011 was required to be earned subsequent to his supersession in terms of para 1 (a) (iv) of Revised Promotion Policy 2007. The Board decided to defer him. He is to be re-considered on the basis of PER of complete 12 months, as required under policy.” Const.P.22/13 etc. 16 19. Report on behalf of head of CSB/Chairman FPSC was filed through CMA No.3803/2013 stating therein that CSB after detailed discussion and taking into account all aspects decided to consider all promotion cases placed before it on the basis of PERs upto 2011. The petitioner was superseded in the previous meeting of the CSB held in October 2011. As per the Policy, the superseded officers are required to earn PERs for 12 months but the petitioner had not earned PERs for 12 months, upto December 2011, therefore he along with all other officers falling in that category were deferred to the next meeting. First session of the CSB was held on 11th-14th February, 2013 to consider the cases of promotions, but some of the agenda items could not be considered due to pre-engagements of the Board members, shortage of time, non-readiness of agenda items, etc., therefore, second session of the CSB’s meeting was held on 27.02.2013. It was in this session that the Board in its collective wisdom decided not to consider special reports (for the period of deficiency, i.e. part or whole of 2012) for the reasons:- (i) 18 officers of another category who were promoted to their present grade in year 2011 were also not recommended for promotion mainly for the reason that they lacked experience at the existing level. PER of 2012 in case of these officers was also not considered like all other officers for the sake of uniformity. (ii) In case PER for 2012 was considered, the officers superseded by CSB in its present with less quantification would also have claimed that they could have been promoted after considering PER for 2012 as the same may have improved their quantification. Const.P.22/13 etc. 17 20. It was further submitted that not only the petitioner but about 24 other officers of BPS 19 and 20 were also deferred for the same reasons, hence no discrimination was done nor any fundamental right was infringed. The CSB unanimously took a policy decision and applied in all cases across the board. 21. Yet another concise statement was filed on behalf of Establishment Division through CMA No.3642/2013 stating therein that the petitioner was superseded in CSB meeting held on 3.10.2011 but he did not assail his supersession in any court of law, therefore, the decision of CSB has attained finality. 22. Another concise statement was filed on behalf of Establishment Division, in compliance of order dated 27.06.2013 through CMA No. 4303/2013 providing complete record of promotion of officers from Grade 20 to 21; statement showing number of cadre posts available in the year 2012 and 2013; seniority list of officers who were promoted and those who were not considered along with reasons. It was further asserted that Secretary Establishment Division on his own is not empowered to increase the strength of cadre posts of PAS. It was also submitted that no induction of any officer from any other cadre has been made in the PAS in BPS 21, as a consequence of CSB February, 2013. 23. CMA 4454/2013 has been filed by Shabbir Ahmad, respondent No. 56, stating therein that Establishment Division moved a summary in June, 2011 seeking approval of 22 vacancies which was approved by the Prime Minister, however, CSB-I could not meet due to the restraining order of the Islamabad High Court. In June, 2012 in Const.P.22/13 etc. 18 response to another summary, the Prime Minister approved 37 vacancies but due to the restraining order issued by the Islamabad High Court, CSB could not be convened. Thereafter, CSB was finally held on 11th–14th February, 2013 in which 56 candidates were promoted including the respondent. According to the respondent, the delay of 16 months was caused due to restraining order of Islamabad High Court. 24. In the concise statement filed on behalf of respondents No. 23, 47, 49, 53, 57, 74 and 75 through CMA No. 4453/2013, it was asserted that the petition under Article 184(3) of the Constitution is not maintainable as in individual grievance relatable to the terms and conditions of the services and by the specific bar contained in Article 212(3) of the Constitution. The guidelines for the CSB are enunciated in the Revised Promotion Policy, 2007 read with earlier Policy of 1985 on the same subject. The criteria for promotion to BPS 21 asked for by the petitioner, in their opinion, do not fall within the criteria laid down in the said policy. 25. It was further submitted that previously ex-cadre posts were included in the vacancy positions on a notional basis and officers were posted subsequent to promotion. For the sake of transparency, this time around existing vacancies were taken into account before the meeting of CSB after approval of the Prime Minister. They also argued that no aggrieved person has approached the Court in order to challenge the posting made against ex-cadre posts while 79 out of 80 officers promoted to BPS 21 have actualized their promotion since March, 2013. In addition to it, it was stated that the exact number of vacancies was determined and that matter was cleared for holding Const.P.22/13 etc. 19 meeting of CSB after vacation of stay order by the Islamabad High Court in January, 2013. The last meeting of the Board was then held in February 2013 and vacancies of BPS 21 which accrued thereafter were also taken into account. 26. Dr. Fazlullah Pechuho, Respondent No. 82, has filed concise statement through CMA 4462/2013 mentioning therein that as the petitioner has invoked the jurisdiction of this Court under Article 184(3) for his personal grievance, therefore, no question of public importance is involved; hence, petition is liable to be dismissed. Besides this the petition is barred under Article 212(2) of the Constitution as the petitioner intends to enforce terms and conditions of his service. Moreover, the petitioner has not preferred departmental appeal. 27. In the joint concise statement, respondents No.28, 43, 52, 53, 54 and 58 stated that promotions to higher post in terms of Section 9 of the Civil Servants Act, 1973 [CSA, 1973] are reserved under the rules for departmental promotion in the service or cadre to which a civil servant belongs, and it, inter alia, provides for filling of posts of Additional Secretary in a prescribed way. They also raised the question with regard to filing of petition under Article 184(3) of the Constitution. 28. Later on, in the concise statement filed on behalf of respondents No.19, 38, 61, 73 and 81 it was stated that the petitioner was deferred for promotion from BPS 20 to 21 on account of deficiency in PERs along with others and that he would be considered for promotion in the next CSB meeting subject to fulfillment of deficiency Const.P.22/13 etc. 20 pointed out earlier by the CSB. It was further stated that deferment is not a punishment and is not also a question of law or public importance. Reliance in this behalf was placed on the case of Watan Party v. Chief Executive of Pakistan (PLD 2003 SC 74) relied upon in the case of All Pakistan Newspapers Society v. Federation of. Pakistan (PLD 2004 SC 600). It was argued that interference in the collective wisdom of the CSB is not warranted and the Court had not entertained such petitions wherein proceedings of CSB were called in question. Reliance in this regard has been placed on Dr. Mir Alam Jan v. Dr. Muhammad Shehzad (2008 SCMR 960) and Saleem Ullah Khan v. Shahid Hamid (2011 SCMR 788). Moreover, the matter relates to the terms and conditions of service which exclusively falls within the jurisdiction of the Federal Service Tribunal under Article 212 of the Constitution. Also, this petition is barred on the basis of the dictum laid down in the cases of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041) and Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280). It was argued that a panel of 134 PAS officers of BPS 20 was placed before the Board for consideration who on the basis of updated record, integrity and performance of the officers known to the Board members as well as pen pictures contained in the PERs and training evaluation reports considered the officers on the panel in the order of seniority. Minimum threshold of marks for promotion to BPS 21 was 75 marks, while applicants had secured the marks mentioned against their names:- Sr. No Name Marks Respondent No. 19 Mr. Mohsin Haqqani 82.83 19 Const.P.22/13 etc. 21 36 Mr. Naveed Kamran Baloch 85.35 38 59 Mr. Rizwan Malik 85.42 61 71 Mr. Shoaib Mirza Memon 90.98 73 79 Mr. Rizwan Ahmed 79.82 81 29. Before dilating upon the merits of the case it is considered appropriate to deal with the objections of maintainability of instant petition under Article 184(3) of the Constitution. It is to be noted that an individual is empowered to invoke the jurisdiction of this Court, if it is established that a question of public importance with reference to the enforcement of the Fundamental Rights is involved. The petitioner has not invoked the jurisdiction of this Court to seek relief individually as it is evident from the contents of the prayer clause, reproduced hereinabove and also arguments advanced by him, relating to enforcement of fundamental rights of the Civil Servants of BPS-21 who have to involve themselves in important policy making and extensive administrative jurisdictions, having possessed proven analytical competence, breadth of vision, emotional maturity and such other qualities as determined the potential for successfully holding posts in top management for achieving the goal for the welfare of the general public, which also deals with their fundamental rights under Articles 9 and 25 etc. of the Constitution. Reference may be made to Tariq Aziz- ud-Din’s case (2010 SCMR 1301). Relevant paras therefrom are reproduced hereinbelow:- 30. Learned counsel for the Federation and Attorney General for Pakistan were of the opinion that as few persons have approached this court by sending Misc. applications which have been treated petition under Article 184(3) of the Constitution whereas majority of Const.P.22/13 etc. 22 the officers have accepted the decision, therefore, for this reason petitions may be dismissed directing the aggrieved party to avail legal remedy permissible under the law, instead of invoking constitutional jurisdiction of this Court. Reliance was placed on All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600. We are not impressed with this argument; as well, for the judgment cited by the learned counsel for the Federation is not relevant to the issue involved because the exercise of discretion contrary to settled principles has not only affected the left out officers but has left a far-reaching adverse effect upon the structure of civil servants---- be in the employment of the Federal or the Provincial Governments, autonomous and semi-autonomous bodies, etc. --- and if the decision of the competent authority under challenge is not examined keeping in view the Constitutional provisions and the efficient officers who have served honestly during their service career, would have no guarantee of their future service prospects. Consequently, such actions are also likely to affect the good governance as well as framing of policies in the welfare of the public and the State. Therefore, to assure the public at large, more particularly the civil servants in this case that their fundamental rights will be protected, this Court is constrained to exercise jurisdiction under Article 184(3) of the Constitution. “ 30. Second objection, which has been raised by Mr. Rashid A. Rizvi, learned counsel is that in view of bar of Article 212 of the Constitution, instant petition is not competent. In this behalf reference may be made to section 4 of the Federal Service Tribunal Act, 1973 [FSTA, 1973], which has no application on the fitness of a person to hold a particular post. As CSB in view of promotion policy has deferred to a good number of BPS-20 officers of PAS/APUG, allegedly for subjective reasons, therefore, in view of law laid down in I.A. Sherwani’s case (ibid), it is held that objection has no substance. 31. Now it is to be noted that BPS-21 position is a selection post and is to be dealt with under section 9 of the CSA, 1973, which reads thus:- Const.P.22/13 etc. 23 “9. Promotion.- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs: Provided that the posts of - (a) Additional Secretary and Senior Joint Secretary may, in the public interest, be filled by promotion from amongst officers of regularly constituted Occupational Groups and services holding, on regular basis, posts in Basic Pay Scale 20; and (b) ………… (2) A post referred to in sub-section (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed- (a) in the case of a selection post, on the basis of selection on merit; and (b) in the case of a non-selection post, on the basis of seniority-cum-fitness. (3) Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman, Federal Public Service Commission.” 32. There is no cavil with the proposition that BPS-21 post has to be filled on merits on the recommendations of Selection Board. In presence of above provision of law to evolve a transparent procedure for promotion and making selection to the pos of BPS-21, the competent authority in exercise of powers under section 9 (2)(a) of the CSA, 1973 read with rule 7, 7A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 [CS(AP&T)R, 1973], issued following revised guidelines (Policy of Promotion in 2007):- “5. Posts carrying basic pay scale 21 fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity Const.P.22/13 etc. 24 and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil servant must fulfill the following conditions for promotion to senior management post:- (a) Qualifying Service: possess 22 years service as an officer subject to the provisions contained in Establishment Division’s O.M. No.1/9/80-R-II (A), dated 2-6-1983 (Sl. No. 157). (b) Eligibility Threshold: attain a minimum score of 75* marks in CRs in accordance with the formula given in the Addendum. (c) Qualifications: as are prescribed by relevant recruitment rules. (d) Relevance of Experience: possess experience relevant to the functions of the post being filled by promotion. (e) “Quality and Output of Work” and “Integrity”: marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer. (f) “Variety of Experience: the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments (on account of workload or its complexity) viz-a-viz relatively routine, duties particularly in the secretariat. Depending on the posts to the filled, an officer possessing well-rounded experience with adequate exposure to difficult assignments should normally be preferred. (g) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence *College. This requirement will be waived for officers who: (i) have served as head of a training institution for at least one year; or (ii) have served on the directing staff of a training institution for at least two years; or (iii) have exceeded the age of 56 years. (h) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy Const.P.22/13 etc. 25 itself about the officer’s maturity, balance and ability to assume such top management positions even at short notice.” 33. It may not be out of place to observe that policy of promotion (revised in 2007) enjoys the force of law, therefore, has to be adhered to strictly. Reference in this behalf may be made to the case of Fazali Rehmani v. Chief Minister NWFP (PLD 2008 SC 769). 34. Petitioner has emphasized that CSB arbitrarily recommended to the candidates for promotion not fit for promotion for extraneous conditions qua it had also happened in the cases of superseded or deferred officers, therefore, it is necessary to amend promotion policy incorporating provision to hold enquiry about their life style, expenses on children’s education, expenses on children marriages, foreign tours, etc. and political affiliations, enable CSB to give its findings objectively instead of denying their rights of promotion on subjective conditions. 35. It is to be noted that above noted policy was promulgated as back as in the year of 2007. Findings so recorded by CSB during promotion of candidates by CSB had been subject matter of judicial review by Courts as recently in the Writ Petition No. 3483/2011 decided by Islamabad High Court findings of CSB have been declared unlawful and contrary to the guidelines. Similarly in Liaqat Ali Chughtai’s case (supra) the learned High Court in respect of selection process carried out by CSB in its meeting on 23rd -24th September, 2011 observed as follows:- “38. For the above reasons, the selection process carried out by CSB in its meeting held on 23rd, 24th September, and 3rd October, 2011 is hereby declared unconstitutional Const.P.22/13 etc. 26 and illegal and is therefore set aside. CSB is directed to formula a well thought out Objective Criteria in accordance with the Revised Promotion Policy (as discussed above) and consider the cases of the petitioners and private respondents afresh.” 36. As it has been pointed out that promotion from BS-20 to BS-21 is merit base selection, while taking into consideration eligibility criteria to assess the fitness and suitability of the officers who shall be involved in important policy making decisions for extensive administrative jurisdiction as per the guidelines issued in Promotion Policy of 2007; therefore, Establishment or concerned department remains under legal obligation to assist CSB in a transparent and fair manner to avoid non-transparent selection of such like officers. It is quite possible to do so in view of statutory provision of law dealing with the case of promotion through process of selection under sub- sections (2)(a) and (3) of section 9 of the CSA, 1973 read with rules 7-A and 8 of the CS(AP&T)R, 1973, on the recommendations of the Central Selection Board along with revised Promotion Policy of 2007, which have been reproduced hereinabove. 37. The conditions for promotion to senior management post, noted above, are required to be fulfilled strictly while examining the case of each candidate. Needless to observe that promotion is not a right, but a civil servant who is fully qualified for promotion has a right to claim that his case must be considered for promotion strictly following the eligibility criteria laid down by the Government, more particularly, in view of the provisions of section 4 of the FSTA, 1973, whereby a civil servant is debarred to avail remedy under Article 212(3) of the Constitution, as it has been laid down in the case of Const.P.22/13 etc. 27 Government of Punjab, through Secretary Health Department v. Dr. Aman-ul Haq (2000 SCMR 1805). 38. Unfortunately, in the instant case, which has been filed under Article 184(3) of the Constitution and maintainability of the same has already been decided supra, neither the Secretary Establishment nor CSB strictly adhered to the provisions of section 9 of the CSA, 1973 and rules 7-A and 8 of the CS(AP&T)R, 1973 as well as revised Promotion Policy of 2007, and without causing prejudice to the case of any of the individual, an extensive exercise was undertaken to ensure promotion of the officers who were junior as per seniority list by increasing the number of available vacancies in which non-cadre posts were also added. Initially, approval of the Prime Minister was obtained for 22 vacancies on 27.011.2013 and perhaps on having seen that target of promoting junior officers could not be achieved, if CSB is allowed to make the recommendations against only these vacancies, second summary was moved on 09.01.2013 for the approval of the Prime Minister for adding 37 vacancies, which was approved on 12.01.2013. Again, third summary was moved on 30.01.2013, wherein by making reference to 22+56 vacancies, 10 more vacancies for other groups/service were got approved. A perusal of the break up of 56 vacancies, approved on 1.2.2013, which has been reproduced hereinabove, abundantly makes it clear that the purpose was nothing except to achieve the object noted hereinabove, otherwise for promotion of officers of PAS there was no necessity to add vacancies which were outside the cadre of PAS or the Secretariat group like Wafaqi Mohtasib, FBR, PF, TCP, NAB, PMDC, etc. Not only this, the vacancies which were likely to be vacated in future on the retirement Const.P.22/13 etc. 28 of officers of grade 21 and 22, belonging to PAS on 30.04.2013, etc., were included knowing well that the organizations named hereinbefore had their own service structure and promotion to the next higher scale has to be carried out amongst their ranks. In this context, it has been informed that previously ex-cadre posts used to be included in the vacancy positions on a notional basis and officers were posted subsequent to promotion, and the stand taken by the Establishment Division is that for the sake of transparency this time overall existing vacancies were taken into account, before the meeting of CSB after approval of the Prime Minister. It is interesting to note that 10 vacancies were identified to be added in the total available positions of BS-21 for promotion of Secretariat Group or other services but admittedly in a highly unauthorized manner no promotion of any officer except PAS officers was made as a consequence of deliberations of CSB meeting held on 11th to 14th and 27th February, 2013. In view of such situation there is hardly any necessity to repeat about the object and purpose of promoting the officers junior in the seniority list upto serial No.133, at the same time recommending deferment of 49 PAS officers including the petitioners, Orya Maqbool Abbasi, Muhammad Rashid, Muhammad Rizwan Taqi, Mian Muhammad Zulqurnain, Manzar Hayat, Iftikhar Hussain, etc., for arbitrary reasons. To substantiate this point, reference may be made to various notifications placed on record of same date i.e. 11.03.2013 as in some of the notifications despite promotion most of the officers were allowed to actualize their promotion with the same vacancy of BS-20, which they were already occupying. It is true that the officers who were not qualifying eligibility criteria for promotion, their cases could be Const.P.22/13 etc. 29 deferred but not on the basis of discriminatory reasons, particularly, where such elements are visible on record. In this behalf reference may be made to CMA No.3358/2013 wherein the Board observed that the officer (Orya Maqbool Abbasi) earlier superseded on 23rd, 24th September & 3rd October, 2011 for the reason that he is professionally not sound and unfit to hold higher responsibility. It was further observed that marks awarded by Board were below the prescribed score of 75. However, in the next meeting i.e. 11th – 14th and 27th February, 2013 the Board noted that said supersession was not supported by his PERs record particularly for the last five years which, inter alia, rated him as outstanding/very good, with integrity as above board. Luckily, identical observations have been made in respect of Muhammad Rashid and others whose names have been noted hereinabove. Not only this, the petitioner had secured a special report for the year 2012 as per the admission of Secretary Establishment, as such requirements of the policy quoted above were fulfilled. This may also be borne in mind that vide Office Memorandum No.F.1/1/2012- CP-2 dated 11.01.2013 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, following proviso was inserted in Para-2 of Revised Promotion Policy, 2007:- “Provided further that if an officer has not earned Performance Evaluation Report of complete one year and has earned only part Performance Evaluation Report in a calendar year for no fault of his own (i.e. he/she remained OSD without any assignment, remained on mandatory/non-mandatory training and awaiting posting/actualization of promotion) then his/her special report for the period of deficiency earned in next calendar Const.P.22/13 etc. 30 year shall be taken into account to complete the 12 – months requirement for the purpose.” 39. It is beyond our comprehension that CSB while deferring the cases of others as well (noted hereinabove) observed that as per the policy the superseded officers are required to earn PERs for 12 months but the petitioner had not earned PERs for 12 months upto December, 2011, therefore, he along with all other officers, falling in that category, were deferred to the next meeting. First sessions of CSB was held on 11th – 14th February, 2013 to consider the cases of the promotion but some of the agenda items could not be considered due to pre-engagements of the Board members, shortage of time, non- readiness of agenda items, etc., therefore, second session of the CSB’s meeting was held on 27.02.2013. In this session, the Board in its collective wisdom decided not to consider special reports (for the period of deficiency, i.e. part or whole of 2012). Least we can observe that recommendations for the deferment of the senior management officers was nothing but unfairness with them. 40. The case of senior management officers was not decided following the principle of due process of law being one of their fundamental rights under Article 10A of the Constitution, which provides that for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process, as it has been held in the case of Babar Hussain Shah v. Mujeeb Ahmed Khan (2012 SCMR 1235) as under: - “11. … … Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution Const.P.22/13 etc. 31 of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void.” The same principle has been highlighted in the case of President Balochistan High Court Bar Association v. Federation of Pakistan (2012 SCMR 1958), wherein it has been held that the due process of law was not one of the fundamental right but after the 18th Constitutional Amendment, it was made part of Chapter 1, Part II of the Constitution as one of the fundamental rights. It provides that for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. Thus, it is the duty of the State to enforce fundamental rights of citizen and protect their life, liberty and property and anyone of them if charged for any offence, he has to be dealt with in accordance with law by providing fair trial and due process. 41. The CSB, being semi judicial forum, has been authorized to examine the cases of the officers justly and fairly. In the instant case, as it is evident from the available record, a good number of officers were deferred on 23rd-24th September and 3rd October, 2011 contrary to the record, as it is admitted by the Secretary, Establishment, for different reasons including that they were professionally not sound and unfit to hold higher responsibility, but when again for the second time their cases were put up the same Board noted that said supersession was not supported by their PERs record, particularly for the last five Const.P.22/13 etc. 32 years, which, inter alia, rated them as outstanding/very good, with integrity as above board. 42. We have posed a question to ourselves as to whether on account of earlier unfounded, illegal and arbitrary decisions by the CSB, the officers should be allowed to continue to suffer despite realization of CSB that its earlier findings were not supported with the record; the answer to it is that illegal and arbitrary decisions militates against the rule of law, thus, calls for interference by the Court in exercise of its power of judicial review. In addition to it, emphasis has been laid by the GoP through its Secretary Establishment that the cases for promotion of the petitioner and so many others, were not rejected for any technical reasons but it is in the collective wisdom of CSB not to consider the petitioner and all the officers in PAS with similar requirements, because in their viewpoint they should be even handed with all other services as it had not considered cases of similar nature of other services. This Court in the case of Federation of Pakistan through Secretary Establishment vs. Liaqat Ali and Tauqir Ahmad Faiq (Civil Petition Nos. 836 and 837 of 2006) held that decision with regard to promotion of the officers cannot be left on the discretion of the members of the Board; there must be some criteria to judge the performance of a candidate because promotion was denied to the officer on ground that he does not fulfill the criteria. 43. As it has been discussed hereinabove the petitioner and others were subjected to arbitrariness by the CSB while considering their cases in the months of September and October, 2011 and in the meetings of CSB held twice in the month of February, 2013, it did not Const.P.22/13 etc. 33 support to its adverse decision against the petitioner and others and on having seen their record concluded that PERs are fully supporting them and in view of the subject reports in their favour, they are eligible to be considered for promotion. However, it failed to take into consideration such reports for the reasons not tenable in law and their such findings were clear violation and departure from the promotion policy because once the officers have fulfilled the criteria, their cases have to be considered, to asses the fitness and suitability to share higher responsibility, mostly based on objective criteria, instead of denying promotion to them for the subjective consideration, as exactly has happened in this case in view of the background which has been noted hereinabove, he should have been reconsidered for promotion. Thus, such findings, which are whimsical, in violation of the policy and are also based on subjective consideration, cannot be endorsed in the public interest as well as for the good governance, relating to the welfare of the citizens. The officers, if have not been considered for promotion on merit against a selection post from BS-20 to 21, it would have direct impact on good governance, which is necessary to provide for smooth running of affairs in the country including protecting the rights of citizens under Articles 3 and 9 of the Constitution. 44. It is most important to note that during the hearing of the case, learned Additional Attorney General conveyed that the Government had decided to review the promotion of PAS officers and in this behalf following statement was filed:- “STATEMENT ON BEHAFL OF SECRETARY ESTABLISHMENT DIVISION Respectfully Sheweth Const.P.22/13 etc. 34 During the hearing of Constitution petition No.22/2013 titled Orya Maqbool Abbasi vs Federation of Pakistan today in the Honourable Supreme Court of Pakistan, the Additional Attorney General conveyed to the apex Court that it was decided by the Federal Government to review the promotion of PAS officers recommended in the second session of the CSB held on 27.02.2013. The Honourable Court directed that statement in writing maybe given by Establishment Secretary. 2. Establishment Secretary is traveling to Lahore via motorway in connection with an official engagement in NSPP. He has accorded verbal approval on phone to file the statement on his behalf. 3. Establishment Division hereby confirms that it would review promotion of 24 officers (at serial No.57 to 80) already recommended by CSB, through another CSB meeting to be convened, shortly. 4. Promotion of 56 officers recommended in the first session of CSB, 2013 maybe allowed to continue in BS-21. (SYED ALI SHAHBAZ KIRMANI) Section Officer (Legal) Establishment Division Islamabad” 45. After considering the above statement, we observe that above admission is sufficient to support his contention, which has been raised by the petitioner and so many other senior management officers, who joined the proceedings by submitting miscellaneous applications, in pursuance whereof they have also highlighted their grievances, which are somehow identical in nature. Therefore, it is considered appropriate to examine the above statement in its real perspective as it is not an individual case of few officers for promotion of grade 20 or 21 but relates to good governance, rights of general public, enforcement of fundamental rights as well as application of Const.P.22/13 etc. 35 statutory provision of law, followed by rules and guidelines of promotion noted hereinabove. At the same time it is also to be seen that Lahore High Court in the case of Liaqat Ali Chugtai v. Federation of Pakistan (PLD 2013 SC 413) had remanded the case. It seems that during the CSB 2nd meeting in the month of February, their cases were not considered and same is the position in respect of the cases of civil servants, which were decided by Islamabad High Court in Writ Petition No.3483/2011. 46. Now turning towards the pivotal role of officers relating to the management in Government of Pakistan, notwithstanding whether they belong to PAS or Secretariat Group or any other group, fact remains that individuals of such cadre play a decisive role in shaping the destiny of the nation. Reference in this behalf to highlight their importance can conveniently be made to the following passage from the speech of Quaid-i-Azam Muhammad Ali Jinnah delivered in April, 1948, to the civil officers in Peshawar:- “ … The reason why I am meeting you is that I wanted to say a few words to you who are occupying very important positions in the administration of this province. The first thing that I want to tell you is that you should never be influenced by any political pressure, by any political party or any individual politician. If you want to raise the prestige and greatness of Pakistan you must not fall victim to any pressure but do your duty as servants of the people and the state, fearlessly and honestly. The services are the backbone of the state. Governments are formed. Governments are defeated. Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business. Whichever government is formed according to the constitution, and who ever happens to be the prime minister or minister, coming into power in the ordinary Const.P.22/13 etc. 36 course, your duty is only to serve that government loyally and morally but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you start with that determination, you will make a great contribution to the building up of Pakistan of our conceptions and our dream-a glorious state and one of the greatest nations in the world. While impressing this upon you, I wish also to take the opportunity of impressing upon our leaders and politicians in the same way, that if they ever try to interfere with you and bring political pressure to bear upon you, which leads to nothing but corruption, bribery and nepotism-which is a horrible disease and for which not only your province but others too are suffering-if they try to interfere with you in this way, I say they are doing nothing but disservice to Pakistan. I hope that each of you will understand his own sphere of duty and responsibility and act with others harmoniously in complete cooperation, keeping in mind that each has to do his duty within the sphere to which he belongs, if on your part start with that determination and enthusiasm – and I hope the other side will also realize what a terrible evil they are raising up and how it demoralizes the services to try and influence this department or that departments, this office or that officer-and if you stick to your determination you will have done a great service to your nation. Putting pressure on service people is, I know, a very common fault of politicians and those with influence in political parties, but I hope you will now, from today, resolve and determine to act according to the humble advice I am giving you. …” Importance of the role of the civil servants could not be highlighted in better manner except in the words of founding father of this country noted hereinabove. 47. It is critically to be noted that unlike the provisions of the earlier Constitutions of 1956 and 1962, no protection is provided to the civil servants in the Constitution of 1973, as a result whereof, this important section of executive, which is responsible to make the policies for country are not feeling as strong as it should have been with the constitutional protection to their services. Therefore, by Const.P.22/13 etc. 37 enforcing existing laws, rules and regulations full protection is required to be provided to them so honest and dedicated members of civil service may discharge their function without any fear or favour enabling them not to show eagerness to obey unlawful and uncalled for demands of their bosses, instead of following the principle of honesty and transparency in the performance of their duties. In this behalf reference readily may be made to the case of Tariq Aziz-ud- Din (2010 SCMR 1301). In the said case, all the promotions of grade- 22 officers in exercise of judicial powers, were reversed and the Government was asked to frame policy/rules for promotion from grade 21 to 22, to ensure that such appointments must be made on merit, according to the criteria laid down by the law and the rules. Recently, in another judgment in the case of Syed Mahmood Akhtar Naqvi v. Federation of Pakistan commonly known as Ms. Anita Turab case (PLD 2013 S.C. 195), this Court, once again proceeded to interpret the relevant provisions of law, particularly relating to the tenure of the officers and immature transfers/postings. In this context it is to be noted that firstly, the competent authority i.e. Government as well as CSB had to adhere strictly to the law and the rules as well as the instructions on the subject. If any action is taken against any of the officers denying his case for promotion, such action would be unlawful and would have no leg to stand. In addition to it, two clauses i.e. (e) and (f) of item 5 of Promotion Policy, noted hereinabove, are very important. While examining clauses (e), (f) and (h) relating to quality and output of work, variety of experience and top management potential, stringent provisions have to be incorporated to make such promotion policy to provide objective criteria for promotion. The Const.P.22/13 etc. 38 petitioner has prayed that the criteria of eligibility on merits, credibility of civil servants could be adjudged in view of the contentions, which he has made part of the petition. We do agree with his prayer and observe that it would be great achievement if it is added in the policy to hold an inquiry of the civil servant while sending his case for promotion and also examine his family assets at the time when he joined the service including lifestyle, expense on children education, expenses on children marriage, foreign tours as well as to ascertain the political affiliation of such a candidate to make the bureaucracy free from political affiliation as it has been observed in his speech by the Quaid-e-Azam. 48. A very dangerous trend has been set amongst the civil servants that instead of claiming their recruitment, promotion, etc., on merit, they prefer to seek the blessings from the outside of their service hierarchy, which ultimately makes obligatory upon them to oblige the persons who favoured them in the promotion to the higher rank. Therefore, on adding this clause in the policy, the government would be able to get service of quite independent persons with knowledge, ability and free from any pressure, for the purpose of assisting the executive Government to discharge its function as well as to maintain the rule of law. 49. As we noted that the government itself has shown inclination to reconsider the cases for promotion from grade 20 to 21, in view of the statement and discussion made hereinabove, but we are of the opinion that as the decision of CSB and the manner in which 88 positions of BS-21 were created, has not found in consonance with the Const.P.22/13 etc. 39 statutory provision of law, rules and the guidelines for promotion, thus action of CSB in deferring 49 officers for one or the other reason has rendered whole process of promotion void. Therefore, we are of the opinion that instead of reconsidering the cases of officers from Sr. No.57 to 80 out of seniority list of PAS officers it would be in all fairness to undertake exercise by CSB as a whole for promotion from BS-20 to 21 including candidates of PAS and for other services i.e. Secretariat group etc. 50. Thus, it is held as under:- (i) The petition under Article 184(3) of the Constitution has been held to be maintainable and is allowed. (ii) The promotion from BS-20 to 21 against available vacancies has to be made in accordance with reserved quota for the promotion of different groups i.e. PAS, Secretariat etc., as a result whereof instead of cancelling the promotion of the officers from Sr. No.57 to 80 all cases of promotion against 88 vacancies of BS-21 is hereby cancelled being void and unlawful and fresh exercise has to be undertaken along with the cases of the civil servants which have been remanded by the Lahore High Court in Liaqat Ali Chugtai’s case (PLD 2013 Lahore 413) and the cases decided Islamabd High Court in W.P. No. 3483/2011. Consequently, notification of promotion of all the officers issued in pursuance of the recommendations of CSB held on 11th-14th February and 27th February, 2013 are hereby set aside with direction to the competent authority to undertake the process of the promotion to all of them as observed hereinabove strictly in accordance with law on merits under Section 9 of the Civil Const.P.22/13 etc. 40 Servants Act, 1973, read with rules 7, 7A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 as well as Promotion Policy as amended upto date, vide O.M. dated 13.1.2013. (iii) The Government shall also undertake exercise to outline the objective criteria for promotion to make the civil servant an honest officer and free from political pressure as has been noted hereinabove. Petition stands disposed of leaving the parties to bear their own costs. Chief Justice Judge Judge Announced on 3rd October, 2013 at Islamabad Chief Justice Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Constitution Petition No. 23/2012. (Petition by Ms. Anita Turab for protection of Civil Servants). AND Const. Petition No. 11/2012. (Syed Mahmood Akhtar Naqvi vs. Federation of Pakistan etc.) AND Crl. Original Petition No. 23, 24 & 27 of 2012 in Const. P. 11/2012. (Syed Mahmood Akhtar Naqvi vs. Ghulam Haider Jamali etc) AND H.R. C. No. 14427-P/2012. (Application of Rai Manzoor Nasir) AND CMAs Nos. 1575, 1611, 1792, 197-K, 231-K, 232-K of 2012 AND Crl. Misc. Application No. 587/2012 in Crl. O.P. 24/2012 in Const. P. 11 /2012. For the Petitioner (s) : Ms. Anita Turab, in person. Syed Mahmood Akhtar Naqvi, in person. Amicus Curiae: Hafiz S. A. Rehman, Sr. ASC For Govt. of Sindh: Mr. Abdul Fateh Malik, A.G. Mr. Adnan Karim, AAG. Mr. Ali Sher Jakhrani, AIG Mr. Maqsood Ahmed, DSP For Govt. of KPK: Syed Arshad Hussain Shah, AAG. For Govt. of Balochistan: Mr. Azam Khattak, AAG. For Govt. of Punjab: Mr. Jawad Hassan, AAG. Date of Hearing : 18.10.2012 J U D G M E N T Jawwad S. Khawaja, J.- Many centuries before the term ‘good governance’ became a catch-phrase, we find a remarkably eloquent exposition of the principles of good governance in the Epistle of Hazrat Ali to Malik ibn Ashtar, the Governor of Egypt. The revered Khalifa, may Allah be pleased with him, is reported to have said: “….give careful consideration to the selection of … officers. Confirm them in their appointments after approval, apprenticeship and probation. Never select men for responsible Const. Ps. 23/2012 etc 2 posts either out of any regard for personal connections or under any influence, for, that might lead to injustice and corruption.… select for higher posts men of experience, men firm in faith … Such men will not fall an easy prey to temptations and will discharge their duties with an eye on the abiding good of others”. The law and the Constitution of Pakistan, with the aim of furthering the welfare of the people of Pakistan, articulate the same principles. The truth is that principles pertaining to the setting up of a just and constitutional government are eternal, not peculiar to our times. Our law, Constitution and courts only apply these universal and time-tested principles to the prevalent situation. In this public interest case seeking elaboration of constitutional and legal safeguards relating to the working of civil servants, we reaffirm these eternal principles which have also been stressed by us in cases decided earlier. 2. The background to this matter is that Suo Moto Case No. 3 of 2012 was initiated on the basis of broadcasts on different TV channels on 25.2.2012. In these broadcasts, Syeda Wahida Shah, a candidate of the Pakistan Peoples Party for bye-election to PS-53 (Tando Muhammad Khan) was shown slapping a member of the polling staff. The Suo Moto case was concluded vide order dated 12.3.2012. Ms. Anita Turab, who is a civil servant in BS-19, presently working in the Ministry of Interior, filed an application in the aforesaid Suo Moto case. Since the case stood concluded, the application was ordered on 12.3.2012 to be registered as a petition under Article 184 (3) of the Constitution. It is this petition which is being decided through the present order. 3. The grievance of the petitioner set out in her petition can be summarized. Firstly, she seeks that the standing of the civil service be restored as service of the State and not the service of any transient government. To achieve this object, her submission is that unlawful political interference in the independent and legitimate functioning of civil servants be stopped. Secondly, the petitioner seeks corrective institutional measures to revert the civil service to rule-based management practices in accordance with the letter and spirit of applicable laws, rules and precedents of this Court. 4. On 12.3.2012, we had directed the Secretary Establishment Division, Government of Pakistan, the Chief Secretaries of the four Provinces and the Chief Commissioner, Islamabad Capital Territory to submit their comments. It was noted in Const. Ps. 23/2012 etc 3 the said order that civil servants who act according to law, at times, have to face hardship in the form of immediate transfer or posting as Officers on Special Duty (OSD) even before the completion of their tenure. It was also noticed that frequent transfers, postings and disciplinary proceedings are taken in violation of the law, rules and regulations. 5. The above referred functionaries comprised as a Committee, have submitted their report which includes tentative recommendations. Amongst other things, the Committee has recommended that “[p]ostings and transfers be made on merit”, “tenures for various categories of posts be fixed” and that “[n]o civil servant should be posted as OSD for purposes of parking of officers who are unwanted, or, who are not susceptible to pressures.” The Committee further recommends that “[a] civil servant should be placed under suspension only by the competent authority after initiation of disciplinary proceedings; and….Officers taken on deputation/borrowed from other tiers of the government should carry the requisite experience and seniority for specific jobs.” According to the petitioner, many of the Committee’s recommendations are already covered by existing law, rules and regulations, particularly in matters relating to tenure, appointment, transfer and posting of civil servants. There is no dispute or contention that such recommendations must indeed be implemented with immediate effect as a necessary concomitant to good governance. Some other recommendations made by the Committee require legislation or rule making which, necessarily will need to be undertaken by the legislature and/or the competent rule making authority and not by the Court. 6. The petitioner being a civil servant herself has requested revival of the independent, impartial and professional status of the civil service as an institution and to affirm its decision-making authority in furtherance of the rule of law. The petitioner’s further grievance is that legal and constitutional safeguards meant to protect the civil service from excessive political interference are being systemically breached. With its safeguards thus withered, the service is growing inefficient and demoralized and with it, the machinery of the State, mandated to enforce good governance, rule of law and fundamental rights of the people of Pakistan, is failing. Const. Ps. 23/2012 etc 4 7. The petition has been held maintainable because the situation portrayed does raise a question of public importance with reference to the enforcement of fundamental rights. In our constitutional scheme of governance, the importance of such a civil service, which is law-abiding and itself legally protected, cannot be over emphasized. “Good governance”, this Court has recently observed, “is largely dependent upon [an] upright, honest and strong bureaucracy. [The] Civil service is the back bone of our administration.” per Chaudhry Ijaz Ahmad, J. in Tariq Aziz-ud-din’s case (2010 SCMR 1301). Additionally, the fundamental rights of civil servants, inter alia, under Articles 9, 14 and 18 of the Constitution are also aspects arising in this Constitution Petition. The enforcement of fundamental rights is primarily the responsibility of the Executive branch of the State and civil servants constitute that essential component of the Executive who operate the executive machinery. A duty is thus cast both on the civil service and on the political executive to ensure the effectiveness (in all respects) of the civil service. 8. It is not in contention that civil servants are public servants and are, therefore, meant to take decisions only in accordance with law in the public interest. In their capacity as advisors in decision making or as administrators and enforcers of law, they are not subservient to the political executive. It is their obligation to remain compliant with the Constitution and law. Hence they are not obliged to be servile or unthinkingly submissive to the political executive. One of their prime duties is to give advice in the best public interest and to administer the law impartially being incharge of the machinery of the State. In this regard, the address made by Quaid-i-Azam Mohammad Ali Jinnah to the members of the civil service at Peshawar on 14th April, 1948 is most relevant. Quaid-i-Azam instructed them not to be “influenced by any political pressure, by any political party or individual politician.” While urging them to loyally and faithfully serve whichever government came to power “in the ordinary constitutional course”, he also reminded them of the need for “fearlessly, maintaining [their] high reputation, prestige, honour and the integrity of [their] service.” Noting that pressurizing civil servants was, even in those early days, “a very common fault of politicians”, he warned politicians that such behaviour would lead to “nothing but corruption, bribery and nepotism which is a Const. Ps. 23/2012 etc 5 horrible disease…” Ultimately, he urged both politicians and civil servants to “understand [their] own sphere of duty and responsibility and act with others harmoniously and in complete cooperation.” Yet, being fully aware that real life was never ideal, he forewarned the civil servants that “you may even be put to trouble not because you are doing anything wrong but because you are doing right. Sacrifices have to be made, and I appeal to you, if need be, to come forward and make the sacrifice…”. (Quaid-e-Azam Mohammad Ali Jinnah, Speeches as Governor General of Pakistan 1947-48, Sang-e-Meel Publications, Lahore : 2004). 9. These should, indeed, be the guiding principles informing the relationship between the civil service and the political executive – the two limbs of the Executive branch of government, envisaged in the Constitution. Equally so, these principles should inform the judicature’s interpretation of the articles of the Constitution and legal provisions which relate to the employment of persons in the service of Pakistan. We reaffirm that while civil servants do have a duty to follow the policy guidelines and directions of the political executive yet, because of Article 5 of the Constitution, just like other citizens, their foremost duty is “obedience to the Constitution and the law”, not unthinking obedience to all directives (right or wrong) issuing from the political executive. In this context, Rule 5(10) of the Rules of Business, 1973 framed by the Federal Government in accord with Articles 90 and 99 of the Constitution, may be examined: “When the Secretary submits a case to the Minister, the latter may accept the proposal or views of the Secretary or may over-rule him. The Secretary will normally defer to the decision of the Minister and implement it. In case, however, the Secretary feels that the decision of the Minister is manifestly wrong and will cause gross injustice or undue hardship, he may state his reasons and re-submit the case to the Minister. If the Minister still adheres to his earlier decision and the matter is important enough, the Secretary shall request the Minister to refer the case to the Prime Minister and the Minister shall so refer the case for orders of the Prime Minister. If the case is not referred to the Prime Minister, the Secretary shall submit it directly to the Prime Minister with observations of the Minister-in-Charge.” In other words, implementation of policy or directives, in some cases may be required notwithstanding the considered views of a civil servant to the contrary. In such event, however, the civil servant should record his/her honest and considered opinion without fear. Decisions Const. Ps. 23/2012 etc 6 violating the law relating to appointment and terms and conditions of service of civil servants which are manifestly wrong and are likely to cause gross injustice or undue hardship should be considered important enough for the purpose of Rule 5(10) ibid. 10. It is worth noting that the Constitutions of 1956 and 1962 contained chapters outlining certain safeguards for the civil service. In the 1973 Constitution, the framers omitted a similar chapter from the constitution and shifted the onus to ordinary legislation. The Law Minister at the time, who was steering the Constitution Bill informed the Constituent Assembly that in the past, constitutional protection for civil servants had been granted “because those who served came from outside and they needed these protections in respect of service”. However, since now “this country [was] being run by the leaders of the people” such protections were no more deemed necessary. The purpose of this change, therefore, was to “[break] away from the past colonial traditions” and to emphasize the point that civil servants were not entitled to “any superior or higher status” compared to other citizens. Another reason the Law Minister gave was that the “Constitution is the basic document providing the fundamentals and this matter was not so fundamental as to be provided in the Constitution.” (Parliamentary Debates, 31st December, 1972 and 19th February, 1973). It was therefore decided that, as stated in Articles 240, 241 and 242 of the Constitution, the matter would be dealt with through statutes. Such statutes were subsequently passed and include the Civil Servants Act, 1973. It may be emphasized that whatever else the intent behind these changes may have been, it could not have been meant to subjugate of civil servants to constantly changing political imperatives. The intent of the Constitution cannot but be a fuller realization of the goal set out in the speech of the country’s founding father quoted earlier: “fearlessly, maintaining [the] high reputation, prestige, honour and the integrity of [the civil] service.” 11. It was in this spirit, i.e. providing meaningful legal guarantees to civil servants and doing away with arbitrariness, that Parliament enacted statutes such as the Civil Servants Act, 1973. The very object of this statute is to legally “regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan” (Preamble). The rule of law is the key idea reflected in the whole scheme of the statute. This impression is textually reinforced by the express stipulation that appointment of Const. Ps. 23/2012 etc 7 civil servants shall be made only “in the prescribed manner” (S. 5), that the terms and conditions shall be only such as are “provided in [the] Act and the Rules” [S. 3(1)] and not be “varied to his disadvantage” [S. 3(2)] and that promotions shall only be made on the basis of objective criteria such as “merit” [S. 9(2)(a)] and “seniority-cum-fitness”.[S. 9(2)(b)]. 12. This Court, in a number of precedents has, interpreted and emphasized these very principles, some of which need to be reiterated at this point. Before that, however, we may note the precept and rule of public trust which forms the basis of this area of the law. This court has repeatedly observed that “functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are their pay masters.” [Syed Yousaf Raza Gillani v. Assistant Registrar, (PLD 2012 SC 466) affirming Muhammad Yasin v. Federation of Pakistan]. Most recently, in the case relating to dual nationality of Parliamentarian, we have reiterated that “all state authority is in the nature of a ‘sacred trust’ and its bearers should therefore be seen as fiduciaries” (Mehmood Akhtar Naqvi v. Federation of Pakistan, Const. P. 5/2012). One of the implications of this concept, highlighted in the case law considered below, is that the matter of tenure, appointment, posting, transfer and promotion of civil servants cannot be dealt with in an arbitrary manner; it can only be sustained when it is in accordance with the law. Moreover, the use of the words ‘in the public interest’ in such matters are not fatuous or pointless, but emphasise the fiduciary nature of orders relating to tenure, posting etc. Thus a proposed decision which deviates from the accepted or rule-based norm without proper justification, can be tested on the touchstone of a manifest public interest. 13. Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. It is necessary once again, to hark back to the considerations Const. Ps. 23/2012 etc 8 set out in the speech of Quaid-i-Azam and the eternal wisdom reflected in the Epistle of Hazrat Ali, may Allah be pleased with him, cited at the start of this opinion. It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (Estacode). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/difficulties arise for civil servants when the rules of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion. We are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance. It is for this reason that transparency in decisions relating to tenure etc. are required to be entrenched and cemented to assure the quality, effectiveness and morale of the civil service. Since executive decisions generally are subject to judicial review, the assurance of transparency is itself likely to eliminate decision making based on considerations other than merit. We have referred to accepted principles and rules above and may now advert to certain relevant rulings earlier rendered by this Court. A - On the Issue of Appointments and Removals 14. In a number of judgments, the courts have clarified that whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulously. In the Corruption of Hajj Arrangements’ case (PLD 2011 SC 963) and Tariq Aziz-ud-din’s case ibid, it has been clarified that even where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured and reasonable manner and in the public interest. Appointing authorities cannot be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they are bound to act fairly, evenly and justly Const. Ps. 23/2012 etc 9 and their exercise of power is judicially reviewable. And in Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we have clarified that, when called upon to do so, the Courts are “duty bound to examine the integrity of the selection process”, although they “will not engage in any exhaustive or full-fledged assessment of the merits of the appointee nor […] seek to substitute [their] own opinion for that of the Executive.” It may also be noted that just like the appointment of civil servants, their removal and dismissal from service has not been left to anyone’s whims and caprice. It is governed by rules and regulations, amongst them the Civil Servants (Efficienty and Discipline Rules), 1973. Indeed, the anachronistic concept where government servants held office during the pleasure of the Crown has no place in a dispensation created and paid for by the people. B - On the Matter of Promotions 15. In Tariq Aziz-ud-din’s case, we have dealt with some important facets of the civil service including the exercise of discretion in matters of promotion. Such discretion must be exercised fairly and in a transparent manner. Discretion has to be understood within the four corners of the concept of rule of law upon which our system of governance is founded. Every authority in the State is bound to obey the dictates of the law and has no personal or absolute discretion. It was therefore held that “[t]he right [to be considered for promotion] contemplated under section 9 [of the Civil Servants Act] is neither illusionary nor a perfunctory ritual and withholding of promotion of an officer is a major penalty in accordance with the Civil Servants (Efficiency and Disciplinary) Rules, 1973, therefore, consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material relating to merit and eligibility which can be lawfully taken note of.” C – On the Matter of Transfers and Tenure 16. In the Hajj Corruption Case, the Court reiterated its earlier ruling in Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530), where it had been held that “the normal period of posting of a Government servant at a station, according to Rule 21 of the Rules of Business is three years, which has to be followed in the ordinary circumstances, unless for reasons or exigencies of service a transfer before expiry of the said period becomes necessary Const. Ps. 23/2012 etc 10 in the opinion of the competent authority.” Furthermore, with regard to transfers of civil servants, this Court has stated that transfers by political figures which are capricious and are based on considerations not in the public interest are not legally sustainable. Farrukh Gulzar vs. Secretary Local Government and Rural Development Department, Lahore and 2 Others (1998 SCMR 2222). These are principles of law enunciated by this Court and are to be followed in terms of Article 189 of the Constitution. We, however, repeatedly come across violations of such principles. This unnecessarily leads to litigation which, in turn, clogs Courts and Service Tribunals. D - On the matter of obeying illegal orders from superiors 17. In Syed Nazar Abbas Jafri vs. Secretary to the Government of the Punjab and Another (2006 SCMR 606), this Court held that the duty of public officers is to independently discharge their functions and not be influenced by “dictatorial misuse of powers” at the hands of political figures. The Court has also emphasized that the appointment and removal of civil servants is not to be politically motivated. Province of Punjab vs. Azhar Abbas (2002 SCMR 1). These decisions highlight the concept of a civil service which enjoys certain legal protections and is thus capable of performing its envisioned role as a law-enforcing institution. 18. The compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Here it would be relevant to cite the judgment of this Court in Samiullah Khan Marwat vs. Government of Pakistan (2003 SCMR 1140) where it was stated: “….the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey[ing] the command of law and the Constitution…” Furthermore, in the case of Iqbal Hussain vs. Province of Sindh (2008 SCMR 105) the Court held that “the compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law.” In case the subordinates are directed to implement an illegal order “they should put on record their dissenting note” Human Rights Cases No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759). Similarly, illegal orders cannot be defended on the plea that these could expose the concerned government Const. Ps. 23/2012 etc 11 servant to the risk of disciplinary action. Zahid Akhtar vs. Government of Punjab (PLD 1995 SC 530). E - On the matter of posting civil servant as Officers on Special Duty (OSD) 19. Ordinarily, no government employee should be posted as OSD except under compelling circumstances. In the Hajj Corruption case, (PLD 2011 SC 963) the Court held: “It is well settled that placing an officer as OSD is tantamount to penalizing him because the expression ‘OSD’ is not known to either the Civil Servants Act, 1973 or the Civil Servants Appointment Promotion and Transfer Rules, 1973.” Reference in this regard may also be made to the cases of Mir Shah Nawaz Marri vs. Government of Balochistan etc [2000 PLC (C.S) 533], Syed Ajmal Hussain Bokhari vs. Commissioner, Rawalpindi [1997 PLC (CS) 754], Sajjad Ahmad Javed Bhatti vs. Federation of Pakistan (2009 SCMR 1448) and Lt. Col. (R.) Abdul Wajid Malik vs. Government of the Punjab (2006 SCMR 1360). 20. The above referred precedents have shaped the contours of the law releating to civil servants and the civil service. In the established tradition of a common law jurisdiction, Article 189 of the Constitution stipulates that, “[a]ny 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.” As this Court has already held “… the interpretation of the various Articles by this Court becomes part of the Constitution”. Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). Specific to the law relating to civil servants and matters in respect of their service, we have enunciated a principle of law in the case titled Hameed Akhtar Niazi versus The Secretary Establishment Division (1996 SCMR 1185) holding that a decision given by this Court on a point of law will be binding on concerned departmental functionaries who will be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant has litigated the matter in his own case. We are conscious that in some instances the application of a legal principle enunciated in a precedent may be possible without difficulty or ambiguity, while in other cases there may be some uncertainty in determining if a legal principle is in fact applicable as precedent. It is, however, clear that in view of Articles 189 and 190 of the Constitution, a civil servant will be entitled Const. Ps. 23/2012 etc 12 to make a departmental representation or initiate legal proceedings before a competent forum to enforce a legal principle enunciated by this Court. 21. In appropriate cases the failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution. This article, it may be recalled, grants this Court the power to punish for contempt any person who “disobeys any order of the Court”. In a recent judgment, the Court has clarified the significance of the law of contempt as an enforcement mechanism. It was held “…the Court, in and of itself, has to pass orders and to require the implementation of its orders; responsibility for implementation has been made obligatory on other organs of the state, primarily the Executive. However, in the unfortunate situation that a functionary of the Executive refuses to discharge his constitutional duty, the Court is empowered to punish him for contempt…Simply put, a government of laws cannot be created or continued with toothless courts and defiant or blithely non-compliant public functionaries”. Baaz Muhammad Kakar vs. Federation of Pakistan (Const. P. No.77/2012). If there still remains any doubt, let us clarify that those executive functionaries who continue to ignore the Constitution and the law, do so at their own peril. 22. The principles of law enunciated hereinabove can be summarized as under:- i) Appointments, Removals and Promotions: Appointments, removals and promotions must be made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest. ii) Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable. iii) Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rule- Const. Ps. 23/2012 etc 13 based norms; instead, in such situations, they must record their opinion and, if necessary, dissent. iv) OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest. 23. We are fully conscious that the aforesaid matters relate to decision making and administration of the machinery of the State. As such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the State which comprises of both the political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility. However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion. 24. Copies of this judgment shall be sent to the Federal Secretary Establishment, the Chief Secretaries of the Provinces, the Commissioner Islamabad Capital Territory and to the Secretaries of all Federal and Provincial government departments. Chief Justice Judge Judge ISLAMABAD. A. Rehman Announced on: 12.11.2012. APPROVED FOR REPORTING.               (good governance)                                                                                                                                                                                                                                                                           25-02-2012      2 1          23/2012                    PS-53                             19            12-03-2012    3/2012                                184(3)            12-03-2012                            3                                                                                                                    12-03-2012  4                                                                                                 2          23/2012                            5                                                                                                                                                                                                                                                    6                                                                               3          23/2012                                                 7                          2010 SCMR 1301                                                                                           18  14, 9                                                                                    8                                                                                                 1948   14                              4          23/2012                                                                                                                                                                                                                                                      2004     1947-48                     9                                     5                             5          23/2012                                1973          99  90                         (10)  (Rules of Business)                                                                                                                                                                                                                                                                                   1962    1956        10 6          23/2012                 1973                                                                                                                                                                                                              1973  19  1972  31               242  241, 240                                                                    1973                          1973              11 7          23/2012                                                                             (S.5)                        [S.3(1)]       [S.9      [S.3(2)]                       [S.9(2)(b)]        (2)(a)]                      12                                                                               PLD 2012 SC 466                          5                          2012                   13                                          8          23/2012                         1973                                 1973                                                                                                                        14                                             (PLD 2011 SC                        (Arbitrary)               963                                (PLD 2012 SC 02)                                             9          23/2012          1971                                                                                          15                                                                                                      9                     1973                                                                      (PLD 1995 SC 530)                16          21               10          23/2012               3                                                                           (1998 SCMR 222)                        (2008 SCMR 606)      17                                              (2002 SCMR 1)                                                      18                                 2000 SCMR 1140                                 (2008 SCMR 105)               11          23/2012                                         (PLD 2010                                   SC 759) (PLD 1995 SC 530)                                 19             PLD 2011 SC 963                                         1973                           1973   1997 PLC           2000 PLC (CS) 533        2009 SCMR 1448           (CS)754     (2006 SCMR 1360)                       20                189                                                                                  12          23/2012                     (PLD 1997 SC 84)                   (1996 SCMR 1185)                                                                                   190  189                                      21   204(2)(a)                                                                                                                                                                                                     13          23/2012        Constitutoin Petition No. 77/2012                                               22      (i)                                        (ii)                                                                (iii)                                       14          23/2012                    (iv)                                                                                   23                                                                                  24        251  28              25         15          23/2012     

IN THE SUPREME COURT OF PAKISTAN (Original/Appellate Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Muhammad Sair Ali Mr. Justice Ghulam Rabbani Constitution Petition No.24 of 2011 Air League of PIAC Employees through its President Muhammad Usman Khan …Petitioner Versus Federation of Pakistan, M/o Labour and Manpower Division Islamabad etc. ….Respondents For the petitioner : Mr. Abdul Hafeez Amjad, ASC Mr. Mehmood A. Sheikh, AOR On Court Notice : Maulvi Anwar-ul- Haq, Attorney General Amicus Curiae : Mr. Mehmood Abdul Ghani, Sr. ASC Date of hearing : 10.5.2011 O R D E R Iftikhar Muhammad Chaudhry, CJ.— Instant petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, in which following prayer has been made:- It is, therefore, respectfully prayed that this Honourable Court may kindly be pleased to hold that IRA, 2008 stand protected up till 30th June, 2011 by virtue of Article 270AA of 18th Amendment of Constitution of Islamic Republic of Pakistan and respondents No.3 and 4 be directed to continue with the proceedings for holding of secret ballot for the determination of CBA in accordance with law. 2. Briefly stating facts of the case are that the petitioner, Air League of Pakistan International Airline Corporation Employees is an Industry-wise trade union registered under the Industrial Relations Laws with respondent No.3, National Industrial Relations Commission (NIRC). In the year 1969, to amend and consolidate the laws relating to the formation of trade unions, the regulation of Const.P.24/2011 2 relations between employers and workmen and to avoid and settle any differences or disputes arising between them or matters connected therewith or ancillary thereto and in the national interest of country, to achieve the uniformity through Federal legislation, the Industrial Relations Ordinance, 1969 [hereinafter referred to as “IRO, 1969”] was issued whereby the East Pakistan Trade Unions Act, 1965, the East Pakistan Labour Disputes Act, 1965, the West Pakistan Industrial Disputes Ordinance, 1968 and the West Pakistan Trade Unions Ordinance, 1968 were repealed in terms of section 67 of the said Ordinance. However, the trade unions existing at the time of commencement of IRO, 1969, registered under the said repealed laws were deemed to be registered under IRO, 1969 and continued to be in force until altered or rescinded. Later on by means of Labour Laws (Amendment) Ordinance, 1972, section 22A of IRO, 1969 was inserted whereby National Industrial Relations Commission (NIRC) was constituted for settlement of disputes between the employers and the workers. In order to provide the mechanism for the functioning of NIRC, in terms of Section 22F of IRO, 1969, the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 were framed. The IRO, 1969 was repealed by means of section 80 of the Industrial Relations Ordinance, 2002 [hereinafter referred to as “IRO, 2002]. However, it was provided that without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 every trade union registered under the repealed Ordinance would be deemed to be registered under IRO, 2002 and would continue until altered or rescinded. Subsequent thereto, the Industrial Relations Act, 2008 [hereinafter referred to as “IRA, 2008”] was promulgated whereby the IRO, 2002 was repealed. In terms of section 87 of the said Act, the trade unions registered under the repealed ordinance were deemed to be registered under the said Act and continued in force until altered and rescinded. Clause (3) of the said section provided that the Act would, unless repealed earlier, stand repealed on 30th April, 2010. 3. It is interesting to note that until 30th April, 2010 no legislation was made either to supercede the IRA, 2008 or to extend the period, for which the Act would remain operative. In the Const.P.24/2011 3 meantime, the parliament passed the Eighteenth Constitutional Amendment on 20.4.2010 whereby concurrent legislative list was omitted and all the matters mentioned therein came within the jurisdiction of the provinces for the purpose of making legislation and dealing with the said laws. Clause (6) of newly inserted Article 270AA, provided that the laws with respect to the matters enumerated in the said list (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan immediately before the commencement of the said amendment would continue to remain in force until altered, repealed or amended by the competent authority. Later on the Provincial Assemblies of all the four provinces made legislation in respect of the Industrial Relations, repealing the IRA, 2008. Province-wise detail of the same is as under:- (a) On 13th June, 2010 the Punjab Industrial Relations Ordinance, 2010 [PIRO, 2010] was issued. The Ordinance was to expire on 10th September, 2010, however, the life of the Ordinance was extended for a further period of ninety days through a Resolution passed by the Assembly on 23rd July, 2010. Same was repealed by the Punjab Industrial Relations Act, 2010 [PIRA, 2010] on 9th December, 2010. (b) On 5th July, 2010, Industrial Relations (Revival and Amendment) Act, 2010 was promulgated by the province of Sindh, whereby the IRO, 2008 was revived w.e.f. 1st May, 2010 as if it had never been repealed. (c) On 14th July, 2010 the Khyber Pukhtunkhwa Industrial Relations Ordinance, 2010 [KIRO, 2010] was promulgated. (d) On 22nd July, 2010, Balochistan Industrial Relations Ordinance, 2010 [BIRO, 2010] was issued, however, said Ordinance was repealed by Const.P.24/2011 4 the Balochistan Industrial Relations Act, 2010 on 15th October, 2010. 4. After 30th April, 2010 the Labour Courts, Labour Appellate Tribunal as well as National Industrial Relations Commission (NIRC) stopped its functions for the reason that no legislation was promulgated at Federal Level. This question came up before NIRC, Islamabad, which held that in terms of 18th Constitutional Amendment, the IRA, 2008 is intact and fully operative till altered or amended or repealed by the competent authority. 5. As the Labour Courts as well as the Labour Appellate Tribunal stopped functioning, therefore, the Chief Justice, Lahore High Court initiated suo moto action and writ petition No.10746/2010 was disposed of on the basis of report submitted by the Chief Secretary, Government of Punjab wherein it was stated that IRA, 2008 stood protected upto 30.06.2011 in accordance with the protection provided under Article 270AA of the Constitution. 6. The same controversy came before the High Court of Sindh by means of Constitution Petition No.D-1432 of 2010, wherein it was held that IRA, 2008 stood repealed on 30th April, 2010 by force of its section 87(3), whereas the IRO, 1969 came back into operation from the said date. 7. The Lahore High Court, Rawalpindi Bench while deciding ICA, 200/2008 held that IRA, 2008 has been protected till 30th June, 2011in view of Article 270AA. 8. It is important to note that learned Islamabad High Court in writ petition No.4917/2010 titled as Tufail Ahmad v. Zaka Ullah Khalil, has held that in view of section 87 (3) of IRA, 2008, it stood repealed on 30.04.2010. As such the instant petition has been filed. 9. Learned counsel for the petitioner submitted that in view of protection provided under Article 270AA of the Constitution as substituted by the Eighteenth Constitutional Amendment and in presence of section 6 of the General Clauses Act, the IRA, 2008 Const.P.24/2011 5 would remain operative and section 87(3) of IRA, 2008 would become redundant, inoperative and would be deemed to have never existed. Learned counsel further argued that section 87(3) was in conflict with Article 17 and 264 of the Constitution, therefore, provisions of Constitution would prevail. He stated that the law did not recognize vacuum in legislation and the NIRC, which was one of the important functionaries of the State could not be stopped from functioning rendering thousands cases of workers/labourers to be directly affected. He next contended that in Industrial Relational Advisors’ Association’s case the High Court of Sindh, though declared the IRA, 2008 to be repealed w.e.f. 30.4.2010 but relying upon section 6 of the General Clauses Act, restored the IRO,1969. The Islamabad High Court in Tufail Ahmad’s case while relying upon Industrial Relational Advisors’ Association’s case held that the IRA, 2008 had repealed in terms of section 87(3) but the latter part of the judgment whereby the IRO, 1969 was restored was ignored. In order to substantiate his arguments he submitted that before declaring a Federal Statute to be non-existent and in order to arrive at just and proper decision, it was necessary for the Court to issue notice to the Federal Government, particularly under the circumstances, where the Ministry of Law and Parliamentary Affairs had opined that the IRA, 2008 stood extended till 30.6.2011 in terms of protection provided under clause (6) of Article 270AA of the Constitution. 10. Learned Attorney General has submitted that after the 18th Constitutional Amendment matter relating to welfare etc. is the subject of the Provinces and the legislation has to be made by the Provinces and in view of the fact that the IRA, 2008 has lost its operation on account of in built provision of section 87(3), therefore, the NIRC cannot function any further. 11. Mr. Mahmood Abdul Ghani, learned ASC appearing as Amicus Curiae contended that the IRA, 2008 was repealed by means of section 87(3) and after its repeal the IRA, 2002 or IRO, 1969 could not revived as earlier the matters relating to welfare of labour and trade unions were mentioned in the Concurrent Legislative List, which have become provincial subject after the Const.P.24/2011 6 Eighteenth Constitutional Amendment and the authority to legislate had been transferred to the provinces. He further contended that after such repeal the NIRC as envisaged under IRA, 2008 (earlier under IRO, 2002 & IRO, 1969) would be deemed to have ceased to exist. 12. We have heard the learned counsel and have gone through the relevant provisions of the Statute as well as the case laws cited at the bar. 13. It is to be noted that initially the matters relating to welfare of labour and Trade Unions were mentioned in the Concurrent Legislative List at Items No.26 & 27, as such the Federal Government as well as the Provincial Governments both were competent to make legislation in that behalf. The Federal Government promulgated the IRO, 1969, which was repealed by the IRO, 2002 and same was also repealed by IRA, 2008. Section 87(3) of the IRA, 2008 provided that the said Act shall unless repealed earlier, stand repealed on 30.4.2010, hence, it was a temporary legislation, which was to die on 30.4.2010 automatically if it was not extended by legislative measure. Before the repeal of IRA, 2008, on 20.4.2010 Eighteenth Constitutional Amendment was passed, whereby the Concurrent Legislative List was abolished and the matters relating to labour and Trade Unions were transferred to legislative competence of the Provincial Governments. However, clause (6) of Article 270AA of the Constitution provided that notwithstanding omission of Concurrent List by the Eighteenth Constitutional Amendment, all laws with respect to any of the matters enumerated in the said Lists in force, immediately before the commencement of the said amendment would continue to remain in force, until altered, repealed or amended by the competent authority. In terms of said clause the IRA, 2008 continued to be in force notwithstanding the abolition of the Concurrent Legislative List till 30.4.2010 when in terms of section 87(3) it stood repealed. 14. Now the question for consideration is what would be implication of section 87(3) of the IRA, 2008, especially after the Eighteenth Constitutional Amendment; would it continue to be in Const.P.24/2011 7 force even after 30.4.2010 in view of clause (6) of Article 270AA. It is to be mentioned here that the temporary law is also called “sunset law”. The sunset law has been defined in “World Book Dictionary” as “a law requiring a government regulatory agency to undergo periodic review for its continued usefulness; a law providing that state agencies created by a governor or a legislature be terminated after a specified period.” In “Advanced Law Lexicon: 3rd Edition” the term sunset law has been defined as “a statute under which a governmental agency or program automatically terminates at the end of a fixed period unless it is formally reviewed”. The High Court of Sindh, in Industrial Relations Advisors’ Association’s case has thoroughly dealt with the implication of sunset law and the repeal of a temporary legislation. Relevant paras from the said judgment are reproduced hereinbelow:- “19. The first question is whether the Act of 2008 is a temporary law or whether it is a permanent law. Mr. Khalid Anwar called it a "sunset" legislation. We have already quoted above section 87(3) of the Act of 2008. In Black's Law Dictionary "Sunset law" is defined in the following words:-- "Sunset law.--A statute or provision in a law that requires periodic review of the rationale for the continued existence of the particular law or the specific administrative agency or other governmental function. The legislature must take positive steps to allow the law, agency, or functions to continue in existence by a certain date or such will cease to exist." (Underlining added) 20. Craies on Statute Law 7th Edition, on the subject of temporary and perpetual statutes, says as under:-- "Acts are also classified, by reference to their duration, as temporary or perpetual. (a) Temporary.--Temporary statutes are those on the duration of which some limit is put by Parliament. The Standing Orders of the House of Commons require a time clause to be inserted in such Acts. The Expiring Laws Continuance Acts always contain a specific date for the expiry of the continued Acts. (b) Perpetual.--Perpetual Acts are those upon whose continuance no limitation of time is expressly named or necessarily to be understood. Const.P.24/2011 8 They are not perpetual in the sense of being irrevocable." 21. Crawford's Interpretation of Laws at page 103 states as under:-- "71. Permanent, or Perpetual, and Temporary Acts.---A permanent, or perpetual Act, is one whose operation is not limited to a particular term of time but which continues in force until it is duly altered or repealed. A temporary Act, on the other hand, is one whose life or duration is fixed for a specified period of time at the moment of its enactment and continues in force, unless sooner repealed, until the expiration of the time fixed for its duration. 22. Mr. S.M. Zafar, in his Book Understanding Statutes primarily quoted from Crawford in respect of temporary Acts. A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinances is quasi legislative powers: power is legislative but exercise is executive. The Constitution itself fixes life of such enactment. Then there may be Acts of Parliament which may also be temporary because either the Act itself or any other law provides for a terminal moment for the enactment. Since section 87(3) clearly stipulated a death knell moment for the Act of 2008, notwithstanding it having been enacted as an Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly.” 15. We are in full agreement with the conclusion given by the learned High Court on the question of repeal of IRA, 2008 w.e.f. 30.4.2010. It is pertinent to mention here that clause (6) of Article 270AA provides that notwithstanding the omission of Concurrent Legislative Lists all laws with respect to any of the matters enumerated in the said lists shall continue to remain in force until altered, repealed or amended by the competent authority. It is clear from the language that as the Concurrent Legislative List was abolished, therefore, protection was provided to all the permanent laws enacted by the Parliament on the subjects mentioned in the said list. Although the protection was provided to IRA, 2008 by the said clause but it did not have any effect on section 87(3), which remained operative in its full force. Therefore, it killed the said Act on 30.4.2010. 16. The High Court of Sindh, while forming an opinion regarding the effect of repeal of a temporary legislation and revival Const.P.24/2011 9 of the previous law has relied upon various judgments. To arrive at a just and proper conclusion it would be appropriate to have a glance on the said case-laws to make comparison of the facts of those judgments with that of instant case. (i) Commissioner of Income Tax v. Ebrahim D. Ahmad (1992 PTD,1353) In the year 1959 section 15BB of the Income Tax Act was enacted whereby certain exemptions were provided from 1.4.1959 to 13.6.1965. Later on by means of Finance Ordinance, 1972, subsection (4AA) was added to section 15BB and was given effect from 1st April, 1959 the date of insertion of 15BB. The said Ordinance was laid before the Assembly but subsection (4AA) was not approved and hence it lapsed. The President under Article 297(1) of the Interim Constitution, 1972 promulgated the Post- Constitution President’s Order 5 of 1972, whereby the Ordinances issued by the President before 31st December, 1972 were provided permanence. The matter came before this Court when this Court held “In the effort to revive and revitalize the Finance Ordinance XXI of 1972 in fact subsection (4AA) of section 15BB was made effective from 1-4-1959, a date far more in retrospect than was the limiting date prescribed in the Constitution. All these defects made the post Constitution President's Order No.5 of 1972 of no avail so far as revival of subsection (4AA) is concerned.” (ii) Pir Sabir Shah v. Shad Muhammad Khan (PD 1995 SC 66) At the instance of Parliamentary Party, References under section 8-B of the Political Parties Act, 1962 were filed against the members of the Provincial Assembly of NWFP (Khyber Pakhtunkhwa). The Election Commission of Pakistan by majority of 2 to 1 dismissed the said References. The matter came up before this Court when the effect of repeal of Ordinance XXX of 1993 whereby some amendments were made in Section 8-B, was considered. This Court held that in view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its promulgation in accordance with the provisions of Article 89 ibid, the amendment introduced in section 8-B by Ordinance, XXX of 1993 stood removed from the statute book with the consequence the original provisions of section 8-B of the Act stood revived on such repeal. (iii) Federation of Pakistan v. M. Nawaz Khokhar (PLD 2000 SC 26): On 18th November, 1996 Ehtesab Ordinance (CXI), 1996 was promulgated which was further amended by Ordinance (CXXIII), 1996, Ordinance VII of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997, which was repealed by Ehtesab Act, IX of 1997. The said Act was amended through Ordinance II of 1998, which stood repealed on 3rd June, 1998 as it was not passed by the Parliament. Writ petitions were filed before the Lahore High Court challenging the vires of these Ordinances/Acts. The writ petitions were disposed Const.P.24/2011 10 of and the matter came up before this Court when it was held that “the contention appears to be correct. Ordinance II of 1998 was promulgated on 4-2-1998. It is not disputed that Ordinance II of 1998 was not passed by Majlis-e-Shoora. Under Article 89 of the Constitution, this Ordinance stood repealed on 3-6-1998. We have already held that an. Ordinance promulgated under Article 89 of the Constitution is a temporary legislation, therefore, the amendments made in the Act by Ordinance II of 1998 stood obliterated and original provisions in the Act stood revised on repeal of Ordinance II of 1998.”. (iv) State v. Muhammad Sharif (PLD 1960 Lah. 236) The Essential Commodities (Control of Distribution) Order, 1953 was promulgated under the Essential Supplies (Temporary Powers) Act of 1946. The said Act was to remain in force for a particular period but was subsequently extended by a number of statutes. By means of Ordinance X of 1955, the Essential Supplies (Temporary Powers) Act was repealed, however, under section 17 of the said Ordinance, orders made under the Essential Supplies (Temporary Powers) Act were protected. Later, the Ordinance X of 1955 was repealed by Essential Supplies Ordinance IV of 1956, which was repealed and substituted by Ordinance V of 1956. This Ordinance was repealed and substituted by Ordinance XXI of 1956. Subsequently, the Ordinance XXI of 1956 was replaced by the Essential Supplies Act, containing the same provisions as the Ordinance. The respondent was charged for an offence under section 6 of the Control of Essential Commodities Ordinance (V) of 1956 read with section 4 of the Essential Commodities (Control of Distribution) Order, 1953. The Magistrate, acquitted him on the ground that the Ordinance V of 1956, under section 6 of which he was being prosecuted, had expired six weeks after the meeting of the National Assembly in September 1956, i.e., on the 18th of November 1956, and as the Ordinance was only a temporary statute, there could not be any prosecution under an expired Ordinance. An appeal before this Court was filed by the State against the acquittal of respondent. The Curt observed that in view of Full Bench Judgment in Crown v. Haveli (PLD 1949 Lah. 550) a prosecution under Essential Commodities Ordinance V of 1956 could not be continued after the date of expiry, i.e. the 18th of November 1956. The Court ultimately held that “if the Ordinance was to expire on the 18th of November 1956 and the effect of its expiry was to make it non-existent, except for transactions past and closed, the mere repeal of it a day before its expiry could not have given it greater effect than it could originally have. There does not seem to be any objection to the proposition that by a repeal a statute will not have effect for a longer term than it would otherwise have had. All that section 6 of the General Clauses Act means is that in spite of the repeal a statute is deemed to be in force in respect of the particular matters enumerated in that section, i.e., its original life would continue in spite of the repeal, but section 6 certainly does not mean that by the repeal it would be in force even after the period for which it was legally to be in force as enacted. We are not inclined, therefore, to accept the argument that on account of the repeal, this prosecution could have continued.”. Const.P.24/2011 11 (v) The Sargodha Bhera Bus Service Limited v. The Province of West Pakistan (PLD 1959 SC 127) Facts of the case were that up to 17th December 1956 taxes were realised under the Punjab Motor Vehicles Taxation Act (IV of 1924). Later, the Governor of West Pakistan promulgated Ordinance No. XXXV of 1956 under Article 102 of the Constitution 1956. The West Pakistan Provincial Assembly met on the 28th of January 1957 and the Ordinance was actually laid before it on the 8th of March 1957, but the Assembly was itself suspended by the President under Article 193 of the late Constitution. The Ordinance, therefore, was only valid for six weeks beyond the 28th January 1957 under Article 102 of the Constitution, and ceased to operate on the 11th March 1957. The Act in which the Ordinance was embodied in the form of a statute (Act XXXII of 1958) was passed by the Legislative Assembly and the assent thereto of the Governor was first published in the Official Gazette on the 24th April, 1958. Appeals before this Court were filed against orders of High Court of West Pakistan, Lahore, for an order restraining the collection of payment of taxes under the Motor Vehicles Taxation Act, 1924. This court held that “the powers of legislation of the Governor, therefore, were of a transitory, temporary and contingent nature. They are, no doubt, co-extensive with those of the Provincial Assembly, as argued by Mr. Brohi, but this can be said only with regard to the field of legislation as regards the Provincial list and the concurrent list of subjects as given in the Fifth Schedule to the late Constitution. But it is evident that the powers of the Assembly are more extensive„ inasmuch as it was empowered to enact permanent Acts at all times not subject to any limitations as the Governor's powers are meant to be by Article 102, which are to C be exercised in emergency and with temporary effect only, and carry with them the implication that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance.”. (vi) Gooderham & Worts v. C.B.Corporation (Air 1949 PC 90) The Canadian Radio Broadcasting Act, 1932 was amended on 23rd May, 1933 by virtue of Act, 1933 whereby requirement of the consent of Governor in Council to a lease provided. The Act, 1933 was temporary and was to expire on 30th April, 1934 by virtue of section 4 of the same. By two successive Acts passed in 1934 and 1935 the date of expiry of the Act of 1932 was extended to 30th April, 1934 and 30th June, 1935. Finally by the Act of 5th July, 1935 its operation was further extended to 31st Mary, 1936. The Court held as under:- "The result is that on 31st March 1936, the temporary legislation contained in the first Act of 1933 repealing provisions of the principal Act of 1932 and substituting other provisions came to an end not by repeal of the temporary legislation but by the efflux of the prescribed time. No question as to the revival of the temporarily repealed provisions of the principal Act of 1932 by the repeal of repealing legislation arises. The repeal effected by the temporary legislation was only a temporary repeal. When by the fiat of Parliament the temporary repeal expired the Const.P.24/2011 12 original legislation automatically resumed its full force. No re- enactment of it was required. This is what subsection (3) of the Act of 5th July 1935, was designed to make clear. The principal statute of 1932 is to be read on and after 1st April 1936, as if the temporary legislation had never been enacted; it is to be in force as if there had been no temporary legislation affecting its provisions." (vii) State Of Orrissa vs Bhupendra Kumar Bose (AIR 1962 SC 945) During December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 Orissa (XXXIII of 1950). The elections were challenged before the High Court which were set aside and orders of injunction were issued. As a result of the findings made by the High Court during the course of the said judgment the validity of elections to other Municipalities were exposed to the risk of challenge, therefore, the Governor of Orissa promulgated the Ordinance I of 1959, on January 15, 1959. Sections 4 and 5(1) of the said Ordinance were declared unconstitutional by the High Court. The matter came up before the Indian Supreme Court when the issue was raised that the Ordinance having lapsed on 1st April, 1959, the appeals themselves had become infructuous. The Court observed that “it is true that the provisions of s. 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. The State of Madras(1) the general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of s. 6 of the General Clauses Act. Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Art. 213(2) (a).”. It was further observed that “in other words, this decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act. We have referred to this aspect of the matter only by way of analogy to show that no inflexible rule can be laid down about the effect of the expiration of a temporary Act. …… In our opinion, having regard to the object of the ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived.”. (viii) Qudrat Ullah vs Municipal Board, Barelly (AIR 1974 SC 396) The U.P. (Temporary) Control of Rent and Eviction Act, 1947 was a temporary law. Its operational period was extended from time to time by frequent amendments, till at last it was to expire on September 30, 1972. Some time before this date, the Uttar Pradesh Const.P.24/2011 13 Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972, a permanent statute, was put on the Statute Book which by s. 43 repealed the Act of 1947 and by s. 2 excluded from the scope of the protection of the Act accommodation belonging to local bodies. The question of applicability of section 6 of General Clauses Act in case of a temporary law was considered by the Indian Supreme Court. The Court ultimately held as under: - "25. We may mention as an additional reason for our conclusion that the provisions of S. 6 of the General Clauses Act in relation to the effect of repeal do not ordinarily apply to a temporary Act. Stating this proposition, Gajendragadkar, J. as he then was indicated the consequence of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945, the learned Judge continued: "As observed by Patanjali Sastri, J, as he then was in S. Krishnan v. State of Madras, 1951 SCR 621 (AIR 1951 SC 301), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of S.6 of the General Clauses Act." (ix) Ameer-Un-Nissa Begum v. Mahboob Begum (AIR 1955 SC 352) In the said case various 'Firmans' issued by the Nizam were challenged. The Court assuming the 'Firmans' issued by the Nizam in the nature of legislative enactments determining private rights somewhat on the analogy of private Acts of Parliament held as under: - “24. The result will be the same even if we proceed on the footing that the various 'Firmans' issued by the Nizam were in the nature of legislative enactments determining private rights somewhat on the analogy of private Acts of Parliament. We may assume that the 'Firman' of 26-6-1947 was repealed by the 'Firman' of 24-2-1949, and the latter 'Firman' in its turn was repealed by that of 7-9-1949. Under the English Common Law when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act 'ab initio'. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving it: vide Maxwell's Interpretation of Statutes, p. 402 (10th Edition). It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the English Common Law rule if it appears to us to be reasonable and proper. But even Const.P.24/2011 14 according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifests an intention to the contrary. In the present case the 'Firman' of 7-9-1949, does not repeal the earlier 'Firman' of 24-2-1949, 'simpliciter' but makes a further provision providing for fresh enquiry and report which presupposes the continuance of the repeal of the original 'Firman' of 26-6-1947.” (x) Hansraj Moolji v. The State Of Bombay (AIR 1957 SC 497) The India and Burma (Emergency Provisions) Act, 1940, was passed on June 27, 1940 , and was an Act to make emergency provisions with respect to Government of India and Burma. On April 1, 1946, the India and Burma (Termination of Emergency) Order, 1946 was issued. By the said order the period of emergency referred to in s. 3 of the India and Burma (Emergency Provisions) Act, 1940, was extended from June 27, 1940, to April 1, 1946. The Ordinance in question was promulgated on January 12, 1946, and was therefore within the said period. The question came up before the Indian Supreme Court as to whether the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946), was in operation on July 11, 1953, when the offence under s. 7 read with s. 4 thereof was committed by the appellant therein. The Court held as under: - “Even though the Governor-General's Acts and the Ordinances promulgated by him were thus equated with the Acts passed by the Federal Legislature or the Indian Legislature as the case may be, the period of duration thereof had to be determined. Every statute for which no time is limited is called a perpetual Act, and its duration is prima facie perpetual. It continues in force until it is repealed. (Vide Craies on Statute Law, 5th Ed. p. 374; Halsbury's Laws of England, Hailsham Ed., Vol. XXXI, p. 511, para. 664). If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a Temporary Act. This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as a temporary measure. This ratio has also been applied to emergency measures which continue during the subsistence of the emergency but lapse with the cessation thereof. It was therefore contended that Ordinances promulgated under the emergency powers vested in the Governor-General would be in operation during the period of emergency but would cease to be in operation once the emergency was declared to have ended. In the instant case before us the Ordinance in question was promulgated in exercise of the emergency powers vested in the Governor- General under s. 72 of the 9th Sch. of the Government of India Act, 1935, and it was urged that the Ordinance thus promulgated would cease to be in operation after the emergency was declared to have ended on April 1, 1946, by the India and Burma (Termination of Emergency) Order, 1946, in spite of the words of limitation " for the space of not more than six months from its promulgation " having been Const.P.24/2011 15 omitted from s. 72 by s. 1(3) of the India and Burma (Emergency Provisions) Act, 1940.” It is pertinent to mention here that in the above noted case-law although the question was with regard to revival of the repealed law after the expiry of temporary law but in all the said cases except in the Gooderham & Worts’s case, the amending law was not repealed by virtue of in built mechanism as provided in section 87(3) of IRA, 2008. In Gooderham & Worts’s case certain amendments were made in the original law by virtue of an Act which ultimately expired leaving the original legislation to resume its full force but in the instant case the IRO, 1969 was repealed by the IRO, 2002, which then was repealed by IRA, 2008. Thus, the said cases have no consonance with the facts of the instant case. Further, as we are testing the case at the touchstone of Article 264, therefore, law laid down in the above said judgments is also not applicable for the reasons that under Article 264 only action has to be survived and not the law. On the other hand facts of the case in Muhammad Arif v. State (1993 SCMR 1589) are somewhat similar to the instant case. In the said case, the Special Courts for Speedy Trials Ordinance (II of 1987) was promulgated by the President of Pakistan on 26-7-1987. The said Ordinance was repealed and replaced by the Special Courts for Speedy Trials Act, 1987 which was to remain in force for a period of one year. Later, by means of Special Courts for Speedy Trials (Amendment) Ordinance, 1988, subsection (2) of section 1 of the Act was amended by substituting the words "two years" for the words "one year". The said Ordinance was not placed before the National Assembly in terms of clause (2) of Article 89 of the Constitution and, therefore, it stood expired on the expiry of four months from its promulgation i.e. on 12-2-1989. However, the President issued identical Ordinance No. XXXVIII of 1991 and Ordinance No.II of 1992. The court held as under: - 12. At this stage it may be appropriate to point out that there is a marked distinction between a temporary enactment and a permanent enactment. In the case in hand, the Act was a statute of a temporary nature as subsection (2) of section 1 of it provided that it was to operate for a period of one year from the date on which it was assented to by the President. The rules of interpretation of such statutes are different from those which are permanent. 16. …………… The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it, would ipso facto terminate. The case of Wicks v. Director of Public Prosecutor supra decided by the House of Lords has dealt with a statute where the law-maker while enacting it expressed contrary intention in section 11 (3) thereof by providing that its expiry shall not affect operation thereof as respects things previously done or omitted to be done. There is nor similar provision in the Act in issue. It was to operate only for one year from the date on which it was assented to by the President in terms of section 1(2) thereof unless it was extended by the Parliament. The effect of promulgation of Ordinance XIX of 1988 was that the life of the Act was extended for a period of four months i.e. up to 12-2-1989. Const.P.24/2011 16 Since in the present case the Special Court recorded conviction on 11-4-1989 when the Act and Ordinance XIX of 1988 already stood lapsed, the judgment of the Special Court was coram non judice as has been held by the High Court. 17. Next question, which has cropped up is that what would be effect of repeal of IRA, 2008. Learned counsel for the petitioner has vehemently argued that in terms of section 6 of General Clauses Act and Article 264 of the Constitution, the IRO, 1969, which was permanent legislation, would be revived. It is to be noted that section 6 of the General Clauses Act applies to the cases where any enactment is repealed by the General Clauses Act or any other Central Act, therefore, the same is not applicable in the instant case because of reason that IRA, 2008 was not repealed by any other legislation rather it stood repealed on the expiry of period mentioned in section 87(3) of the Act. Similarly, Article 264 of the Constitution provided that where a law is repealed or is deemed to have been repealed, by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the Constitution shall not be applicable in the instant case firstly; for the reason that the IRA, 2008 was not repealed by, under, or by virtue of the Constitution, rather it died on expiry of the statutory period. Secondly; the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued, and penalties incurred in respect of any repealed law and does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the Constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect. The IRA, 2008, was repealed by its own force in terms of section 87(3). Had it been an Ordinance Const.P.24/2011 17 issued under Article 89 of the Constitution, on the expiry of its statutory period the repealed law would have been revived but the provisions of this Article would not be applicable here because IRA, 2008 is not an Ordinance and has been enacted by the Act of Parliament, therefore, no sooner did it lapse on 30.4.2010, no other law earlier repealed including IRO, 1969 could occupy the field. In addition to it, the mandate of section 6 of General Clauses Act and Auricle 264 of the constitution had not provided that on account of repeal, the law previously in field would stand revived as these provisions in broader sense had attached finality to the actions which were already done. The finding given by the High Court of Sindh that the after the repeal of IRA, 2008, the IRO, 1969 came back in operation, is not tenable. Thus it is held that the IRO, 1969 would not be revived after the repeal of IRA, 2008. 18. As already stated above, the IRO, 1969 was repealed by the IRO, 2002, which then was repealed by IRA, 2008. However, the IRA, 2008 stood repealed after the completion of its statutory period provided in section 87(3) and not by any other legislation, federal or provincial, therefore, neither the IRO, 2002 nor the IRO, 1969 could revive on the strength of section 6 of the General Clauses Act or Article 264 of the Constitution. Furthermore by means of Eighteenth Constitutional Amendment the Concurrent Legislative List was abolished and the Federal Government had lost the power to legislate regarding Labour Welfare and Trade Unions, which subject devolved upon the provinces. It is to be noted that presently, no Federal Legislation can be made on the Labour matters except recourse to the provisions of Article 144(1) of the Constitution, which provide that if one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any Act so passed may, in respect to the Province to which it applies, be amended or repealed by Act of the Assembly of that Province. The Trade Unions, which are operating within one province, can be dealt with under the Labour Laws enacted in that province and the Const.P.24/2011 18 workman can also avail the appropriate remedy provided under the said legislation. 19. In view of the declaration so made hereinabove, the next question arises that after expiry of IRA, 2008 on 30.4.2010, which provision of law would take effect for the interregnum period? It is to be noted that as stated earlier after the Eighteenth Constitutional Amendment, the Provincial Assemblies enacted the respective laws on the subject of labour and Trade Unions after about two months of expiry of IRA, 2008 and there is a vacuum for the said period. This Court had dealt with the issue of applicability of laws during the interregnum period when any law was repealed or declared ultra vires. In the case of Government of NWFP v. Said Kamal Shah (PLD 1986 SC 360) certain provisions of the NWFP, Preemption Act, 1950, alongwith some other laws were declared repugnant to Injunction of Islam and recommendations were made to bring the said laws in conformity with the Injunction of Islam, till 31st July, 1986. In pursuance of the decision of the Court, the NWFP Preemption Act, 1987 was promulgated on 28th April, 1987. In terms of its section 35 the NWFP Preemption Act, 1950 was repealed however, the judgments and decrees passed by the Court under the Repealed Act of 1950 were saved. When the legality of a decree passed by the Civil Judge on 15th April, 1987 was questioned on the ground that the same was passed after the cut off date i.e. 31st July, 1986 and before the promulgation of NWFP Preemption Act, 1987 this Court in the case of Sarfraz v. Muhammad Aslam Khan(2001 SCMR 1062) held that on 28th April, 1987 in pursuance of the directions of this Court the Act was promulgated and till then the NWFP Preemption Act, 1950 was holding the field as it was repealed from the commencement of the Act, therefore, any proceedings conducted and decree passed during this period would not be rendered without jurisdiction and void; Article 203-D(3)(b) of the Constitution of Islamic Republic of Pakistan did not provide that if any law had been declared against the Injunctions of Islam the proceedings instituted under the said law would also come to an end on the date fixed by the Court for making such law in consonance with the Injunctions of Islam; at the best its effect would be that the fresh suits of preemption after the stipulated date would not be Const.P.24/2011 19 instituted under the law which has been found contrary to the Injunctions of Islam but the claimants would be entitled for the enforcement of their rights under the Muhammadan Law, like the Provinces of Sindh and Balochistan where no statutory laws governing preemption suits were applicable. It was further observed that undoubtedly a right of preemption is a substantial right of an individual and it could not be taken away merely due to repeal of law under which suit for its enforcement was filed; at the best such newly enacted law would be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural. 20. Next question is as to whether the Industrial Relations Laws made by the provinces would have retrospective effect or not? At this stage it would be appropriate to have a glance on the definition of “workman” as provided in various Labour Laws. As per the Industrial Disputes Act, 1947, the “workman” means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute but does not include any person employed in the naval, military or air service of the Crown. The definition of “workman” remained almost the same in the subsequent Ordinances/Acts with a little addition or alteration. The same definition of “worker” and “workman” have been provided in the Provincial Legislation made on the subject, which is holding the field. Interestingly, almost the same definition of “workman” has been provided in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, namely, “workman” means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. As the same definition of workman has been provided in the Industrial Relations Laws as well as Standing Orders, therefore, both the laws are applicable to the persons falling within the definition of “workman”. Order 12(3) of the said Orders provides that in case a workman is aggrieved by the termination of a service or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of Const.P.24/2011 20 section 25-A of the IRO, 1969. It is clear that the West Pakistan (Standing Order) Ordinance, 1968 provides rights to the workmen/labourers whereas the Provincial Industrial Relations Laws provide mechanism for the enforcement of the said rights and unless otherwise provided or intended, the Industrial Relations Laws are procedural in nature. 21. The question of applicability of any law with retrospective effect has been dealt with by this Court in the case of Gul Hassan and Co. v. Allied Bank of Pakistan (1996 SCMR 237) wherein after examining plethora of case law, Mr. Justice Saleem Akhtar, as he then was, observed that Statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective affect unless contrary is provided expressly or impliedly or it effects the existing rights or causes injustice or prejudice. The relevant para from the said judgment is reproduced hereinbelow:- “7. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indictment" retrospective operation has been given. (Muhammad Ishaq v. State PLD 1956 SC (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice the substantive right. In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). same principle was re-affirmed and it was observed:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus; a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this case process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that Const.P.24/2011 21 its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively." The same view was expressed in Ch. Safdar Ali v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), which was followed in Bashir.v. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B. of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong & Shanghai Banking Corporation, Karachi (1994 SCMR 1007). From the principle enunciated in these judgments it emerges that statute providing change (if forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice.” 22. At the cost of repetition, it is to be noted that the IRA, 2008 stood repealed on 30.04.2010 by virtue of its section 87(3), whereas, the provincial legislation was made on 13th June, 2010; 5th July, 2010; 14th July, 2010; and 22nd July, 2010 for the provinces of Punjab, Sindh, Khyber Pukhtunkhwa and Balochistan, respectively. Therefore, there was a period of about two months for which there was no legislation, Federal or Provincial, in force. The Labour Laws provide the procedure and mechanism for the resolution of disputes, registration of Trade Unions and establishment of Forum for the redressal of grievance of the labourers as well as employers, therefore, it is mainly a procedural law and in the light of the well- settled principles of interpretation of Statutes as mentioned above, the procedural law has retrospective effect unless contrary is provided expressly or impliedly, the same would thus be applicable retrospectively w.e.f. 1.5.2010. Further, in the Province of Sindh, the Industrial Relations (Revival and Amendment) Act, 2010, the IRA, 2008 has been revived w.e.f. 1st May, 2010, therefore, the interregnum period has already been catered for. 23. On the question of remedy before the NIRC, which was provided in terms of section 25 of the IRA, 2008 it is to be noted that the provision of NIRC was added for the first time in 1972 by making amendment in the IRO, 1969 by means of Ordinance IX of 1972 whereby section 22A was inserted. The same was provided in IRO, 2002 and IRA, 2008. Now, in the province of Punjab, by means of section 47 of the PIRA, 2010 remedy has been provided before Const.P.24/2011 22 the Labour Appellate Tribunal. Similarly, in the province of Balochistan, under section 25 of the BIRA, 2010 remedy before the Industrial Relations Commission and in the province of Khyber Pakhtunkhwa, in terms of sections 48 and 51 of KIRO, 2010 the remedy of appeal has been provided before the Labour Court and Labour Appellate Tribunal. In the province of Sindh, as the IRA, 2008 has been revived, therefore, in terms section 25 of the same, the provision of NIRC has been continued. In the present circumstances, after the promulgation of provincial laws dealing with the Industrial disputes, the persons having any grievance can approach the appropriate forum provided under the respective provincial laws. 24. In the Indian jurisdiction, Trade Unions and Industrial Labour Disputes are mentioned at Sr. No.22 of the List-III of the Seventh Schedule of the Constitution of India, which form the joint domain of both the State Governments and Union Territory of India as well as the Central government of India under those subjects, therefore, the trade unions Act, 1926 has been promulgated by the Parliament to deal with the matters relating to registration of trade unions and trade disputes etc., whereas, in view of the Eighteenth Constitutional Amendment, Federal Legislation is not empowered to legislate for the nationwide trade unions, except for if need be, recourse to procedure laid down in Article 144(1) of the Constitution, which provides that one or more Provincial Assemblies may by resolutions empower the Majlis-e-Shoora (Parliament) to regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, through an Act, which may be amended by the Assembly of that Province. 25. In the Industrial Relations Laws initially the provision of NIRC was not provided till 1972 when the same was introduced by insertion of section 22A in the IRO, 1969. However, the same was provided in the subsequent legislations till IRA, 2008. Now after the promulgation of Provincial legislations in terms of Eighteenth Constitutional Amendment, the forum of Industrial Labour Commission/Labour Appellate Tribunal/ Labour Court has been provided for. Even otherwise, persons falling within the definition of Const.P.24/2011 23 “workman” have been provided remedy in terms of West Pakistan (Standing Orders) Ordinance, 1968. Order 12(3) of the said Orders provides that in case a workman is aggrieved by the termination of a service or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the IRO, 1969. However, section 80 of the PIRA, 2010 as well as the section 82 of the KIRO, 2010 provide that all cases pending before the NIRC constituted under the repealed IRA, 2008 shall stand transferred to Tribunal/Labour Court and Registrar having jurisdiction in the matter; the NIRC shall transfer the record of all the cases and trade Unions to the Tribunal/Labour Court or Registrar; the Tribunal, Labour Court or Registrar may continue the proceedings in a case transferred under this section from the stage at which it was pending before the NIRC. Similarly, section 86 of the BIRO, 2010 provides that all appeals and applications of any kind pending in any High Court immediately before the commencement of this Ordinance shall stand transferred to the Labour Appellate Tribunals from the date of the commencement of this Ordinance and it shall not be necessary for the Labour Appellate Tribunals to recall any witness or record any evidence that may have been recorded. As the NIRC has been abolished, therefore, new fora have been provided to the workers/workmen/labourers under the newly enacted Provincial Labour Laws. It is pertinent to mention here that the effect of change of forum have been discussed in the case of Adnan Afzal v. Sher Afzal (PLD 1969 SC 187), wherein claim for maintenance was made under section 488 of the Code of Criminal Procedure before the City Magistrate which was ultimately transferred to the Court of the District Magistrate, where the respondent moved an application that in view of the provisions of the West Pakistan Family Courts Act, 1964, published in the Gazette on the 18th of July 1964, the proceedings should be filed, as the Family Court was vested with exclusive jurisdiction under section 5 thereof. The District Magistrate on the 9th of December, 1967, accepted the plea and directed the appellant to seek his remedy before the Family Court. The matter came up before this court and this court observed that the comparison of the concerned provisions indicates that the provisions of the West Pakistan Family Courts Act Const.P.24/2011 24 are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court; Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Ultimately the Court held that the Family Courts Act had changed the forum, altered the method of the trial and empowered the Court to grant better remedies; it has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right; according to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication; There is no such contrary indication in the West Pakistan Family Courts Act; therefore, the Act also affected the pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates no longer had the jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance; he was, however, wrong in dismissing the application, for, if he had no jurisdiction to adjudicate, the only order he could have passed on the application was to direct that the papers be returned to the applicant for presentation in the proper Court. In view of the law laid down in the said case, it is clear that mere change of forum does not affect the rights of a person. 26. Under the Frontier Crimes Regulation, 1901 Council of Elders was provided for settling the disputes of civil nature between the individuals. Revision against the order of Council of Elders was maintainable before the Commissioner. However, by means of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 the Commissioner lacked jurisdiction to hear the revision and in terms of paragraph-7 of the Regulation, the matters pending before the District Court or a Civil Court, subordinate thereto or in any Tribunal stood transferred to the Court of Qazi and Majlis-e-Shoora having jurisdiction in the matter, upon such transfer would be deemed to have been instituted therein and would be heard and determined accordingly. In the case of Mastak v. Lal (PLD 1991 SC 344), the validity of the order of the Commissioner passed in revision petition Const.P.24/2011 25 after the 18th February, 1977 when the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 was extended to the area in dispute, was questioned. The Court after considering the matter in detail held as under:- 11. Paragraph 7 of the Regulation definitely gives the impression that the Regulation was to have effect on the pending suits and appeals and to that extent it was retroactive. The only test laid down for transfer was as to whether the dispute is triable under the Regulation and if it was then it had to go to the Court competent to try it irrespective of the fact in which Court it was pending. Therefore, even appeals have to go back to the Court of Qazi for trial in accordance with Shariah and not to be transferred in the appellate jurisdiction of Majalis-e-Shura for disposal according to the law in force at the time the proceedings were instituted. To that extent, the express language of paragraph 7 of the Regulation makes the provisions of the Regulation applicable in the areas to which and when if is extended retroactive over all proceedings pending before any Tribunal, Court or District Court. 12. In view of the reasons given for holding that appeal for the purposes of paragraph 7 includes the Revision preferred by a party invoking the power of the Commissioner under paragraph 48 of the F.C.R. and pending suits and appeals before any District Court or a Civil Court subordinate thereto, or any tribunal, in the nature of an appeal, would be liable to be transferred to the Court of Qazi for trial in accordance with the injunctions of Shariat. The fact that the appellant had instituted the Revision in the Court of Commissioner cannot stand in the way of such a transfer because at the time when he instituted the proceedings, that was the only remedy which could possibly be invoked by him. In the light of above case law, it is clear that during the interregnum period w.e.f. 30.4.2010, when no Industrial Relations Law was holding the field, the workers had remedy under the ordinary laws prevailing at that time, because in absence of a special law, the ordinary/general laws come forward to fill in the vacuum. 27. Now turning towards the submission of the learned Amicus curiae on the vires of Provincial Labour Laws on the ground that there are many Institutions/Corporations which have their branches all over the country and there were countrywide Trade Unions but now Trade Union can only be registered under the legislation of a specific province. It is to be noted that instant proceedings have been initiated under Article 184(3) of the Const.P.24/2011 26 Constitution with a limited purpose of having a declaration that IRA, 2008 on the basis of Eighteenth Constitutional Amendment stood protected and continued till 30th June, 2011, therefore, the vires of the same cannot be considered in such proceedings. However, as stated earlier Article 144(1) of the Constitution has provided mechanism for making central legislation in respect of matters not covered in the Federal Legislative List. 28. Before parting with the judgment, we place our thanks on record for Mr. Mehmood Abdul Ghani, Sr. ASC who has assisted the Court to the best of his ability. 29. Thus, for the foregoing reasons, it is held that IRA, 2008 ceased to continue in force w.e.f. 30th April, 2010, as a consequence whereof petition is dismissed. Chief Justice Judge Judge Announced in Open Court On 2.6. 2011 Chief Justice Approved For reporting.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL/APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE IJAZ UL AHSAN CONSTITUTION PETITION NO.24 OF 2012 (Under Article 184(3) of the Constitution) AND CIVIL PETITION NO.773-P OF 2018 (Against the judgment dated 30.10.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No.3098-P/2018) National Commission on Status of Women through its Chairperson, etc. (in Const.P. No.24/2012) Government of KP through the Secretary Law, Parliamentary Affairs & Human Rights, Peshawar & another (in C.P.L.A. No.773-P/2018) …Petitioner(s) VERSUS Government of Pakistan through its Secretary Law & Justice, etc. (in Const.P. No.24/2012) Ali Azam Afridi Advocate & Others (in C.P.L.A. No.773-P/2018) …Respondent(s) For the petitioner(s): Mrs. Khawar Mumtaz, Chairperson NCSW Mr. Sohail Akbar Warraich, Member NCSW Raja Abdul Ghafoor, AOR (in Const.P. No.24/2012) Mr. Abdul Latif Yousafzai, AG, KPK (in C.P. No.773-P/2018) For the respondent(s): Mr. Khurram Saeed, Addl.Att.G. Mr. Zahid Yousaf Qureshi, Addl.A.G. KPK Mr. Salman Talibuddin, A.G. SIndh Mr. Ayaz Swati, Addl. A.G. Balochistan Mr. Qasim Ali Chohan, Addl.A.G. Punjab Mr. Hamid Shahzad, Law Officer, Women Development Department, Punjab Mr. Ashiq Hussain, Deputy Director Women Development Sindh Respondent No.1 in person (in C.P. No.773-P/2018) Date of hearing: 31.12.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- CONSTITUTION PETITION NO.24 OF 2012:- Const. P. No.24/2012 etc. - 2 - The genesis of the issues raised in the instant matter lies in the reality that in today’s day and age informal custom-driven parallel legal systems in the form of ‘council of elders’ or ‘kangaroo courts’ exist in the tribal areas, particularly in the north of the Province of Khyber Pakhtunkhwa (KPK), and in some rural areas of KPK, Punjab, Sindh and Balochistan. Petitioner No.1, the National Commission on the Status of Women1 (NCSW) along with the other petitioners who are members of NCSW and human rights activists have filed the present petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) seeking declarations and directions from this Court on the legality of jirgas/panchayats etc. prevalent in Pakistan, thereby challenging their operation as adjudicating bodies awarding judgments, executing punishments and deciding family, civil, criminal and other disputes. Therefore the key question arising from the instant constitution petition is that whether, to the extent that these informal village or tribal gatherings act as courts in the form of jirgas/panchayats, etc. they are illegal under the law in place read with the international commitments made by Pakistan under various treaties/conventions? 2. Learned counsel for the petitioners relied upon the cases of Mst. Shazia Vs. Station House Officer and others (PCrLJ 2004 Karachi 1523), Mst. Rahmat Bibi and another Vs. Station House Officer, Karan Sharif (PLD 2016 Sindh 268) and Government of Balochistan Vs. Azzizullah Memon (PLD 1993 SC 341) to contend that jirgas have been declared illegal by the Courts. Reference was also made to a research report titled “Women, Violence and Jirgas – Consensus and Impunity in Pakistan”2 (the Report) prepared by NCSW and certain recommendations were placed before this Court. The crux of the petitioners’ arguments is as follows:- i. The existence of these parallel bodies or kangaroo courts deprives the individuals involved therein of their right to enjoy their right 1 Established under the National Commission on the Status of Women Act, 2012 and its predecessor law, the National Commission on the Status of Women Ordinance, 2000. 2 Published by the NCSW in June 2017. Const. P. No.24/2012 etc. - 3 - to life, liberty and justice and equal protection of the law and the right to be treated in accordance with the law thereby constituting a violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 of the Constitution; ii. Efforts should be made by the State (under its obligations under Articles 33 and 37 of the Constitution) and its three pillars to eliminate the patriarchal and inhuman practices in jirgas, panchayats and other similar bodies the decisions of which, as reflected in pages 22 to 33 of the Report, are largely based on punishments wherein the women of the community are either traded as compensation or subjected to humiliating punishments for the crimes/offenses of their male kin thereby constituting a violation of Article 25 of the Constitution; iii. Jirgas/panchayats etc. reinforce unfair social norms by implementing the decisions of notable elderly men of the village or tribe on its socially and financially weaker members (women and the impoverished); such bodies convene in village gatherings to resolve disputes between parties where as a matter of culture and tradition, women are a rare sight and if involved in a dispute are usually being represented by their male kin which again is a violation of the right to due process and equality under Articles 10-A and 25 of the Constitution; and iv. In light of the above mentioned widely prevalent circumstances in the rural and tribal areas, the internationally recognized principles of ‘due process of law’ and the ‘right of access to justice to all’ enshrined in different international treaties to which Pakistan is a signatory have been completely violated. The petitioners (in the constitution petition) have sought the following relief:- i. Jirga/panchayats etc., in the country ought to be declared illegal, unlawful, inhumane and grossly violative of the fundamental right to dignity; ii. In light of the violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 of the Constitution, jirgas/panchayats etc., be declared unconstitutional and ultra vires for assuming the powers of courts; Const. P. No.24/2012 etc. - 4 - iii. Actions, proceedings, and orders of any jirga/panchayat etc., be declared as void and action be taken against those who have participated in such illegal activities; and iv. The respondents be directed to frame, amend and implement constitutional provisions and penal laws relating to illegal practices of jirga/panchayats etc. 3. The learned Deputy Attorney General present in Court and the learned Additional Advocates General of Punjab, Balochistan, Sindh and KPK unanimously submitted that although efforts are being made by their respective Provincial Governments to eliminate any patriarchal practices prevailing in the Provinces, they are willing to extend any further support required to curb the illegal practices of honor killings, vanni, swara, karo kari, etc., that are not only violative of the fundamental rights of women under the Constitution but are also against the basic human rights guaranteed under the international conventions that Pakistan is signatory to in this regard, particularly the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).3 4. No objection was raised as to the maintainability of the instant constitutional petition under Article 184(3) of the Constitution. Even otherwise, it fulfils the two-fold requirement in the Article ibid in that it involves a question of public importance with regards to the enforcement of the fundamental rights under the Constitution as substantiated in various judgments of this Court.4 In Baz Muhammad Kakar Vs. Federation of Pakistan (PLD 2012 SC 923) it was held that “The Courts are obliged to exercise their powers and jurisdiction to secure the rights of the citizens against arbitrary violations”. Thus the question of maintainability stands decided. 3 Pakistan acceded to CEDAW on 12 March,1996 subject to the provisions of the Constitution. 4 See Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416), Al-Jehad Trust Vs. Federation of Pakistan (PLD 1996 SC 324), Muhammad Tahir-ul-Qadri Vs. Federation of Pakistan (PLD 2013 SC 413), and Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879). Const. P. No.24/2012 etc. - 5 - 5. To answer the question involved, it is worthy to note at the very outset that the various terms, i.e. ‘jirga’, ‘panchayat’ and ‘faislo’, generally describe village or tribal gatherings, a common feature whereof is that one or more elderly men convene in order to settle a dispute of criminal or civil nature. While the terms used to refer to such gatherings may differ, to the extent that these act as an archaic form of informal courts that the rest of the world has long abandoned, they usurp the jurisdiction of ordinary courts of law. However it is essential to clarify that although, through the constitution petition, a general declaration with regards to the legality of informal courts such jirgas/panchayats etc. is being sought, there are certain customary and traditional sentiments attached to such terms and practices which do not necessary involve the holding of parallel courts but instead entail a gathering of village elders to resolve a dispute which can within the permissible limits of the law be settled outside of courts. Therefore, nothing in this opinion should be construed in a manner that any stigma or ill-feeling is attached to the term jirga or panchayat which may operate within the permissible limits of the law as outlined hereinabove to the extent of acting as arbitration, mediation, negotiation or reconciliation bodies/councils. 6. Adverting to international law on the subject, it is pertinent to note that Pakistan is a signatory to the Universal Declaration of Human Rights (UDHR) since 1948, Articles 7 and 8 whereof are relevant which provide as under:- “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. 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.” [Emphasis supplied] Const. P. No.24/2012 etc. - 6 - In 2008, Pakistan became a signatory to the International Covenant on Civil and Political Rights (ICCPR), Articles 2 and 26 whereof provide for equal protection for all under the law and are reproduced below for ease of reference:- “Article 2 of the ICCPR: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 26 of the ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee Const. P. No.24/2012 etc. - 7 - to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [Emphasis supplied] From the above it is clear that the customarily negligible representation of women before such councils which already mirror a patriarchal and feudal/tribal set-up (a group of elderly men who subject financially weaker parties as well as the socially handicapped gender to arbitrary decisions) is a blatant violation of Article 2(1) of the ICCPR which enjoins upon all State Parties the duty to protect the human rights under the ICCPR regardless of social or national origin whereas Article 2(3) thereof particularly emphasizes on the provision of an effective legal remedy. When these bodies posing as the dispensers of justice (council of elders/jirgas/panchayats etc.) themselves become the violators of the rights to due process and other human rights under the ICCPR, having no regard of the law as their word, wisdom and customs alone are law, Article 26 thereof stands completely ignored since in permitting such jirgas/panchayats etc. in some areas while the rest of the country is entitled to seek their legal remedies through the courts of law, we allow unabashed discrimination on the account of sex, language, religion, national or social origin, property, birth and financial status. Together, Articles 2 and 26 of the ICCPR and Articles 7 and 8 of the UDHR, emphasize the importance of access to justice, which is both a right in itself and the means of protecting and restoring other basic human rights. The unchecked operation of these informal jirgas/panchayats etc. as courts creating their own barbaric punishments and unguided methods of executing sentences (as evidenced in the Report), amounts to acquiescence to injustice. The emphasis on the equal protection of law in these Articles reflects that if the State succeeds to protect the rights of only that segment of the society that is aware of their rights and is not victim to the chains of primitive culture and patriarchal tradition as opposed to affording such Const. P. No.24/2012 etc. - 8 - protection to the whole society, then it has failed in this duty in entirety. For the deprivation of one person’s rights cannot be justified by the lack of his or her own comprehension of those rights; it is the duty of the State to be conscious and vigilant of such rights on behalf of all the citizens whose rights it is obligated to protect under the Constitution and its international commitments. 7. With regard to the discrimination faced by women in jirgas/panchayats etc., Article 15 of CEDAW is relevant:- “Article 15 of CEDAW: 1. States Parties shall accord to women equality with men before the law. 2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.” [Emphasis supplied] The foregoing Articles of UDHR, ICCPR and CEDAW places a responsibility on the State of Pakistan to ensure that all women in Pakistan have access to courts or tribunals, are treated equally before the law and that in civil matters identical legal capacity and opportunities are accorded to them as those accorded to men and they be treated equally in all stages of procedure in courts and tribunals. From the contents of the Report and the admitted modes of operation of the jirgas/panchayats etc. there remains no doubt as to the flagrant violation of Pakistan’s international commitments. 8. Adverting to the Constitution, Articles 4, 8, 10-A, 25 and 175 thereof are pertinent which read as follows:- “Article 4: Right of individuals to be dealt with in accordance with law, etc. Const. P. No.24/2012 etc. - 9 - (1) 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. (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 to do.” Article 8. Laws inconsistent with or in derogation of fundamental rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.” Article 10A. Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” 25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. 175. Establishment and Jurisdiction of Courts. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory and such other courts as may be established by law. Explanation… Const. P. No.24/2012 etc. - 10 - (2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.” [Emphasis supplied] Informal jirgas/panchayats etc. on account of having no legal validity, are absolutely unguided in their powers and decision making, often making arbitrary and unjust decisions as reflected in the Report. Article 4(1) of the Constitution goes further than Article 2 of the ICCPR by extending the right to enjoy the protection of law to every citizen regardless of where he is. Furthermore, persons who are not citizens are also given this right while they are in Pakistan. The value placed by the Constitution on the inalienability of this right to protection of the law for all can be gauged from the fact that this right is further extended to every other person for the time being within Pakistan. Article 4(2)(a) to (c) of the Constitution provides for the specific right to protection from any detrimental action with regards to life, liberty, body, reputation or property and ensures that no person is compelled to do anything or forbidden from any action unless the law specifically provides for the same. Another inalienable right is found in Article 10-A of the Constitution which states that each person be accorded a fair trial and due process for the determination of any civil right or violation thereof or determination of any criminal charge against a person. Article 25 supra provides for equality of both genders before the law and equal protection of the law. In general, honor killings for retribution of the patriarchal concept of honor or compelling women to be wed without their consent as a means of settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the Constitution which enjoins that no custom in derogation of any fundamental right can prevail under the law. 9. A perusal of the Report reflects substantial violations of the fundamental rights reproduced above; even otherwise none of the Advocates Const. P. No.24/2012 etc. - 11 - General of the Provinces objected to the purported facts in the Report or the claims in the concise statement of the petitioners. While the noted fundamental rights guaranteed under the Constitution sufficiently embody the rights of equality before the law and access to courts and the right to an effective judicial remedy for the violation of the fundamental rights, it is clear from the facts and documents before us that in terms of its practical implementation the benefit has remained limited to mostly the urban population or where tribal/village culture does not have its strongholds. This excludes a significant percentage of women and men from the inalienable right of access to justice and even where the local residents do not wish to abandon their traditional jirga/panchayat etc. culture, it is the task of the executive and the legislature to ensure that the trichotomy of power is maintained and courts of law alone are responsible for dispensation of justice as per Article 175(3) supra. Even otherwise under Article 2(2) of the ICCPR, Pakistan is obligated to brings its laws in consonance with the ICCPR, which obligation is unqualified and of immediate effect as “A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.”5 Thus all necessary steps must be taken by the State of Pakistan to ensure inter alia the right to be treated equally by the law without any discrimination, regardless of the geographical location, language or local customs of the citizens of Pakistan. 10. At this junction it would be worthy to note that the learned High Court of Sindh in Shazia Bibi’s case (supra) has fittingly pointed out the reasons why the operation of parallel kangaroo courts/council of elders is a violation of the principles of natural justice, due process and fair trial:- “37. Generally speaking apart from the Supreme Court and High Court, there are two types of Courts: (1) Criminal Courts 5 United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para 14. Const. P. No.24/2012 etc. - 12 - (2) Civil Courts. The Cr.P.C. governs procedure of trial of Criminal Courts. Whereas the C.P.C governs the procedure of trial of Civil Courts. The Courts created under any enactment of law are only authorized to deal with the matters mentioned therein and the persons to be tried. No other authority is empowered to decide such disputes or punish any offenders. A perusal of the Cr.P.C. reveals that it provides machinery for the punishment and prevention of offenses against sustentative criminal law. The object of Cr.P.C. is to ensure that an accused person gets a full and fair trial along with certain well- established and well understood lines that accord with notions of natural justice. 38. In Jirgas no specific procedure is followed. It is the whim and choice of the Jirga people to adopt any procedure even if it is detrimental to any party. Neither the principles of natural justice are followed nor well-recognized rules of evidence are adhered to. They are free to pass a verdict on personal knowledge or hearsay. It is noticed that in Jirgas they only settle the disputes but do not do justice according to the law. At the conclusion of proceedings, the decisions are announced in the shape of punishment, fine or compensation. All the above acts are the functions of Courts of Law. No other authority or person has power to settle the disputes of cases except by the Courts of law or other authorities created under the statute and punish any person. The functions, which are exclusively to be performed by Courts of law, are being performed by the Jirgas thereby usurping the powers of Courts. As such the Jirgas are parallel Judicial System which by themselves are unlawful and illegal, therefore, any law do not protect them. Furthermore, no appeal is filed against the decisions of Jirgas are final which is also against the principle of natural justice.” [Emphasis supplied] The above extract amply elaborates on the dangers of tolerating the functioning of these parallel courts, stating that all that the judiciary/courts of law stand for is at stake if bodies such as jirgas/pacnhayats etc. are allowed to operate/function whimsically, arbitrarily and without due regard of any process of determination of fact, responsibility or guilt. Not only are Const. P. No.24/2012 etc. - 13 - principles of natural justice at bay but these jirgas etc. follow no precedent nor are their decisions subject to any predictability or certainty, and personal knowledge and hearsay become tools for determination of civil rights violations and criminal charges. The impending danger in allowing societal customs to override the law and jurisdiction of courts is unacceptable in a functioning democracy and as the ultimate court of dispensation of justice, this Court is duty-bound to eliminate them and reducing them to mere arbitration councils if the parties involved in a civil dispute, willingly agree to arbitration through the council of certain elders of the village or tribe. 11. The same is the position taken against such ‘communal courts’ in the Indian jurisdiction. In similar less-developed regions of India, the activities of the informal adjudicating bodies commonly known as panchayats or khap panchayats which are not codified in any law, have been declared to be illegal where they act as courts and overstep the boundaries laid down by the law as held in Arumugam Servai Vs. State of Tamil Nadu [(2011) 6 SCC 405], where the Indian Supreme Court opined that:- 12. We have in recent years heard of "Khap Panchayats" (known as "Katta Panchayats" in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case6, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal- minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal. [Emphasis supplied] 6 Lata Singh Vs. State of U.P. [(2006) 2 SCC (Cri) 478]. Const. P. No.24/2012 etc. - 14 - Moreover, in a recent judgment reported as Shakti Vahini Vs. Union of India and others (AIR 2018 SC 1601) the Indian Supreme Court introduced preventative, remedial and punitive measures to eradicate any khap panchayat wherein honor killings have been ordered with regards to inter- caste or inter-religious marriages, on the grounds that:- “39. …The violation of the constitutional rights is the fulcrum of the issue. The protection of rights is pivotal. Though there has been constant social advancement, yet the problem of honour killing persists in the same way as history had seen in 1750 BC under the Code of Hammurabi. The people involved in such crimes become totally oblivious of the fact that they cannot tread an illegal path, break the law and offer justification with some kind of moral philosophy of their own. They forget that the law of the land requires that the same should be shown implicit obedience and profound obeisance. The human rights of a daughter, brother, sister or son are not mortgaged to the so- called or so-understood honour of the family or clan or the collective. The act of honour killing puts the Rule of law in a catastrophic crisis. … 41. …If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any space for informal institutions for delivery of justice. It is so since a polity governed by 'Rule of Law' only accepts determination of rights and violation thereof by the formal institutions set up for dealing with such situations. It has to be constantly borne in mind that Rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create a dent in exercise of the said right. … 47. The 'Khap Panchayats' or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law. Law has to be allowed to sustain by the law enforcement agencies. For Const. P. No.24/2012 etc. - 15 - example, when a crime under Indian Penal Code is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge a FIR or inform the police. They may also facilitate so that the Accused is dealt with in accordance with law. But, by putting forth a stand that they are spreading awareness, they really can neither affect others' fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.” [Emphasis supplied] 12. In this milieu, it is evident that in order to eradicate the menace of jirgas/panchayats etc. in Pakistan as well, stringent and immediate action needs to be taken to the extent that they assume the power to adjudicate on criminal or civil disputes without being guided by any law and sometimes even without reasoned evidence or hearing the accused. Additionally, the legislature and the executive should consider strict disciplinary action against the law enforcement officers who are found to have been negligent in preventing the convening or executions of decisions of jirgas/panchayats etc. despite having knowledge of the same. When in the name of preservation of tradition these jirgas/panchayats etc. assume the powers of a pillar of the State, i.e. the judiciary, they threaten the very foundations of the rule of law. What these bodies in effect preserve is the unfair social constructs in the rural areas where the word and the arbitrary decisions of the elites, waderas, chaudhries, and persons of influence are treated as law for and imposed upon the socially and financially weaker parties. No procedural or substantive law dictates the proceedings these bodies conduct or the decisions they issue and these so-called decision-makers themselves are not required to be well versed with the law. Moreover, in the absence of any legal instrument regulating these jirgas/panchayats etc. the execution of the sentences given by them or Const. P. No.24/2012 etc. - 16 - the enforcement of the decisions made by them are illegal since those who pass these decisions trespass the jurisdiction of the legislature and judiciary and those who illegally execute these decisions step into the jurisdiction of the executive. Serious concern in this regard was also expressed by the Lahore High Court in Hasnain Akhtar Vs. Justice of Peace (2015 YLR 2294) wherein it held that:- “…the law of the land does not countenance/approve of deciding criminal cases through the intercession of the Punchayats/Arbitration Councils. Even otherwise, it is tantamount to bypassing and short-cutting the procedure provided for under the law.” In another judgment of the Lahore High Court passed in Muhammad Younis Vs. Nazar Ahmed (2013 YLR 139) it was held that the “so-called Punchayat has no legal sanctity to declare anyone guilty or innocent”. Hence, unless these jirgas/panchayats etc., are acting strictly in the capacity of arbitrators, mediators or conciliators and not as courts they must be rooted out by the law enforcement agencies and the executive. 13. In light of the above caselaw and Pakistan’s international obligations and those contained in the Constitution, it is clear that the manner in which jirgas/panchayats etc. function, they violate the fundamental rights guaranteed by the Constitution in the following ways: they interfere with the rights of citizens to enjoy equal protection of law and to be treated in accordance with the law due to the fact that they admittedly apply their own customary/tribal/feudal procedures and systems in the proceedings before such gatherings or councils; the decisions taken by such jirgas/panchayats etc. on the basis of customary/feudal/tribal laws are more often than not detrimental to the life, liberty, body, reputation and property of persons which (decisions) under the Constitution cannot given effect to except in accordance with law; and since the decisions given by such jirgas/panchayats are not bound by any law there is no way to ensure that Const. P. No.24/2012 etc. - 17 - gross violations of rights are prevented; additionally at times they also prevent or hinder persons from doing that which is not prohibited by law and/or compels them to unwillingly commit actions which the law does not oblige them to do (for instance, hand over to the jirga/panchayat etc., persons that have been summoned or sentenced by it). Furthermore, as mentioned above with respect to Pakistan’s international obligations, the jirgas/panchayats etc. decide the civil rights and obligations of, or criminal charges against a person without a fair trial and in violation of due process, both of which he is entitled to under Article 10-A of the Constitution. Moreover, Article 25 of the Constitution which is in consonance with the principles of equality in Articles of the UDHR, ICCPR and CEDAW mentioned above, is also being flouted as the persons appearing before these jirgas/panchayats etc. are neither treated with equality during the so-called trial nor are they afforded equal protection under the law and there is rampant discrimination on the basis of gender, and status quo. All these features of jirgas/panchayats etc. are also in blatant contravention of the established law laid down by this Court, particularly in Malik Muhammad Mumtaz Qadri Vs. The State (PLD 2016 SC 17) wherein it was held that:- “The law of the land does not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner.” Therefore, the law prohibits any person whether as a part of a body or council called a jirga/panchayat etc., or individually, from becoming a community- anointed judge or executioner on the pretext of archaic customs; the law in Pakistan allows this role to specific individuals who are required to have adequate knowledge and experience of understanding, interpretation and implementing the law (judges and law enforcement agents respectively). The law places several procedural and legal chains on a judge when adjudicating on the rights, liabilities and/or criminal charges on a person, and it is only after this Const. P. No.24/2012 etc. - 18 - process of finding of facts and determination of right/liability/charge under the law that a judicial decision is arrived at, as provided in the judgment of The Province of East Pakistan, etc. Vs. MD Mehdi Ali Khan, etc. (PLD 1959 SC 387):- “The determination of every right or liability claimed or asserted in a legal proceeding depends upon the ascertainment of facts and the application of the law to the facts so found. It is a normal feature of the judicial process first to discover the facts and then to determine what rights and liabilities follow from application of the law to the facts found.” Hence any determination by any other body such as jirga/panchayat etc. which is obviously not bound by the above legal and codal formalities is against the law enacted by the legislature and the law laid down by this Court. Finally, it is pertinent to note that these parallel adjudicating bodies in the form of jirgas/panchayats etc., impinge upon the principle of separation of powers that is a vital feature of our Constitution [Article 175(3) thereof] as per the cases such as District Bar Association, Rawalpindi Vs. Federation of Pakistan (PLD 2015 SC 401), Shiekh Riaz-ul-Haq Vs. Federation of Pakistan (PLC(CS) 2013 SC 1308), Reference No.01 of 2012 (PLD 2013 SC 279); and the existence of such jirgas/panchayats etc. which operate according to their own concept of so-called ‘laws’ is also in direct contravention of sub-Articles 175(1) and (2) of the Constitution which only allow for those bodies to operate as courts which have so been empowered or given the authority to operate under the Constitution or any other law. The question of the constitutionality and legality of allowing jirgas/panchayats, etc. to infringe on the jurisdiction of courts of law in determining civil rights or liabilities or determining guilt or criminal charges can be answered with the judgments of this Court which have unambiguously held that even courts established under the law may not adjudicate on a matter unless the jurisdiction to adjudicate on the same has been categorically granted to it Const. P. No.24/2012 etc. - 19 - under some law. In this regard, the following extract from the case of S. M. Waseem Ashraf Vs. Federation of Pakistan (2013 SCMR 338) is pertinent which reads as under:- “…it may be mentioned that according to Article 175(2) of the Constitution…it is unambiguously clear that a bar, and a prohibition has been placed that “No” Court in Pakistan shall exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction has been conferred upon it by the Constitution itself or under any law. The word “save” appearing in the Sub-Article has clear connotation of the word “except” for the purpose of construing the above, meaning thereby that “No” Court shall have the jurisdiction except as has been conferred upon it by the Constitution and/or law. It is a settled law that any forum or court, which, if lacks jurisdiction adjudicates and decides a matter, such decision etc. shall be void and of no legal effect.” Obviously then, when the law has been construed to have such strictly prescribed jurisdictional limits for courts of law, there remains no doubt in our minds that bodies such as jirgas/panchayats etc. cannot be allowed to adjudicate on any civil or criminal matters when neither have they been established under the law nor do they derive the jurisdiction to hear civil and criminal cases under the law. In such background, it is hereby categorically stated that the jirgas/panchayats etc. do not operate under the Constitution or any other law whatsoever to the extent that they attempt to adjudicate on civil or criminal matters. However, as mentioned earlier, they may act as arbitration, mediation, negotiation or reconciliation forums between parties who willingly consent to the same. 14. Before parting with this aspect of the judgment, we deem it expedient to point out that it is the duty of the public at large to ensure that all crimes are reported to the police, however, where a crime goes unreported then due vigilance should be shown by the concerned local police station which is duty-bound to ensure that they on their own accord file first Const. P. No.24/2012 etc. - 20 - investigation reports in this regard as are filed in cases of unlicensed arms and ammunition and narcotics. Where any complaints are received with regards to danger to life, liberty or property of a person on account of the decisions of jirgas/panchayats etc., immediate action should be taken by the police by firstly substantiating the veracity of the complaint and then by taking stringent action against all those found to be involved in their convening, operation as well as those aiding in execution of their decisions. Police stations in areas where these jirgas/panchayats etc. are more common should be heavily equipped with human resource and back-up support be readily available in order to deal with large crowds if the need arises. Accordingly, protection should be provided to the complainants. Confidence of the public in the police and the courts must also be increased and for such purpose the executive should provide for complaint centres or more informal means of approaching them so as to ensure that no one is deterred from seeking aid and protection of the law. Awareness should also be inculcated in the residents of the villages and tribal areas where such jirgas/panchayats etc. are prevalent, regarding their rights under the law as well as the consequences they face if they are found involved in these kangaroo courts in any way. The print and electronic media and non-profit organizations must also play their part in promoting such awareness for upholding of rule of law. At the risk of repetition it must be clarified that it is not the term ‘panchayat’ or ‘jirga’ etc., which is illegal but the act of them posing as courts and usurping the powers of a court of law which is illegal. There is no cavil to a form of informal alternate dispute resolution through these bodies for civil disputes where all parties involved are willing participants who seek an amicable resolution through a settlement within the permissible limits of the law. In fact, the Study on Informal Justice System in Pakistan – Evaluation Report7 presents a comprehensive roadmap to utilize these jirgas/panchayats, 7 Commissioned by the Sindh Judicial Academy; Prepared by Mr. Justice Saleem Akhtar (Principal Investigator), Mr. Justice Mushir Alam, Mr. Muhammad Shahid Shafiq and Mr. Iqbal Ahmed Detho. Const. P. No.24/2012 etc. - 21 - etc. as mediation, arbitration and reconciliation centres. However, where tribal or village gatherings are held for purposes of arbitration or mediation, there should be no doubt that any settlement reached by these council of elders as arbitrators or mediators has no legal force and can only be enforced through courts of law so long as it is with regards to a civil dispute and the parties involved are willing to be bound by it. It goes without saying that even in such arbitrations/mediations/reconciliation, the representation of women cannot be through a male-kin if their rights are involved and they must be allowed an opportunity of personal hearing if they so desire. CIVIL PETITION NO.773-P/2018:- 15. This petition has been filed by the Government of KPK challenging the impugned judgment dated 30.10.2018 passed by the learned Peshawar High Court declaring the FATA Interim Governance Regulation 2018 (FATA Interim Regulation) as ultra vires to the “extent of allowing the Commissioners to act as Judges; Council of Elders deciding Civil and Criminal matters; Constitution of Qaumi Jirga; Modified applications of Chapters VIII and XLII of the Code of Security; Third Schedule; administered area, and after one month from the date of judgment, any decision of Civil or Criminal nature would be void ab inito”. The substance of the respondents’ (writ petitioners) claim also partly echoes the same concerns regarding the issue of parallel courts and thus they and the petitioners in the constitution petition claim that the Council of Elders constituted under the FATA Interim Regulation and Qaumi Jirgas recognized therein create in the tribal areas of Pakistan an entirely different structure for adjudication with regards to civil disputes and criminal cases, which act parallel to courts within the territories of Pakistan and should be declared as unconstitutional and unlawful; that all civil and criminal matters within the territories of Pakistan, in light of Article 175 of the Constitution which requires the separation of judiciary and executive, be adjudicated upon by the judiciary alone and any other formal or informal, legal or illegal bodies that pose as or attempt to act as courts in Const. P. No.24/2012 etc. - 22 - such regard be declared illegal and against the spirit of the Constitution and the relevant authorities be directed to ensure the elimination for the same. 16. At the very outset of the hearing the learned Advocate General for KPK states under instructions that there is no cavil to the unconstitutionality of the provisions of the FATA Interim Regulation and he does not wish to press the petition provided that a reasonable time of six months is granted to the Government of KPK to develop the required infrastructure, facilities and ancillary superstructure for courts of law in the area previously referred to as the Federally Administered Tribal Areas (FATA). The learned Deputy Attorney General, present in Court pursuant to the notice issued, conceded to the above statement of the Advocate General, KPK. Be that as it may, in view of the important question of law involved, this Court deems it expedient to make certain observations in this regard. 17. The FATA Interim Regulation was promulgated by the former President Mr. Mamnoon Hussain on 29.05.2018 after which on 30.05.2018, Article 247(7) of the Constitution was omitted vide the Constitution (25th Amendment) Act, 2018 (25th Amendment) and through an amendment in sub- Article (c) and the insertion of sub-Article (d) to Article 246 thereof, the areas defined as FATA as per Article 246(c) of the Constitution were merged with the Province of KPK. According to the preamble of the FATA Interim Regulation, it is intended to be an interim system of administration of justice, maintenance of peace and good governance in FATA however, after the inclusion of FATA in the Province of KPK through the 25th Amendment after two days of the issuance of the Regulation, we are now faced with a situation where these newly added areas to the Province of KPK despite being part of the Province are subject to an entirely different mode of dispensation of justice from the rest of the Province making a prima facie case for discrimination in violation of Article 25 of the Constitution which guarantees equality of all persons before the law as well as Article 4 which guarantees the right to enjoy the protection of law and to be treated in accordance with the law as well as the principles Const. P. No.24/2012 etc. - 23 - laid down in the judgment of Government of Balochistan Vs. Azizullah Memon and others (PLD 1993 SC 341) as elaborated hereafter. 18. According to the respondents (writ petitioners), in many ways, the so- called interim dispute settlement system in the FATA Interim Regulation is a continuation of the obsolete means of settlement of disputes under the Frontier Crimes Regulation, 1901 (FCR). Prior to the omission of Article 247(7)8 of the Constitution the jurisdiction of this Court and High Courts was expressly excluded with regards to any matter in relation to the Tribal Areas which included FATA as is evident from the language of the said constitutional provision:- “Article 247: Administration of Tribal Areas. (7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day.” [Emphasis supplied] Therefore, in deference to the above constitutional provision, no legislative instrument with regards to FATA including the FCR was ever examined on the touchstone of the Constitution by any superior court even though this Court had at several occasions expressed its opinion with regards to the lack of access to justice in the FATA area prominent amongst which are the observations of Justice A. R. Cornelius in Samundar Vs. The Crown (PLD 1954 SC 228) wherein he held that:- “The process of decision provided under the Regulation [FCR] is also foreign to justice as administered by the 8 Which in substance is the same as Article 104(1) of the Constitution of 1956 and pari materia to Article 223(5) the Constitution of 1962. Const. P. No.24/2012 etc. - 24 - Courts…Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognized modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confidence in the justness of the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance to a Court of justice… … I am therefore clearly of the opinion that the proceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal cases, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted.” [Emphasis supplied] The same opinion was held by Justice Abdul Rashid (the then Chief Justice of Pakistan) in Samundar’s case (supra) in the following words:- “It is to be noticed that under Section 11 of the Regulation [the FCR] a particular official namely, the Deputy Commissioner is authorized to refer a case to the Council of Elders so that it may after making enquiries, such as may be necessary, submit its findings to the Deputy Commissioner, who thereupon, if he accepts the finding of guilt can convict and pass a proper sentence (Section 12) subject to revision by the Commissioner (Section 50): It is evident that an order of the above nature cannot be regarded as having been made judicially by a court of law.” [Emphasis supplied] Thus as early as 1954 this Court was of the opinion that proceedings under the FCR were in no manner regarded as proceedings by a court of law or proceedings in justice, but were merely administrative proceedings having no similitude to the modern principles of dispensation of justice. The observations of Justice Cornelius in particular reflect that this Court was aware of the consequences that such a system would have on public Const. P. No.24/2012 etc. - 25 - confidence in the justice system and expressed his fear in this regard, nevertheless the constitutional bar to judicial review of the provisions of FCR under Article 247(7) of the Constitution prevented this Court from holding such legislation to be against the fundamental rights of the FATA people having no or at best limited access to any judicial remedy. The same opinion has been expressed more recently in a judgment of the learned Peshawar High Court in the case of Abdul Bari and 2 others Vs. Director Livestock (PLD 2014 Peshawar 132) wherein it was held that:- 48. Under the FCR, citizens are deprived of the right to appeal, right to legal representation and the right to present reasoned evidence. Besides collective punishment is provided in clause 21 of FCR, which is imposed on anyone in the tribal areas for a crime committed by him or her relative, spouse, or even any other person from the same tribe and area. The political agent or his deputy, the assistant political agent, enjoys unbridled powers both executive and judicial. There is no regulatory mechanism to check misuse of power by the political agent which often results in serious human rights violations. The suspects are tried by a tribal jirga or Council which submits its recommendations regarding conviction or acquittal to the political agent. The political agent makes a decision regarding conviction or acquittal and is not bound by the jirga's recommendations. The orders of the political agent cannot be challenged before the higher courts. In effect, there is virtually no separation of the judiciary from the executive in the FATA. [Emphasis supplied] It is evident from the foregoing judgments that the means of dispute resolution under the FCR was already recognized as redundant and there was an increasing need to drastically change the same in order to bring it in consonance with the ordinary courts of law which is in contravention of the principle of separation of powers (enshrined in Article 175 of the Constitution and in the general scheme of the Constitution) and any anticipated legislative change was Const. P. No.24/2012 etc. - 26 - expected to remove these anomalies. However, no substantial legislative change in this regard was seen even in the FATA Interim Regulation until the 25th Amendment wherein FATA was made part of the Province of KPK and Article 247(7) of the Constitution was omitted. 19. One immediate consequence of the omission of Article 247(7) ibdi apart from the merger of FATA with the Province of KPK is that Azizullah Memon’s case (supra) becomes squarely applicable to the discriminatory treatment being faced by residents of FATA in terms of access to justice, wherein a similar legal instrument, namely the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance of 1968) was declared to be void by this Court in the noted judgment, holding it to be in conflict with Articles 4, 8, 9, 25, 175 and 203 of the Constitution in the following words:- “In cases of violation of fundamental rights the superior Courts are empowered to issue direction to the Federal Government or the Provincial Government to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article-87 is bound to discharge its Constitutional obligations. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights.” It was held that in light of the precedent laid down by this Court, there is unanimity in the view that class legislation is forbidden and whereas reasonable classification for purposes of legislation is permissible, such classification must be founded on intelligible differentia and there should be a nexus between the classification and the objects of the legal instrument holding that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. The relevant paragraph reads as under:- Const. P. No.24/2012 etc. - 27 - “…Thus, where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution. In F.B. Ali's case PLD 1975 SC 506 the challenge to amendments in Pakistan Army Act and Ordinance IV of 1967 was made inter alia as violative of equality clause of 1962 Constitution. This Court repelled it on the basis of principles laid down in Waris Meah's case and observed that in this case 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 have succeeded as the offenders under the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offenders under the ordinary law. Fauji Foundation's case PLD 1983 SC 457 ruled that legislation in regard to an individual can be made provided it is not discriminatory. In IA. Sherwani's case 1991 SCMR 1041 after considering the judgments in F.B. Ali's case PLD 1975 SC 506, Abdul Wali Khan's case PLD 1976 SC 57, Aziz Begum's case PLD 1990 SC 899,-Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and several judgments of the Supreme Court of India, the following principles were deduced- 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 group, 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 Const. P. No.24/2012 etc. - 28 - sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; vi. that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; vii. that in order to make a classification reasonable, it should be based--- a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; b) that the differentia must have rational nexus to the object sought to be achieved by such classification." [Emphasis Supplied] It is manifest from the above principles that classification is only permissible under the law where the same has been made on a rational and reasonable basis and although no singular standard of reasonableness can be deduced for such classification, it must be such that can be justified on an intelligible differentia identifying why the classification/distinction has been made and there must be a rational nexus to the object sought to be achieved by the classification. After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection. Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc. on the other, they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law. Thus, with the merger of Const. P. No.24/2012 etc. - 29 - FATA in the Province of KPK, by applying the ratio of Azizullah Memon’s case (supra), it becomes expedient to ensure that all the residents of the Province of KPK (including the people of the erstwhile FATA) do not face any discrimination of the basis of their residential location and are accorded equal protection of the law, and their right to fair trial, access to courts and due process are secured. Nevertheless, it may be pointed out that as admitted in paragraph No.16 of Azizullah Memon’s case (supra), courts of law had already been established in every district of Balochistan and in this background it was more practical to expect a uniform system of administration of justice in the entire Province. In contrast, in courts of law are yet to be established in the erstwhile FATA for which both infrastructure and human resource needs to be developed and for this a certain time-frame may be required, as has already been requested for by the Government of KPK. However, the practical difficulties in enforcing the fundamental rights guaranteed under the Constitution cannot serve as enough reason to deprive the people of the erstwhile FATA from benefiting from such rights. At best, a reasonable time may be granted to the Government of KPK to ensure that courts of law are available in all parts of erstwhile FATA and that the laws applicable to the rest of KPK are made equally applicable to them. 20. On grounds of discrimination which cannot be justified under any reasonable classification and the law laid down in Azizullah Memon’s case (supra), we hereby hold that the FATA Interim Regulation as a whole is declared as ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203 of the Constitution. The omission of Article 247(7) from the Constitution through the 25th Amendment is indeed a constitutional victory, however, this long-awaited change in the Constitution needs to immediately be reflected in the legal instruments governing the administration of justice in the erstwhile FATA. In recognizing the handicaps of adaptability of the local residents of FATA it must also be acknowledged that neither has the legislature nor the executive made any efforts to increase awareness or acceptability of courts of law in Const. P. No.24/2012 etc. - 30 - FATA for the past seventy years when the lack of adequate judicial remedies had been pointed out by the judiciary as far back as 1954. If even today, the legislature and the executive fall shy of their duty to provide these people with the same system of administration of justice as in place in the rest of the country then as guardians of the fundamental rights of the citizens of Pakistan, this Court must step in and direct that adequate measures be taken on ground level to ensure that not only are courts of law put in place, but the faith, trust and belief of these people is built up with regards to these courts and enough awareness is spread so that they approach the doors of justice as frequently and as confidently as any other resident of KPK. As aptly held in this context by this Court in Azizullah Memon’s case (supra):- “The law should have real nexus with the object. It is not sufficient to decorate the act by making provisions which may seemingly look like complying with the demands of justice as required by the Constitution but the effective and operative provision may in application be violative of these provisions.” Quoting the words of wisdom of the then Chief Justice of the Balochistan High Court, Justice S. A. Rahman who, when faced with a similar situation of having to strike down a similar law on the touchstone of the fundamental rights guaranteed under the Constitution in Malik Toti Khan etc. Vs. District Magistrate Sibi and Ziarat (PLD 1957 Quetta 1), held that:- “I recognize that this decision may cause difficulties to the administration in Balochistan area where I understand that a sufficient number of judicial tribunals does not exist nor is adequate machinery for police investigation of criminal cases in existence. Such considerations, however, would be irrelevant when we are adjudicating on the effects of fundamental rights guaranteed by the Constitution. The remedy lies obviously with the legislature or with the executive authorities who can make good the deficiencies of the administration. The argument of inconvenience, cannot be allowed to override the Constitutional Const. P. No.24/2012 etc. - 31 - provisions guaranteeing fundamental rights to all citizens of Pakistan.” We are sanguine that the argument of inconvenience will not be adopted by the legislature or executive in enforcing the fundamental rights of the people of FATA and realizing their right to access to justice thereby reinforcing equality before the law for all. Since time has been sought by the Province of KPK for development of infrastructure, six months are granted from the date of announcement of this judgment. The Federal and Provincial Governments are directed to take steps to spread a uniform system of courts of ordinary jurisdiction in KPK, mandating the local law enforcement agencies to ensure that the rule of law is observed by reducing jirgas/panchayats etc. to arbitration forums which may be approached voluntarily by local residents to the extent of civil disputes only. CONCLUSION:-9 21. In light of the foregoing, Constitution Petition No.24/2012 is disposed of and Civil Petition No.773-P/2018 is dismissed as having been withdrawn, with the following observations:- i. The operation of jirgas/panchayats etc. violates Pakistan’s international commitments under the UDHR, ICCPR and CEDAW which place a responsibility on the State of Pakistan to ensure that everyone has access to courts or tribunals, are treated equally before the law and in all stages of procedure in courts and tribunals; ii. The manner in which jirgas/panchayats etc. function is violative of Articles 4, 8, 10-A, 25 and 175(3) of the Constitution; iii. Jirgahs/panchayats etc. do not operate under the Constitution or any other law whatsoever to the extent that they attempt to adjudicate on civil or criminal matters; however, they may operate within the permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums 9 Of both petitions. Const. P. No.24/2012 etc. - 32 - between parties involved in a civil dispute who willingly consent to the same; iv. Since no individual or persons in the name of a jirga/panchayat or under any other name can assume the jurisdiction of a civil or criminal court without any lawful authority; any order, decision or a direction issued by any such individual or group of persons is hereby declared illegal and against the spirit of the Constitution; v. The law enforcement agencies all over Pakistan are duty-bound to be vigilant and ensure that if any crime has gone unreported, they of their own accord file FIR(s) with regards to the same and initiate the process of investigation; vi. If as a consequence of any illegal decision, order, direction or inducement of such self-appointed adjudicatory bodies any crime is committed, the offender as well as the individual or group of persons involved in aiding such jirga/panchayat etc. shall be jointly held responsible for the said offence and must be proceeded against in accordance with the law; vii. The police must ensure compliance with the general guiding principles laid down in paragraph No.14 of this judgment and standard operating procedures (SOPs) must be introduced by them within two months from the date of announcement of this judgment which should be circulated throughout the country with a compliance report to be submitted to this Court at the end of the two-month period; viii. After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection; ix. On grounds of discrimination which cannot be justified under any reasonable classification and the law laid down in Azizullah Const. P. No.24/2012 etc. - 33 - Memon’s case (supra), the FATA Interim Regulation is declared as ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203 of the Constitution; and x. The Government of KPK is granted six months from the date of announcement of this judgment for the development of infrastructure to take steps to spread a uniform system of courts of ordinary jurisdiction in KPK, mandating the local law enforcement agencies to ensure that the rule of law is observed by reducing jirgas/panchayats etc. to arbitration forums which may be approached voluntarily by local residents to the extent of civil disputes only. CHIEF JUSTICE Announced in open Court on 16.1.2019 at Islamabad Approved for Reporting Waqas Naseer/* JUDGE JUDGE

SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Guizar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Mazhar Alam Khan Miankhel CONSTITUTION PETITIONS NO.24 OF 2017 [Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973] Const.P.24 of 2017 For the Petitioner (s) (in Const.P.No.24) For the Federation (Respondents No. 1-2) MQM (Pakistan) and others Vs. Pakistan through Secretary Cabinet Division, Government of Pakistan and others. Mr. Salahuddin Ahmed, ASC (via video link from Karachi) Mr. Mehmood A. Sheikh, AOR at Islamabad Mr. Khalid Jawed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, Additional Attorney General For the Government of Sindh : Mr. Salman Talib ud Din, (Respondents No.3-7) Advocate General, Sindh (via video link from Karachi) For Respondent No.8 Sardar Shahbaz Ali Khosa, ASC Along with Sardar Muhammad Latif Khan Khosa, Sr.ASC Date of Hearing 26.10.2020 ORDER Gulzar Ahmed, CJ:- This petition has been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called "the Constitution") in which the following prayers have been made:- "It is accordingly prayed that this Honbie Court may kindly be pleased:- a. Declare section 3 of the KDA (Revival and Amending) Act, 2016 and similar dispensations in other statues to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect, while striking down the same: ii Declare sections 74 and 75 of the Sindh Local Government Act, 2013 and section 18 of the Sindh Buildings Control Ordinance, 1979 to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect, while striking down the same: C. Declare that "Authority" under section 4 of the Sindh Buildings Control Ordinance, 1979, for each territorial jurisdiction falling under the local government institutions, shall be the Mayor or the Chairman as the case may be, of such local government institutions, while annulling all dispensations, statues, notifications, rules, delegated legislations or executive orders in derogation to such declaration as ultra vires to law and the constitution; d. Direct the respondents to suitably amend the Sindh Building Control Ordinance, 1979, the KDA Order No.5 of 1957, the Malir Development Authority Act, 1993, the Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act, 1996, the Hyderabad Development Authority Act, 1976, Sehwan Development Authority Act, 1993, the Larkana •1 Development Authority Act, 1994 ) any P CONSTITUTIONPETJI1ONS No.24 OF 2017 ETC. 3 dispensation pertaining to the Board of Revenue or the Master Plan Departments of any Body or any other Development Authority in Sindh, the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, all delegated legislations or executive orders thereunder, so that the powers, functions and authorities under the said dispensations devolve to the local government institutions in consonance with Article 140-A of the Constitution; e. Order that the employees of the all boards, authorities or bodies liable to be devolved to the local government institutions, are to be transferred to the said local government institutions, who would function under their service rules and structures; f. Permanently and pending disposal of the main petition pass such interim orders for the purposes of devolution of powers to the local government institutions, as are deemed fit by this Hon'ble Court so as to make compliance of Article 140-Al- 9. Direct the Respondents to release Rs.29.366 Billion to the Karachi Metropolitan Corporation, pertaining to its share of Octroi/Zila Tax (OZT) alongwith mark up and additional mark up; h. Direct the Respondents to suitably amend the Sindh Local Government Act, 1913, and any delegated legislation or executive order issued thereunder so that all functions and powers of I CONSTITUTION PETITIONS NO.24 OF 2011 LIt. 4 subjects falling under Article 140-A of the Constitution, presently usurped by the Respondent No.3, are devolved to the local government institutions, at least in a manner similar to the dispensation available under the erstwhile Sindh Local Government Ordinance, 2001; i. Alternatively the Sindh Local Government Act, 2013 may be annulled and directions be issued to the Respondents to revive the Sindh Local Government Ordinance, 2001; j. Direct the respondents to release all the due share of the funds to the local governments of Sindh, in particular the KMC for the period from 2008 till date along-with mark up/additional mark up, so also the due share of the Annual Development Programmes (ADPs) pertaining to the latter period; k. For future also direct the Respondents to keep on releasing the due share of funds to the local governments of Sindh, so also funds for any devolved departments; 1. Award costs and special costs; m. Award any other relief, deemed fit in the circumstances of the case." 2. Comments have been filed by Respondent No.7- Government of Sindh through Secretary Finance by way of CMA No.5627 of 2020. Concise statement being CMA No.10 101 of 2018 is filed on behalf of the Secretary, Cabinet Division, Government of Pakistan. I 5 3. We have heard the learned counsel appearing for the parties and have also gone through the record of the case. 4. Mr. Salahuddin Ahmed, learned counsel for the petitioners has also filed written synopsis/ arguments by way of CMA No.6728 of 2020. Additional written synopsis have also been filed by the learned counsel for the petitioners. 5. Mr. Khalid Javed Khan, learned Attorney General for Pakistan has also filed written synopsis/ arguments. 6. Mr. Salman Talib-ud-Din, learned Advocate General, Sindh has also filed written synopsis/ arguments. 7. Sardar Shahbaz Ali Khoso, learned counsel appearing for Respondent No.8-Pakistan Peoples' Party Parliamentarian has also filed written synopsis/ arguments. 8. Learned counsel for the petitioners has argued about the history of Local Government in Sindh. He has contended that in the democratic system of governance, the Local Government empowers people at grassroots level and gives them authority over their day to day issues. He contended that globally the empowerment of people at grassroots level has improved interaction between the public and their elected representatives, politically educated the people and given the people sense of participation in the governance and also improved accountability of political parties. He contended that the Local Government System CONSTIDJTION PETmONS NO.24 OF 2017y works as nurseries for future Provincial and National level leadership. 9. Relying Upon Article 32 of the Constitution, the learned counsel contended that as a Principle of Policy, the State is under command to encourage local Government institutions, while Article 37(i) of the Constitution provides for decentralization of the Government administration to enhance public convenience. Learned counsel for the petitioners further contended that the Local Governments were already functioning in whole of Pakistan when Article 140A was added to the Constitution by the Legal Framework Order, 2002 (LPo of 2002) This Article was omitted from the Constitution by the Constitution (Eighteenth Amendment) Act, 2010 and by the same Act of 2010, new Article 140A was inserted in the Constitution. He contended that the inherent functions of the Local Government includes, Building Control and Town Planning, Water Supply, Sewerage and Waste Disposal, Local/public Transport and Civic Facilities like Parks, Playground,Libraries, Mosques, Graveyards, Parking Facilities etc. He contended that in terms of existing Article 140A of the Constitution, the Provincial Government is under-command to establish a Local Government System and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. CONSTITUTION PETITIONS NO.24 OF 2017 ETC. / 10. He further contended that Article 140A of the Constitution does not provide any measure and extent the Province shall establish a Local Government System, devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments, rather this Article provides establishment of a Local Government System and to devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments in full, in that, the province has no power to allow certain functions of the Local Governments to the Local Governments and not to allow certain other functions of the Local Governments to the Local Governments. He contended that Article 140A ibid is being clearly violated in the Province of Sindh, where the Province of Sindh, though has established Local Government System but has not actually devolved political, administrative and financial responsibility and authority to the elected representatives of the Local Governments has usurped many functions of the Local Governments by making amendments in the very Act of 2013 so also by enacting the provisions of Sections 74 and 75 in the Act of 2013 and also Sections 4 and 18 of the Sindh Building Control Ordinance, 1979 as well as the Karachi Development Authority (Revival and Amending Act) 2016, specially Section 3, which may be declared unconstitutional. He has also contended that the Sindh CONSTITUTION PETITIONS NO.24 OF 2017 ETC. S Building Control Authority Ordinance, 1979, the KDA Order No.5 of 1957, the Malir Development Authority Act,1973,..the Liyari Development Authority Act, 1993, the Hyderabad Development Authority Act, 1976, the Sehwan Development Authority Act, 1993, the Larkana Development Authority Act, 1994, the Karachi Water and Sewerage Board Act, 1996, the Sindh Solid Waste Management Board Act, 2014, the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environment Protection Agency Act, 2014, the Board of Revenue Master Plan Developments may be amended suitably to ensure that the functions contained under the laws are devolved to the Local Governments in consonance with Article 140A of the Constitution. 11. He further contended that the Provincial Financial Commission, constituted under Section 112 of the Act of 2013, should also workout financial implications of such devolution and make appropriate recommendation of fund allocations from the Provincial Consolidated Funds (PCF) to each Local Council and such be implemented by the Sindh Government. He further contended that the Local Government law should contain appropriate legislation to ensure that the Local Government is able to levy sufficient tax/fee to achieve maximum financial autonomy. He referred to the collection of Octroi/Zila Tax by the Local Governments ONS11TU11ON FETI11ONS NO.24 OF 2017 ETC. 9 in Karachi, which was abolished and the National Finance Commission recommended that 0.66% of provincial share in - -. the net proceed of divisible pool be reserved and the same was incorporated by Section 7 of the President's Order No.5 of 2010. He contended that the Sindh Government has failed to provide to Karachi Metropolitan Corporation (KMC) with its due share from this allocation and there are arrears in this regard for the years 2008-09 to 2015-16, amounting to Rs.29.366 billion. He contended that the arrears may be paid to KMC by the Sindh Government to enable better provision of municipal services to the citizens of Karachi and future share be also paid promptly. He finally contended that the Sindh Government be directed to frame and ensure passage of appropriate legislation to provide for meaningful enforcement of Article 140A of the Constitution. He also relied upon the framework and functions of the Local Government in other jurisdictions of Canada, UK, India, US, Brazil and Bangladesh and in this respect filed CMA No.5622 of 2020. He has relied upon the cases of Raia Rab Nawaz vs. Federation of Pakistan through Secretarq, Defence and others (2013 SCMR 1629), Province of Sindh through Chief Secretarq and others vs. M.Q.M. through Deputy Convener and others (PLD 2014 Supreme Court 531), Government of Balochistan through Additional Chief Secretanj vs. Azizullah Memon and 16 others (PLD 1993 SC 341), SharafFaridi and 3 others vs. CONSTITUTION PETITIONS N014 OF 2017 ETC. IU The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), Government of Sindh through Chief Secretaru to Government of Slndh, Karachi and others vs. Sharaf Faridi and others (PLD 1994 SC 105), AiJehad Trust through Habibul Wahab Al- Khairi Advocate and 9 others vs. Federation of Pakistan through Secretary, Ministrq of Kashmir Affairs, Islambaad and 3 others (1999 SCMR 1379), Election Commission of Pakistan through Secretaru vs. Province of Puniab through Chief Secretaru and others (PLD 2014 Supreme Court 668), Khan Asfanduar Wali and others v vs. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607), Mehram Ali and others vs. Federation of Pakistan and others (PLD 1998 Supreme Court 1445) and Awais Y ounas vs. Federation of Pakistan and others (PLD 2016 Lahore 1). 12. Learned Attorney General for Pakistan, on the other hand, contended that as the Local Governments are empowered to impose tax or cess or fee by virtue of Article 7 of the Constitution, it has a status that of a State. He contended that by Article 140A of the Constitution, Provinces are mandated to establish Local Government System by law and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments and such mandate has to be complied CONSTITUTION PETITIONS NO.240? 2017 ETC. 11 with by the provincial government to ensure and good governance at grassroots level for effective delivery of municipal/ public services. He contended that the power of such devolution rests with the provincial legislature and it has to ensure establishment of an effective Local Government System by law. While relying upon the case of Lahore Development Authority through D. G. and others vs. Ms. Imrana Tiwana and others (2015 SCMR 1739), the learned Attorney General contended that instead of declaring the statutory provisions as invalid or ultra vires to Article 140A of the Constitution, as prayed for by the petitioners, the Court may give certain guidelines on issues, which are as follows: - i) What is the essence of Local Government. ii) Relationship between Provincial and Local Government. iii) Essence of Local Government (Functional test! structure): (a) Local Government-Representative of people, (b) Mayor-Elected Directly, (c) Devolution at District Level, (d) All Civil Agencies performing functions in the area should be made accountable to Provincial Assembly. iv) What functions are inherently local and can be performed by Local Government only. Such as: (a) Sewerage. (b) Water Supply. (c) Garbage Collection/ Solid Waste. (d) Town Planning/ Building Control. CON.ThPJI1ON PETITIONS NO24 OF 20j7 ETC 12 (e) Intra City Transport. (I) Civic Facilities i.e. parks, parking facilities, mosques and graveyards. v) Provincial Financial Commission (Local Government Autonomy Strong Accountability to Provincial Government). vi) No concept of suspension and or dissolution of Local Government. vii) Accountability (Audit by Account General for Pakistan-Provincial Accountability Committee. viii) The Honourable Court may, if deem appropriate make it mandatory that 2/3rd majority is required for amending any Local Government Laws. 13. Referring to the Constitution of India, learned Attorney General contended that by 73rd and 74th Constitutional Amendments adopted in 1992, Articles 243-G and 243-w, were added to the Indian Constitution, which laid down that the State legislature will endow on Municipalities and Panchayats with such powers and authority necessary to enable them to function as institutions of and devolution of Powers and responsibilities Upon the Municipalities. He relied upon the cases of K. Krishna MzqLhy &Qth.g s vs, jUnion Q India f(201o) 7 SCC 2021, UP Gram vs. Qgygq,isr0 ((2007) 2 SCC 138)], 11 8Cc 783)] and Shanti G vs. $jgjgp Maharashtra & Others f Patel & others ((2005) INSC 48)]. He also gave CONSTITUTION PETUrIONS NO 24 OFZOI7EM. 13 comparative table of Local Governments of Bangladesh, Malaysia and United Kingdom. 14. Learned Advocate General, Sindh has con€éffdêd that no sufficient measure has been brought on record by the petitioners to invoke the jurisdiction of Article 184(3) of the Constitution and such jurisdiction should not be exercised by this Court and the petitioners be asked to approach the High Court in the first instance. He contended that the Sindh Government has fully complied with Article 140A of the Constitution by promulgation of the Act of 2013. He contended that Article 140A ibid only requires a province by law to establish a system within which a Local Government shall function and keeping in view the said system, devolve corresponding political, administrative and financial responsibility and authority to the elected representatives of the Local Governments. He contended that the Act of 2013 has complied with the mandate of Article 140A ibid. He further contended that the petitioners by this petition have sought a change in the system established by the Act of 2013, which objective can best be achieved through political means and not through judicial intervention. He has contended that this Court and the High Court have consistently declined to exercise jurisdiction in the matters, where the political questions are involved and the laws sought to be amended by this petition by the petitioners, have been legitimately enacted D CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 14 reflecting the will of the people. He contended that the learned Attorney General in his submission has already contended that none of the provisions of various laws be struck' downas prayed for by the petitioners but the Court may give some directions or observations regarding the import of Article 140A ibid and as to what it required. Learned Advocate General contended that he supports the submission of the learned Attorney General that none of the provisions of law, as prayed for by the petitioners, be struck down. 15. As regard the submission of learned Attorney General for issuing of direction regarding the import of Article 140A ibid, learned Advocate General contended that he does not support the same and gave reason that any direction or observation made by the Court will be binding upon all provinces and it should not be done without affording opportunity of hearing to them. He further contended that the compliance of Article 140A ibid is completed when a province enacts law as is done by the Province of Sindh by Act of 2013, devolving some political, administrative and financial responsibility on the Local Governments and in doing so, the Provincial Government has striped itself of those political, administrative and financial responsibilities. He contended that the silence of Article 140A ibid about the extent of political, administrative and financial responsibility and authority to be devolved on the Local Government is not CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 15 without reason. He contended that Article 140A's silence on these aspects is explained by the fact that the dynamics each province are not only different but are prone to change from time to time and these changes are addressed by the provincial legislature in the manner that best serves the populous and thus, it is not a case of one size fits all solution. He contended that such silence in Article 140A ibid of the Constitution be not regarded as a flaw and remedy by judicial intervention and such has been recognized by this Court in Imrana Tiwana's case (supra). 16. Sardar Shahbaz All Khosa, learned counsel appearing for Respondent No.8 has raised question of locus standi of the petitioners to file the petition after the expiry of its tenure and has contended that the petition is liable to be dismissed or declared as infructuous. He has further contended that the petition before this Court is not maintainable, for the reason that the petitioners have not approached the High Court in the first place. He has contended that every province has its own sources to set up the Local Governments and that their problems and solutions are also distinct and the judgment passed by this Court will have an impact on all the provinces. He contended that in Imrana Tiwwta's case (supra), this Court has exercised caution for the reason that it will have application on other provinces. He contended that rolling back powers from the local government to the provincial government is not illegal and ultra vires and such has been dealt with by this Court in .. Imrana Tiwana's case (supra). 17. On merits, he contended that the petitioners have miserably failed to discharge their powers/duties for the welfare of the public at large and shows their incapability despite enjoying full tenure of office at Karachi. He contended that the prayer made in the petition is in fact to usurp the power of the legislature of the Province of Sindh and also the executive power of the Province of Sindh. He contended that under Article 140A of the Constitution as interpreted by this Court, devolution is to take place as a process and no extent in this regard has been mentioned in Article 140A of the Constitution, and such has been intentionally left so as to ascertain the strength of bargaining power of Local Government vis-d-vis Provincial Government. Learned counsel in support of his submissions also relied upon the cases of the Province of East Pakistan and others vs. Sirajul Hug Patwari and others (1966 Supreme Court 854), Mehreen Zaibun Nisa vs. Land Commissioner, Multan and others (PLD 1975 Supreme Court 397), Mst. Kaneez Fatima vs. Wali Muhammad and another (PLD 1993 Supreme Court 901), Multiline Associates vs. Ardeshir Cowasjee and other (1995 SCMR 362), Messrs Elahi Cotton Mills Ltd. and others vs. Federation of Pakistan through Secretary, Ministry of Finance. I CONSTITUTION PETmONS NO 24 OF 1017 ETC, 17 Islamabad and 6 others (PLO 1997 Supreme Court 582), Pu,' Tang Nawaz and another vs. Government of Pakistan through the Secretanj, Ministrq of Health. Government oftàkistatt, Islamabad and another (2000 SCMR 1956), Mian Asif Islam vs. Mian Muhammad Asif and others (PLO 2001 Supreme Court 499), Pakistan Muslim League (Q) and others vs. Chief Executive of Islamic Republic of Pakistan and others (PLO 2002 Supreme Court 994), Pakistan Lawuers Forum and others vs. Federation of Pakistan and others (PLO 2005 Supreme Court 719), Messrs Master Foam (Pvt.) Ltd. And 7 others vs. Government of Pakistan throu gh Secretarz.c. Ministry of Finance S and others (2005 PTD 1537), Wattan Party through President vs. Federation of Pakistan through Cabinet Committee of Privatization. Islamabad and others (PLO 2006 Supreme Court 697), Federation of Pakistan through Secretary, Ministry of Finance and others vs. Haji Muhammad Sadig and others (PLO 2007 Supreme Court 133), Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLO 2010 SC 265) and Engineer Igbal Zafar Jhagra and another vs. Federation of Pakistan and others (2013 SCMR 1337). Learned counsel further contended that one provincial legislature could not bind the future legislature in making of Local Government law, for the provincial legislature in existence is only the competent forum who can decide as to what matters CONSTITUTION PETITIONS NO .24 OF 2017 ETC. are to be devolved and to what extent to the Local Government. 18. First of all we propose to take up the question of very maintainability of the petition under Article 184(3) of the Constitution filed by the petitioners, as to whether the same is at all maintainable. 19. The case of the petitioners is that in terms of Article 140A of the Constitution, there has to be a full-fledge third tier of Government with devolution of political, administrative and financial responsibility and authority. The Sindh Government, by denying such devolution to the Local Government, is infringing upon the rights of the people as envisaged in Article 2A, the Objectives Resolution, Article 4 and the Fundamental Rights under the Constitution. That the third tier of Government is responsible for decision making in policy areas, which have direct impact on the life of citizens' health, art, culture and sports, local transport, water and energy, regional planning, education, social services and improving law and order. The petitioners have made reference to the Fundamental Rights contained in Articles 9, 14, 17 and 25 of the Constitution and have alleged that the Sindh Government has let loose a complete rule of loot and plunder, virtually spending nothing upon Urban areas of the Province of Sindh and funds meant for the Rural Sindh, have been looted with impunity. Making reference to Urban Sindh, in CONSTITUTION PETITIONSNa24 OF2OIIETC, 19 particular to Karachi so also Rural Sindh areas such as Larkana and Ghotki of untreated garbage and sewage piled up and hardly any provision of drinking water or useable water is made. Water is polluted and unhygienic living conditions prevail in the Province of Sindh and there is epidemic of Chikungunya and other fatal diseases. No municipal service is available. That the Health Department and the Government Hospitals are in deplorable state, where medicines are also not available and employment is mostly sold out and no appointment on merit is made. Schools and colleges run by the Sindh Government are in state of complete shambles. Most of the schools have ghost teachers, ghost students and no furniture. School premises are used for keeping of cattle and animals. That since 2008 till-date, an amount of Rs.1227 billion was allocated by the Government of Sindh for Annual Development Programme but hardly any budget was allocated to or spent on Urban Sindh and the allocated amount of Rural Sindh has also been eaten away. That the third tier of Government provided in Article 7 read with Article 140A of the Constitution, has direct nexus with the people at grassroots level, if allowed to function with devolution of political, administrative and financial authority, as required by Article 140A of the Constitution, the day to day inflection on the people and 20 cossTrnm' PETITIONS NO.24 OF 2017 ETC. depriving them of their Fundamental Rights could be addressed. concise statement has been filed by the 20. No Province of Sindh disputing the facts alleged in the Memo of Petition. The Secretary Finance, Government of Sindh has filed comments by way of CMA No.5627 of 2020 in which stand taken is that Finance Department Governm ent of Sindh is releasing OZT share according to PFC Award on the basis of actual receipts from Federal Governm ent- current distribution of OZT share is tentative. The KMC is being released Rs.806.532 million on monthly basis and claim of KMC of Rs.29.366 billion is baseless. The learned Advocate General, Sindh in his oral submission so also in his written synopsis has argued that the petitioners have not provided sufficient measures, where this Court could exercise jurisdiction under Article 184(3) of the Constitution. It is pertinent to consider Article 184(3) of the Constitution, which is as follows: ithout prejudice to the "184. (3) w 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." 21 This Article provides that, 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, has the power to make an order of the nature mentioned in the said Article. 21. Reference to Article 17 of the Constitution, apparently, has become redundant, for the reason, that during the pendency of the petition, the tenure of the Local Government, formed by Petitioner No.1 in some Urban areas of Sindh has come to an end and now there is no elected local government in the Province of Sindh. The petition to the extent of Petitioner No.1 has become infructuous and is dismissed. However, the remaining Articles of the Constitution in Chapter 1, Part II of the Constitution, as pleaded and argued from the side of remaining individual petitioners, need to be considered and examined. 22. In Al-Jehad Trust's case (supra), while dealing with the question with regard to maintainability of petition under Article 184(3) of the Constitution, this Court considered the issues being faced by the people of the Northern Areas of Pakistan by which they were being denied the Fundamental Rights enshrined in the Constitution and observed as follows: 11 22 "10. Adverting to Ch. Muhammad Frooqs second contention that this Court has no jurisdiction to entertain the above Constitution Petitions, it may be observed that the grievance of the petitioners is that the Federation is not discharging its Constitutional duty by denying the Fundamental Rights to the people of Northern Areas. In our view, since the Federal Government is situated within the territory over which this Court admittedly has jurisdiction, the above Constitution Petitions are maintainable. It cannot be denied that the question as to, whether the people of Northern Areas have the right to invoke Fundamental Rights under the Constitution, is a question of public importance relating to the enforcement of Fundamental Rights contained in Chapter 1 of Part II of the Constitution and hence this Court has competently entertained the above Constitution Petitions under Article 184(3) of the Constitution." In the case of Ms. Shehia Zia and others vs. WAPDA (PLD 1994 Supreme Court 693), the Court observed as follows:- "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 CONSTITUTION PEI1TIONS NO.24 OF 2017 ETC. 23 p enjoy with dignity, legally and 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 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(3) 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 and this has happened so in the present case." - CONSTITtTI1ON PETITIONS NO.24 OF 2017 ETC. 24 In the case of Bank of Punjab and another vs. Steel Industries (Put.) Ltd., and others (PLD 2010 supreme Court 1109), this Court in respect of entertaining of a petition under Article 184(3) of the Constitution observed as follows: - S "21. We shall first take up the objection of the learned prosecutor-General with respect to the maintainability of this Application and to the assumption of jurisdiction by Court with respect to the matter in question. 22. As has been mentioned above, the matter in question relates to one of the gravest financial scams in the banking history of our country as a result of which the Bank of Punjab stood cheated of an enormous amount of around eleven billion rupees which amount of money in fact belonged to around one million innocent depositors including depositors of small amounts of money whose life-savings and property had come under serious threat casting thus an obligation on this Court to move in to protect and defend the right of property of such a large section of the population i.e. about ten lakh depositors and customers of the Bank of Punjab which right of property stood guaranteed to them by Article 24 and Article 9 of the Constitution. 23. The background of the case in question has been noticed in some detail in the earlier parts of this order and it appears that it was in view of the said facts and circumstances that the Bank of Punjab had felt compelled to approach this Court under Article 184(3) of the Constitution read with Order XXXIII, Rule 6 of the Supreme Court Rules of 1980 through CONSTITUTION PETm0NS NO.24 OF 2017 ETC. 25 V Constitutional Original Petition No.39 of 2009 with the following prayer: "It is, therefore, prayed that given the callous manner and the enormity of the fraud played by the respondents, and the resultant threat to the safety of the savings of more than 9,00,000 innocent small-scale depositors of the SOP holding Rs. 100,000 or less in their respective Accounts on account of this fraud, as result of which a sum of upward of Rs. 10 Billion belonging to inter alia these small- scale borrowers and fraudulently withdrawn from the Bank and misappropriated by respondents Nos. 1-3, is not even secured to the extent of 10% of this amount coupled with the fact that these respondents and their associates are hooding and supporting holders of fake CNIC's and identities, against which they are holding more than 120 urban Properties in DHA, Lahore Cantt. etc., and another 105 properties, which are predominantly rural (though mostly worthless) in Kasur, Chunian, Muridke etc., and are dealing with or are likely to deal with hundreds of persons/ citizens and with Banks etc., on the basis of these fake identities, and even travel abroad on that basis, besides being a security threat to the State, it is evident that this is case which, consistent with the pronouncements of this august Court, is one involving serious violations of and threat of violation of fundamental rights of hundreds and, potentially, thousands of innocent persons and, as such, the issues involved herein may be taken up by this august Court, directly under this august Court's jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, and appropriate dictations be given and orders passed to secure the fundamental rights of more than "9,00,000 small-scale depositors of SOP. It is further prayed that during the pendency of this petition the NAB or any other Investigation Agency may very kindly be directed to initiate and carry out full investigation in the case, and, for this purpose, to have full power and authority to associate any and all persons in the CA CONSTITUTION PETITIONS NO24 OF 2017 ETC. investigation, including the respondents herein as well as the Writ Petitioner, and if sufficient incriminating evidence is found or is available against them, to forthwith arrest, detain and interrogate in accordance with law. It is further prayed that the immovable property belonging to the respondents Nos.1-5 and their associates may very kindly be ordered to be attached and possession delivered to BOP and the vehicles recovered from them may very graciously be allowed to be sold and sale proceeds utilized towards partial adjustments of the outstanding amounts. Any other interim order which is deemed fit and proper by this honble Court under the facts and circumstances of the case and to secure the rights of the small scale depositors of BOP may also be passed in the interest of justice, equity and fairplay. 24. As has been mentioned above, besides other petitions filed in this Court under various other provisions of the Constitution and the law, Constitution Petition No.39 of 2009 had been filed under clause (3) of Article 184 of the Constitution which clause (3) reads as under:-- (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-I of Part-11 is involved, have the power to make an order of the nature mentioned in the said Article. 25. A perusal of the above quoted provision would demonstrate that this Court was possessed of powers to make any order of the nature mentioned in Article-199 of the Constitution, if, in the opinion of this Court, a question of public importance relating to the enforcement of any of the Fundamental Rights A CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 27 was involved in the matter, as has been mentioned in the preceding parts of this order, what was at stake was not only a colossal amount of money/property belonging to at least one million depositors i.e. a large section of the public but what was reportedly at stake was also the very existence of the Bank of Punjab which could have sunk on account of the mega fraud in question and with which would have drowned not only the said one million depositors but even others dealing with the said Bank'. And what had been sought from this Court was the protection and defence of the said public property. It was thus not only the right of this Court but in fact its, onerous obligation to intervene to defend the said assault on the said fundamental right to life and to property of the said public." 23. In the above cited judgments, this Court has discussed in various circumstances the enforcement of Fundamental rights being part of Chapter 1 of Part II of the Constitution are violated or infringed upon and where sizable number of citizens are deprived of their fundamental rights so conferred on them, the Court will ensure that the people do enjoy the fundamental rights and such are not infracted upon and shall exercise its power given to it under Article 184(3) of the Constitution, for that, the matter would be that of a public importance with respect to enforcement of fundamental rights conferred by Chapter 1, Part II of the Constitution. I 28 24. Having noted in the preceding paras facts pleaded by the petitioners, which are not denied by the Province of Sindh, we consider them to be substantial questions giving rise to the very enforceability of fundamental rights of the citizens of the Province of Sindh and such fundamental rights relates to question of public importance and for this the petition filed under Article 184(3) of the Constitution is maintainable. 25. The whole gamut of the case emanates from Article 140A of the Constitution, which is as follows: - "140A. (1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. (2) Elections to the local governments shall be held by the Election Commission of Pakistan." This Article commands each province by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. The elections to the local governments are provided to be held by the Election Commission of Pakistan. The Article is couched in imperative and mandatory term by use of the word "shall" binding the provinces to make the law. Pursuant to this very Article of the Constitution the province of Sindh has 29 OF 2017 FrC cOST0 Promulgated the sindh Local GoVet Act, 2013 (the Mt of 2013 ) This Act of 2013 in its preambleprovides that whereas; it is expedient to establi sh an elected local government system to devolve poiiti cal adminttat and rinancial responsibthtY and authorityto the elected representatives of the local governments;to promote good governance, effective deliveryof services and transparent decisiofl a rough institution zed ticiPatbofl of the making people at local level; and, to the ancillarymatters. 26. The sub of of the learned counsel for the Petitioners at oners was th ugh the law for 5 blishin same law, of a local government system has been made but by very particularly, by sections 74 and 75 there0f the powers and particularly, functions of the local government have been speci calW taken over by the pro 140A and by doing so the very vincial governm ticle 140A of the Constitution has been made compliance of objectives Resolution and redundant and this manner Fundamental Rights gravely infringed. ou the protsbons of secti 27. We have gone thr ons 74 of the Act is as and 75 of the Act of 2013 section follows: - of functions from councils to "14. Transfer Government and Vice Versa m jfl an other law for the time anything contan being in force, Government may - CONSTITTJUON PETITIONS NG24 OF 2017 ETC. (a) take over the management and control of any institution or service maintained by a Council; and (b) transfer the management and control of any institution or service maintained by Government to a Council. 28. Section 74 ibid starts with a non-obstante clause giving overriding power to the government to take over the management and control of any institution or service maintained by a Council and to transfer the management and control of any institution or service maintained by government to a Council. Section 75 of the Act of 2013 is as follows;. "[75 Commercial schemes.- (l)Government may set up a Board, Authority or any corporate body to perform any one or more functions of any Council, singly or jointly with any public or private body, and may acquire, continue, manage or operate any commercial venture or activity as deemed necessary in the public interest. (2) Any commercial operations or venture jointly with any private body or person in existence at the time of commencement of this Act shall continue to do so. (3) The Council may, with the prior permission of Government, promote administer, execute or implement schemes for undertaking any commercial, business enterprise or enter into public private Partnership." 30 CONSTITUTION PETITIONS $0.24 OF 2017 ETC. 31 D Section 75(1) ibid gives all embracing and complete power to the government to set up a Board, Authority or any corporate body to perform any one or more functions of any Council, singly or jointly, with any public or private body and may acquire, manage or operate any commercial venture or activity as deemed necessary in the public interest. Section 74 which, as noted above, starts with the non-obstante clause gives to the government all pervasive powers without any restraint or restriction and without any cause or reason or justification and at any time, it likes to takeover management and control of any institution or service maintained by a Council. What number of institution or service will be taken over from a Council by the government, the same has been left for the government to chose. No time frame is given for how long the government would retain management and control of institution or service of a Council. It also seems to mean that over the time, the government may one after the other take over the management and control of institution or service maintained by a Council, to the extent that the very Act of 2013 laying down the local government system pursuant to the mandate of Article 140A of the Constitution demonstratively becomes nonexistent. There is no structure provided in Section 74 ibid for the government to exercise such powers. Similar is the position with regard to Section 75(1) ibid in which government has been given all embracing 2017 32 and complete power to set up a Board, Authority or any corporate body to perform any one or more functions of any Council. This power given under Section 75(1) of the Act of 2013, while contains all attributes of Section 74 ibid except that it does not start with non-obstante clause, thus, has no overriding effect. In any case, the powers provided to the government under Section 75(1) ibid also seems to be all pervasive with no restraint or restriction and such powers could be exercised without any cause, reason or justification and at any time it likes and the number of functions of Council or Councils to be given to a Board, Authority or corporate body is also not specified and for what period such functions of Council will be given to a Board, Authority or corporate body is also not provided. This provision also reads in it, over time, the government may one after the other gives all of the functions of a Council to a Board, Authority or corporate body set up by it. This provision also does not contain structured authority conferred on the government and both Sections 74 and 75 ibid in this regard have made excessive delegation to the government in matters relating to management and control of institution or service of a Council and functions of a Council. Whether this nature of delegation of power to the government by legislature was at all intended by Article 140A ibid and whether these provisions of Sections U 74 and 75 ibid are also in direct conflict with the Objectives CONSTITUTION PETITIONS NO.240? 2017 ETC. 33 Resolution in Article 2A of the Constitution, where principle of democracy, freedom, equality, tolerance and social justice are required to be observed by the State and also contrary to Articles 9, 14, and 25 of the Constitution. 29. We may note that the Constitution does not envisage unstructured, uncontrolled and arbitrary discretion being conferred by legislature on State functionary or holder of a public office; even if, some discretion is conferred by law on a State functionary or on holder of a public office, the same has to be exercised justly, honestly, fairly, and transparently. There has to be a structured policy in the interest of uniformity even handedness, probability and fairness. Under the Constitution, legislature has plenary powers within its allotted field and there could be no application of legislative function or authority by complete effacement or even partially in respect of a particular topic or matter entrusted by the Constitution to the legislature. It has been noted that entrustment of power without guidance suffers from excessive delegation, which in the scheme of Constitution is not permissible. Reference is made to the case of Malik Munsif Awan,, Advocate, Chairman, Pakistan Justice Partzj, Lahore vs. Federation of Pakistan through Secretanj, Law and Justice, Islamabad and others (PLD 2021 Supreme Court 379). CONSTITUTION PETITIONS NO14 OF 2017 ETC. 34 30. We may further observe that wherever the legislature devolves its authority and power to be exercised by government or any of its functionary, it has to be circumscribed by structured exercise of discretion. The basic ingredients of structured exercise of discretion have been time and again stated by this Court. In the case of Jurists Foundation through Chairman vs. Federal Government through Secretary, Ministru of Defence and others (PLD 2020 supreme Court 1), this Court observed as follows:- "41. This Court has time and again held that the essential legislative function of the Parliament cannot be delegated. The wisdom behind it is that the delegatee must have legislative guidelines to formulate Rules and Regulations, and that guidelines, contours or boundaries must come from the Legislature itself. Delegation of an "essential legislative function" by the Legislature to the Executive is not permissible under the Constitution. The foundation of embargo owes its genesis to the concept of trichotomy of powers between the Legislature, the Executive and the Judicature, which is a fundamental principle of our constitutional construct. Under the Constitution, these three organs of the State have been entrusted with separate and specified functions. The primary function of the Legislature is to legislate laws, of the Executive to execute laws, and of the Judicature to interpret laws. The words of Chief Justice Marshall of the US Supreme Court frequently quoted, in explaining the doctrine of separation of powers, by the Courts of various jurisdictions in the last about two centuries still hold: "the Legislature makes, the Executive executes, and the Judiciary construes, the law." The Legislature cannot abdicate performance of the function assigned to it by the Constitution and set up a parallel Legislative authority. Though the Legislature can confer upon any person or body the power to make subordinate/ delegated legislation (rules, regulations or byelaws, etc) in order to give effect to the law enacted by it yet it must perform itself the essential legislative function, i.e. to exercise its own judgment on vital matters of policy and enact the general principles providing guidance for making the delegated legislation. Through section 176A, the Parliament appears to have divested itself of the essential legislative function which amounts to excessive delegation." In the case of Sabir Igbal vs. Cantonment Board, Peshawar through Executive Officer and others (PLD 2019 Supreme Court 189), this Court observed as follows: - "5. There is yet another dimension of the case. The court can examine and judicially review the executive discretion exercised by the authorized officer on the ground of pro portionalitzj. Alongside reasonableness, proportionality is now a central standard directing the action of the executive branch. The point of departure is that a disproportionate act that infringes upon a human right is an illegal act. The court, which guards the legality of the acts of the executive branch, performs judicial C CONSTItUTION pETITIONS NO.24 OF 2017 ETC. review over these acts and examines whether they fulfil the tests of proportionality. Proportionality is a standard that examines the relationship between the objective the executive branch wishes to achieve, which has the potential of infringing upon a human right, and the means it has chosen in order to achieve that infringing objective. The fiduciary duty, from which the administrative duty of fairness and administrative reasonableness are derived, demands administrative proportionality as well. "The courts will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. An administrative measure must not be more drastic than necessary or to sum up in a phrase - not taking a sledgehammer to crack a nut. According to De Smiths Judicial Review, the standards of proportionality and unreasonableness are inextricably intertwined. Unreasonableness contains two elements of proportionality when it requires the weight of relevant considerations to be fairly balanced and when it forbids unduly oppressive decisions. Under the first element, proportionality is a test requiring the decision-maker to maintain a fair balance. under this category the courts evaluate whether manifestly disproportionate weight has been attached to one or other considerations relevant to the decision. The second element is that the courts consider whether there has been a disproportionate interference with the CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 37 claimants rights or interests. A more sophisticated version of proportionality provides for a structured test. Here the courts ask first whether the measure, which is being challenged, is suitable to attaining the identified ends (the test of suitability). Suitability here includes the notion of "rational connection" between the means and ends. The next step asks whether the measure is necessary and whether a less restrictive or onerous method could have been adopted (the test of necessity - requiring minimum impairment of the rights or interest in question). 6. Applying the test of proportionality to the executive discretion exercised in the instant case, the order of the authorized officer, other than the legal infirmities discussed above, fails to maintain fair balance by removing a person from service because he absented himself from duty for a day. The executive discretion also fails the structured test of proportionality including the test of suitability and test of necessary requiring minimum impairment of the right of the petitioner." 31. It is trite an accepted principle of Constitutional jurisprudence that the Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority, is in conflict with the Constitution or is inconsistent, then to that extent, the same is liable to be declared unconstitutional. It is also a settled maxim and the very concept of fundamental rights is that it being the right guaranteed by a Constitution cannot be taken away by any law. In order to examine the vires of the Statute on its scrutiny of violation on the touchstone of taking away or abridging any of the fundamental rights guaranteed by the Constitution, such provision of law is declared to be ultra vires and struck down. 32. Further, this Court has dealt with the subject of local government extensively in Raja Rab Nawa.z's case (supra). The following observation of this Court is relevant:- "12. It may be observed that the life of a community is essentially the creation of its particular environment. It is difficult to establish an organization that would effectively look after the well being of all the social groups in a country. Only such political system can succeed which is essentially indigenous. Therefore, establishment of democratic institutions at the grass root level is basic requirement for the welfare of the society. The Local Self- Government institutions lay the foundation of such a system. They are based upon the recognition that the only way to respond to the needs of the individuals is to associate them with the process of authority. In this regard, it would be appropriate to quote Sydney Webb's remarks who said that any system of government, however mechanically perfect, would fail to take roots in the midst of the masses of people, unless it was in some way grafted on to the spontaneous grouping of the people themselves. As such, the broad masses of people are to be genuinely associated with the management of their affairs and encouraged to work for their own welfare. Essentially, the n CONSTITJTloNpmoNs No.24 Cr2017 ETC institutions at local/grass root levels protect the human dignity of common man to which he is entitled 13. Local Government or Municipal Government is a form of public administration, which in a majority of contexts, exists as the lowest tier of administration within a given state or district. In many countries, it usually comprises the third tier of government,often with greater powers than higher-level administrative divisions. The question of municipal autonomy is a key question of public administration and governance.It is noteworthy that Local Governments generally act within Powers delegated to them by legislation or directives of the higher level of government.The Political analysts have always emphasized on the importance of local self-government. There are two principles underlining the establishment of Local bodies. Firstly, local bodies enjoy extensive Powers to act in a way they like for the betterment of the community unless restricted by law in any sphere of activity. Secondly, local bodies cannot go beyond the specific functions delineated to them in various acts and statutes. 14. The concept of participation of ordinary People in the conduct of public affairs was advanced by the liberal Philosopher John Stuart Mill as early as the mid 19th century. He considered the broad involvement of citizens to be the most effective guarantee of a well- functioning democratic polity, counterbalancing the threats posed by an over-powerful and interventionist state. In his view, the citizens -- CONSTETUI1ON pEirrioNs NO24 OF 2017 ETC. 40 opportunity to articulate his views and assert his rights afforded him the best protection against any abuse of these rights by the State. 15. In general, this tier of government is responsible for decision-making in those policy areas which have a direct impact on the lives of local citizens, e.g. urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and energy, and regional planning. These are the areas where the local citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process. Thus, local self- government not only has a legal and a political dimension, but it also has sociological connotations, namely, it directly affects community life within a demarcated locality. It is pertinent to mention here that in the developed democracies, local self- government has contributed substantially to social and economic development and the emergence of a civil society and its importance for democratic development has been recognized consistently all over the world. 16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such. Existence of local bodies is important for strengthening the process of democracy. In the recent years, local self-government has been playing a vital role in the establishment of good governance and community development. The local bodies, at one end, provide services to the £ CONS1ITUTION PETITIONS NO.24 OF 2017 ETC. 41 local community and, on the other, act as an instrument of democratic self-government. The existence of local self-government provides mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving, law and order situation. In short, the local self- government is necessary not only for strengthening democracy in country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making process. 17. All modern States have developed a system of self-governing local authorities. In many countries, the basic unit of local self- government is the municipality. Over the course of history, two types of self-governing units, namely, cities and municipalities have evolved at local level. The territorial boundaries of units of local self-government are defined by law. Local self-government is presumed to be in existence where a local government is established as a legal, corporate and political institution with decision-making powers. One of the main traits of local self-government is that there must be a representative body, a council or an assembly, directly elected by local citizens through elections, with budgetary autonomy and power to make legislation at local level. The brief of local government structure in various countries is given hereinbelow:-- CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 42 INDIA In India the local government is the third level of government apart from the State and Central governments. There are two types of Local Government in operation; firstly, Panchayats in rural areas and Municipalities in urban areas. The Panchayats are a linked-system of local bodies with village panchayats (average population about 5,000), panchayat samities at the intermediate level (average population about 100,000), and district panchaytas (average population about 1,000,000). The local government bodies are the democratic institutions at the basic level. FRANCE In France there are three main tiers of local administration; namely, the commune, department and region. These are both districts in which administrative decisions made at national level are carried out and local authorities with powers of their own. A local authority is a public-law corporation with its own name, territory, budget, employees, etc. and has specific powers and a certain degree of autonomy vis-a-vis central government. In addition, there are France's overseas territories and regional bodies (collectivites territorial's) with special status (Paris, Marseille, Lyon, Corsica, Mayotte and Saint-Pierre-et-Miquelon). JAPAN Since the Meiji restoration, Japan has had a local government system based on prefectures. The national government oversees much of the 43 CONSTITUTION pEmloNs NO.24 OF 2017 ETC. country. Municipal governments were historical villages. There are 47 prefectures. They have two main responsibilities; one is mediation between national and municipal governments, and the other is area wide administration. Now mergers are common for cost effective administration. TURKEY Turkey has two levels of local government; provinces (iller) and districts (ilceler). The territory of Turkey is subdivided into 81 provinces for administrative purposes. The provinces are organized into 7 regions for census purposes; however, they do not represent an administrative structure. Each province is divided into districts, for a total of 923 districts. SOUTH AFRICA South Africa has a two tiered local government system comprising local municipalities which fall into district municipalities, and metropolitan municipalities which span both tiers of local government. PAKISTAN Local government is the third tier of government in Pakistan, after Federal Government and Provincial Government. There are three types of administrative unit of local government in Pakistan; namely, District Government Administrations, Town Municipal Administrations and Union Council Administrations. There are over five thousand local governments in Pakistan. After the promulgation of Local Government Ordinance, 2001, there established democratically elected 44 0fl0%lETC im each headed a 0me of the districts loca l councils, (supe15ot or Mayo ljtan areas are called c0nt1fl of A City pistrict often consisting city Districts. and Uniott councils. called ¶owfl subdivjsboflS o'very mt laws, election of union four years As per localgovernbe held after eve District councils are is a ivil District 0overnmt5 PC°l who also include a Coordination officerdevol:I dePartmt alsO held by servan1t in of a of Nazit' are Currently, powers the DcO." iples of law, whicui above prittc Ilov deal in view the cecI b this Court, we 33. en pronbtm1 and 75(l) of the Act repeatedly be Section 74 have repe provisions of Article 2A (Ob)tes subit pr with the they do fringe upofl of dignity of of 2o13 whether 9), lnViO1't' Resolution ), Right of Life (Articles of citizens (Article 25 and also man (Article 1.4), the constituti0n. Article 14oA of we note that the local goveWmt is a third on and that it 34. ent provid by the constitu tion impact tier of goveW grassroots level having their day to day ment at the being govern n matters ating to on the life of citizens i wate iin have neat, clean g living i.e.; adequate and safe dr and (i Right to h orts of garbage (ii) Right went, free from a11the roads,streets envffon and sewage piling on and open spaces CONSTITUBON pErrrroNs NO.24 OF 2017 ETC. (iii) Keeping the citizen safe from flood devastation and other natural calamities. (iv) Keeping the citizen safe from fire. (v) Making provision for medical treatment of all citizens without any discrimination and providing all requisite medicines. (vi) Giving equal opportunity to all citizens without discrimination of employment in service on merit basis. (vii) Protecting life and liberty of all citizens without any discrimination. (viii) Making provision for all citizens to have adequate education in schools and colleges with competent teaching staff and provision of all amenities needed for a school and college. (ix) School and Colleges premise are free from all encroachments and illegal uses. (x) Provision of sports facilities. (xi) Provision of local/public transport. (xii) Provision of graveyard, mosque and libraries. (xiii) Provision of parks and playgrounds. These are some of the basic ingredients of fundamental rights provided to be enjoyed by the citizens. 35. Local government system having pledged to deliver these basic necessities of life and to maintain inviolability and dignity of human beings and to provide all these basic necessities to all citizens without discrimination, any infringement on the part of the government to take away from OF2OLIE]C. 46 the local government system through an executive fiat as provided in Sections 74 and 75(1) of the Act of 2013, renders them palpably derogatory to such rights of the citizens and will not be sustainable. 36. Article 140A of the Constitution commands the province to establish by law local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. The mandate of the Constitution, gives power to the provincial legislature to comply with this command. Where such command is directly addressed to the provincial legislature itself, there is no room left for allowing the legislative power to be rested in the executive and that too, which is not structured and tempered with by any declared legislative policy. The legislature cannot delegate un-canalised and uncontrolled power, as the power to delegate must not be unconfined and vagrant but must be canalised within banks that keep it from overflowing. The banks that set the limits of power delegated are to be constructed by the legislature by declaring the policy of a law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Therefore, we are of the considered view that Sections 74 and 75(1) of the Act of 2013 are against the principle enshrined in the Objectives Resolution and the fundamental rights enacted in Articles 9, 14 and 25 of the Constitution and are also contrary to and in direct conflict with Article 140A of the Constitution and thus, declared ultra vires and struck down. 37. The further submissions of the learned counsel for the petitioners is based on Article 140A of the Constitution that the local government should include subjects of Building Control and Town Planning, Water Supply, Sewerage and Waste Disposal, Local/Public Transport and Civic Facilities like Parks, Playground, Libraries, Mosques, Graveyards, Parking Facilities etc. and that the KDA Order No.5 of 1957, the Sindh Building Control Ordinance, 1979, the Malir Development Authority Act, 1993, the Liyari Development Authority Act, 1993, the Karachi Water and Sewerage Board Act, 1996, the Hyderabad Development Authority Act, 1976, the Sehwan Development Authority Act, 1993, the Larkana Development Authority Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the province of Sindh and the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, be suitably amended in order to devolve them to the local government. 38. Learned Advocate General, Sindh has vehemently opposed this submission of the learned counsel for the petitioners by contending that the government has fulfilled 48 the mandate of Article 140A of the Constitution by promulgating and enforcing the Act of 2013 and there is nothing more which the government can give. 39. Learned counsel for Respondent No.8 has also seriously opposed the submission of the learned counsel for the petitioners. 40. Learned Attorney General for Pakistan, on the other hand, has given his valuable suggestion that where the local government system is made more vibrant, through consultative process between the provincial government and the local government. 41. Article 140A has already been reproduced above. In interpreting constitutional provisions, the Court has always approached and given dynamic and progressive meaning to the words of the Constitution and has also leaned towards giving effect to the Constitution, which is addressed by the Constitutional provisions. The Court has always avoided giving interpretation to the Constitution, which represents results not intended by the Constitutional makers or to narrow down or make the Constitutional provision pedantic. The Court has always strived to construe the Constitution broadly so that it may meet the requirements, which it sets down to address. 42 It is also well settled principle of interpretation i.e. statute made pursuant to the provision of the Constitution CONSTITtJflON PETITIONS NO.24 OF 2017 ETC. 49 cannot restrict or retard the constitutional provision as the constitutional provision being the supreme law the statute must under it conform to the Constitutional law. 43. S.M. Zafar on Understanding Statutes, Cannons of Construction, Fourth Edition has dealt with this subject as follows: - "Every problem about statutory interpretation also comes up in the constitutional interpretation, but crucial differences between most statutes and most constitutional provisions do exist in as much as the principles enunciated in the Constitution are deemed fundamental; as they draw their authority from the general will of the people, which is supreme, and can seldom act, they are designed to be permanent. Further more, constitutional law being the supreme law of the land must not be equated with the statute law which is the creation of the legislature and which must conform to constitutional law if it is to exist at all. If this is so, then why should the same principle of construction applicable to statute law be applied to constitutional law. Constitutional word and phrases should receive a broader and wider interpretation for the achievement of its social, economic and political mission." Under the heading of special rules of Construction of Constitution, learned author has commented as follows: - "(H) Any interpretation which seeks to comply with or advance principles of policy enumerated in the Constitution should be adopted as CONSTITUTION PETITIONS NO.24 OF 2017 KIC. 1!J 0 against an interpretation which goes against such principles, as the directive principles of State policy are to be regarded as fundamental to the governance of the State. (I) Constitutional document is to be broadly construed so as to cover all exigencies. A narrow construction has no room in the context of a constitutional dispensation." 44. Thus noted, the aim of Article 140A of the Constitution was to create a local government system by devolving political, administrative and financial responsibility and authority to the elected representatives of the local governments. This is a simple command to the Province to make law giving effect to the measures laid down by the Constitution and there are no ifs and buts in complying with the very mandate of Article 140A of the Constitution. 45. All the learned counsel appearing for the parties before us, during the course of arguments, have extensively referred to the judgment of this Court in Imrana Tiwana's case (supra). It would, therefore, be appropriate to deal with this case and in doing so, the facts, as are mentioned in para-1 of the judgment, are reproduced as follows: - "The facts of this case though hotly disputed are relatively uncomplicated. Under challenge is the Signal Free Corridor Project (the "Project"). The Lahore Development Authority ("LDA"), a statutory authority established by the Government of Punjab ("GoPb"), is "introducing" two underpasses, 7 U-turns and 5 overhead CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 51 U pedestrian bridges on an existing 7.1 Kins of the existing Jail Road and Main Boulevard. It starts from Qurtaba Chowk (roundabout) and ends at Liberty Market Main Chowk. According to the judgment of the High Court, this remodelling would convert this stretch into "a signal free, high speed expressway". Apparently, three writ petitions were filed in the Lahore High Court, Lahore challenging the action of the Government of Punjab and the Lahore Development Authority (LDA) of undertaking the project mentioned in para- 1 of the judgment. All the three writ petitions were heard by a Full Bench of the Lahore High Court, Lahore and vide judgment dated 17.04.2015, the Bench accepted all the three writ petitions striking down Sections 6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 and 46 of the LDA Act, 1975, as ultra vires the Objective Resolution, Articles 2A, 4, 9, 14, 17 and 25 of the Constitution and offensive to Articles 32, 37(i) and 140A of the Constitution. Three appeals were filed by the Lahore Development Authority and others before this Court which were allowed vide judgment reported in Imrana Tiwana's case (supra), para-94 of the judgment contains the short order passed by this Court, which is as follows: - (i) Elected Local Governments are presently not in existence in the Province of Punjab. The Provincial Government through its agencies is 52 Co$S11TW10N PETITIONS $0.24 OF 2017 ETC. performing their duties and functions. The disputed signal Free Corridor Project was conceived by an agency of the Provincial Government, WA, in the year 2014 and included in its budget allocation for 2014-15. Construction of the project was awarded to the Contractor on 19-2-2015, who had already undertaken construction in the value of Rs.60 million before the interim restraint order was issued by the learned High Court on 5-3-2015. In the vacuum resulting from the absence of an elected Lahore Metropolitan Corporations the initiation, approval and execution of the disputed signal Free Corridor project by the Provincial Government through its agency, LDA, is held to be valid. The said project may accordingly be completed subject to provision of additional facilities for pedestrians inter alia, including road crossing and passes at intervals of one-kilometre or less along the project road distance. (ii) subject, inter alia, to the criteria of spill over, economies of scale, effectiveness as shall be determined in the detailed reasons by the Court, any new project falling within the domain of Lahore Metropolitan Corporation for approval or execution shall not be undertaken by the Provincial Government or its agency without prior consultation and consent, unless withheld without justified reasons, as the case may be, of the elected Lahore Metropolitan Corporation in respect of such project. (iii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory CQNSTITIflION PETITIONS NO.24 OF 2017 ETC. 53 obligation on the Provinces to establish Local Governments possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a Province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the Province so as to comply with their mandatory obligation under Article 140A of the Constitution. (iv) In the present case, the powers in relation to master plan and spatial planning historically belonging to Lahore Metropolitan Corporation have been superimposed with similar functions vesting in LDA under Provincial law. To the extent of conflict in the exercise of their respective powers and functions by the two bodies or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected Local Government over the powers conferred by law on the Provincial Government or an agency thereof. Notwithstanding the above, the Provincial Government is in any case under a duty to establish harmonious working relationship with an elected Local Government wherein respect is accorded to the views and decisions of the latter. Accordingly, section 46 of the Lahore Development Authority Act, 1975, purporting to override conflicting action taken by an elected Local Government, is held to be against the scheme of the Constitution and should either be read down or declared ultra vires as determined in the detailed judgment. CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 54 (v) Section 5(6) of the Punjab Environmental Protection Act, 1997 imposes a mandatory duty on the Provincial Government to constitute Advisory Committee under the said Act. This Committee is meant to assist the Environmental Protection Agency in evaluating the environmental impact of projects under consideration. The failure by the Provincial Government to constitute the said Committee violates its statutory duty. However, in the present case the impugned judgment has not attended any objection to the ETA on its merits, nor have the respondents highlighted any objection that has remained unattended and yet is fatal to the ETA. Moreover, the right of appeal and further remedies on the merits of the ETA approval available under the Pakistan Environmental Protection Act, 1997, have not been availed by the objecting respondents. The ETA cannot be struck down upon presumption or mere apprehension. (vi) It is improper that disparaging references are made in the impugned judgment to a learned senior counsel, who had objected to the composition of the Bench. Contents of paragraphs 10(d), 21 and 22 in the impugned judgment containing such remarks are accordingly expunged. Equally, the academic expositions on the concepts of subsidiarity and federalism within the federating units, in the present case a Province, cannot be made grounds by the impugned judgment for striking down statutory law. The only touchstone for this purpose is conflict of statutory law with the provisions of the Constitution. Consequently, CONSTITUTION PETITIONS NO.24 OF 2017 ETC. 55 S the said grounds adopted by the impugned judgment are rejected. (vii) The action proposed in the impugned judgment to be taken against the officials of the LDA or any other person as envisaged by paragraph 100A thereof is also set aside." 46. This very operative part of the judgment, given by this Court in the Imrana Tawana's case (supra), in our view, with full force applies to the present case also. As the controversy in the present petition also substantially revolves around the same subject, as has been dealt with by this Court and the judgment being a law declared by a 3-Member Bench of this Court, in terms of Article 1$9 of the Constitution, is the operative law of the land. We tend to agree with the operative part of the judgment of this Court in Imrana Tiwana's case (supra) and thus, would dispose of this petition in the following terms:- (i) Elected Local Government are presently not in existence in the Province of Sindh. The Provincial Government through its agencies is performing their duties and functions. In the vacuum resulting from the absence of an elected Local Government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected local government are allowed to be carried out by the provincial government and no new project following within the domain of the elected local government shall be S 56 undertaken by the provincial government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected local government in respect of such project. (ii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the Provinces to establish Local Government possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the province so as to comply with their mandatory obligation under Article 140A of the Constitution. (iii) The powers in relation to master plan and spatial planning which historically belongs to the elected local government have been superimposed with similar functions vesting in the provincial laws. To the extent of conflict in the exercise of their respective powers and functions by the elected local government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected local government over the powers conferred by law on the provincial government or agency thereof. Notwithstanding the above, the provincial government in any case is "under a 57 a duty to establish harmonious working relationship with an elected local government" wherein respect is accorded to the views and decisions of the latter. (iv) Thus, the laws made by the provincial government i.e. the Sindh Building Control Ordinance, 1979, KDA Order No.5 of 1957, Malir Development Authority Act, 1993, Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act, 1996, Hyderabad Development Authority Act, 1976, Sehwan Development Authority Act, 1993, Larkana Development Authority Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the province of Sindh and the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, purporting to override and conflicting action taken by an elected local government are held to be against the scheme of the Constitution and the provincial government is directed to bring all those laws in accord with the mandate of Article 140A of the Constitution. (v) The Government of Sindh shall ensure that all local governments in the province of Sindh do get their share in the divisible pool of funds by implementing the Provincial Financial Commission Award and also to ensure that no arrears in this regard are CONSTITUTION PETTTIONS NO.24 OF 2017 ErC. 58 accumulated and if, there are arrears, the same are released. (vi) Sections 74 and 75(1) of the Act of 2013 are against the principle enshrined in the Objectives Resolution and the fundamental rights enacted in Articles 9, 14 and 25 of the Constitution and are also contrary to and in direct conflict with Article 140A of the Constitution and thus, declared ultra vires and struck down. 4 Special Bench-I Islamabad 2022 APPROVED FOR REPORTINO RsbbaniP Announced in open Court on (Sit February, 2022

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Mrs. Justice Ayesha A. Malik CONSTITUTION PETITION NO.24 TO 26 OF 2023 (Trials of Civilian under the Army Act, 1952 is violative of Constitution) AND C.M. APPEAL NO. 80 OF 2023 IN CONST. PETITION NIL OF 2023 (Declaration of trial of civilians under the Army Act, 1952 as unconstitutional, void and of no legal effect.) Jawwad S. Khawaja (in Const.P.24/2023) Aitzaz Ahsan (in Const.P.25/2023) Karamat Ali and others (in Const.P.26/2023) Imran Ahmed Khan Niazi (in C.M. Appeal 80/2023) … Petitioner(s) Versus Federation of Pakistan, etc. (in Const.P.24/2023) Federation of Pakistan through the Secretary, Ministry of Law and Justice, Islamabad and others (in Const.P.25-26/2023) Federation of Pakistan through Ministry of Defence through its Secretary and other (in C.M. Appeal 80/2023) …Respondent(s) CONST. P. 24 OF 2023 ETC. 2 For the petitioner(s) : Kh. Ahmad Hosain, ASC (in Const.P.24/2023) Sardar Muhammad Latif Khan Khosa, Sr. ASC (in Const.P.25/2023) Mr. Faisal Siddiqi, ASC (in Const.P.26/2023) Mr. Shoaib Shaheen, ASC Mr. Ajmal Ghaffar, ASC Syed Rifaqat Hussain Shah, AOR (in C.M. Appeal 80/23) For the Federation : Mr. Mansoor Usman Awan, Attorney General for Pakistan Ch. Aamir Rehman, Addl. AGP Date of hearing : 22.06.2023. (1:30 pm) O R D E R We have heard the submissions made by Sardar Latif Khan Khosa, Sr. ASC, learned counsel for the petitioner in Const. P. No. 25 of 2023. To come up tomorrow for submissions by Mr.Faisal Siddiqui, ASC for the petitioner in Const. P. 26 of 2023 followed by learned counsel for the petitioners in other petitions. 2. Issue notice to all the respondents in the listed petitions. Notice shall also be issued to the learned Attorney General for Pakistan in terms of Order XXVIIA CPC on the constitutional questions raised in these petitions for our determination. 3. Learned Attorney General for Pakistan who is present during the proceedings today has been asked to provide the following information to the Court: i) Total number of detenues in the civil and military custody on account of offences allegedly committed by them under any law in the incidents occurred on 9th May, 2023 or thereafter? CONST. P. 24 OF 2023 ETC. 3 ii) How many of such detenues are women and juveniles? iii) How many Advocates/Journalists are in civil and military custody? To come up tomorrow i.e. 23.06.2023 at 9:30 am Chief Justice Judge Judge Judge Judge Judge Judge Islamabad, 22.06.2023.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MUSHIR ALAM Constitution Petition No.26 of 2013 Khurram Shahzad Chughtai … Petitioner(s) Versus Federation of Pakistan and others … Respondent(s) For the petitioner(s): Mr. Ali Raza, ASC Mr. Tariq Aziz, AOR For the applicant(s): Mr. Athar Minallah, ASC (in CMA-7108/13) On Court’s Notice: Mr. Salman Aslam Butt, Attorney General for Pakistan. For respondent No.1: Mr. Imran ul Haq Khan, DAG (M/o IT) Mr. Muhammad Ayub, Dy. Manager (Legal) For respondent No.2: Dr. Ismail Shah, Chairman (PTA) Mr. Tariq Salman, Member (Finance) Mr. Khurram Siddiqui, Director (Law) Mr. Munawwar Iqbal, Consultant (Legal) Mr. Faraz Khan Jadoon, L.O. For respondent No.3: Nemo. (FAB) For respondent No.4: Syed Sibt-e-Hassan Gardezi, Acting G.M. (Law) Mr. Kamran Masood, Manager (F) On Court’s Notice: For Cabinet Division: Mr. Jamil Ahmed, Sh. S.O. For M/o Finance: Nemo. Date of hearing 17.03.2014 ORDER We have heard this matter partly. As noted in our previoius order we are anxious that this matter is decided at the earliest and if possible, before the auction of 3G and 4G licences. We are told that previously the date of this auction was fixed as 7th April, but now it has been postponed to 23rd April, 2014. 2. Today, while hearing this petition, we asked the learned Attorney General to show the method of book keeping of the USF and the treatment of the Fund, after the monies of the USF were transferred to the Federal Consolidated Fund (FCF). He stated that the Ministry of Finance would be aware of the book-keeping but today no representative of Const.P.26 of 2013 2 the said Ministry, conversant with this aspect of the case is present. He shall, therefore, ensure presence of a fully conversant functionary of the Ministry of Finance to be present in Court tomorrow i.e. 18th March, 2014. 3. Additionally, it will be the office of the Auditor General and the Accountant General of Pakistan Revenue (AGPR), who will be fully aware of the rules applicable to the FCF. Mr. Athar Minallah, learned ASC states that the Auditor General has already determined and prepared the Manual of Accounting Principles in exercise of powers under Article 170 of the Constitution in respect of the FCF. This will help in determining the status/constitutionality of the transfer of USF funds from the National Bank and eight other scheduled Banks to the FCF. The office shall issue notice to the Auditor General and to the AGPR Islamabad who may depute officers of their relevant departments conversant with the Manual of Accounting Principles as well as the manner in which the USF and the FCF are maintained and audited according to such Manual. 4. Today, we were also informed by Mr. Kamran, Manager (Finance), USF that prior to the amendment in the USF Rules made in 2013, the USF was earning interest/profit on the funds. In the financial year ending 30th June, 2013 a sum of rupees 5.6 billion was earned by the USF as income on the monies of the fund deposited with the National Bank and other scheduled Banks. The Manager (Finance) stated that after the transfer of monies of USF to the FCF not a single rupee has been earned on the sums belonging to the USF. 5. The learned Attorney General for Pakistan submitted that the fundamental issue in this case will revolve around whether or not the monies in the USF can be transferred to the Federal Consolidated Fund (FCF). He stated that even if it is held that the monies in the USF cannot be transferred to the FCF, the fact remains that the investments of USF could have yielded a much higher return than the sum of rupees 5.6 billion as noted above. 6. Let this matter come up for hearing as a part-heard case on 18th March, 2014. JUDGE JUDGE JUDGE Islamabad 17th March, 2014 M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN ( APPELLATE JURISDICTION ) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Amin-ud-Din Khan CONSTITUTION PETITIONS NO.26 AND 28 OF 2016 Muhammad Tariq Asad (Const.P.26/16) Siraj-ul-Haq, (Const.P.28/16) … Petitioner(s) Ameer Jamaat-e-Islami Versus Federation of Pakistan (in both cases) … Respondent For the petitioner (Const. P.26/2016) : Nemo. (Const. P.28/2016) : Mr. M. Ishtiaq Ahmed Raja, ASC Syed Rifaqat Hussain Shah, ASC For the respondent : Malik Javed Iqbal Wains, Addl. Attorney General for Pakistan Raja Rizwan Ibrahim Satti, Spl. Prosecutor, NAB Date of hearing : 09.06.2023 O R D E R SARDAR TARIQ MASOOD, J.- CONST. PETITION NO.26 OF 2016. This petition was filed by Tariq Asad, Advocate, in person, but today nobody has turned up to pursue this matter. It is pointed out by learned counsel for the petitioner in Const. Petition No.28/2016 that petitioner Tariq Asad has passed away. In that eventuality, this petition is dismissed due to non-prosecution. All Civil Misc. Applications concerning to this Const. Petition are disposed of as having become infructuous. CONST. PETITION NO.28 OF 2016. 2. Heard the learned counsel for the petitioner. Though, the question of maintainability under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, would have been relevant but we note that vide order dated 03.11.2016, this issue had been decided and it was found that all the petitions (fixed on that date including this petition) were maintainable. All the learned counsel appearing on behalf of the Const.P.26&28/16 2 petitioners as well as the respondents also agree that this no longer is an issue requiring determination. 3. Certain queries are put to the learned counsel for the petitioner as under: 1) How and under what circumstances this petition was de-linked from the other petitions at the request of learned counsel for the petitioner and what was the purpose for requesting to detach these petitions from others? We note that this petition was filed much earlier than those petitions which were later decided by a 5-Member Bench of this Court; 2) Whether the matter in hand is not covered by the Income Tax Ordinance 2001 (Ordinance 2001) with regard to the tax liability of the concerned persons? 3) Whether the liability of tax is not within the purview of the officers of Federal Board of Revenue (FBR) under the Ordinance 2001? 4) Whether the State Bank of Pakistan (SBP), directions of SBP and the Foreign Exchange Manual are not relevant with regard to money sent abroad for purchase of said properties? 5) Whether FBR, SBP and other relevant departments do not have their own hierarchy for deciding matters and their final orders may ultimately be challenged before the High Court and this Court? 6) Whether the petitioner approached the SBP, FBR, FIA, Anti-Corruption Department, etc. against the persons named in Panama Leaks? 7) Whether in the presence of existing statutory bodies and institutions, a commission as sought should be constituted for inquiring into the matter in hand? 8) Will the working of the said statutory bodies not be affected if the proposed commission opines otherwise? 9) Whether an order for the constitution of a commission can be passed without issuing notice to or hearing those 436 persons named in the Panama Leaks? Const.P.26&28/16 3 4. Learned counsel for the petitioner seeks time, in order to answer the above said queries. With consent, to come up after one month. Judge Judge Islamabad, the 09.06.2023 M.Saeed/*

IN THE SUPREME COURT OF PAKISTAN (Constitutional Jurisdiction) PRESENT: Mr. Justice Javed Iqbal Mr. Justice Khilji Arif Hussain Mr. Justice Asif Saeed Khan Khosa Constitution Petition No. 29 of 2011 Al-Jehad Trust and another … Petitioners versus Federation of Pakistan and others … Respondents For the petitioners: Mr. Habibul Wahab Alkhairi, ASC For the Federation of Pakistan: Maulvi Anwarul Haq, Attorney-General for Pakistan For respondents No. 3 & 5: Mr. Wasim Sajjad, Sr. ASC with Mr. Fawzi Zafar, Additional Prosecutor-General, National Accountability Bureau with Syed Safdar Hussain, AOR For respondents No. 2, 4 & 6 to 8: Nemo Date of hearing: 01.06.2011 JUDGMENT Asif Saeed Khan Khosa, J.: In his report published in THE NEWS International, Islamabad on March 29, 2011 Mr. Ansar Abbasi, a reputed and respected journalist, had commented that the National Accountability Bureau, repeatedly acknowledged by this Court as the premier anti-corruption institution of the country, is facing a slow and painful death at the hands of those at the helm of affairs of the country and the said comment has, in the backdrop of the circumstances of the present case, been found by us to be not far from the reality. A copy of that newspaper report has been appended by the petitioners with the paper-book of this petition at page No. 80 thereof. The scheme of the National Constitution Petition No. 29 of 2011 2 Accountability Ordinance, 1999 manifests that the Chairman, National Accountability Bureau is the linchpin of that institution and the Prosecutor- General Accountability plays the pivotal role in all the prosecutions conducted by the National Accountability Bureau. It is unfortunate that for the last about three months no person is holding the office of the Chairman, National Accountability Bureau and even the office of the Prosecutor-General Accountability is lying vacant for the last about three quarters of a year and the persons at the helm of affairs have not demonstrated any interest in filling the vacancies in those important offices in the near future. In the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (PLD 2010 SC 1109) this Court had declared that in case of a vacancy in the office of the Chairman, National Accountability Bureau nobody can be appointed as an Acting Chairman or can act as the Chairman. We have been informed that from time to time some powers vesting in the Chairman, National Accountability Bureau had been delegated to the Deputy Chairman of the said institution and on account of the current vacancy in the office of the Chairman Mr. Javed Zia Qazi, Deputy Chairman, National Accountability Bureau, respondent No. 5 herein, is running the National Accountability Bureau with those delegated powers of the Chairman. Through this Constitution Petition filed under Article 184(3) of the Constitution the petitioners, i.e. Al-Jehad Trust and its Raeesul Mujahideen Mr. Habibul Wahab Alkhairi have called in question the present state of affairs of the National Accountability Bureau and with reference to the same they have made the following prayers and have sought the following reliefs from this Court: a) The appointment of respondent No. 5 namely Mr. Javed Zia Qazi as Deputy Chairman, National Accountability Bureau on 05.06.2010 may be set aside; b) Respondent No. 5 is to retire from the civil service on 30.04.2011 and, thus, he may be restrained from performing the duties of the Deputy Chairman, National Accountability Bureau and also from exercising the delegated powers of the Chairman, National Accountability Bureau; c) The respondents may be restrained from passing any order regarding extension in the service of respondent No. 5; d) The order passed by the then Chairman, National Accountability Bureau on 15.10.2010 delegating some of his powers to respondent No. 5 may be declared to be illegal and the same may be set aside; and e) Any other relief which is deemed necessary by this Court. (English translation of the prayers made and the reliefs prayed for in Urdu language) Constitution Petition No. 29 of 2011 3 2. We have heard Mr. Habibul Wahab Alkhairi petitioner appearing in person, Mr. Wasim Sajjad, Sr. ASC appearing for respondents No. 3 and 5 and Maulvi Anwarul Haq, Attorney-General for Pakistan at some length and have gone through the relevant record of this case with their assistance. The remaining respondents have failed to enter appearance before us. 3. Mr. Wasim Sajjad, Sr. ASC appearing for respondents No. 3 and 5 has raised a preliminary objection regarding maintainability of this Constitution Petition and he has argued that there is no question of public of importance involved in this petition and no fundamental right of the petitioners has been shown to have been violated or abridged and, therefore, the prerequisites for filing and entertaining a petition under Article 184(3) of the Constitution do not stand attracted to the petition in hand. He has maintained that the petition in hand, at its best, is based upon wild, unspecific and generalized averments and allegations disclosing neither any personal injury to or particular grievance of the petitioners nor any specific relief has been prayed therein for the benefit of the petitioners themselves. In support of his objection to maintainability of this Constitution Petition he has relied upon an unreported judgment passed by this Court on 26.05.2005 in the case of Syed Ihsanullah Waqas v. The Federation of Pakistan and others (CMA No. 11 of 2005 in Constitution Petition No. Nil of 2005 & CMA No. 2227 of 2005 in CMA No. 11 of 2005) and has also made a reference to a book titled Public Interest Litigation authored by Dr. B. L. Wadehra (Second Edition, published by the Universal Law Publishing Co. Pvt. Ltd., India). After attending to the objection raised by Mr. Wasim Sajjad we have, however, remained unable to subscribe to his submissions made in that regard because the principal issue raised in this petition is exercise of some powers and performance of some functions of the Chairman, National Accountability Bureau by the Deputy Chairman, National Accountability Bureau at a time when there is no Chairman holding his office. In the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and then in the case of Shahid Orakzai and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another (PLD 2011 SC 365) Constitution Petitions filed under Article 184(3) of the Constitution were held by this Court to be competent and maintainable vis-à- vis the matters of holding the offices of the Chairman, Acting Chairman and Prosecutor-General Accountability in the National Accountability Bureau and in respect of matters pertaining to performing the functions of those offices in different situations. The petition in hand also essentially deals with the same or Constitution Petition No. 29 of 2011 4 similar subject and, thus, for the detailed reasons recorded in the above mentioned precedent cases, we have found this petition also to be competent and maintainable. 4. Adverting to the prayers made and the reliefs sought by the petitioners through this petition we have found that the first three reliefs sought by the petitioners, reproduced above, cannot be granted as the prayers made in those regards are without any merit. As far as the appointment of respondent No. 5 as Deputy Chairman, National Accountability Bureau is concerned we have noticed that according to the requirements of section 7(aa) of the National Accountability Ordinance, 1999 a person is qualified to be appointed as Deputy Chairman, National Accountability Bureau if he is or has been an officer of the Armed Forces of Pakistan equivalent to the rank of a Major General or if he is or has been a Federal Government officer in BPS 21 or equivalent. In the case in hand while serving as a civil servant with the Federal Government respondent No. 5 was promoted to BPS 21 on 30.04.2009 and he was appointed as Deputy Chairman, National Accountability Bureau on 04.05.2010 for a period of three years. The record further shows that the appointment of respondent No. 5 had been made by the President of Pakistan upon an advice of the Prime Minister in consultation with the Chairman, National Accountability Bureau as contemplated by the provisions of section 7(a) of the National Accountability Ordinance, 1999. These facts clearly establish that at the time of his appointment respondent No. 5 was qualified to be appointed as Deputy Chairman, National Accountability Bureau. As regards the effect of respondent No. 5 reaching the age of superannuation on 30.04.2011 we have found that the said respondent had been appointed as Deputy Chairman, National Accountability Bureau for a period of three years and according to section 7(aa) of the National Accountability Ordinance, 1999 he was qualified to be appointed to the said office if he was or had been a Federal Government officer in BPS 21 or equivalent. It is, thus, evident that at the time of his appointment he was qualified to be so appointed in his capacity as a serving Federal Government officer in BPS 21 and after reaching the age of superannuation he remains qualified to continue and complete his term of office of three years because he had been a Federal Government officer in BPS 21 in the past. In this view of the matter we have found that nothing turns on respondent No. 5 reaching the age of superannuation while performing his duties and functions as Deputy Chairman, National Accountability Bureau. Adverting to the petitioners’ apprehension that the respondents may grant an extension in the Constitution Petition No. 29 of 2011 5 service of respondent No. 5 suffice it to observe that by virtue of the provisions of section 7(a) of the National Accountability Ordinance, 1999 a Deputy Chairman, National Accountability Bureau is to hold that office for a “non-extendable period of three years”. The apprehension entertained by the petitioners regarding extension in the service of respondent No. 5 is, thus, misconceived and the law itself takes care of the same. Apart from that any extension in the service of respondent No. 5 in his capacity as a civil servant cannot have any bearing upon the respondent’s term of office as Deputy Chairman, National Accountability Bureau as the law itself declares that the term of that office is “non-extendable”. For the reasons recorded above we have found the first three prayers made and reliefs sought by the petitioners through this petition to be devoid of force besides being misconceived. 5. The fourth prayer made by the petitioners through the present petition revolving around legality or otherwise of the order passed by the then Chairman, National Accountability Bureau on 15.10.2010 in respect of delegation of some of the powers of the Chairman to respondent No. 5 and the consequential issue regarding continued exercise of such delegated powers by respondent No. 5 despite a vacancy in the office of the Chairman have, however, been found by us to be worth a serious consideration. The record shows that on 15.10.2010 the then Chairman, National Accountability Bureau had delegated some of his powers in favour of respondent No. 5 and even prior to that some of the powers of the Chairman had also been delegated to the Deputy Chairman, National Accountability Bureau on 13.06.2006. As regards the office of Deputy Chairman, National Accountability Bureau section 7(a) of the National Accountability Ordinance, 1999 provides as follows: “7. Deputy Chairman, National Accountability Bureau: (a) There shall be a Deputy Chairman NAB appointed by the President in consultation with the Chairman NAB. The Deputy Chairman NAB shall assist the Chairman NAB in the performance of his duties and shall carry out such functions as may be directed by the Chairman NAB.” Section 34A of the National Accountability Ordinance, 1999 stipulates as under: “34A. Delegation of Powers: The Chairman NAB may, by an order in writing, delegate any of his powers to and authorize performance of any of his functions by, an officer of the NAB as he may deem fit and proper, subject to Constitution Petition No. 29 of 2011 6 such conditions, if any, as may be specified in the order, for carrying out the purposes of this Ordinance.” A combined reading of the provisions of the National Accountability Ordinance, 1999 reproduced above shows that the Deputy Chairman, National Accountability Bureau has no independent duties or functions of his own and his only job is to assist the Chairman, National Accountability Bureau in the performance of his duties and to carry out such functions as may be directed by the Chairman. Apart from that the Chairman, National Accountability Bureau may delegate any of his powers to and authorize performance of any of his functions by an officer of the National Accountability Bureau, including the Deputy Chairman, as he may deem fit and proper for carrying out the purposes of the National Accountability Ordinance, 1999. It has been conceded before us that the office of the Chairman, National Accountability Bureau is presently lying vacant for the last many months and, thus, the job of respondent No. 5 to assist the Chairman in the performance of his duties and to carry out such functions as may be directed by the Chairman appears to be non-existent at present if looked at in the context of section 7(a) of the National Accountability Ordinance, 1999. The question mooted before us is as to whether in such a situation respondent No. 5, in his capacity as a duly appointed Deputy Chairman, National Accountability Bureau can continue to exercise the powers of the Chairman, National Accountability Bureau delegated to him earlier on by the Chairman or not and also whether in a situation like this he can continue performing any of the functions as directed by the Chairman or not. With reference to the cases of Malik Asad Ali v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Government of Pakistan Islamabad and 2 others (1998 SCMR 122) and Mr. Zulfiqar Ali Bhutto v. The State (PLD 1978 SC 40) Mr. Wasim Sajjad, Sr. ASC appearing for respondents No. 3 and 5 has maintained that in case of a “temporary vacancy” in the office of the head of some institution or department the other authorities performing their own duties and functions in that institution or department can continue to discharge their duties and perform their functions and, thus, if there is a vacancy in the office of the Chairman, National Accountability Bureau then respondent No. 5 can continue to exercise and perform not only his own duties and functions but also the powers of the Chairman, National Accountability Bureau delegated to him by the Chairman earlier on. We have minutely gone through the above mentioned precedent cases referred to by Mr. Wasim Sajjad and have found that the ratio decidendi of those precedent cases is not attracted to the case in hand. The question before us is not as to whether respondent No. 5 can Constitution Petition No. 29 of 2011 7 continue to exercise his own duties and perform his own functions as Deputy Chairman, National Accountability Bureau at a time when the office of the Chairman, National Accountability Bureau is vacant but the issue at hand is as to whether respondent No. 5 can continue to exercise the delegated powers of the Chairman, National Accountability Bureau when the delegator himself is not on the scene any more. The above mentioned precedent cases are silent on this issue and, therefore, they are of little assistance in the matter. 6. Mr. Wasim Sajjad has further argued that a delegation of powers continues even if the delegator’s office becomes vacant because a constitutional or statutory office continues to exist even if there is no incumbent holding that office for the time being. In the context in hand we have already mentioned above that under section 7(a) of the National Accountability Ordinance, 1999 the job of a Deputy Chairman is only to assist the Chairman in performance of his duties and to carry out such functions as may be directed by the Chairman. It is, therefore, quite obvious that when the office of the Chairman is vacant there is nobody in that office to be assisted by the Deputy Chairman and there is nobody in the office of the Chairman to direct the Deputy Chairman to carry out any particular function upon his direction. The situation that emerges in the facts of the present case is that due to the vacancy in the office of the Chairman respondent No. 5 has no job of his own to perform within the purview of section 7(a) of the National Accountability Ordinance, 1999 and he is presently exercising the delegated powers of the Chairman, National Accountability Bureau at a time when there is no Chairman on the scene. Under the law of contract a delegation comes to an end when the delegator vanishes from the scene and an agent loses his authority to act on behalf of his principal when such principal is removed from the picture. Applicability of these principles relevant to a contractual delegation may, however, be inapt to the case in hand because the delegation of powers involved in the present case is a statutory delegation which, in an appropriate case, can survive a vacancy in the office of the delegator. The real issue in the present case, therefore, is as to whether such a statutory delegation during a vacancy in the office of the delegator can be stretched to a period which is unduly protracted and indefinite and which creates an irresistible impression that those responsible for filling the vacancy in the office of the delegator are not interested in filling that vacancy and are contented with running the affairs of the concerned institution or department through the delegatee himself. This surely is a serious matter and in case such an impression is well-founded then such an exercise may amount to Constitution Petition No. 29 of 2011 8 committing a fraud with or upon the relevant statute. It may advantageously be mentioned here that the qualifications for the office of Chairman, National Accountability Bureau contained in section 6(ba) of the National Accountability Ordinance, 1999 are much higher than those specified in section 7(aa) of that Ordinance for the office of Deputy Chairman, National Accountability Bureau and those provisions are reproduced below for the purposes of a comparison: “6(ba). A person shall not be appointed as Chairman NAB unless he- (i) is a retired Chief Justice or a Judge of the Supreme Court or a Chief Justice of a High Court; or (ii) is a retired officer of the Armed Forces of Pakistan equivalent to the rank of a Lieutenant General; or (iii) is a retired Federal Government Officer in BPS 22 equivalent.” “7(aa). A person shall not be appointed as Deputy Chairman NAB unless he- (i) is or has been an officer of the Armed Forces of Pakistan equivalent to the rank of a Major General; or (ii) is or has been a Federal Government officer in BPS 21 or equivalent.” It seems to us to be preposterous and outrageous if in the garb of a statutory delegation of some of his powers by a Chairman, National Accountability Bureau in favour of a Deputy Chairman, National Accountability Bureau the Deputy Chairman may be permitted to keep on exercising the powers of the Chairman for a protracted and indefinite period of time while the office of the Chairman remains, or is deliberately kept, vacant for months at an end. Such clothing of the Deputy Chairman, who is otherwise not even qualified to be appointed as Chairman, with a valid authority of the Chairman would, virtually and practically, amount to permitting him to act as the Chairman during such period whereas it has already been clearly held by this Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) that there cannot be an Acting Chairman, National Accountability Bureau at a time when the office of the Chairman, National Accountability Bureau is vacant. It is by now a settled proposition of law that what cannot be achieved directly under the law cannot be permitted or allowed to be achieved indirectly. 7. The learned Attorney-General for Pakistan has very candidly conceded before us that the whole scheme of the National Accountability Ordinance, 1999 Constitution Petition No. 29 of 2011 9 revolves around the office of the Chairman and, academically speaking, the whole National Accountability Bureau stands paralyzed when the office of the Chairman, National Accountability Bureau is vacant. He has also conceded that despite the appropriate directions issued by this Court in the cases of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and Shahid Orakzai and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another (supra) the offices of the Chairman, National Accountability Bureau and the Prosecutor-General Accountability are lying vacant for a considerable period of time and existence of such vacancies are gravely and prejudicially affecting the normal and smooth functioning and performance of the National Accountability Bureau. He has, therefore, requested that instead of holding that in the absence of those two pivotal officers of the National Accountability Bureau the said Bureau cannot keeping on functioning under the law this Court may graciously provide the Federal Government an opportunity to fill those offices on an urgent basis so as to keep the National Accountability Bureau afloat and also to keep the prosecutions before the Accountability Courts in the country proceeding ahead. Keeping in view the drastic implications and the alarming possibilities hinted at by the learned Attorney-General for Pakistan we tend to agree with him that instead of becoming instrumental in closing down the National Accountability Bureau and winding up of the inquiries, investigations and trials being conducted by it at present we may provide one more opportunity to the Federal Government to fill the offices of the Chairman, National Accountability Bureau and the Prosecutor-General Accountability within a reasonable time so that the normal functioning of the National Accountability Bureau and of its operations under the National Accountability Ordinance, 1999 are restored and the Chairman, National Accountability Bureau to be appointed is provided an opportunity to consider the desirability or otherwise of continuance of the delegation of powers of the Chairman in favour of respondent No. 5. In the case of Al-Jehad Trust and others v. Federation of Pakistan and others (1999 SCMR 1379) it had been held that this Court can direct that proper administrative and legislative steps may be taken by the government where needed under the Constitution. Under Article 5(2) of the Constitution obedience to the Constitution and law is an “inviolable obligation” and, thus, the authority of this Court to direct taking of proper administrative and legislative steps needed under the Constitution would necessarily include the authority to direct taking of such steps where needed under the law. Constitution Petition No. 29 of 2011 10 8. For what has been discussed above the Federal Government is directed to fill the vacant offices of the Chairman, National Accountability Bureau and the Prosecutor-General Accountability within one month of announcement of this judgment positively failing which respondent No. 5 shall ipso facto and without further ado stand denuded of his authority to continue exercising the delegated powers of the Chairman, National Accountability Bureau and performing any other function not conferred upon him by the National Accountability Ordinance, 1999. If in such an eventuality the National Accountability Bureau practically ceases to exist or function under the National Accountability Ordinance, 1999 then the blame for the same shall rest squarely upon the shoulders of the Federal Government. This Constitution Petition is disposed of with the directions issued and the observations made above. Judge Judge Judge Announced in open Court at Lahore on 21.06.2011. Judge Approved for reporting. M. Yasin

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN C. M. A. NO. 4978 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. (Report by JIT). AND C. M. A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. Imran Ahmed Khan and others. …Applicant(s) Versus Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan. …Respondent(s) AND CONSTITUTION PETITION NO. 29 OF 2016. (Under Article 184 of the Constitution) Imran Ahmed Khan Niazi. …Petitioner(s) Versus Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan, etc. …Respondent(s) AND CONSTITUTION PETITION NO. 30 OF 2016. (Under Article 184 of the Constitution) Sheikh Rasheed Ahmed. …Petitioner(s) Versus Federation of Pakistan through Secretary Law, Justice and Parliamentary Division, etc. …Respondent(s) AND CONSTITUTION PETITION NO. 03 OF 2017. (Under Article 184 of the Constitution) Siraj-ul-Haq, Ameer Jamat-e-Islami, Pakistan. …Petitioner(s) Versus Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and others. …Respondent(s) ……………… Const. Ps. No. 29-30/2016 & 03/2017. 2 IN ATTENDANCE. (in Const. P. 29/2016). For the petitioner(s): Syed Naeem Bokhari, ASC Mr. Sikandar Bashir Mohmand, ASC Mr. Fawad Hussain Ch., ASC Mr. Faisal Fareed Hussain, ASC. Ch. Akhtar Ali, AOR. Assisted by : Barrister Maleeka Bokhari. Shahid Naseem Gondal, Adv. Kashif Nawaz Siddiqui, Adv. M. Imad Khan, Adv. For respdt. No. 1: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. For respdt. No. 2: Mr. Akbar Tarar, APGA. Mr. Arshad Qayyum, Spl. Prosecutor. Ch. M. Fariid-ul-Hassan, Spl. Prosecutor. Mr. Imran-ul-Haq, Spl. Prosecutor. Mr. Ajmal Aziz, Spl. Prosecutor. For respdts. 3 to 5 : Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Assisted by : Barrister Asad Rahim Khan. For respdts. 6 to 9: Mr. Salman Akram Raja, ASC. Syed Rifaqat Hussain Shah, AOR. Assisted by : Asad Ladha, Adv. Ghulam Sabir Malik, Adv. Usman Ali Bhoon, Adv. M. Shakeel Mughal, Adv. Aftab Zafar, Adv. For respdt. No. 10: Dr. Tariq Hassan, ASC. Syed Rifaqat Hussain Shah, AOR. Const. P. 30 of 2016. For the petitioner(s): Sheikh Rasheed Ahmed, (in person) For the respdts. 1 & 3: Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Const. Ps. No. 29-30/2016 & 03/2017. 3 Assisted by : Barrister Asad Rahim Khan. For respdt. No. 2 : Mr. Akbar Tarar, APGA. Mr. Arshad Qayyum, Spl. Prosecutor. Ch. M. Fariid-ul-Hassan, Spl. Prosecutor. Mr. Imran-ul-Haq, Spl. Prosecutor. Mr. Ajmal Aziz, Spl. Prosecutor. For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. Const. P. No. 03 of 2017. For the petitioner(s): Mr. Taufiq Asif, ASC. Assisted by : Atif Ali Khan, ASC. Ajmal Ghaffar Toor, Adv. Saifullah Gondal, Adv. Sher Hamad Khan, Adv. For respdts. 1 to 3: Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Assisted by : Barrister Asad Rahim Khan. For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. Date of Hearing: 17th to 21st July, 2017. (Judgment Reserved). -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Const. Ps. No. 29-30/2016 & 03/2017. 4 J U D G M E N T EJAZ AFZAL KHAN, J.- This judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017 which ended up in the following order of the Court : “By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al- Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required. 2. In normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, we are constrained to look elsewhere and therefore, constitute a Joint Investigation Team (JIT) comprising of the following members : i) a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters; ii) a representative of the National Accountability Bureau (NAB); iii) a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes; iv) a nominee of the State Bank of Pakistan (SBP); v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General. 3. The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required. The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT Const. Ps. No. 29-30/2016 & 03/2017. 5 shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution. The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it. 4. It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined. 5. We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.” 2. The Hon’ble Chief Justice of Pakistan constituted the implementation Bench consisting of Ejaz Afzal Khan, J., Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. The Bench vide order dated 05.05.2017 constituted the JIT consisting of Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with NIBAF, Mr. Bilal Rasool, Executive Director, SECP, Mr. Irfan Naeem Mangi, Director NAB, (BS-20). Brig. Muhammad Nauman Saeed from ISI, Brig. Kamran Khurshid from M.I. and Mr. Wajid Zia, Additional Director General (Immigration), FIA to head the JIT. 3. The JIT undertook the task thus assigned and submitted a complete investigation report on 10.07.2017. Parties to the proceedings were provided the report of the JIT and a weeks’ time to go through it. Khawaja Harris Ahmed, learned Sr. ASC appearing on behalf of respondent No. 1 submitted a CMA expressing his reservations about the report. Dr. Tariq Hassan, learned ASC for respondent No. 10 also filed a CMA expressing his reservations about the report. Learned ASC appearing for petitioner in Const. P. No. 29 of 2016, Sheikh Rasheed Ahmed, petitioner appearing in person in Const. P. No. 30 of 2016 and learned ASC appearing for the petitioner in Const. P. No. 03 of 2017, by picking up the thread from where they left off, sought to canvass at the bar that the JIT has collected sufficient evidence proving that Const. Ps. No. 29-30/2016 & 03/2017. 6 respondent No. 1, his dependents and benamidars own, possess and have acquired assets which are disproportionate to their known sources of income; that neither respondent No. 1 nor any of his dependents or benamidars before or during the course of investigation could account for these assets, therefore, he has become disqualified to be a Member of Parliament. They further stated that certified copies of the correspondence between Mr. Errol George, Director Financial Investigating Agency and the Anti-Money Laundering Officer of Mossack Fonseca & Co. (B.V.I.) Limited collected through Mutual Legal Assistance prove that respondent No. 6 is the beneficial owner of the Avenfield apartments, therefore, the document showing her as trustee is a fabrication on the face of it for which she is liable to be proceeded against for forgery and using forged documents; that use of Calibri Font, which became commercially available in 2007, in the preparation of the trust deed in February 2006 is another circumstance leading to the inference that it was forged and fabricated; that narrative of Tariq Shafi vis-à-vis receipt of AED 12 million from sale of 25% shares of Ahli Steel Mills formerly known as Gulf Steel Mills is false on the face of it which has been confirmed by the JIT in its report; that whatever has been stated in Qatri letters remained unsubstantiated as the Qatri Prince neither appeared before the JIT nor ever stated his point of view through any other legally recognizable means; that respondents were given ample opportunities to provide the trail of money and answer the questions asked in the order of the Court dated 20.04.2017 but they throughout have been evasive; that the discrepancies between the first Qatri letter and affidavit of Mr. Tariq Shafi show that neither of them is credible; that the spreadsheet attached with the second Qatri letter too is of no help to the respondents as it is neither signed nor supported by any documentary evidence; that the entire story about trail of money is seriously marred by inconsistencies surfacing in the statements of the respondents recorded by the JIT; that story of Const. Ps. No. 29-30/2016 & 03/2017. 7 transporting machinery from Dubai to Jeddah and thereby establishing Azizia Steel Company Limited still awaits proof; that how the entire amount running to SAR 63.10 million could be utilized by respondent No. 7 notwithstanding he was entitled to only 1/3rd finds no explanation therefor, the sources establishing Hill Metal Establishment have not been proved; that failure of respondent No. 1 to disclose his assets deposited in his account on account of his being Chairman of Capital FZE would also call for his disqualification, as it being an asset for all legal and practical purposes was required to be disclosed under Section 12(2)(f) of the Representation of the People Act, 1976; that the respondent denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance; that the assets of respondents No. 7 and 8 have surprisingly grown manifold overnight notwithstanding all of their business enterprises run in loss; that the facts and figures showing inflow and outflow of Hill Metals Establishment also appear to be fudged and fabricated when seen in the light of the material collected during the course of investigation by the JIT; that material already brought on the record and collected through the JIT leave no doubt that the assets of respondent No. 1, his children and benamidars are disproportionate to their known sources of income and that their failure to satisfactorily account for them would inevitably entail disqualification of respondent No. 1 in terms of Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999. 4. Learned Sr. ASC appearing for Respondent No. 1 contended that JIT overstepped its mandate by reopening the case of Hudabiya Paper Mills when it was not so directed by the Court; that another investigation or inquiry shall also be barred by the principle of double jeopardy when the Reference Const. Ps. No. 29-30/2016 & 03/2017. 8 relating to the said Mills was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (PLD 2016 Lahore 667); that no evidence has been collected by the JIT showing respondent No.1 to have any nexus with the Avenfield apartments, Hill Metals Establishment, Flagship Investment Limited or any other business concern run by respondent no. 7 and 8; that all the material collected and finding given by the JIT do not deserve any consideration inasmuch as they are beyond the scope of investigation authorized by the order of this Court; that the investigation conducted by the JIT cannot be said to be fair and just when none of the respondents was questioned about or confronted with any of the documents tending to incriminate them and that the JIT exceeded its authority while obtaining documents from abroad by engaging the firm of the persons happening to be their near and dear. Such exercise, the learned Sr. ASC added, cannot be termed as Mutual Legal Assistance by any interpretation nor can the documents thus obtained be vested with any sanctity in terms of Section 21(g) of the National Accountability Bureau Ordinance, 1999. He next contended that no weight could be given to the finding of the JIT when it is not supported by any authentic document. An investigation of this type, the learned Sr. ASC added, which is a farce and a breach of due process cannot form basis of any adverse verdict against respondent No. 1. The learned Sr. ASC to support his contention placed reliance on the cases of Khalid Aziz. Vs. The State (2011 SCMR 136) and Muhammad Arshad and others. Vs. The State and others (PLD 2011 SC 350). 5. Learned ASC appearing on behalf of respondents No. 6, 7, 8 and 9 contended that Avenfield apartments are owned and possessed by respondent No. 7, and that the trail of money and the way it has culminated in the acquisition of the Avenfield apartments stand explained by Qatri letters; that respondent No. 6 besides being a trustee of the apartments at some stage Const. Ps. No. 29-30/2016 & 03/2017. 9 of time has not been their beneficial owner, therefore, the correspondence between Errol George, Director FIA and Mossack Fonseca & Co. (B.V.I.) Limited or the certified copies thereof obtained through an MLA request cannot be relied upon unless proved in accordance with law and that the JIT report and the material collected by it during the course of investigation per se cannot form basis of a judgment in a proceeding under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. 6. Learned ASC appearing on behalf of respondent No. 10 contended that assets of respondent No. 10 have been audited and examined from time to time but no irregularity was ever found in any of them; that the respondent has accounted for whatever assets he owns, possesses or has acquired; that his assets were also subject matter of Reference No. 5 of 2000 which was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (supra); that another criminal proceeding cannot be initiated when everything has been accounted for down to the rupee. The learned ASC by producing the income tax returns from 2007 to 2016, wealth tax returns from 1981-1982 to 2000-2001 and from 2009 to 2016 contended that every asset is property vouched and documented; that the finding of the JIT has no legal or factual basis; that no conclusion much less sweeping can be drawn on the basis of such report; that 91 times increase in his assets from 1992-1993 to 2008-2009 shown in the JIT’s report is based on miscalculation; that the respondent cannot be impaled on the same charge by imputing a wrongdoing without any tangible evidence; that failure on the part of the FBR to provide the relevant record cannot be construed to the detriment of the respondent when it has been with the NAB Authorities throughout and that with this background in view, it would be rather unjust to thrust the respondent in another treadmill of tiresome trial before the Accountability Court. Const. Ps. No. 29-30/2016 & 03/2017. 10 7. We have carefully gone through the record, the report submitted by the JIT and considered the submissions of the learned ASCs, Sr. ASC of the parties as well as the learned Additional Attorney General for Pakistan. 8. We have already dealt with the background of the case and detailed submissions of the learned ASCs for the parties in paras 1 to 12 of the majority judgment authored by one of us (Ejaz Afzal Khan, J) and notes written by my learned brothers Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. What necessitated the constitution of JIT has been highlighted in para 19 of the judgment which reads as under :- “19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer. But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice. Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the Law and the Book. Let us stay and Act within the parameters of the Constitution and the Law as they stand till the time they are changed or altered through an amendment therein.” 9. A careful examination of the material so far collected reveals that a prima facie triable case under Section 9, 10 and 15 of the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the following assets:- “(i) Flagship Investments Limited. (ii) Hartstone Properties Limited; (iii) Que Holdings Limited; (iv) Quint Eaton Place 2 Limited; Const. Ps. No. 29-30/2016 & 03/2017. 11 (v) Quint Saloane Limited (formerly Quint Eaton Place Limited). (vi) Quaint Limited; (vii) Flagship Securities Limited; (viii) Quint Gloucester Place Limited; (ix) Quint Paddington Limited (formerly Rivates Estates Limited); (x) Flagship Developments Limited; (xi) Alanna Services Limited (BVI); (xii) Lankin SA (BVI); (xiii) Chadron Inc; (xiv) Ansbacher Inc; (xv) Coomber Inc; and (xvi) Capital FZE (Dubai).” So is the case against respondent No. 10 vis-à-vis 91 times increase (from Rs.9.11 million to 831.70 million) in his assets within a short span of time. What to do in the circumstances has already been dealt with in the majority judgment in the words as follows:- “Any liability arising out of these Sections has its own trappings. Any allegation leveled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated. We must draw a line of distinction between the scope of jurisdiction of this Court under Article 184(3) of the Constitution and that of the Accountability Court under the Ordinance and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of the Ordinance lest we condemn any member of Parliament on assumptions by defying the requirements of a fair trial and due process. We cannot make a hotchpotch of the Constitution and the law by reading Sections 9 and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99 of the Act and pass a judgment in a proceeding under Article 184(3) of the Constitution which could well be passed by an Accountability Court after a full- fledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the member of Parliament so proceeded against is not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority. If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the Accountability Court and other Courts in the hierarchy take their own course. Let respondent No. 1 go through all the phases of investigation, trial and appeal. We would not leap Const. Ps. No. 29-30/2016 & 03/2017. 12 over such phases in gross violation of Article 25 of the Constitution which is the heart and the soul of the rule of law. We also don’t feel inclined to arrogate to ourselves a power or exercise a jurisdiction which has not been conferred on us by any of the acts of the Parliament or even by Article 184(3) of the Constitution. Who does not know that making of a statement on oath in a trial lends it an element of solemnity; cross-examination provides safeguards against insinuation of falsehood in the testimony; provisions of Qanoon-e- Shahadat Order regulate relevancy of facts, admissibility of evidence and mode of proof through oral and documentary evidence and thus ensure due process of law. We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.” 10. The same theme was reiterated by my learned brother Mr. Justice Sh. Azmat Saeed by holding as under :- “22. It is evident from a bare reading of the aforesaid provisions that the prosecution must establish that a person or his spouse or dependent or benamidar owns or possesses a property. If the aforesaid allegation is proved then the accused must give an explanation as to the source of legal funds for acquiring such property and upon his failure to do so, he becomes liable for punishment under the aforesaid law. Such punishment not only includes fine and imprisonment but also disqualification from holding a public Office, including that of Member of the Majlis-e-Shoora for a period of 10 years under Section 15 of the NAB Ordinance, 1999. Reference, in this behalf, can be made to the judgments, reported as (1) Iqbal Ahmed Turabi and others v. The State (PLD 2004 SC 830), (2) Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The State and others (PLD 2013 SC 594), (4) The State through Prosecutor General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), (5) Syed Zahir Shah and others v. National Accountability Bureau and another (2010 SCMR 713), (6) Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and (7) Khalid Aziz v. The State (2011 SCMR 136). 23. In none of the aforesaid cases was any person convicted without a definitive finding that the assets were in fact owned or possessed by the accused, his spouse, his dependents or benamidars. And thereafter, the accused had failed to account for the source of funds for acquiring the said property and if the explanation was found unsatisfactory, conviction followed.” 11. Almost the same view was expressed by my learned brother Mr. Justice Ijaz ul Ahsan in the words which reads as under:- “58. Where there is an allegation that a holder of public office or any of his dependents or benamidars owns or possesses any assets or pecuniary resources which are disproportionate to his known sources of income which he cannot reasonably account for he can be convicted of an offence of corruption and corrupt practices and upon such conviction, penal consequences would follow. However, such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution. Further, such course of action would be violative of the Const. Ps. No. 29-30/2016 & 03/2017. 13 principles enshrined in Articles 4 and 25 of the Constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional Court following an unconstitutional course. This, we are not willing to do, in the interest of upholding the rule of law and our unflinching and firm belief in adherence and fidelity to the letter and spirit of the Constitution.” 12. The argument that the JIT overstepped its authority by reopening the case of Hudabiya Paper Mills when Reference No. 5 was quashed by the High Court does not appear to be correct as the JIT has simply made recommendations in this behalf which can better be dealt with by this Court if and when an appeal, before this Court, as has been undertaken by Special Prosecutor NAB, is filed and a view to the contrary is taken by this Court. 13. The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill”. The definition of the word receivable as used in the above mentioned definition as given in the Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable a claim against a debtor usually Const. Ps. No. 29-30/2016 & 03/2017. 14 arising from sales or services rendered”. The word ‘receivable’ also has similar ring and connotation according to Business Dictionary which reads as under:- “Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm”. The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary. This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:- “So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.” It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section Const. Ps. No. 29-30/2016 & 03/2017. 15 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan. 14. As a sequel to what has been discussed in paragraphs 7 to 11 the following directions are made:- i) The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigating Agency (FIA) and NAB having any nexus with the assets or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:- a) Reference against Mian Muhammad Nawaz Sharif (Respondent No. 1), Maryam Nawaz Sharif (Maryam Safdar) (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd) Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier. b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated above; Const. Ps. No. 29-30/2016 & 03/2017. 16 c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 above; d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 above; e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income; f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered; g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person(s) in accordance with law. 15. As a sequel to what has been discussed in paragraphs 13 above, the following declaration and direction is issued:- i) It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 Const. Ps. No. 29-30/2016 & 03/2017. 17 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament); ii) The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; and iii) The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process. 16. The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by the NAB and the Accountability Court in the above matters. 17. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan. 18. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General Const. Ps. No. 29-30/2016 & 03/2017. 18 for Pakistan; Mr. Waqar Rana; Additional Attorney-General for Pakistan and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams. 19. These petitions are thus disposed of in the terms mentioned above. JUDGE JUDGE JUDGE Announced on 28.07.2017 at Islamabad in open Court. JUDGE JUDGE JUDGE ‘Approved For Reporting’ M. Azhar Malik Const. Ps. No. 29-30/2016 & 03/2017. 19 IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN C. M. A. NO. 4978 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. (Report by JIT). AND C. M. A. NO. 2939 OF 2017 IN CONSTITUTION PETITION NO. 29 OF 2016 ETC. Imran Ahmed Khan and others. …Applicant(s) Versus Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan. …Respondent(s) AND CONSTITUTION PETITION NO. 29 OF 2016. (Under Article 184 of the Constitution) Imran Ahmed Khan Niazi. …Petitioner(s) Versus Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan, etc. …Respondent(s) AND CONSTITUTION PETITION NO. 30 OF 2016. (Under Article 184 of the Constitution) Sheikh Rasheed Ahmed. …Petitioner(s) Versus Federation of Pakistan through Secretary Law, Justice and Parliamentary Division, etc. …Respondent(s) AND CONSTITUTION PETITION NO. 03 OF 2017. (Under Article 184 of the Constitution) Siraj-ul-Haq, Ameer Jamat-e-Islami, Pakistan. …Petitioner(s) Versus Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and others. …Respondent(s) ……………… Const. Ps. No. 29-30/2016 & 03/2017. 20 IN ATTENDANCE. (in Const. P. 29/2016). For the petitioner(s): Syed Naeem Bokhari, ASC Mr. Sikandar Bashir Mohmand, ASC Mr. Fawad Hussain Ch., ASC Mr. Faisal Fareed Hussain, ASC. Ch. Akhtar Ali, AOR. Assisted by : Barrister Maleeka Bokhari. Shahid Naseem Gondal, Adv. Kashif Nawaz Siddiqui, Adv. M. Imad Khan, Adv. For respdt. No. 1: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. For respdt. No. 2: Mr. Akbar Tarar, APGA. Mr. Arshad Qayyum, Spl. Prosecutor. Ch. M. Fariid-ul-Hassan, Spl. Prosecutor. Mr. Imran-ul-Haq, Spl. Prosecutor. Mr. Ajmal Aziz, Spl. Prosecutor. For respdts. 3 to 5 : Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Assisted by : Barrister Asad Rahim Khan. For respdts. 6 to 9: Mr. Salman Akram Raja, ASC. Syed Rifaqat Hussain Shah, AOR. Assisted by : Asad Ladha, Adv. Ghulam Sabir Malik, Adv. Usman Ali Bhoon, Adv. M. Shakeel Mughal, Adv. Aftab Zafar, Adv. For respdt. No. 10: Dr. Tariq Hassan, ASC. Syed Rifaqat Hussain Shah, AOR. Const. P. 30 of 2016. For the petitioner(s): Sheikh Rasheed Ahmed, (in person) For the respdts. 1 & 3: Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Const. Ps. No. 29-30/2016 & 03/2017. 21 Assisted by : Barrister Asad Rahim Khan. For respdt. No. 2 : Mr. Akbar Tarar, APGA. Mr. Arshad Qayyum, Spl. Prosecutor. Ch. M. Fariid-ul-Hassan, Spl. Prosecutor. Mr. Imran-ul-Haq, Spl. Prosecutor. Mr. Ajmal Aziz, Spl. Prosecutor. For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. Const. P. No. 03 of 2017. For the petitioner(s): Mr. Taufiq Asif, ASC. Assisted by : Atif Ali Khan, ASC. Ajmal Ghaffar Toor, Adv. Saifullah Gondal, Adv. Sher Hamad Khan, Adv. For respdts. 1 to 3: Mr. M. Waqar Rana, Addl. A. G. Mr. M. S. Khattak, AOR. Assisted by : Barrister Asad Rahim Khan. For respdt. No. 4: Khawaja Harris Ahmed, Sr. ASC. Assisted by: M. Amjad Pervaiz, ASC Saad Hashmi, Adv. Adnan Khawaja, Adv. Date of Hearing: 17th to 21st July, 2017. (Judgment Reserved). -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Const. Ps. No. 29-30/2016 & 03/2017. 22 FINAL ORDER OF THE COURT The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:- a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments; b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment; c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; Const. Ps. No. 29-30/2016 & 03/2017. 23 d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income; f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered; g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law. 2. It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of Const. Ps. No. 29-30/2016 & 03/2017. 24 ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament). 3. The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; 4. The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process. 5. The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters. 6. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan. 7. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Const. Ps. No. 29-30/2016 & 03/2017. 25 Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams. 8. These petitions are thus disposed of in the terms mentioned above. JUDGE JUDGE JUDGE JUDGE JUDGE Announced on 28.07.2017 at Islamabad in open Court. JUDGE JUDGE JUDGE JUDGE JUDGE ‘Approved for Reporting’

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CONSTITUTION PETITION NO.29 OF 2017 AND CIVIL MISC. APPLICATION NO.7669 OF 2017 IN CONSTITUTION PETITION NO.29 OF 2017 AND CONSTITUTION PETITION NO.36 OF 2017 AND CIVIL MISC. APPLICATION NO.9965 OF 2017 IN CONSTITUTION PETITION NO.36 OF 2017 Const.P.29/2017 Justice Shaukat Aziz Siddiqui Vs. Federation of Pakistan through Secretary Law and Justice, Islamabad CMA.7669/2017 in Const.P.29/2017 Justice Shaukat Aziz Siddiqui Vs. Federation of Pakistan through Secretary Law and Justice, Islamabad Const.P.36/2017 Mr. Justice Muhammad Farrukh Irfan Khan Vs. Federation of Pakistan through Secretary Law and Justice, Islamabad and another CMA.9965/2017 in Const.P.36/2017 Mr. Justice Muhammad Farrukh Irfan Khan Vs. Federation of Pakistan through Secretary Law and Justice, Islamabad and another For the Petitioner (s) (in Const.29/2017) : Mr. Muhammad Makhdoom Ali Khan, Sr. ASC Mr. Hamid Khan, Sr. ASC Mr. M.S. Khattak, AOR Const.P.29 of 2017, etc. 2 For the Petitioner (s) (in Const.P.36/2017) : Mr. Hamid Khan, Sr. ASC Mr. Hassan Irfan, ASC assisted by Mr. Ajmal Toor, Advocate & Ms. Khadija Yasmin Bokhari, Advocate On Court Notice on behalf of Federation : Mr. Ashtar Ausaf Ali, Attorney General for Pakistan assisted by Barrister Asad Rahim Khan, Advocate and Mirza Moiz Baig, Advocate Mirza Nassar, DAG Amicus Curie : Mr. Shahid Hamid, Sr. ASC Mr. Munir A. Malik, Sr. ASC Date of Hearing : 13th 14th 27th & 28th March, 2018 JUDGMENT SH. AZMAT SAEED, J.- Through this judgment, it is proposed to adjudicate upon Constitution Petitions No.29 and 36 of 2017, wherein common questions of law have been raised. 2. The Petitioner in Constitution Petition No.29 of 2017 is a sitting Judge of the learned Islamabad High Court, Islamabad. The Respondent, Supreme Judicial Council (SJC), is currently inquiring into allegations of misconduct made against the said Petitioner. In this behalf, the proceedings before the SJC are being held in camera. The aforesaid Petitioner moved an application with the prayer that the proceedings of the SJC be conducted in “Open Court”. The SJC vide its Order dated 18.05.2017 dismissed the said application. In the above Const.P.29 of 2017, etc. 3 circumstances, the Petitioner invoked the Constitutional jurisdiction of this Court by filing the instant Constitution Petition bearing No.29 of 2017, inter alia, calling into question the aforesaid Order dated 18.05.2017. The vires of the provisions of the Supreme Judicial Council Procedure of Enquiry 2005, more particularly, paragraphs 7 and 13 thereof have also been challenged. It is claimed that the impugned Order and the aforesaid paragraph 13 of the above-said SJC Procedure of Enquiry 2005, offends against the Fundamental Rights of the Petitioner. 3. The Petitioner in Constitution Petition No.36 of 2017, is a sitting Judge of the learned Lahore High Court and incidentally is also facing an inquiry before the SJC on the allegations of misconduct. Such proceedings too are being held in camera. In the above circumstances, a Constitution Petition bearing No.36 of 2017 has been filed also claiming that the proceedings of the SJC be conducted in “Open Court”. Furthermore, it is also prayed that the SJC Procedure of Enquiry 2005 may be declared in its entirety to be unconstitutional. Furthermore, the constitution of the SJC has also been called into question and it is contended that one of the Const.P.29 of 2017, etc. 4 Members is disqualified to participate in such proceedings in view of Article 209(3) of the Constitution of the Islamic Republic of Pakistan, 1973. It is also prayed that all the proceedings taken by the SJC be declared as null and void. 4. In the instant cases, interpretation of the Constitution is obviously involved, therefore, notice under Order XXVII-A of the Civil Procedure Code, 1908 was issued to the learned Attorney General for Pakistan; and for assistance of this Court, two senior and seasoned counsels namely, M/s Shahid Hamid and Munir A. Malik, learned Sr. ASCs were also appointed as Amicus Curies. 5. Mr. Muhammad Makhdoom Ali Khan, learned Sr. ASC appearing on behalf of the Petitioner in Constitution Petition No.29 of 2017 opened his arguments by clarifying that no objection is being raised by him to the constitution of the SJC but his grievance is only limited to the process being employed and the Order dated 03.04.2017. It is his case that two primary questions required adjudication by this Court; firstly, whether the SJC is required by law to conduct an open hearing of the matters entrusted to it; and Const.P.29 of 2017, etc. 5 secondly, whether the SJC Procedure of Enquiry 2005, is unconstitutional, hence, liable to be struck down. As an ancillary to the second question, the learned Sr. ASC contended that this Court may also consider the possibility of reading down the provisions of the aforesaid SJC Procedure of Enquiry 2005, more particularly, paragraph 13 thereof, requiring a trial in camera. 6. It is further contended by the learned Sr. ASC that though it may have been held by this Court in its earlier judgments that the proceedings before the SJC may not strictly be a right determining exercise but only a fact finding process yet since the matter before the SJC is the alleged misconduct of a sitting Judge of the Superior Court and any findings returned would obviously stigmatized such Judge. Hence, the provisions of Articles 4, 10A and 19A of the Constitution, would be applicable. In this behalf, the learned Sr. ASC also drew the attention of this Court to the provisions of Article 209(8) of the Constitution, which require that the final findings of the SJC would be made public. Const.P.29 of 2017, etc. 6 7. The learned counsel next contended that the proceedings before the SJC were called into question before this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61). The Petitioner in the said case contested the provisions of holding proceedings in camera and demanded an open hearing. However, this aspect of the matter was left open and not adjudicated upon as is apparent from paragraph 200 of the judgment. Therefore, this Court must necessarily decide the aforesaid question, having directly arisen in the instant lis. It is further contended by the learned Sr. ASC that even though the SJC may not be a Court but rather a forum akin to a Departmental or Domestic Tribunal, yet the provisions of Article 10A of the Constitution are attracted to the proceedings before it, in view of the judgment of this Court reported as M.C.B. Bank Limited, Karachi v. Abdul Waheed Abro and others (2016 SCMR 108). 8. The learned counsel added that it is settled law that proceedings which may adversely affect the rights or reputation of a person, in the normal course, Const.P.29 of 2017, etc. 7 must necessarily be held in an “Open Court” and not by way of secret proceedings. In support of his contentions, the learned Sr. ASC relied upon the judgments reported as Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51), Mairaj Muhammad Khan v. The State (PLD 1978 Karachi 308), Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others (PLD 1992 Karachi 437), and Mst. Shirin Nazir v. Badruddin Karamali Nazir and another [PLD 1963 (W.P.) Karachi 440]. However, the learned Sr. ASC conceded that in exceptional circumstances even in a criminal or civil trial the proceedings can be held in camera but, he was of the view, that such exceptions are now well defined and settled. It may include matters relating to the State secrets or privacy of persons, more particularly, victims of sexual offences and qua matters pertaining to the mental capacity of individuals, further to avoid scandalizing the institutions. It was his case that none of the aforesaid exceptions were applicable to the instant case or catered for in paragraph 13 of the SJC Procedure of Enquiry 2005. Const.P.29 of 2017, etc. 8 The learned counsel also attempted to distinguish the judgment reported as George Meerabux v. The Attorney General of Belize [2005) 2 AC 513] referred to by the SJC in its Order dated 18.05.2017. 9. The learned counsel, however, was of the view that the proceedings before the SJC consist of two stages; firstly the determination whether prima facie any case for proceedings under Article 209 of the Constitution is made out and; secondly the proceedings undertaken by the SJC pursuant to such prima facie determination. The learned counsel contended that the first stage should be held in camera in any event to safeguard the reputation of a Judge against whom malicious or frivolous complaints may have been made but in the second stage, the proceedings must necessarily be held in public, especially if the person whose conduct or capacity is being inquired into so desires to avoid any miscarriage of justice. 10. Mr. Hamid Khan, learned Sr. ASC prefaced his submissions with the contention that for all intents and purposes, the conclusions drawn by the SJC sealed the fate of the Judge whose conduct or capacity is being inquired into and no remedy has been provided to him, Const.P.29 of 2017, etc. 9 therefore, for protection of the rights of such Judge a strict criteria needs to be applied. In the above context, it was contended that it is an universally accepted principle of law that proceedings in an “Open Court” is a sine qua non for a fair trial as justice should not only be done but should also be seen to be done. In support of his contentions, the learned counsel referred to the following judgments of the Canadian jurisdiction: 1. A.G. (Nova Scotia) v. Maclntyre, [1982] 1 S.C.R. 175 (183-185-186); and 2. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (para 22) 11. It was further contended that in the event of an in camera proceedings such Judge whose matter is before the SJC would be subjected to character assassination through baseless rumors and innuendo. 12. The learned counsel added that the principle of an open trial has been upheld by this Court in the judgments reported as Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632) and Zulfikar Ali Bhutto v. State (PLD 1979 SC 53). No doubt, it is contended, that there are some limitations to an open trial but, in this behalf, well defined exceptions are set forth in the aforesaid judgments. Said Const.P.29 of 2017, etc. 10 exceptions to the general principle of an “Open Court” hearing are public safety and security, privacy, abusive conduct of the accused, if the nature of the case is such that open hearing would stultify justice itself and to prevent scandalous and scurrilous allegations against the Judges. In the case at hand, none of the exceptions exist nor have been held to exist in the Order dated 18.05.2017, passed by the SJC. 13. The second limb of the arguments of the learned counsel was that the SJC Procedure of Enquiry 2005 is ultra vires to the Constitution and, therefore, non-est in the eye of law, including paragraph 13 thereof pertaining to in camera proceedings. It is the case of the learned Sr. ASC that the SJC is the creation of the Constitution and can only claim such powers as are conferred upon it by the Constitution and such powers include the authority to issue a Code of Conduct and summon the witnesses. However, no power to frame rules has been conferred upon the SJC. It is added that where the Constitution intended that an Institution created by it should be conferred rule making power, the appropriate enabling provisions stand incorporated in the Constitution. Reference, in this behalf, may be made, Const.P.29 of 2017, etc. 11 inter alia, to Articles 67, 72, 87, 99, 139, 175A(4), 175A(17), 191, 202, 203J and 204(3) of the Constitution. Thus, it is contended, the SJC has no power to make any rule with regard to its procedure, therefore, the SJC Procedure of Enquiry 2005 is in access of the powers available with the SJC under the Constitution, hence, ultra vires thereof. The learned counsel further reiterated that to hold that the SJC has rule making power would require reading words and expressions into the Constitution which is not permitted by law. In support of his contentions, the learned Sr. ASC relied upon the judgments reported as Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.- W.F.P. and another (PLD 1995 SC 66) and In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan [(PLD 1957 SC (Pak.) 219)]. 14. In the above context, it was further contended that currently, no rules governing the procedure to be followed by the SJC have been framed in accordance with the Constitution and the law. And such void needs to be supplied by the Parliament as has been done in India through the enactment of “The Judges (Inquiry) Act, Const.P.29 of 2017, etc. 12 1968”. It is further contended by the learned counsel that in absence of such rules or procedure, the SJC is at a “disadvantage”. Upon being asked to explain as to what he meant, after some hesitation, Mr. Hamid Khan, learned Sr. ASC submitted that the SJC could not conduct any proceeding against a Judge of a Superior Court or any other person in the absence of lawfully framed rules of procedure. 15. The learned counsel further contended that the case reported as The President-Referring Authority v. Mr. Justice Shaukat Ali (PLD 1971 SC 585) cannot be used as a precedent in the lis at hand, as the proceedings in the said case, were conducted when the Constitution stood abrogated. The SJC had been constituted under President’s Order No.14 of 1970 and was conducting its proceedings under the Supreme Judicial Council (Investment of Powers) Order, 1970, President’s Order No.20 of 1970 and the Judges (Compulsory Leave) Order, 1970 the President’s Order No.27 of 1970. Reference in the said case had been filed under Article 128 of the 1962 Constitution read with the Provisional Constitution Order of 1969. With the change in law, the judgment in the case of Mr. Justice Shaukat Ali (supra) has lost its Const.P.29 of 2017, etc. 13 relevance. It is further contended that the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra) is equally inapplicable in view of the addition of Article 10A of the Constitution. 16. The learned counsel also took exception to rule 7 of the SJC Procedure of Enquiry 2005 to contend that clause (5) of Article 209 of the Constitution requires that the decision to proceed or not to proceed against a particular person was vested with the SJC, while by virtue of rule 7 ibid such powers have been delegated to one Member of the SJC. Hence, the proceedings against the Petitioners initiated in terms of rule 7 ibid are ultra vires and illegal. 17. With reference to the composition of the SJC, it was contended by the learned counsel that one of its Members is himself the subject of the inquiry before the SJC, hence, debarred from being its Member in view of the provisions of Article 209(3) of the Constitution, which cannot be interpreted narrowly and must be given a wider meaning. In support of such contentions, the learned counsel relied upon the judgments of this Court reported as Pir Sabir Shah (supra) and In the matter of Reference by the President of Pakistan under Article 162 Const.P.29 of 2017, etc. 14 of the Constitution of Islamic Republic of Pakistan (supra). 18. Mr. Munir A. Malik, the learned Sr. ASC an Amicus Curie was of the view that some of the various issues involved in this case have already been settled by a larger Bench of this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra), holding that the SJC is not a Court. It is at best a fact finding domestic forum set up by the Constitution to look into the conduct and capacity of the Judges of the Superior Courts. The SJC conducts an inquiry as opposed to a trial. Such an inquiry is only a fact finding and not a right determining exercise. It was emphasized that this Court by way of the aforesaid judgment has accepted/approved the interpretation of law as held in the case reported as Mr. Justice Shaukat Ali (supra), including the view that the SJC Report is not right determining as it is only recommendatory in nature and not binding on the President. In this behalf, reference was also made to the judgments of this Court reported as Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) and Malik Asad Ali and others v. Const.P.29 of 2017, etc. 15 Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161). 19. Unlike Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973 in terms of Article 124 of the Indian Constitution, Article 169 of the Pakistani Constitution of 1956; and Article 317 of the Indian Constitution (relating to the Public Service Commission), the inquiry is conducted by a Council or a Committee composed of Judges but not by the Court itself. Furthermore, the Indian Supreme Court in the matter of Reference under Article 317(1) of the Constitution of India (1983) 4 SCC 258 at pages 263-64 Para 7 & 8) has held that the findings of this Court under Article 317 of the Constitution are binding. 20. The learned Sr. ASC further contended that even though there is no express power conferred by the Constitution on the SJC to frame its Rules, it would have the “implied power” to regulate its own Procedure. There is no bar in Articles 209 and 210 of the Constitution upon the SJC to lay down its own Procedure, which is just and equitable including for holding in camera proceedings as has been held in the cases of Faqiri Vasu Const.P.29 of 2017, etc. 16 v. State of Utter Pradesh and others (2008) 2 SCC 409), State of Karnataka v. Vishwabharathi House Building Coop. Society and others (2003) 2 SCC 412), Reserve Bank of India and others v. Peerless General Finance and Investment Company Ltd and another (1996)1 SCC 642) and Muhammad Anayet Gondal v. The Registrar, Lahore High Court, Lahore and another (2015 SCMR 821). Where a law confers jurisdiction it impliedly also grants the power of doing all such acts and to employ all such means as are essential and necessary for the exercise of such jurisdiction. Therefore, the SJC Procedure of Enquiry 2005 is covered by the doctrine of “implied powers”. Without prejudice to the above, it was contended that the SJC Procedure of Enquiry 2005 are mere administrative and internal guidelines and, therefore, strictly not binding on the SJC in view of the cases reported as The State of Assam and another v. Ajit Kumar Sarma and others (AIR 1965 SC 1196) and Punjab Healthcare Commission v. Musthaq Ahmed Ch. And others (PLD 2016 Lahore 237). Thus, the framing by the SJC of the Procedure of Enquiry 2005 is not Const.P.29 of 2017, etc. 17 unconstitutional and in any event are not binding on the SJC. 21. In answer to the question raised as to whether in camera proceedings before the SJC were violative of minimum standards of due process or Article 10A of the Constitution, it was contended, that since the SJC does not determine civil rights but only makes a recommendation to the President, the answer must be in the negative. Furthermore, in camera proceedings have to be distinguished from “secret proceedings” and the minimum standards of due process do not prohibit fair hearing through the in camera proceedings. The laws of many Countries contain provisions for holding judicial accountability proceedings in camera. However, there is no universal consensus on this issue. Judicial accountability through in camera proceedings is not necessarily violation of due process but cannot also be said that it is a “best practice”. It is a matter of Constitutional choice depending on the facts and circumstances of a particular Country. It was contended that the constitutionality of in camera proceedings have been upheld in the following cases, Privy Council Appeal No.9 of 2003 (Belize Judgment) and Land Mark Const.P.29 of 2017, etc. 18 Communications, Inc. v. Commonwealth of Virginia (1978 435 US 829). In India, the Courts have even held that the accused Judge is not entitled to a copy of the Report submitted by the Committee of Judges unless Parliament takes further action on such Report [Sarojini Ramaswami (MRS) v. Union of India and others (1992) 4 SCC 506)]. This, it was added further reinforces the non- binding/non-right creating nature of the Committee of Judges. 22. The learned Amicus Curie stated that free access to justice is a Fundamental Right of the people of Pakistan and such a right is dependent upon an independent judiciary. There can be no concept of Independence of Judiciary unless it consists of persons in whose integrity, the people can repose their confidence. The only safeguard, in this behalf, after appointment, is the proceedings under Article 209 of the Constitution, which jurisdiction has very sparingly been exercised in the last 70 years, thus, in order to ensure the continuing confidence of the people in the judiciary, it would perhaps be appropriate that the proceedings of the SJC are conducted in an “Open Court”. If the proceedings are conducted in camera, there is a possibility that it may Const.P.29 of 2017, etc. 19 be presumed that an errant Judge has been protected by his peers. 23. Mr. Shahid Hamid, learned Sr. ASC, who is also an Amicus Curie, stated that the SJC is a Constitutional body, the authority whereof is not limited to inquire into the conduct of the Judges alone but includes within its ambit other high officials, like the Chief Election Commissioner and the Members of the Election Commission of Pakistan (ECP), who can only be removed by the SJC in view of Article 215 of the Constitution. The jurisdiction of the SJC, also includes the matters relating to the Auditor General of Pakistan, the Wafaqi Mohtasib and the various other Ombudsmen. The SJC is, therefore, not a domestic forum for the Superior Court Judges only but also a forum for determining whether or not a number of other public officials should continue to hold such Office, if charged with misconduct, etc. 24. With regard to the status of the SJC Procedure of Enquiry 2005, the learned Sr. ASC stated that the Constitution is a living organic document. The interpretation of its provisions cannot be static and frozen at a particular point of time. A reference was made to Article 218(3) of the Constitution to contend that the Const.P.29 of 2017, etc. 20 said provision does not by itself empower the ECP to make rules authorizing it to give effect to the said provision, however, in the case of Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), this Court relied upon the text of Article 218(3) of the Constitution alone to hold that the ECP could make the rules itself. The above view, it was contended, was clarified and reaffirmed by this Court in the case reported as Workers Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 SC 406). 25. The SJC, it was added, is a Constitutional body certainly no less and arguable higher in status than the ECP. The rules made by the ECP to perform its Constitutional duty under Article 218(3) of the Constitution have statutory force. Thus, the SJC Procedure of Enquiry 2005 made by SJC to perform its Constitutional duty under Article 209 of the Constitution should also be deemed to have statutory force. 26. It was also the case of the learned Sr. ASC that the SJC cannot possibly be regarded as a mere fact finding body. Can the President remove a Superior Court Const.P.29 of 2017, etc. 21 Judge notwithstanding the SJC’s Report that he is not guilty of misconduct? Similarly, can the President refuse to remove a Superior Court Judge despite the SJC’s finding that such Judge is guilty of misconduct? The SJC Reports have binding force except perhaps in a rare case where the President is persuaded to take a different view on the basis of material not considered by the SJC. Thus, the procedure followed by the SJC cannot be regarded as a non-statutory internal Rules of Procedure of an administrative forum. It is added that though the SJC Procedure of Enquiry 2005 have statutory force yet its various provisions must be compliant with all the Fundamental Rights. If the SJC Procedure of Enquiry 2005 did not have statutory force it is difficult to see why it needs to be compliant with all the Fundamental Rights. 27. It is further added by the learned Sr. ASC that before insertion of Articles 10A and 19A in the Constitution through the 18th Amendment Act, 2010, the Articles 4, 8, 9, 14 and 25 of the Constitution required that every person was entitled to an open trial unless there were compelling national or public interest considerations for a degree of secrecy. Prima facie¸ the provisions of paragraph 13 of the SJC Procedure of Const.P.29 of 2017, etc. 22 Enquiry 2005 that the SJC proceedings shall not be open to public and shall not be reported unless directed otherwise appear to be in conflict with Articles 4, 8, 9, 14 and 25 of the Constitution. It is next added that the right of a Superior Court Judge to hold and continue in office unless it is determined through due process of law that he is physically or mentally incapacitated or guilty of misconduct cannot be regarded as anything other than a civil right. 28. It is also the case of the learned Sr. ASC that the question whether or not a Superior Court Judge is guilty of misconduct or is mentally or physically incapacitated is undoubtedly a matter of public importance, as it pertains to the administration of justice. Thus, the only question is whether the restrictions placed on the public’s right to know by paragraph 13 of the SJC Procedure of Enquiry 2005 is a reasonable restriction or not? 29. It is contended that an open trial at all stages and the people’s right to know all matters of public importance are not absolute rights. They are subject to the exceptions which may pertain to the whole of a particular trial or part of it. For example, the public may Const.P.29 of 2017, etc. 23 be barred from a trial of a suspect charged with an offence in connection with sensitive military secrets or of State security. Reference was made to the decision dated 09.02.2016 of the United Kingdom Court of Appeal reported as Guardian News and Media Limited and others v. Erol Incedal [(2016) EWCA Crim 11]. In rape cases in camera proceedings may be held to protect the dignity of the victims. In mental health cases, in camera proceedings may be necessary to protect the identity of the patients. Similar considerations may govern guardianship cases. Even in corruption cases, it may be necessary to restrict access to information relating to Treaties with Foreign Governments. However, even after consideration of all the matters it does not appear reasonable to impose restrictions on the inquiry proceedings against a Superior Court Judge, more particularly, when he himself desires not to avail the protection of such restrictions. It is further added that it cannot possibly be imagined that the SJC inquiry will be other than absolutely free, fair and impartial or that the SJC will not ensure due process in the inquiry. However, justice has also to be seen to be done. If the inquiry proceedings are open to public there will no room for any Const.P.29 of 2017, etc. 24 doubt that the inquiry has not been free, fair and impartial and that due process of law was not observed. 30. It is next added that the SJC Procedure of Enquiry 2005 needs to contain a degree of flexibility where, in the peculiar circumstances of a case, it may be necessary to restrict access to proceedings at the inquiry stage. All this could be achieved by appropriately amending paragraph 13(1)(3). 31. The learned Sr. ASC concluded that this Court may consider holding and declaring that the Constitutional powers and mandate conferred on the SJC under Article 209 of the Constitution necessarily includes the power to make rules for the effective implementation of its provisions and the SJC Procedure of Enquiry 2005 must be deemed to have statutory force and its provisions ought to be compliant with all Fundamental Rights guaranteed by the Constitution. The right of a Superior Court Judge to continue in office is a civil right and entitled to protection conferred by the Fundamental Rights guaranteed by the Constitution. The question whether or not a Superior Court Judge should continue in office in the face of charge(s) of misconduct is a matter of public importance and the general public has a right of Const.P.29 of 2017, etc. 25 access to the SJC proceedings; Articles 4, 8, 9, 10A, 14, 19A and 25 of the Constitution and the principles of natural justice required that all proceedings of the SJC should be open to public unless the SJC determines otherwise in the peculiar circumstances of a case. Even in such a case, the SJC may release the record of in camera proceedings at the conclusion of the inquiry and the SJC must amend paragraph 13 of its Procedure of Enquiry, 2005 in accordance with the above declarations. 32. Mr. Ashtar Ausaf Ali, learned Attorney General for Pakistan by relying upon the judgments of this Court reported as Khan Asfandar Wali and others (supra), Mr. Justice Shaukat Ali (supra) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra), contended that the SJC is a unique Institution. However, it is not a Court. Similarly, it is now a well settled principle of law that the proceedings before the SJC do not constitute a trial for determination of civil rights or criminal liability. Such proceedings are a fact finding inquiry only. Hence, Article 10A of the Constitution is inapplicable to such proceedings. It was also the case of the learned Attorney General for Pakistan that an appropriate forum for determination of rights is this Court whose jurisdiction Const.P.29 of 2017, etc. 26 can be invoked on the grounds and in the circumstances set forth in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra). 33. The learned Attorney General for Pakistan referred to the judgment of this Court reported as Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) to contend that this Court has placed reliance upon Willoughby a Constitution of United States, Second Edition, Vol. 11 at page 1709 where the term “due process of law” has been summarized as follows: (1) He shall have due notice of proceedings which affect his rights. (2) He shall be given reasonable opportunity to defend. (3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4) That it is a Court of competent jurisdiction. 34. Reference was also made to the judgment of this Court reported as The University of Dacca through its Vice-Chancellor and the Registrar, University of Dacca v. Zakir Ahmed (PLD 1965 SC 90) wherein it was held that in disciplinary proceedings the rules of natural Const.P.29 of 2017, etc. 27 justice must be observed and such procedure is followed as has been laid down in the SJC Procedure of Enquiry 2005 which is in accordance with the law and the standards of due process referred to above and no exception can be taken thereto. 35. The Supreme Judicial Council’s Order dated 18.05.2017, it was contended, is based, inter alia, on the judgments of this Court in the cases reported as The President v. Mr. Justice Shaukat Ali (supra) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra). 36. Similar proceedings in foreign jurisdiction are also held in camera. Reliance is placed on the cases reported as George Meerabux (supra), Kentucky State Bar Association v. Taylor [482 S.W.2d 574 (Ky.Ct.App.1972)] and McCartney v. Commission on Judicial Qualifications [12 Cal. 3d 512 (Supreme Court of California)]. 37. More recently, it was agreed by consensus in the Mount Scopus International Standards of Judicial Independence, consolidated in 2015 that disciplinary proceedings pertaining to the Judges ought to be held in camera. Const.P.29 of 2017, etc. 28 38. Therefore, in camera proceedings not only comply with the rules of natural justice but also conform to international standards on the subject matter. It was contended that neither the rights of the individual nor the canons of natural justice or fairness can be said to be violated by conducting such proceedings in camera. All procedural fairness is accorded to the Judges in question and thus any claim of violation of natural justice is untenable in view of the law and the international practices. 39. It is submitted that proceedings before the SJC carry implications on the administration of justice and the Independence of Judiciary. The purpose of conducting said proceedings in camera, are two-fold: firstly, they protect the Petitioners from a whispering campaign and secondly they shield complainants from unwanted and unwarranted publicity. A public trial would give rise to murmurs and whispers about the Petitioner’s integrity and propriety. Such murmurs while a Judge remains in Office are likely to embarrass not only an individual Judge, but the administration of justice as a whole. Moreover, in camera nature of these proceedings allows complainants and witnesses to Const.P.29 of 2017, etc. 29 approach the SJC without fear of recrimination. To allow such proceedings to be conducted publicly would not only adversely affect the Independence of the Judiciary but would also dissuade complainants from approaching the SJC. 40. Moreover, it was added, a domestic fact finding forum, unlike a Court of Law, is not constrained by a Code of Procedure, thus, has no requirement to conduct its proceedings openly. A perusal of the aforesaid precedents reveals that the SJC has legitimate reasons for keeping its proceedings in camera, since the same has nexus with the protection of complainants and the Independence of Judiciary. 41. Concise statements have been filed on behalf of the Federation of Pakistan through which it is contended that the SJC Procedure of Enquiry 2005, has not statutory force and this vacuum needs to be filled by the Parliament and the matter be referred to it. It has also been stated that Article 10A of the Constitution and the other provisions i.e. the Fundamental Rights are applicable to the proceedings before the SJC. 42. Mr. Hamid Khan, learned Sr. ASC took exception to the contentions of the learned Attorney Const.P.29 of 2017, etc. 30 General for Pakistan which were apparently in conflict with the concise statements filed on behalf of the Federation of Pakistan. It was his case that the contentions of the learned Attorney General for Pakistan are not on instructions of the Federation i.e. his client. The learned Attorney General for Pakistan contended that he has appeared before this Court pursuant to a notice under Order XXVII-A CPC and has made his submissions in such capacity. He further asserted that the Federation was only a proforma Respondent in the instant proceedings. 43. Heard. Record perused. 44. At the very outset, it may be appropriate to remind ourselves that while interpreting any provision of the Constitution or for that matter even the law it is imperative that the said provision be contextualized in its proper perspective keeping in view its genesis and more importantly, the purpose sought to be achieved by its enactment. 45. There can be no escape from the obvious fact that access to justice is a Fundamental Right of the people of Pakistan guaranteed under the Constitution. There can be no concept of access to justice without an Const.P.29 of 2017, etc. 31 Independent Judiciary. The jurisprudence, both nationally and internationally which has evolved over the ages, around the concept of Independence of the Judiciary recognizes that the security of tenure of Judges is a critical pre-condition for such independence. This is a universally accepted principle and has also been laid down by a larger Bench of this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra) in the following terms: “60. I would, therefore, conclude and hold that access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-à-vis, inter alia, their service and the tenure thereof, …” (underlining is for emphasis) 46. Historically, the Fundamental Rights of the people require protection from the excess of the Executive and the Vested Interest, both commercial and political. In order to safeguard the Fundamental Rights of the people guaranteed under the Constitution, the Independence of Judiciary obviously must be insulated from the onslaught of the Executive and such vested Interests, Const.P.29 of 2017, etc. 32 who are past masters at Institutional Capture. Thus, the security of tenure of Judges more so those of the Superior Courts is imperative and, therefore, adequate safeguards in this behalf are provided including by enacting what appears to be a rather cumbersome and strict process for their removal. This cardinal principle is reflected in the Constitutional dispensation of almost all Democratic countries peopled by citizens and not subjects. The exceptions, in this behalf, are almost always found in countries either under Military Dictatorships or ruled by Fascist regimes. The said safeguard is reflected in our Constitution under Article 209. It is no coincidence that each and every time a Military Dictatorship is imposed in Pakistan and a Constitutional “deviation” occurs an essential feature of the new dispersion is the promulgation of some Pseudo Legal Instrument enabling the removal of Judges by the Executive without the necessity of resorting to the provisions of Article 209 of the Constitution. Reference, in this behalf, may be made to “The Oath of Office (Judges) Order, 2000” and “The Oath of Office (Judges) Order, 2007”. With its independence crushed the judiciary is subjugated and the Fundamental Rights of Const.P.29 of 2017, etc. 33 the people including the right to access to justice evaporates. 47. Incidentally, other Constitutional Institutions and Legal Offices bestowed or mandated with the responsibility of enforcing Constitutional obligations or enforcing the rights of the people against the Executive have also been granted such security of tenure by requiring removal of the incumbents thereof through the SJC created under Article 209 of the Constitution. These Offices, inter alia, includes Chief Election Commissioner and the Members of the Election Commission of Pakistan who can only be removed by the SJC in view of Article 215 of the Constitution. The jurisdiction of the SJC also includes the matters relating to the removal of the Auditor General of Pakistan under Article 268(5) of the Constitution. Similarly, Section 5 of the Federal Ombudsmen Institutional Reforms Act, 2013 (Act of 2013) provides that an Ombudsman may be removed from Office through the SJC. As per Section 2(b) and (c) of the Act of 2013 Ombudsman means an Ombudsman appointed under the Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O. No.1 of 1983), the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000; The Const.P.29 of 2017, etc. 34 Insurance Ordinance, 2000; The Banking Companies Ordinance, 1962; and The Protection against Harassment of Women at the Workplace Act, 2010. 48. The aforesaid leaves no manner of doubt that the primary purpose of Article 209 of the Constitution is to ensure the security of tenure of those who can only be removed thereunder. It is in the above context and backdrop, the provisions of Article 209 of the Constitution must necessarily be interpreted and applied without allowing ourselves to be distracted by the intensity of the real or perceived difficulties that may currently exist. 49. However, it does not mean that those falling within the ambit of Article 209 of the Constitution are secret cows beyond the pale of accountability. If a person looses or abandons the necessary attributes of a Judge of integrity, probity, legal expertise and mental balance then he is not entitled to any security of tenure and must be weeded out post-haste with surgical precision through due process in terms of Article 209 of the Constitution. Such removal is necessary to preserve the Independence of Judiciary. Accountability strengthens rather than weakens institutions. Const.P.29 of 2017, etc. 35 50. The status and nature of proceedings before the SJC have come up for adjudication on more than one occasions before this Court. In the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra), a larger Bench of this Court after examining all preceding pronouncements by this Court on the subject settled several aspects of the matters at hand. In the aforesaid judgment, it was observed as follows: “96. The conclusion is thus inevitable that the Supreme Judicial Council is a forum created by the Constitution but the Constitution itself has refused to grant it the status of a court.” It was also held as follows: “97. Although, having discovered the verdict of the Constitution itself about the status of the S.J.C., it may no longer be necessary to say anything more on the subject but it may be of some help to mention the further insight provided to us by the Constitution vis-a-vis the said issue. The proceedings which take place before the S.J.C. have been described, by Article 209 of the Constitution, as an inquiry and not a trial. It is too well known by now that an inquiry is only a fact-finding and not a right-determining exercise and further that the courts ordinarily hold trials and finally pronounce upon the rights of the parties if the proceedings were of a civil nature or declare the guilt or innocence of the accused persons if the proceedings were of a criminal or a quasi-criminal nature. The courts of law deliver judgments and pass orders which are final, enforceable and executable and do not submit reports. But according to clause (6) of the Const.P.29 of 2017, etc. 36 abovementioned Article 209, what is produced by the S.J.C. as a result of the proceedings taken by it is only a report which is to be submitted/sent to the President. Although the opinion of the S.J.C. about the fitness of a Judge receives quietus but it has no power to make a final pronouncement which could PROPRIO VIGORE be binding on and create rights and obligations between the parties and consequently could not order removal of a Judge from office who is found unfit by it to hold the said office. In fact, as declared by this Court in the case of KHAN ASFAND YAR WALI (PLD 2001 SC 607) and in the case of MALIK ASAD (PLD 1998 SC 161), the findings of the S.J.C. and its report to the President were only "recommendatory in nature". It may be added that if the intention of the framers of the Constitution was to have the inquiry in question conducted by a court then it would be absurd to expect the Constitution to first create a Council and then to expect us to stretch all limits and confer the status of a court on the said Council for the said purpose when the same object could have been achieved by assigning the said task to an already existing court like it had been done through Article 169 of the 1956 Constitution which had cast this obligation on the Supreme Court itself with respect to the High Court Judges.” (bold for emphasis) In the aforesaid judgment, it was also held that: “98. Having thus examined the relevant legal and constitutional provisions and also having surveyed the case law, I am of the opinion that the true status of the Supreme Judicial Council is the one suggested by Syed Sharif-ud-Din Pirzada, the learned Sr. ASC appearing for the President of Pakistan while placing reliance on MR. JUSTICE SHAUKAT ALI'S CASE (PLD 1971 SC 585 at 602) wherein the said status had been determined as Const.P.29 of 2017, etc. 37 under:-- "Moreover, an inquiry into the conduct of a Judge is neither a criminal indictment nor even a quasi-criminal proceedings, but it is, in our opinion, mainly an ADMINISTRATIVE PROCEEDINGS conducted by a DOMESTIC FORUM to examine the professional fitness of a Judge. The subject-matter of these proceedings is neither civil rights and duties nor criminal liabilities. It is simply the conduct of a Judge which is to be properly reviewed in the interest of the purity and honour of the judiciary. The FORUM consists of Judges of superior courts who also belong to the same profession. To be tried by one's peers is a protection because they understand one's difficulties, problems and the situation in which one was. DOCTORS, ARCHITECTS, ACCOUNTANTS AND LAWYERS aim at having and have THEIR DOMESTIC TRIBUNALS, that is to say, the tribunals which Judge their conduct are manned by their own peers."? It was also held as follows: “99. … hold that while the Supreme Judicial Council may have some attributes and trappings of a court of law but it was neither intended by the Constitution to be a court nor could any such status be conferred on it in view of the relevant constitutional provisions. It is, at best, a fact-finding domestic forum set up by the Constitution to look into the affairs of the Judges of the Superior Judiciary. I may, however, add that the said Council is entitled to the highest of respect because at least three of its members are the most senior Judges of the country. …” Const.P.29 of 2017, etc. 38 51. The relevant provisions of the Constitution, more particularly, Articles 209, 210 and 211 when examined in the light of the judgment handed down by a larger Bench of this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Choudhary (supra) and the previous pronouncements on the subject noted and quoted with approval in the aforesaid judgment, the relevant portions whereof have been reproduced in extenso hereinabove could reveal that: firstly, the SJC is a Unique Forum created by the Constitution; secondly, the SJC is not a Court though it may exhibit some of its trappings including the power to punish for contempt; thirdly, the proceedings before the SJC are essentially a fact finding inquiry; fourthly, the SJC is akin to a domestic forum and it conducts administrative proceedings regarding the question of conduct or capacity of a Judge, who is to be judged by his own peers; and fifthly, the findings of SJC are recommendatory in nature and do not enjoy the status, a right determining Const.P.29 of 2017, etc. 39 judgment handed down by a Civil or Criminal Court which is per se final, enforceable or executable; sixthly though, the SJC cannot itself remove a Judge on the basis of its findings but any conclusion drawn has been bestowed with an element of quietus i.e. finality. 52. The questions that have arisen in the lis at hand, as can be identified from the submissions of the learned counsels which have been referred to above, need to be adjudicated upon in the light of the aforesaid observations in a manner that complements and supplements the judgment of the larger Bench of this Court handed down in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra). 53. Adverting first to the challenge thrown to the vires and validity in the SJC Procedure of Enquiry 2005, it has been noted that the first limb of the contentions of the learned counsel for the Petitioners, in this behalf, is that no rule making power has been conferred upon the SJC and it has been further contended that where the framers of the Constitution wished to do so such power was specifically conferred and, in this behalf, reference was made to the various provisions of the Constitution Const.P.29 of 2017, etc. 40 i.e. Articles 67, 72, 87, 99, 139, 175A(4), 175A(17), 191, 202, 203J and 204(3). 54. The Supreme Judicial Council has been created by and conferred with the jurisdiction through Article 209 of the Constitution. It is settled law that where a law (more so the Constitution) confers jurisdiction it impliedly also grants the power to do all such acts and employs all such means as are essential and necessary for the exercise of such jurisdiction. This principle of “implied power” is based on the well known legal maxim “Cui Jurisdictio Data Est, Ea Quoque Concessa Esse Videntur, Sine Quibus Jurisdictio Explicari Non Potuit” i.e “To whomsoever a jurisdiction is given, those things are also supposed to be granted, without which the jurisdiction cannot be exercised.” Reference, in this behalf, may be made to “N S Bindra’s Interpretation of Statutes”, (Tenth Edition at page 642). 55. Similarly, in “Statutory Interpretation” by Francis Bennion in Fourth Edition at page 429 with regard to implied and ancillary powers, it is stated: “… that ‘whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires’. …” Const.P.29 of 2017, etc. 41 The aforesaid legal maxim and the principle of “implied power” is well established in our jurisprudence. This Court in the case of Muhammad Anayet Gondal (supra), observed that: “5. … Even otherwise, it is a settled principle of law that where a statute confers a jurisdiction on a Court or Tribunal it also confers by implication the powers which are reasonably incidental and ancillary to effective exercise of jurisdiction. …” 56. In the case of Ahmad Khan v. Commissioner, Rawalpindi Division and another [PLD 1965 (W.P.) Peshawar 65], it was observed that: “6. … It is one of the cardinal rules of construction that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employ such means which are essentially necessary to its execution. This cardinal rule is based on the doctrine of "implied powers" which in turn is embodied in the maxim "Quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest". The full and true import of this maxim has been lucidly expressed in Fanton v. Hameton (1) (11 Moo. P C c. 347), which is as follows:- "Whenever anything is authorised and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. …” Const.P.29 of 2017, etc. 42 57. In the case reported as Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 SC 242), this Court held that under the West Pakistan Control of Goondas Ordinance, 1959, the Commissioner had the power to grant interlocutory relief, though not expressly provided for. This principle was reiterated in the case of Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32). 58. The Indian Supreme Court in its judgment reported as State of Punjab v. Salil Sabhlok and others [(2013) 5 SCC 1 at page 33], held as follows: “39. … A reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Public Service Commission. It has been held by this Court in Mohinder Singh Gill v. Chief Election Commr., that an authority has implied powers to make available and carry in to effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of the Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and Const.P.29 of 2017, etc. 43 other Members of the Public Service Commission. …” (underlining for emphasis) Reference, in this behalf, may be made to the observations of this Court in the judgment reported as Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), which reads as follows: “The Election Commission is empowered to frame rules to ensure that the elections are conducted justly, fairly, honestly and in accordance with the law and that corrupt practices should be guarded against. There is unanimity of views on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide legal sanction to these measures and implement the same to achieve the ultimate objective of fair, free, just and honest elections.” A close scrutiny of the aforesaid observations would reveal that the same are more than just a reference to the rule making power envisaged by Section 107 of the Representation of the People Act, 1976 (RoPA of 1976) and in fact embodies the implied incidental and ancillary power of the ECP to ensure due fulfillment of its Constitutional mandate. Const.P.29 of 2017, etc. 44 59. It appears to be well settled principle of law that when a jurisdiction is conferred by any law, then power of doing all that is necessary for the exercise of such jurisdiction, is also implied in it. With regard to a forum vested with the authority to return a finding or an adjudication, after a fact finding exercise the most primary and elemental of such incidental powers would be the authority to formulate its procedure. The word “Procedure” has been defined in the Corpus Juris Secundum (1951), Volume LXXII, at Page 971 in the following words: “PROCEDURE. The word “procedure” is defined generally as meaning a course or mode of action; the act or manner of proceeding or moving forward; the manner of proceeding or acting; progress, process, operation, conduct, a step taken, an act performed, a proceeding. In law the “procedure” signifies the means whereby the court reaches out to restore rights and remedy wrongs, and in this sense the term is defined as used in the phrase “practice and procedure” …” 60. In the case of Muhammad Ijaz Ahmad Chaudhry Vs. Mumtaz Ahmad Tarar and others (2016 SCMR 1), this principle was reiterated in the following words: “12. … Another principle of general application is that every procedure that promotes the administration of justice is Const.P.29 of 2017, etc. 45 permissible unless it is expressly prohibited. Reference in this behalf can be made to H.M. Saya & Co. v. Wazir Ali Industries Ltd. (PLD 1969 SC 65). …” The aforesaid leaves no manner of doubt that where the Constitution creates a forum (SJC) vested with the jurisdiction of accountability of the Judges of the Superior Courts and holders of other high Offices as mentioned in the Constitution or the law, such forum (SJC) has implied and ancillary power to give effect to the mandate of the Constitution, more particularly, by devising its own procedure. Such implied power stands conferred even upon administrative and Domestic Tribunals created or conceived by sub-Constitutional legislation and the other statutory instruments. It is difficult to accept the contentions of the learned counsel to the contrary, as it would amount to reducing the SJC a forum created by the Constitution to a status lower than that of a Domestic Tribunal formed by a Sub- Constitutional Statue or rules framed thereunder. 61. Thus, no exception can be taken to the validity or vires of the SJC Procedure of Enquiry 2005 on this ground. 62. A desperate attempt was made to argue that in the absence of rule making power of the SJC, such voids Const.P.29 of 2017, etc. 46 having not been filled by appropriate legislation by the Parliament, the SJC cannot function or in other words proceed against the Petitioners. This aspect of the matter has been dealt herein above as has already been held that the SJC has the implied power to fulfill its Constitutional mandate including by formulating its own procedure. Furthermore, if the contention of the learned counsel is accepted, it would reduce Articles 209, 210 and 211 of the Constitution to a dead letter and therefore redundant. 63. In various judgments of this Court, it has been held that there can be no interpretation of the Constitution which may lead to redundancy of any of its provision. In the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra), it was observed that: “68. … Every student of law is expected to know the principle which is too well established by now that no redundancy or surplusage could ever be attributed to a draftsman much less to the one drafting the Constitution. …” Similarly, in the case reported as Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their Respective Retirements, Irrespective of their Length of Service as Such Judges, etc. (PLD 2013 SC 829), it was observed as follows: Const.P.29 of 2017, etc. 47 “69. … when we revert to some well recognized principles of interpretation of statute, we find the following basic principles outlined for this purpose. g. It is a cardinal rule of construction of statutes that no words are to be added or omitted or treated as surplusage or redundant.” 64. In the case of Shahid Nabi Malik and another Vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32), it was observed by this Court that: “6. … it is well-established principle that while interpreting a Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. …” (underlining is for emphasis) 65. Thus, the contentions of the learned Sr. ASC offend against the most elemental principles of settled law pertaining to interpretation of the Constitution as has been repeatedly and consistently laid down by this Court. 66. An objection has been raised by Mr. Hamid Khan, learned Sr. ASC to the constitution of the SJC, Const.P.29 of 2017, etc. 48 conducting the proceedings against the Petitioners. The learned Sr. ASC has advanced an interpretation of Article 209(3) of the Constitution to canvass the point of view that any Member of the SJC as mentioned in Article 209(2) whose conduct or capacity is the subject matter of an inquiry before the SJC cannot act as a Member of the SJC even in proceedings against a third party. It is his point of view that Article 209(3) of the Constitution like other provisions of the Constitution should be interpreted broadly and not narrowly to limit its import merely to avoid an obvious situation of a person being the Judge of his own cause. 67. Article 209(3) of the Constitution is reproduced hereunder for ease of reference: “209. (3) If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then- (a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and (b) if such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, Const.P.29 of 2017, etc. 49 shall act as a member of the Council in his place.” A perusal of the aforesaid provisions makes it clear and obvious that it not only precludes a person from being a Judge in his own cause but more importantly, caters for the situation in its entirety where a Member of the SJC as mentioned in Article 209(2) of the Constitution himself the subject matter of an inquiry, by identifying the person who will act in substitution of such Member. This aspect of the matter, which is self-evident, perhaps, has escaped the notice of the learned counsel. 68. The question whether a Judge under inquiry can be temporarily stopped from performing his judicial or official functions came up before a larger Bench of this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra) wherein it was observed as follows: “132. … It may be added that even a temporary disability cast on a Judge in the matter of discharging his constitutional and official obligations as such amounted to “REMOVAL” from office and was not permitted by our Constitution.” (underlining is for emphasis) 69. To act as a Member of the SJC is an official function of a Judge and in view of the dictum as laid Const.P.29 of 2017, etc. 50 down by this Court reproduced herein above restraining a Judge from being a Member of the SJC would amount to his removal, which is not permissible under the law, except as a consequence of, a final verdict by the SJC in terms of Article 209 of the Constitution. Thus, no matter how broadly or narrowly interpreted Article 209(3) of the Constitution, the contentions of the learned Sr. ASC that a Judge who is the subject matter of an inquiry before the SJC cannot sit as a Member thereof in respect of the proceedings against another person is misconceived as it is not only contrary to the words and expressions employed in Article 209(3) of the Constitution itself but also the law as laid down by this Court in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra) referred to and reproduced herein above. 70. The learned Sr. ASC also focused on paragraph 7 of the SJC Procedure of Enquiry 2005 and contended that by way of the aforesaid provisions, the power to determine whether a complaint, prima facie, discloses grounds for proceeding under Article 209 of the Constitution has been delegated to a Member of the SJC, which is contrary to the provisions of Article 209 of the Constitution. We are afraid that the contentions of the Const.P.29 of 2017, etc. 51 learned counsel are wholly misconceived. No doubt, preliminary spadework may be undertaken by a Member of the SJC but the decision to proceed or not to proceed against a Judge is in the sole and exclusive domain of the SJC itself and has not been delegated to anybody. The aforesaid is obvious from the provisions of paragraph 7 (1)(b) of the SJC Procedure of Enquiry 2005, which reads as follows: “7. Procedure for scrutinizing information:-(1) Once any information in respect of enquiry into the conduct of a Judge is received by any Member or the Council, it shall be presented to the Chairman of the Council, who ; shall (a) .……………………………………… (b) if the Council is satisfied that the information prima facie discloses sufficient material for an enquiry, it shall proceed to consider the same.” Reference, in this behalf, may also be made to paragraph 9(1) of the SJC Procedure of Enquiry 2005, which reads as follows:- “9. (1) If the Council decides to proceed against a Judge, a show cause notice shall be issued to him alongwith supporting material calling upon him to explain his conduct within 14 days.” The aforesaid provisions are a complete and obvious answer to the contentions of the learned counsel. Const.P.29 of 2017, etc. 52 71. It has been noted with some interest that Mr. Hamid Khan, learned Sr. ASC for the Petitioners attempted to draw strength from the concise statements purportedly filed by the Federal Government to contend that the Procedure of the SJC can and needs to be regulated through an Act of Parliament. The concise statement i.e. Civil Misc. Application No.8647 of 2017 in Constitution Petition No.29 of 2017 has been purportedly filed by Respondent No.1 i.e. the Federation of Pakistan through the learned Attorney General for Pakistan. As mentioned above, the Attorney General for Pakistan has disowned this concise statement and stated that the Federation is only a proforma Respondent. Civil Misc. Application No.2528 of 2018 has been filed in Constitution Petition No.36 of 2017, which is identical to the concise statement referred to above. This too has been filed on behalf of the Federation but incidentally not through the learned Attorney General for Pakistan but through an “Attorney”. It bears stamp and purported signatures of one Muhammad Kamran, Section Officer, Ministry of Law & Justice, Government of Pakistan, Islamabad. It is not clear on whose instructions the said Muhammad Kamran, Section Officer has filed this Const.P.29 of 2017, etc. 53 concise statement purporting or at least attempting to support the Petitioners. Some provisions of the Constitution and the International Instruments have reproduced without any worthwhile value addition. In view of the rather simplistic and redundantly nature of its contents and in view of the contentions of the learned Attorney General for Pakistan, we find it unnecessary even to comment upon these concise statements. 72. However, it has been noticed that it is stated therein that the matter be referred to the Parliament for framing the law to govern the Procedure of the SJC. A reference was also made by Mr. Hamid Khan, learned Sr. ASC to the Judges (Inquiry) Act, 1968, in India as an example of supplying of procedure by the Parliament in respect of the disciplinary proceedings against a serving Judge of a Superior Court. 73. As we have already noted above that with regard to the process of accountability of Judges, a special Constitutional Forum of SJC has been created by the Constitution. The proceedings before it are administrative in nature where a Judge is judged by his own peers. Though the findings which may be recommendatory in nature but the same have bestowed Const.P.29 of 2017, etc. 54 with an element of quietus or collusiveness as is obvious from the judgments of this Court referred to and reproduced herein above. Thus, in our Constitution, a conscience effort has been successfully made to insulate this process from undue influence of subjugation by other two Organs of the State. 74. In India, a different path has been chosen and the power to impeach a Judge was conferred upon the Parliament. The procedure, in this behalf, was supplied in the Act of Parliament i.e. The Judges (Inquiry), Act, 1968. The aforesaid Act has been promulgated in India in terms of Article 124(5) of the Constitution of India, which reads as under:- “124. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).” 75. A perusal of our Constitution reveals that no such parallel provision exists in our Constitution. A glance at the Legislative List also does not, prima facie, conclusively settle the matter. In the circumstances, if any such legislation is enacted, more particularly, if by it an attempt is made by the other institution of the State to infiltrate and influence the process under Article 209 Const.P.29 of 2017, etc. 55 of the Constitution in the garb of procedure such a law may be of questionable constitutionality, both with regard to legislative competence and for being violative of the principles of Independence of Judiciary. 76. We have noted that the SJC, a forum constituted by the Constitution is vested with the implied power to do all such things necessary to fulfill its mandate, more particularly, to design and formulate the procedure itself. However, such procedure must be just and fair as has been held by this Court in its judgment reported as The University of Dacca through its Vice- Chancellor and another v. Zakir Ahmed (PLD 1965 SC 90) in the following terms (para E to G at pp 103-104): “ From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case. What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was Const.P.29 of 2017, etc. 56 pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando. Tuker, L.J., said in Russel v. Duke of Norfolk (1) “the requirements of a natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.” Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the “elementary and essential principles of fairness” as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and “to correct or controvert any relevant statement brought forward to his prejudice.” Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in presence of the person accused or give him facility for cross- examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affect to correct or contradict any relevant statement prejudicial to him. In other words, “in order to act justly and to reach just ends by just means” the Courts insist that the person or authority should have adopted the above “elementary and essential principles” unless the same had been expressly excluded by the enactment empowering him to so act.” 77. There can also be no escape from the fact that a conclusion drawn by the SJC would obviously stigmatize the Judge, whose capacity or conduct is being inquired Const.P.29 of 2017, etc. 57 into. Furthermore, as has been held by a larger Bench of this Court in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudry’s case (supra) noted above, the proceedings before the SJC though essentially fact finding in nature and recommendatory in effect are nevertheless bestowed with an element of quietus or finality, which aspect of the matter can never be over emphasized or lost sight of. In this view of the matter, the necessity for fairness and fair play, in the procedure adopted becomes all the more imperative. There is no serious dispute between the counsel appearing before us, in this behalf, as none of them did or could have canvassed that the procedure to be adopted by the SJC can be unfair or unjust. This is obviously essential in order to ensure security of tenure of the Judge which is, as already stated above, is the primary purpose of Article 209 of the Constitution. The controversy perhaps pertains to the standards of due process, which need to be observed and whether the SJC Procedure of Enquiry 2005, more particularly, paragraph 13 thereof meets such standards. There also appears to be a consensus amongst the learned counsel, learned Attorney General for Pakistan and the learned Amicus Curiae that except Const.P.29 of 2017, etc. 58 for the disputed paragraph 13 of the SJC Procedure of Enquiry 2005, the remaining procedure is compliant with the universally accepted principles of due process including as reflected in our Constitution and the various pronouncements by this Court. The Judge whose conduct or capacity is the subject matter of proceedings under Article 209 of the Constitution is issued a notice informing him of the allegations against him. He is afforded a right of hearing, the findings are based on evidence, which are recorded in his presence. He is also afforded the right to cross examine the witnesses and produce evidence in his defence. He has a right to be represented by a counsel of his own choice. He is informed of the findings. Thus, there is no dispute or controversy, in this behalf, except with regard to paragraph 13 of the SJC Procedure of Enquiry 2005 which is reproduced hereunder for ease of reference:- “Proceedings of the Council not to be reported.- (1) Proceedings of the Council shall be conducted in camera and shall not be open to public. (2) Only the findings of the proceedings shall be allowed to be reported. (3) Proceedings of the meetings of the Council or any other steps that Council may take shall not be reported, unless directed otherwise.” Const.P.29 of 2017, etc. 59 78. It is now settled law that rather than a literal approach a purposive approach to interpretation must be adopted. In this behalf, this Court in its judgment reported as Dr. Raja Aamer Zaman v. Omar Ayub Khan and others (2015 SCMR 1303) held as follows:- “8. … The Courts in Pakistan have always preferred a purposive rather than a literal interpretation of Statutory Instruments. Reliance in this behalf may be made to the judgments, reported as Hudabiya Engineering (Pvt) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90) and Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710).” 79. A similar view has been taken by this Court in the cases reported as Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6) and Muhammad Nawaz Chandio v. Muhammad Ismail Rahu and others (2016 SCMR 875). 80. Thus, we must attempt to discover the purpose and true intent of paragraph 13 of the SJC Procedure of Enquiry 2005, which alone would hold the key to its proper contextualized interpretation. Various countries of the world have chosen either of two paths with regard to Const.P.29 of 2017, etc. 60 the process of accountability of Superior Court Judges. Broadly speaking, one path is through an open process including through a proceeding before a forum outside the judiciary e.g. Parliament in the full gaze of the public eye while the other path is of an insulated process of being dealt with by one’s own peers. Our Constitutional Dispensation in principle has adopted the latter course of action. The framers of the Constitution of 1973 appear to have made a value judgment that such a course of action is best suited to our societal and cultural ethos, where allegations are routinely made against all and sundry without any qualms about the truthfulness or otherwise of such allegations. Perhaps the framers of the Constitution may have been inspired, in this behalf, by the mystical saint of Kasur who said that we live in the “Age of Suspicion”, where people immediately believe the worst about others. It is said that the Judges like Ceasar’s wives ought to be above suspicion. An allegation no matter how baseless, if permitted to be made public, such Judge and his capacity to dispense justice would be irreparably prejudiced. It is perhaps being sensitive to this aspect of the matter, Mr. Muhammad Makhdoom Ali Khan, learned Sr. ASC urged that the first part of the Const.P.29 of 2017, etc. 61 process before the SJC i.e. in terms of paragraphs 7 and 8 of determining whether there was, prima facie, sufficient material to proceed against the Judge, should be, in its entirety, conducted in camera without any information pertaining thereto reaching the public domain, as obviously if the allegations are allowed to be made public and subsequently found not worthy of being proceeded with, the said Judge and his reputation would be tarnished irreparably making it impossible for the Judge in question to perform his judicial functions on the one hand and would belittle the judiciary as a whole on the other. This for all intents and purposes would amount to stopping a Judge from performing his official junctions. Consequently, unless adequate provisions exist for keeping malicious and baseless accusation from being publicized not only the security of tenure of the Judge would be jeopardized but also the Independence of Judiciary would be compromised. Thus, it is not too difficult to fathom than the purpose of paragraph 13 of the SJC Procedure of Enquiry 2005 is to protect, both the Judge whose conduct and capacity is to be inquired into and the Institution of the judiciary. This interpretation Const.P.29 of 2017, etc. 62 appears to be obvious and not seriously contested by the other learned counsel for the Petitioners. 81. The practice of in camera hearings in matters of judicial accountability is not novel; rather it has found endorsement by Legal Practitioners from all over the world. The First World Conference on the Independence of Justice held at Montreal on 10th June, 1983 adopted a Universal Declaration on the Independence of Justice. It relates to International Judges as well as National Judges. On the question of “Discipline and Removal”, it is recommended as under: “2:35 The proceedings for discipline of Judges shall ensure fairness to the Judge and the opportunity of a full hearing. 2.36 With the exception of proceedings before the legislature, the proceedings for discipline and removal shall be held in camera. The Judge, may however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the disciplinary Tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, may be published.” 82. At this juncture, it may be appropriate to refer paragraph 5.2 of the International Project of Judicial Independence of the International Association of Judicial Independence and World Peace (Mount Scopus International Standards of Judicial Independence) Const.P.29 of 2017, etc. 63 presented by the learned Attorney General for Pakistan, which reads as follows: “5.2 With the exception of proceedings before the Legislature, the procedure for discipline should be held in camera. The judge may however request that the hearing be held in public and such request should be respected, subject to expeditious, final and reasoned disposition of this request by the disciplinary tribunal, Judgments in disciplinary proceedings, whether held in camera or in public, may be published.” 83. Before we venture to interpret paragraph 13 of the above in the context of the lis at hand it may be appropriate to recapitulate, in this behalf, the learned counsels for the Petitioners, who, by relying upon the judgments, both from our jurisdiction and abroad contended that an open trial is generally considered to be a sine qua non for due process and for a just and fair determination of rights. In the alternative paragraph 13 is for the benefit of the Petitioners they can always waive such benefit and privilege. There can be no cavil with the said proposition when examined in its indivisible entirety. In the context of its purposive interpretation of paragraph 13, the possibility of a person waiving his right of in camera proceedings cannot be excluded more so when examined in the context in paragraph 13(3) of the SJC Procedure of Enquiry 2005. However, such waiver is Const.P.29 of 2017, etc. 64 neither absolute nor can totally trump the discretion and jurisdiction of the SJC in this behalf. To what extent such principles are attracted to proceedings before the SJC. Be that as it may, such proceedings necessarily be conducted fairly, justly and in accordance with the principles of Natural Justice in all its amplitude as stated herein above. 84. Before proceeding further, it may be pertinent to point out at this juncture that at the cost of repeation that the SJC is not a Court but more akin to a Domestic Tribunal, whose proceedings primarily are administrative in nature. The concept of openness attributable to a Court does not necessarily apply in its entire amplitude to administrative proceedings before Domestic Tribunal. The inquiry before the SJC is not a spectator sport nor can there be any requirement of proceedings being conducted in a Courtroom. We need to keep reminding ourselves that the SJC is not a Court but a Domestic Tribunal conducting administrative proceedings. 85. Be that as it may, the antithesis of an open trial is not in camera proceedings but a “secret trial”. This distinction was very ably drawn by Mr. Munir A. Malik, learned Sr. ASC an Amicus Curiae. Such “secret trial” Const.P.29 of 2017, etc. 65 usually means prosecution of an unknown person for an unknown charge with unknown findings based on unknown evidence conducted without counsel. The final verdict alone may be disclosed through a dead body, which may or may not be handed over to the near and dear ones. Such trials are associated with the purges in the Soviet Union in the 1930’s. In camera proceedings, on the other hand, pertain to the proceedings conducted by excluding unrelated persons, which course of action is not unknown to our jurisprudence. 86. Though as a general principle, the proceedings that determine civil rights of the parties or the criminal liability of an accused are held in “Open Court”, as justice should not only be done but should also be seen to be done. We have already noticed that the SJC is a Domestic Tribunal and the proceedings before it are essentially administrative in nature yet even if the SJC Procedure of Enquiry 2005 is subjected to the highest possible standard i.e. of a criminal trial, it would be noticed that Section 352 Cr.P.C., in this behalf, though enjoins an open trial but its proviso empowers the Presiding Officer to hold the trial in camera by excluding the public at large from its proceedings. It is in the above Const.P.29 of 2017, etc. 66 backdrop, that none of the counsel at the bar urged that in no eventuality the proceedings before the SJC could be held in camera. The only matter in issue was the conditions which necessitated or permitted the same existed as in certain circumstances, public or private interest may demand that such proceedings be held in camera. 87. The requirement of an open trial or open justice and the exceptions thereto have evolved over the last Century. The House of Lords in the oft-quoted case reported as Scott v. Scott [1913] AC 417, laid down a rather stringent and relevantly inflexible rule for open justice. In the Century that followed periodically more exceptions to the said rule were recognized by the Courts perhaps by the acknowledgment of competing rights and other considerations as is obvious from the judgment of the Supreme Court of United Kingdom reported as Khuja v. Times Newspapers Limited and others (2017 SCMR 1605). In the latter judgment, the process of the evolution of the exceptions to the general rule of open justice has been charted out in great detail. This Court too has considered this aspect of the matter, even with reference to criminal proceedings in its various cases, including the Const.P.29 of 2017, etc. 67 judgments reported as Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632) and Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51). An examination of the aforesaid judicial pronouncements reveals that the recognized reasons for departure from the general principles of an open trial appear to be:- (1) For public safety; (2) To avoid the disclosure of a secret process or of secret document; (3) Where the Court is of the opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public; (4) The matter falls within the parental jurisdiction of the Court to safeguard the interests of the ward or lunatics; (5) To protect the dignity of the victim in matters pertaining to rape and other sexual offences; (6) To protect the privacy where necessary in matters pertaining to matrimonial disputes; (7) To avoid the making of baseless scandalous and scurrilous allegations so as to defame the Judges and the Courts in order to publicize the same so as to subvert due process. (8) Where a party adopts a hostile defiant and abuse attitude in Court; and Const.P.29 of 2017, etc. 68 (9) To preserve the decorum and dignity of the Court. The aforesaid list is obviously not exhausted. Furthermore, the aforesaid exceptions are also obviously subject to the test of reasonability and proportionately. Needless to say such exceptions are not dependent upon the consent of the parties. None of the counsels, not even those appearing on behalf of the Petitioners have really disputed the above mentioned exceptions to general principle of an open trial. It is also not disputed by the learned counsel that even where a person whose conduct and capacity is being inquired into waives his right to an in camera proceedings the SJC may decline such request and conduct its proceedings in camera if any of the exceptions to open justice enumerated above exist. 88. Even otherwise, as per the case of the Petitioner as canvassed by Mr. Muhammad Makhdoom Ali Khan, learned Sr. ASC, the first part of the proceedings before the SJC for the purpose of determining whether a, prima facie, case is made out before the proceedings against the Judge in question should be held in camera lest baseless allegations are made public to the determent of the Judge concerned. The same logic must also extend to the latter Const.P.29 of 2017, etc. 69 part of the proceedings as a Judge must obviously be presumed to be innocent unless there is an adverse finding returned regarding his capacity and capability by the SJC. The name of the Judge will be dragged through the mid even though the allegations may be eventually rejected by the SJC. 89. Furthermore, as we have already determined the purpose of paragraph 13, it is, inter alia, to protect the Judge whose conduct and capacity as is being inquired into from slanders and baseless allegations, we cannot lose sight of the fact that the Members of the SJC are also the Chief Justice and senior Judges of the Supreme Court, the senor most Chief Justices of the High Courts whose persons and reputation too need to be protected from frivolous baseless attacks. This may sound a little strange and perhaps paranoid to the stranger as the person being inquired into is no less a person than a Judge of a Superior Court. However, we stand wiser through experience and, in this behalf, with great regret, we are constrained to refer to the last paragraph of the Report of the SJC in the reference against the Petitioner Mr. Justice Shoukat Ali, referred to and reproduced in the case reported as Chief Justice of Const.P.29 of 2017, etc. 70 Pakistan Iftikhar Muhammad Chaudhry (supra), which reads as follows: “Before we part with this report we would like to place on record that although the respondent behaved in a most objectionable manner throughout, we have not allowed this act to influence our decision. This proceeding has been an extremely unpleasant and taxing experience for the Council. The respondent forgot that he was appearing before five of the most experienced Judges in the country, and from the very beginning, either by design or from force of habit, took up an arrogant and insolent attitude. At one stage he even insulted the Council in its face when the Council with great reluctance had to issue a notice for his committal for contempt. It was only through the timely intervention of Mr. Anwar, his counsel that a very ugly situation was avoided, for, otherwise the council would not have hesitated to punish the respondent suitably. He also did not hesitate to falsely and maliciously malign the Council before other Authorities and even attempted at one stage to intimidate the council by threats. Finally, he staged a walk-out even after the evidence was closed. Even so, the Council did not deny Mr. Manzoor Qadir the opportunity to address the Council on the respondent's behalf. Indeed, the Council has throughout, as admitted by Mr. Manzoor Qadir himself, not only shown the maximum amount of consideration but even treated the tantrums of the respondent with the indulgence they did not deserve.” 90. Thus, if there is a reasonable apprehension that the Judge whose capacity or conduct is being inquired into or his lawyers are likely to indulge in Const.P.29 of 2017, etc. 71 scurrilous and scandalous allegations against the SJC or its Members especially with the intention to publicize the same so as to hamper the SJC from fulfilling it obligations, the SJC can always direct that the proceedings before it be conducted in camera, even if such Judge has waived his privilege of in camera proceedings. Such a course of action would be in accordance with the well recognized and established exceptions to open justice. Such exceptions have been enumerated herein above. In camera proceedings can also be resorted to despite the desire of a person whose conduct and capacity is being inquired into, if any of the aforesaid exceptions, in the information of the SJC exist. 91. The Fundamental Right of freedom of information as conferred and guaranteed by Article 19A of the Constitution was also referred to more so by the amicus curia than the counsel for the Petitioners to contend that the proceedings of the SJC should be held in public. The aforesaid Article is reproduced hereunder for ease of reference: “19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation Const.P.29 of 2017, etc. 72 and reasonable restrictions imposed by law.” The said Article pertains to the openness and transparency of the Government and its functioning. In order to give effect to this Article “Right of Access to Information Act, 2017”, has been promulgated. The provisions of the said Act need to be looked at very carefully in the context of its applicability to the SJC and the exceptions must be mentioned in the said enactment. The findings of the SJC are made public by virtue of paragraph 13(2) of the SJC Procedure of Enquiry 2005. The issue would only relate to interlocutory orders and proceedings. Be that as it may, a perusal of the afore- mentioned Article caters for a right of all the citizens to access of information in all matters of public importance. Though, it may overlap with the independent claim of an accused or a party to litigation to a fair trial through an open justice system but in essence in the context of the lis at hand it pertains to the right of access of an unrelated citizen to the proceedings of the SJC. In this context, it is appropriate to point out that by virtue of paragraph 13 of the SJC Procedure of Enquiry 2005, the findings of Const.P.29 of 2017, etc. 73 the SJC are made public. Thus, the matter is limited to the conduct of the proceedings and interlocutory if any only. 92. The matter of interpretation and application of Fundamental Rights came up for interpretation before this Court in the case reported as Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), wherefrom certain principles, in this behalf, can be gleaned. Firstly, a Fundamental Right may not be absolute. Secondly, in case of contending and conflicting rights, an equilibrium has to be maintained through a harmonious interpretation of the Constitution as an organic whole. And thirdly, individual rights may have to give way to the rights for the benefits of the community at large. 93. Examining Article 19A of the Constitution in the above context reveals that the right conferred thereby is not absolute but subject to regulation and reasonable restriction, as is mentioned therein. The Courts and other Authorities have long recognized the practice of holding proceedings in camera or subject to Const.P.29 of 2017, etc. 74 other restrictions qua disclosure as an exception to the open justice principle. These exceptions are well defined and based on the law or judicial pronouncements. In the instant case, the embargo to release information with regard to unsubstantiated and unproven allegations against a Judge regarding his conduct or capacity is based on the principle not only on protecting the reputation of the Judge which may be sullied beyond redemption even if the allegations are finally rejected but also for the protection of the Institution of judiciary. This exception based on the judgments of this Court referred to above and are necessary for the Independence of Judiciary by insulating it from being blackmailed into subjugation. Thereby very right of access to justice would be at stake. Consequently, the necessity of proceedings in camera before the SJC (not its findings) based on the law as laid down by this Court must prevail over the right of an unconcerned citizen to such information as Article 19A of the Constitution pertains to right to information not right to entertainment through the malicious satisfaction of idle curiosity. If reasons are sufficient for a departure from open justice policy the Const.P.29 of 2017, etc. 75 same would also be sufficient to be a reasonable restriction of freedom of information. 94. The aforesaid leads to an irresistible conclusion that the SJC is a unique forum created by the Constitution. It is not a Court but more akin to a Domestic Disciplinary Tribunal whose proceedings are administrative in nature and recommendatory in affect. But its findings have an element of conclusiveness. The SJC Procedure of Enquiry, 2005 reflects the implied authority of the SJC to do all acts and employ all means necessary to exercise the jurisdiction conferred and to fulfill its mandate in accordance with the Constitution, hence, are legally valid and effective in law. 95. Paragraph 7 of the SJC Procedure of Enquiry, 2005 is valid and intra vires to the Constitution. Paragraph 13 also does not offend against the Constitution or any provision thereof. The obvious purpose of paragraph 13 is the protection of the rights and reputation of the person whose conduct and capacity is being inquired into and the protection of the Institution of the judiciary, including the Members of the SJC, hence, must be interpreted in such context. Therefore, the process of determination whether any prima facie Const.P.29 of 2017, etc. 76 case has been made for proceedings under Article 209 of the Constitution in any event should be held in camera and the subsequent proceedings should also be held in camera unless the person being inquired into waives such right. However, in such circumstances, since in camera proceedings are not alien to our jurisprudence and can always be resorted to by the SJC even in the absence of the consent of the parties for well defined reasons which have been enumerated in the preceding paragraphs, including (but not limited to) in the eventuality of an apprehension that the person whose conduct and capacity is being inquired into or his counsel may resort to baseless, scandalous and scurrilous allegations against the SJC or any of its in order to publicize the same and thereby frustrate the very proceedings of the SJC. 96. Consequently, the question regarding conduct of proceedings through an open justice as requested by the Petitioners needs to be revisited and decided afresh by the SJC notwithstanding and uninfluenced by its Order dated 18.05.2017 in the light of the observations made herein above. Const.P.29 of 2017, etc. 77 97. Hence, these Constitution Petitions bearing No.29 and 36 of 2017 are disposed of in the above terms. Judge Judge Judge Judge ‘APPROVED FOR REPORTING’ Judge Mahtab and Safdar/* Announced on ____________ at _____________ Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CONSTITUTION PETITION NO.2 OF 2011 AND CIVIL MISCELLANEOUS APPLICATIONS NO.1864 AND 2960 OF 2019 (Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973) Ishaq Khan Khakwani and another …Petitioner(s) Versus Railway Board through its Chairman and others …Respondent(s) AND HUMAN RIGHTS CASE NO.29324 OF 2010 (Complaint of Iftikhar) AND HUMAN RIGHTS CASE NO.51057 OF 2010 (Application by Abdul Rauf) AND CRIMINAL REVIEW PETITION NO.18 OF 2019 IN CRIMINAL ORIGINAL PETITION NO.120 OF 2016 AND WRIT PETITION NO.22818 OF 2016 Mainland Husnain Pakistan Limited and another …Petitioner(s) Versus Pakistan Railways through Secretary and another …Respondent(s) For the petitioner(s): Mian Allah Nawaz, Sr. ASC For the applicant(s): Nemo (in H.R.C. No.51057/2010) Nemo (in H.R.C. No.29324/2010) For respondent(s): Sardar Muhammad Aslam, ASC Const.P. No.2/2011, etc. -: 2 :- (respondent No.4 to 6) Mr. M. S. Khattak, AOR (respondent No.9 and 13) Mr. Salman Akram Raja, ASC Assisted by Abuzar Salman Khan Niazi, Advocate, Malik Ahsan Mehmood, Advocate, Asad Lodha, Advocate and Malik Ghulam Sabir, Advocate (respondent No.1) Mr. Wasim Sajjad, Sr. ASC Mr. M. S. Khattak, AOR (respondent No.8) Mr. Shahzada Mazhar, ASC Ch. Akhtar Ali, AOR (respondent No.14) Nemo (respondent No.15) Ch. Aitzaz Ahsan, Sr. ASC Syed Faisal Hussain Naqvi, ASC (respondent No.16 and the applicants in C.M.A. No.2960/2019) Mr. Ali Zafar, ASC Mr. Zahid Nawaz Cheema, ASC (respondent No.17 and in Crl.R.P. No.18/2019) For Pakistan Railways: Sh. Rasheed Ahmed, Federal Minister Mr. Iftikhar Ahmed, Audit Officer Mr. Shakeel-ur-Rehman Khan, ASC (in W.P. No.22816/2016) For A.F. Ferguson: Mr. Mansoor Usman Awan, ASC (in CMA.1864/2019) For the Federation: Mr. Sajid Ilyas Bhatti, Addl. A.G. Pak. For NAB: Mr. Nayyar Rizvi, Addl. P.G. Mr. Naeem Tariq Sanghera, Special Prosecutor Date of Hearing: 11.04.2019 ... JUDGMENT IJAZ UL AHSAN, J.– The brief facts necessary for decision of the instant matters are that the Provincial Government granted a lease in perpetuity of a prime property located on Canal Bank Road, Lahore to the Railways Department during pre- partition times. The Railways Golf Club (“Club”) was set up on such property in 1911. Its objective was to provide recreational Const.P. No.2/2011, etc. -: 3 :- facilities to the employees of the Railways Department. The Club comprised of an 18-hole golf course, a swimming pool, club house and housing accommodation for the lower staff of the Railways Department. In 2000, a decision was made to offer the Club on commercial lines to interested parties to finance, redesign, develop and manage its operations. To this end, advertisements were issued in various newspapers, i.e. advertisement in an English newspaper dated 16.03.2000 (“First Advertisement”), advertisements in English and Urdu newspapers dated 23.08.2000 (“Second Advertisement”), and advertisement in an English newspaper dated 10.09.2000 (“Third Advertisement”). Pursuant thereto, six parties submitted their expressions of interest and applications for pre-qualification, i.e. Husnain Construction Company-Unicon Consulting Joint Venture, Pakistan Services Limited, Meinhardt Singapore Private Limited, Bradenton International Enterprises, Fidelity Investment Bank Limited and Gharibwal Cement Limited. A three-member committee carried out an initial evaluation and pre-qualified four parties, namely, Husnain Construction Company-Unicon Consulting Joint Venture, Pakistan Services Limited, Meinhardt Singapore Private Limited and Gharibwal Cement Limited, which were issued the bid documents. Vide letter dated 01.04.2001, an Evaluation Committee comprising of Director Marketing, Director Property and Land and Divisional Superintendent was recommended to evaluate the proposals received for the project. Out of the pre-qualified parties, Husnain Construction Company-Unicon Consulting Joint Venture, Pakistan Services Limited and Meinhardt Singapore Private Limited submitted their bids. The Evaluation Committee completed the evaluation of the bids and vide evaluation report dated 20.04.2001 (“Bids Evaluation Report”) recommended to the Evaluation Committee of the Railway Board to award the contract to Husnain Construction Company-Unicon Consulting- Maxcorp Joint Venture having scored 89 marks, while Pakistan Services Limited was awarded 36 marks and the bid of Bradenton International Enterprises was declared to be non-responsive. Finally, pursuant to an approval dated 20.04.2001 of the Executive Committee of Pakistan Railways, the Pakistan Railways Golf Club Lahore Leasing Agreement dated 26.07.2001 (“Agreement”) was Const.P. No.2/2011, etc. -: 4 :- executed in favour of a consortium comprising of respondents No.14, 15 and 16, namely Maxcorp Development Sdn Bhd (“Maxcorp”), M/s Husnain Construction Company (Private) Limited (“Husnain Construction Company”) and Unicon Consulting Services (Private) Limited (“Unicon Consulting”), respectively (“Maxcorp consortium”). According to the Agreement, Maxcorp-Husnain (Private) Limited was to be the lessee, which subsequently became respondent No.17, i.e. Mainland Husnain Pakistan Limited (“MHPL”).1 Be that as it may, construction work was undertaken and various facilities including restaurants/dining areas, swimming pools, etc. were constructed. The golf course was also redesigned. Simultaneously new membership was opened with a new name “Royal Palm Golf and Country Club”. The membership fee was increased manifold and membership of old members of the Railways Golf Club was cancelled. In consequence of misgivings expressed about the mode manner and transparency of the process the matter was taken up by the National Assembly of Pakistan which constituted a Committee (“NA Committee”) to examine this issue. The NA Committee summoned the parties, recorded statements and prepared a report (“NA Report”). In its report, the NA Committee came to the conclusion that the lease had been awarded under questionable circumstances. However despite the NA Report, neither Pakistan Railways nor the Government of Pakistan took any action against those alleged to be involved in this matter. 2. It is alleged in the instant matters that the lessee(s) defaulted in its payment obligations and various payments which were due were paid after considerable delay; that on account of various acts, omissions and commissions on the part of the respondents, huge losses to Pakistan Railways and the national exchequer had been occasioned; the process of award of the contract was tarnished, tainted and non-transparent; and amounts in excess of rupees one billion were collected by way of membership fee which was utilized by the management in a non- transparent and questionable manner. The petitioners claim to 1 The terms “Maxcorp consortium”, “MHPL” and “lessee” shall be used interchangeably throughout this opinion, as deemed appropriate. Const.P. No.2/2011, etc. -: 5 :- have moved various applications with the then Chief Executive of the country, the then Federal Minister for Railways and Communications and the General Manager Pakistan Railways, Lahore in addition to a large number of State functionaries. However, their efforts proved to be an exercise of futility. Having exhausted all other avenues and considering the colossal nature of potential loss to the State exchequer, the petitioners, who are public spirited citizens, approached this Court by filing a constitution petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”). Petitioner No.1 is a former minister, former member of the National Assembly of Pakistan and member of the erstwhile Club, while petitioner No.2 is a former minister and former member of the National Assembly. 3. The matter was initially taken up by this Court on 13.01.2011 when the following order was passed:- This petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 along with listed Human Rights Case has been instituted on behalf of Ishaq Khan Khakwani and Dr. Mubashir Hassan, wherein alleged scam in awarding on lease equal to 141 acres of land lying in the heart of the city of Lahore to respondent No. 15 Husnain Construction Company (Pvt) Ltd. has been highlighted. 2. According to the facts narrated by Mian Allah Nawaz, learned Sr. ASC for the petitioners, the land belonging to the Railways Department has been leased out in a highly non- transparent manner without following settled procedure in vogue in the country for such purpose. In this behalf, in the notice published in the newspaper under the caption “Expression of Interest”, no specification of the land with its measurement etc was mentioned, however, subsequently, this very notice was converted into an “Invitation” and on the basis of recommendations of a Committee this prime land was leased out as aforesaid. Initially, the area which was to be given to the lessee was equal to 103 acres but, subsequently the same was increased to 141 acres. Probably according to learned counsel, in pursuance of some negotiations when the final agreement was executed the area was raised to 141 acres and the period of lease of 33 years, too, was converted into 49 years. He explains that a lot of hue and cry was raised against this deal from different quarters including persons well-connected with it and the citizens of the country, but no appropriate and timely action was taken. The Special Committee comprising parliamentarians was, later constituted which gave its recommendations, copy of which has been placed on record, despite that no action seemed to have been taken so far. He further states that after filing instant petition, rather; he was astonished to know through newspaper ‘The Express Tribune’ dated 9th January, 2011, that recommendations of the Special committee were dropped. It is to be noted that the relevant news item was published under Const.P. No.2/2011, etc. -: 6 :- caption “Political Expediency, Report of Railway Land Fraud Dropped”, contents of which are reproduced as under:- ………………………………………………………………… 3. With a view to confirm the above news item, on being asked, Mr. Rauf Klasra, its originator attached with the said newspaper, has appeared and stated that according to his knowledge after receipt of recommendations from the Special Committee in the month of October, 2010, no action has been taken upon it, the reasons of which he has mentioned in the story- published in the newspapers (details of which have been reproduced herein above). As per his interpretation, a case of big scam in which initially Rs.25 billions of this nation now increased to Rs.50 billion involved, has been spelt out. He further states that he has strong reasons to substantiate his plea in view of the background of this case which he explained precisely and added that initially Mr. H.U. Baig was the Chairman of Public Accounts Committee (PAC) who had taken up this matter but without making final conclusions about this scam despite availability of an authentic audit report of the Auditor General confirming the allegations of land scam in the Railway Department. According to his belief, he states, after the general elections Mr. Allah Yar, MNA was made Chairman of PAC who also did not venture to finalize report of his predecessor Chairman PAC or the report of Committee and in this manner a period of about more than 8 to 10 years passed away without any progress, therefore, his apprehension as expressed by him in the news item noted hereinabove is substantial and is liable to be sustained. Similarly Mr. Munawar Abbas, Additional Secretary, National Assembly, confirms that Special Committee had completed its report in the month of August, 2010 and so far it has not been placed before the House. 4. Mian Allah Nawaz, learned Sr.ASC with his petition has also placed on record report of the Special Committee on Railways’ land scam contents whereof have been confirmed with the news item published in newspapers, the Daily 'The News' Daily 'Dawn', etc. clipping of which are also available on record. 5. Thus, on having gone through the material available on record placed by the petitioner for perusal of this Court, we are prima-facie of the opinion that in terms of sub Article (3) of Article 184 of the Constitution a number of questions of public importance with reference to fundamental rights of public, the owners of the public property, as its income ultimately is likely to be spent upon the welfare of the public in the national interest, are involved falling within the four corners of Article 9 of the Constitution, therefore, this petition is admitted to regular hearing and notices are directed to be issued to the respondents as under: i. The Railway Board through its Chairman/Secretary Railways, Government of Pakistan, with directions: a. to produce complete file of the transaction which had taken place between the Railways and the Lessee and the record along with details/particulars of the officers involved in the transactions and also serve upon them notices to appear in the Court notwithstanding the fact whether he was Minister, or the Chairman or whatever his capacity may have been/may be. The latter on receipt of notices from the Chairman, shall appear before the Court on the next date of hearing to file reply to defend the instant petition and submit their point of view. b. The Chairman/Secretary, Pakistan Railways, to put up on record the audit report prepared by the audit in respect of instant transaction. He Const.P. No.2/2011, etc. -: 7 :- shall also submit the details of the criminal cases, if any, got registered in connection with the affairs of the instant case and with fate of the same and if the matter is pending before the Court, report shall also be obtained from the Court concerned and if no action has been taken so far, explain as to why the matter has not been taken up seriously so far, if the allegation of the scam alleged is correct. ii. Respondent No.2 to produce on record the notifications/appointment letters of the officers/officials with their details who were posted as the Chairman, the Secretary or officers in any other capacity at the time when the deal was executed. iii. Senior Member Board of Revenue, Punjab, to put up the revenue plans of the property indicating the ownership of the land in question. iv. The Executive Committee of Railway Board to place complete record of the deliberations undertaken before finalizing the deed and any other document which it considers necessary. Also, to file its reply and furnish the names of the Golf Club with their antecedents. v. General Manager, Manufacturing & Services P.R, Railway Carriage Factory, Islamabad, Respondent No.5 and Member Finance, Ministry of Railways, Respondent No.6, to submit the reply of this petition and any other valuable information available with them. vi. Director General (Audit) Railways with direction to place on record the authentic copy of the audit report prepared in this behalf and also submit whether the same was submitted before the Chairman PAC Mr. H.U. Baig and subsequently before the Chairman PAC Mr. Allah Yar and what was the fate of the same. vii. Lt. Gen. (R) Javed Ashraf Qazi, respondent No.8 and respondents Nos.9, 10, 12, 13, 14, 15 and 16 to file comments/reply of the petition along with supportive documents and explain with regard to the above noted documents which according to the petitioners were prepared and placed before the PAC but no action has so far been taken. So far as respondent No.15 M/s. Husnain Construction Company, is concerned they have to disclose the names of the persons/partners who are the lease holders and sponsors, Directors, etc. responsible for the functioning of the Royal Palm golf Club. viii. Notice be also issued to Lt. Gen. (R) Saeed-uz-Zafar, Ex- Chairman/Secretary, Pakistan Railways, Khurshid Alam Khan, Ex.-chairman/Secretary, Pakistan Railways and Major General (R) Hamid Hassan Butt, Ex.-General Manager through respondent No.1 enabling them to file the reply/comments as they are also allegedly involved in the scam, to be present during hearing of the case so they may have full opportunity to defend themselves. If they fail to appear, it would be deemed that they have nothing to rebut the allegations which have been leveled against them. 6. The replies by the concerned should be submitted within 10 days. The case is ordered to be fixed on 31st January, 2011. Thereafter, the matter was taken up on various dates of hearing and arguments were heard at length several times. While the matter was pending before this Court, various matters were initiated by the parties before various fora including the Lahore Const.P. No.2/2011, etc. -: 8 :- High Court which passed various orders from time to time. One such order constituted a management committee to run the Club. We were however informed that the said committee was ineffective, under the influence of the existing management and the funds of the Club were being syphoned off and all relevant records were being clandestinely removed. Thus on 27.12.2018, the following order was passed:- …Therefore the aforementioned orders are modified in that the committee constituted by the learned High Court is dissolved. A. F. Ferguson & Co. is appointed as the receiver of the Club. It is directed to immediately take over the Club and take into custody the entire record. The existing management is restrained from entering the Club, or removing any document/record therefrom or in any manner directly or indirectly interfering in the affairs and working of the Club till further orders. However, the normal activities of the Club and its operations shall not be impeded in any manner whatsoever including but not limited to its dining areas, gymnasium, sports activities, swimming pools, cinema halls and wedding functions that have already been booked and are to be held therein, which should be allowed to be held strictly as per the booking orders etc. 3. Writ Petition No.22818/2016 is withdrawn from the learned High Court and shall be heard along with Constitution Petition No.2/2011… A. F. Ferguson & Co. filed its preliminary report vide C.M.A. No.41/2019 and concise statements vide various civil miscellaneous applications. Pursuant to this Court’s order dated 04.04.2019, NAB has also filed its compliance reports vide C.M.A. No.3254/2019 containing a copy of Reference No.9/2018 filed in the Accountability Courts, Islamabad against various persons including the respondent(s) in Const.P. No.2/2011. 4. Learned counsel for the petitioners submitted that during Gen. (R) Pervaiz Musharraf’s era, various army personnel were inducted into Pakistan Railways on key posts without any competitive process. Several senior officers were removed from service through promulgation of an Ordinance. Then by way of another Ordinance, the Secretary, Ministry of Railways was to be the Chairman of the Board and there was to be an Executive Committee consisting of the Secretary, Ministry of Railways who was to be its Chairman for taking day to day decisions to be approved later on by the Railway Board. According to the learned counsel, this was done to accommodate Lt. Gen. (R) Ashraf Javed Const.P. No.2/2011, etc. -: 9 :- Qazi who was first appointed as Secretary/Chairman, Pakistan Railways and subsequently as Federal Minister for Railways and Communications. He in turn appointed several persons of his choice without any competitive process as is required for such appointment and these positions were doled out to personal favourites without any consideration of competence or merit. Learned counsel pointed out that few months later, manipulated advertisements were issued inviting expressions of interest to finance, redesign, develop and manage the operations of the Pakistan Railways golf course. The Club was suddenly closed and memberships cancelled after which the buildings were bulldozed. It is the petitioners’ case that the advertisements calling for submissions of expression of interest neither provided the details of the property to be commercialized nor asked the interested parties to submit their bids. According to the learned counsel, the expression of interest documents were taken to be offers against the canons of contract law. Thereafter, an Evaluation Committee was constituted which prepared a report dated 20.04.2001 and gave its recommendations. The Executive Committee of the Railway Board on the same date recommended Maxcorp for undertaking the project. Learned counsel questioned as to how the report of the Evaluation Committee was prepared in Lahore and sent to Islamabad on the same day for the signatures of the members of the Executive Committee of the Railway Board. Thereafter, unauthorized negotiations were carried out resulting in conversion of the expression of interest into a financial bid. He submitted that the foregoing indicates that everything was pre-planned in order to favour Husnain Construction Company. Learned counsel argued that the terms of the Agreement were different from the decision dated 20.04.2001 in that the period of the lease was increased from 33 to 49 years in a one-sided and arbitrary manner, which was extendable, the area was mysteriously increased from 103 to 141 acres, Phase II was added, the usage charges of land amounting to Rs.21.6 million were omitted and Rs.4/- per square yard were kept with 15% increase every three years. All these steps were taken and changes in basic terms and conditions made behind the backs of other potentially interested parties to grant undue favours. It is submitted that different categories of Const.P. No.2/2011, etc. -: 10 :- membership were offered for which the fee ranged from Rs.5 to 15 lakh. Learned counsel fully supported the findings of the NA Report according to which the Railways Department had suffered colossal losses. In support of his arguments, he relied upon the judgments of this Court reported as Habibullah Energy Limited and another v WAPDA through Chairman, etc. (PLD 2014 SC 47). 5. Learned counsel for respondent No.1, the Railways Board, submitted that the area of the land handed over (141 as opposed to 103 acres as advertised), the tenure of the so-called lease (an unregistered document purporting to be a renewable lease for 49 rather than 33 years) and the terms pertaining to the use and revenue sharing (exclusion of all revenue from the sale of food and beverage) reflect a most substantial departure from the terms that were advertised and on the basis of which bids were invited. According to the learned counsel, the documentary evidence substantiates the fact that the foregoing terms were altered for the benefit of respondents No.14, 15 and 16 after the last date for the submission of bids without a fresh advertisement being issued indicating the change in the said terms. Furthermore, the terms granted to the said respondents through the Agreement were substantially different, to their benefit, from the terms that were approved by the Railway Board’s Executive Committee on 20.04.2001. He argued that the foregoing constitutes a gross violation of due process and transparency in the execution of the Agreement and in light of the law laid down in Habibullah’s case (supra), the Agreement and all related transactions are liable to be declared void. Furthermore, he pointed out that Pakistan Railways has terminated the Agreement vide letter dated 26.05.2016 which has not been challenged in any Court of law by the private respondents. Learned counsel submitted that contracts that deal with public assets or carry an element of public interest or grant access to public assets may be set aside in judicial review by the superior Courts under Articles 199 and 184(3) of the Constitution when such contracts are found to be tainted on account of a failure to follow due process, including departure from the terms/conditions advertised to the public at large. Learned counsel also submitted that it is within this Court’s jurisdiction under Const.P. No.2/2011, etc. -: 11 :- Article 184(3) supra to issue a declaration to the effect that the dubious and non-transparent Agreement executed in favour of respondents No.14, 15 and 16 is non est and void ab initio and refer the matter to NAB to determine criminal liability related to the transaction in question. Furthermore, according to him the instant civil proceedings and the criminal proceedings before NAB can proceed simultaneously and independently without being affected by each other. He referred to various judgments of the superior Courts of the country in support of his contentions. 6. Learned counsel for respondent No.4, the Executive Committee of the Railway Board, stated that the then members of such Committee were Mr. Khurshid Ahmed Khan (Former Member Finance and Secretary/Chairman Railways), Lt. Gen. Retd. Saeed Uz Zafar (former Secretary/Chairman Railway Board), Maj. Gen. Retd. Hamid Hasan Butt (former General Manager Manufacturing and Services Railway) and Mr. Iqbal Samad Khan (former General Manager Manufacturing and Services Railway). He submitted that during the period that the afore-named persons were part of the Executive Committee, the performance of the Railways Department remained outstanding with an increase in revenues. Learned counsel argued that the assertions raised by the petitioners are fake, baseless and against the true facts; that no Railway administration raised any objection against the Agreement since its signing till 2016; and previously NAB had recommended closure of this case. According to him, the said persons have filed their respective versions vide C.M.As. No.393 to 395 and 535/2011 which may be considered as part and parcel of his arguments. Learned counsel prayed that the instant petition be disposed of without any observations against the afore-named persons who are currently facing trial before the Accountability Courts lest it may prejudice them and their cases. 7. Learned counsel for respondent No.8 submitted that his client was appointed Secretary Railways on 27.10.1999 and held that office till 04.09.2000 after which he was appointed as the Minister for Railways on 05.09.2000 and held such office till November, 2002. While he was Secretary Railways, he was directed Const.P. No.2/2011, etc. -: 12 :- to generate his own funds as the Government was not in a position to do so. Although the Cabinet authorized him to sell land, if necessary, he did not do so. Previously, the golf course of the Club was generating only Rs.12 per year as lease money. Respondent No.8 decided to cancel the lease and commercialize the land to generate more revenue for Pakistan Railways. During his tenure as Secretary Railways, two advertisements were issued in the national press on 23.08.2000 and 10.09.2000 inviting expressions of interest for the golf course pursuant whereto there was no proper response and on 04.09.2000, respondent No.8 relinquished his charge and weas thereafter neither involved in any negotiation nor the process of the award of contract. His role was only limited to that of a Minister under the Rules of Business, 1973. According to the learned counsel, NAB has involved respondent No.8 with mala fide intentions on the ground that he presided over a staff conference dated 02.07.2001 at Islamabad where it is alleged certain decisions were taken. However, the learned counsel submitted that this staff conference was not a secret meeting and was attended by all the senior officers of Pakistan Railways. It is submitted that the minutes of such staff conference regarding the revision of terms of contract with Maxcorp and the question of construction of the hotel are being misused against respondent No.8 to alleged that the entire contract was being revised as a result of this meeting. The other matters discussed in the conference were a briefing on terms already agreed to by the Executive Committee which was the competent authority and respondent No.8 had no role whatsoever who is being framed. 8. It is the case of respondent No.14, Maxcorp, that it came to know about the project somewhere in January, 2001 when a common friend introduced them to Gen. (R) Pervaiz Muhsarraf at a lunch meeting in Kuala Lumpur, Malaysia. Thereafter, on being encouraged by Gen. (R) Pervaiz Muhsarraf, the representatives of Maxcorp visited Pakistan for inspection of the land and agreed that the project could be taken up through a joint venture company. However, Maxcorp did not participate in any of the events/applications including the pre-qualification application filed before January, 2001. Maxcorp believes that Husnain Const.P. No.2/2011, etc. -: 13 :- Construction Company and Unicon Consulting used Maxcorp’s name, experience and track record to obtain the award of the project in the name of the joint venture company as the latter two companies did not have any prior experience in construction, development or financing or a golf club which was necessary for pre-qualification. After completion of the golf course, Husnain Construction Company and Unicon Consulting bought out the shares of Maxcorp in the joint venture company and refused to settle the outstanding dues for construction of the golf course for which Maxcorp is pursuing a suit for recovery in the Civil Court, Lahore. Maxcorp prayed that it be relieved of any liability towards Pakistan Railways in the aforementioned circumstances. 9. It is the case of respondent No.16, Unicon Consulting, that it is a reputed company, the Agreement was not awarded illegally and there was no “alliance” that led to its award and signing. The expressions of interest were not converted into bids, rather after the submission of documents for pre-qualification, pre- qualified parties were issued tender documents and asked to file bids pursuant to which the Agreement was signed with the winning bidder. The initial mention of the 33 year lease was only because it was a common lease term; the land usage charges remained Rs.4 per square yard with the total land usage charges being mistakenly written as Rs.21.6 million instead of Rs.2.16 million; there was no increase in the land area bid by the consortium which was always based on approximately 140 acres and permission to bid for additional area had been expressly given by Pakistan Railways; and the construction and operation of a hotel was done pursuant to a specific directive from the then Railways Minister. Unicon Consulting denied the legality of the NA Report as the NA Committee did not associate the said respondent in the proceedings or provide them an opportunity of hearing. Maxcorp’s decision to leave the consortium was as per its own wishes on the basis of the agreement between the parties. Finally, the consortium had always offered the share of royalties after excluding food and beverage. The hotel has not been built because Pakistan Railways has not yet handed over possession free of encumbrances of the land where the hotel is supposed to be built. Const.P. No.2/2011, etc. -: 14 :- The claim that the Agreement has been achieved through fraud and deceit has not been substantiated with any evidence and the petitioners have approached this Court with unclean hands and malafide intentions. 10. Learned counsel for respondents No.17, MHPL, made certain preliminary submissions:- i. Since Reference No.8/2018 dated 24.03.2018 has been filed by NAB in the Accountability Court inter alia against the parties in the instant petition, therefore any finding on any of the issues, whether in favour or against any party, will cause prejudice to the criminal trial in the Accountability Court, therefore, in the interest of justice and fairness, the instant petition ought to be disposed of till the final outcome of the trial in the Accountability Court; ii. The factual controversies involved in this case need to be addressed through evidence and cannot be decided in proceedings under Article 184(3) of the Constitution; iii. This Court lacks jurisdiction under Article 184(3) ibid as the matter is not of public importance and does not involve the enforcement of fundamental rights rather pertains to the legality or otherwise of a contract; iv. Pakistan Railways cannot file any legal proceedings to have the Agreement declare void due to its own mistakes; v. As per Clause 23 of the Agreement, the proper forum for adjudication of any disputes between Pakistan Railways and MHPL, is to be decided through arbitration; vi. There is no intelligible differentia between the Agreement and any other contract between the Government and a private party warranting the validity of such Agreement to be adjudicated upon directly in this Court under Article 184(3) of the Constitution which would be violative of Article 25 of the Constitution; Const.P. No.2/2011, etc. -: 15 :- vii. No established or written law has been alleged to have been violated by Pakistan Railways or MHPL at the time of execution of the Agreement; and in 2001 there was no statutory law relating to public procurement. Besides, Pakistan Railways followed the proper procedure throughout the process; viii. Petitioner No.1 has not come with clean hands. He is an interested party as he was one of the members running the golf course prior to its privatization and is aggrieved because this right to run the affairs of the golf course was taken away from him. Furthermore, he never chose to take any action himself while in Government and he filed the instant petition after 10 to 11 years after the execution of the Agreement. Moreover, he has concealed the fact that Writ Petition No.7072/2001 was dismissed on 14.05.2001 which was never appealed against. Neither did the current Railway Minister, Mr. Sheikh Rasheed Ahmed, raise any objection pertaining to the award of the contract. 11. On merits, learned counsel for MHPL made the following arguments:- i. All the terms and conditions of the Agreement were complied with and fulfilled by MHPL which spent more than Rs.1.5 billion to build the project which is a fully functional golf and country club of international standards creating employment and generating income for Pakistan; ii. The reference of 103 acres in the advertisements was to the area of the golf course and not the site in general. There was no restriction in the advertisements that the proposed design/plan for the entire project had to be within the minimum of 103 acres of the golf course itself or that the site was limited to 103 acres. The advertisements left it to the interested parties to give their best design/plan keeping in view the site as a whole and made it clear that the proposed design/plan for the Club, the existing golf course and other areas may be redesigned. Furthermore, the use of the word Const.P. No.2/2011, etc. -: 16 :- “currently” in one of the advertisements meant that the area of the golf course could be varied subsequently; iii. The tender documents stated very clearly that the Club could be extended, redesigned, reconfigured or developed by the proposers for the commercialization of the Club and facilities adjacent to it; iv. The reality of the matter is that a golf course of international standards requires a minimum of 120 acres of land and it is not possible to encompass it in 103 acres let alone incorporate a golf club, tennis courts, swimming pools, squash courts as well; v. The bid documents clearly specified that the parties could in the proposed design suggest any other additional facilities that they would like to incorporate in the project over and above those that were specified by Pakistan Railways; vi. Under the bid documents, the designated person to issue clarifications in respect of the project was the Deputy Director Marketing of Pakistan Railways therefore the letter dated 28.02.2001 confirming that the design proposal could be in respect of the entire area of the site was in conformity with the bidding documents and advertisements; furthermore, this letter was sent to all the bidders; vii. The design of MHPL for the project on 135 acres was examined and approved without any objection as follows: the Evaluation Committee evaluated the technical proposal of the consortium based on a golf and country club of 135 acres as per the Evaluation Report; the letter dated 20.04.2001 which was sent to the sponsors of MHPL confirming that their bid has been accepted also showed that the total area for which the design proposal had been accepted was 135 acres; the draft of the Agreement which was approved by the Ministry of Law and Justice on 23.05.2001 also contained the area of 135 acres; the Executive Committee of Pakistan Railways discussed the Const.P. No.2/2011, etc. -: 17 :- entire proposal of MHPL containing the design for 135 acres for the project and approved the same on 26.06.2001; the area was again approved in the Minister’s Staff Conference on 02.07.2001; and the final Agreement also specified that the land for the project was 135 acres and the land of the hotel was 5 acres and this Agreement was approved by the Executive Committee on 21.07.2001. viii. If anyone had any objection or doubt that the area for the proposal could not be more than 103 acres as per the bidding documents or the advertisements for expressions of interest, these respective bodies would not have given their approvals; ix. There is no loss to Pakistan Railways or any unlawful gain to MHPL by finalizing the design of the project on 135 acres; x. Courts ought to lean in favour of an interpretation which upholds the validity of contracts and transactions, especially if the project has been built and third party rights have been created in the form of memberships and the project has been implemented for the past 18 years; xi. While the bidding documents mentioned 33 years as the lease period, MHPL submitted a bid for 66 years because the return on such huge investments is not possible in a short span of 33 years; therefore after evaluation, Pakistan Railways ultimately agreed to approve the lease period of 49 years vide letter dated 21.07.2001; besides if the lease period is to be reduced to 33 years, it can be so done under Clause 28.1 of the Agreement; xii. The figure of 21.6 million per annum appearing in the internal letter dated 20.04.2001 can be explained by mathematical calculation of converting 135 acres to square yards and multiplying the same with Rs.4 per square yard which turns out to be 2.16, with the figure of “21.6” being a result of a typographical error as explained by the Director Marketing of Pakistan Railways in his concise statement; Const.P. No.2/2011, etc. -: 18 :- xiii. There was no revenue sharing item from food and beverages. The only revenue sharing item in respect of restaurants was the revenue from the hotel and since the sponsors of MHPL did not bid for the hotel, the sharing of revenue from the hotel was not part of the bid. In the bid of MHPL, an offer was made to share 10% of the revenue from club membership, from sports and recreational facilities and sale of consumer items which were approved at all stages; and xiv. MHPL did not give a design proposal for developing a hotel however on 02.07.2001 in the Minister’s Staff Conference it was decided that MHPL should also make a bid for a 5 star hotel and in compliance therewith, MHPL made an offer to build a hotel as a project distinct from the golf and country club in Phase II on additional land of 5 acres which was accepted by the Executive Committee of Pakistan Railways on 21.07.2001 and it was accordingly incorporated in the Agreement. 12. We have heard the learned counsel for the parties and those who made submissions in person and have examined the voluminous record. Before proceeding further, we deem it appropriate to first consider the preliminary objection raised by the learned counsel for MHPL that contracts such as the Agreement cannot be taken cognizance of by this Court under Article 184(3) of the Constitution. In this regard it is pertinent to note that this Court has consistently upheld the power of judicial review by the superior Courts of Pakistan. Albeit in the context of the constitutional jurisdiction of the High Court under Article 199 of the Constitution, in the judgment reported as Messrs Airport Support Services v The Airport Manager, Quaid-e-Azam International Airport, Karachi, etc. (1998 SCMR 2268) a three member bench of this Court held as under:- It has consistently been held that while routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities or like controversies if involving dereliction of obligations, flowing from a statute, rules or instructions can adequately be addressed for Const.P. No.2/2011, etc. -: 19 :- relief under that jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided. Furthermore, in Habibullah’s case (supra) it was opined as follows:- …as has been repeatedly held the jurisdiction of the Superior Courts of Judicial Review for the enforcement of Fundamental Rights is not a “closed shop” particularly, in the context of Public Interest Litigation (PIL)… 26. The nature, scope and extent of the power of judicial review by the superior Courts of administrative actions and the grounds on the basis whereof such actions can be set aside has evolved with the passage of time and its contours stand clearly defined especially in the context of the award of the contracts by the State or its instrumentalities. The Court went onto rely upon the afore-reproduced extract from the Airport Support Services case (supra) after which it observed:- 28. An overview of the judgments reproduced or referred to herein above leaves little room for doubt that it is now a well-settled principle of law that all public functionaries must exercise public authority, especially while dealing with the public property, public funds or assets in a fair, just, transparent and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens. This would hold true even in the absence of any specific statutory provisions setting forth the process in this behalf. Therefore, it is not really relevant whether the transaction in question was governed by the Ordinance, 2000 or the-Rules, 2004 or neither. It is an equally well settled principle of law that such actions of public functionaries are always subject to Judicial Review. No doubt, while exercising its jurisdiction, the Superior Courts neither sit in appeal over the administrative actions nor interfere on account of inconsequential deviations, as has been observed in Dr. Akhtar Hassan Khan's case (supra). However, where the administrative authority acts in a discriminatory manner and action fails the test of reasonableness, transparency and/or is otherwise unjust and unfair or suffer from mala fide, the Courts not only are vested with the jurisdiction to set aside such action but any failure in such an eventuality to exercise the power of Judicial Review, when invoked, would make the Court a party to such unreasonable, unfair, mala fide and illegal action. Const.P. No.2/2011, etc. -: 20 :- While hearing a constitution petition under Article 184(3) of the Constitution in the case of Wattan Party through President v Federation of Pakistan through Cabinet Committee of Privatization, Islamabad, etc. (PLD 2006 SC 697) pertaining to the privatization of Pakistan Steel Mills Corporation, a nine member bench of this Court made the following observations with respect to its jurisdiction under the noted provision:- While exercising the power of judicial review, it is not the function of this Court, ordinarily, to interfere in the policy making domain of the Executive which in the instant case is relatable to the privatization of State owned projects as it has its own merits reflected in the economic indicators. However, the process of privatization of Pakistan Steel Mills Corporation stands vitiated by acts of omission and commission on the part of certain State functionaries reflecting violation of mandatory provisions of law and the rules framed thereunder which adversely affected the 'decisions qua prequalification of a member of the successful consortium (Mr. Arif Habib), valuation of the project and the final terms offered to the successful consortium which were not in accord with the initial public offering given through advertisement. For the foregoing reasons, the Letter of Acceptance (LoA) dated 31st March, 2006 and Share Purchase Agreement dated 24th April, 2006 are declared as void and of no legal effect. It was observed by this Court in Suo Motu Case No.13 of 2009 (PLD 2011 SC 619) pertaining to the Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for the development of land in Sector E-11 Islamabad, that:- 24. It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides... ...The Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or Const.P. No.2/2011, etc. -: 21 :- restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory. While relying on the afore-reproduced extracts, this Court in the case of Raja Mujahid Muzaffar, etc. v Federation of Pakistan, etc. (2012 SCMR 1651) observed as follows:- 31. Public funds, public property, licenses, jobs or any other government largesse is to be dealt with by public functionaries on behalf of and for the benefit of the people. Public authority must necessarily be examined in accordance with law keeping in view the Constitutional Rights of the citizens. Thus, this Court has not hesitated in the exercise of its jurisdiction of judicial review conferred by Article 184(3) of the Constitution to scrutinize matters where public money is being expended through procurement or public property is being sold, so as to ensure that transactions are undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality. 33. This jurisdiction has been exercised consistently and repeatedly by this Court to scrutinize transactions undertaken by the Government so as to ensure that public money and public property is not squandered or stolen. While hearing certain human rights cases, this Court In the matter of: Alleged Corruption in Rental Power Plants etc. (2012 SCMR 773) opined as under:- In the light of the above dictum, there could be no cavil with the proposition that as far as transparency in the implementation of the policy, if available, the process of awarding contract is concerned, it squarely falls within the jurisdiction of this Court available to it under the Constitution and the power of judicial review. 17. It is important to note that all the executive authorities are bound to enter into contracts for supplies at the least expense to the public exchequer. Most significant consideration for every department of the Government must be the best economical mode of meeting the public needs. Agreements for pecuniary considerations are against public policy, as such, are void…Considerations as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, the action of every department of the government. No other consideration can lawfully enter into the transaction, so far as the government is concerned. Such is the rule of public policy, and whatever tends to introduce any other elements into the transaction is against public policy. That agreements, like the one under consideration, have this tendency is manifest. They tend to introduce personal solicitation and personal influence as elements in the procurement of contracts, and thus directly lead to inefficiency in the public service and to unnecessary expenditures of the public funds...it is sufficient to observe generally that all agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper Const.P. No.2/2011, etc. -: 22 :- means are contemplated or used in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation, by refusing them recognition in any of the courts of the country. Every action taken by the Government must be in public interest and its action would be liable to be invalidated on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid. In the case of Dr. Akhtar Hassan Khan, etc. v Federation of Pakistan, etc. (2012 SCMR 455) while hearing constitution petitions in which the privatization of Habib Bank Limited effected through open bidding was challenged, this Court was of the view that:- 34. The Courts while dealing with cases relatable to financial management by the government or awarding of contract by it must appreciate that these are either policy issues or commercial transactions requiring knowledge in the specialized fields. The Courts lack the expertise to express any opinion on the soundness or otherwise of such acts/transactions. The question whether a contractual transaction or decision taken in the exercise of executive authority by the Government can be subjected to judicial review has engaged the attention of constitutional courts in several countries and the judicial consensus generally has been that the Courts should ordinarily refrain from interfering in policy making domain of executive authority or in the award of contracts unless those acts smack of arbitrariness, favoritism and a total disregard of the mandate of law. 47. …These petitions are in the nature of public interest litigation and the Courts in exercise of its constitutional jurisdiction qua matters of public importance relating to enforcement of Fundamental Rights have been liberal particularly if the issue raised is relatable to a public injury arising from breach of public duty… Another important judgment is that of Khawaja Muhammad Asif v Federation of Pakistan, etc. (PLD 2014 SC 206) in which this Court held that it had the jurisdiction to hear a constitution petition and a human rights case pertaining to the award of a project by Sui Southern Gas Company Limited (SSGCL), a State enterprise, to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG) as it involved issues of public importance relating to such natural resources with reference to the enforcement of the fundamental rights guaranteed by the Constitution, as people all over the country who cannot obtain natural gas rely on supply of LPG for many of their needs and therefore impacted their ‘life’ as defined by this Court. The Court opined as follows:- Const.P. No.2/2011, etc. -: 23 :- 18. As noted above, the bid documents in the present case included a draft format of the Implementation Agreement which was to be the main instrument setting out the respective rights and obligations of SSGCL and the successful bidder. It is understandable that some parts of the Implementation Agreement have to be filled in on the basis of bids received, for example the royalty payment formula, compensation for gas shrinkage, compensation for acquisition of the plant etc. or to accommodate language etc. which does not materially alter the terms of the Implementation Agreement. If material changes are brought about in the Implementation Agreement subsequent to the bidding, this will in fact negate the notion of a fair and open competitive bidding process. In the present case, it has all along been urged by JJVL that the bidding for the LPG extraction plant was competitive i.e. that bids were to be submitted on the basis of the bidding documents (including the draft Implementation Agreement) which were given to all pre-qualified bidders. The fact, however, is that the Implementation Agreement which was executed by SSGCL in favour of JJVL was very substantially and materially different from the draft Implementation Agreement. As will be apparent from the changes made in the draft Implementation Agreement, all such changes as have been discussed below were material in nature and had been made to benefit JJVL. These changes were never available to other pre-qualified parties. In Jamshoro Joint Venture Ltd., etc. v Khawaja Muhammad Asif, etc. (2014 SCMR 1858), which was the review filed in the aforementioned case, a five member bench of this Court upheld the order under review and held that:- The fact change in Article 2 is not disputed one and only the circumstances under which this change was brought about in the IA was the relevant question which has been effectively considered in our judgment and there is hardly any basis or justification supplied to change the view from the one expressed in the said judgment. The change in Article 2 was not merely of a curative nature but was a drastic departure from the original Article 2 of the IA which restricted the term of IA only upto 3-2- 2011 and by changing it, the term of IA was extended beyond 3-2- 2011 upto the currency of GSA. This has put JJVL in total advantageous position and left SSGCL with no opportunity to look for better and more favourable deal from the one offered by JJVL. In the judgment reported as Asaf Fasihuddin Khan Vardag v Government of Pakistan, etc. (2014 SCMR 676), while faced with a constitution petition under Article 184(3) of the Constitution challenging the appointment of the Director General, Civil Aviation Authority and the delay in the completion of New Benazir Bhutto International Airport Project, Islamabad (NBBIAP), a three member bench of this Court held as under:- Const.P. No.2/2011, etc. -: 24 :- 46. It is well settled by now that this Court has wide powers in terms of Article 184(3) of the Constitution to ensure that acts/actions of the other organs of the State, namely, Executive and Legislature do not breach the fundamental rights guaranteed by the Constitution. Under the principle of trichotomy of powers, the Judiciary is entrusted with the responsibility of enforcement of Fundamental Rights, which calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. The discharge of constitutional duty by the State functionaries in deviation to the spirit of the Constitution is anathema to the Constitution and is challengeable on diverse grounds including mala fide and colourable exercise of power for ulterior motive. It is not possible for judiciary to confer validity and immunity to the acts or actions which suffers from mala fide in exercise of power of judicial review…In matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. 48. There is no cavil with the proposition that as far as transparency in the implementation of the policy, if available, the process of awarding contract is concerned, it squarely falls within the jurisdiction of this Court available to it under the Constitution and the power of judicial review. 13. According to the aforementioned judgments, the scope of the power of judicial review under Article 184(3) of the Constitution can be summed up as follows:- i. Acts or omissions on the part of State functionaries reflecting violation of mandatory provisions of law or the rules framed thereunder; ii. Breaches of contracts which do not entail examination of minute/disputed questions of fact committed by public functionaries involving dereliction of obligations flowing from a statute, rules or instructions; iii. Public functionaries must exercise public authority, especially while dealing with public property, public funds or assets, in a fair, just, transparent and reasonable manner, untainted by malafides or colourable exercise of power for ulterior motives, without discrimination and in accordance with law, keeping in view the constitutional rights of the Const.P. No.2/2011, etc. -: 25 :- citizens, even in the absence of any specific statutory provisions setting forth the process in this behalf; iv. Interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by malafides; v. Governmental bodies powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner; vi. Public funds, public property, licenses, jobs or any other government largesse is to be dealt with by public functionaries on behalf of and for the benefit of the people; vii. Scrutinize matters where public money is being expended through procurement or public property is being sold, so as to ensure that transactions by the Government are undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality and public money and public property is not squandered or stolen; viii. The presence of elements such as personal solicitation and personal influence in the procurement of contracts directly leading to inefficiency in the public service and to unnecessary expenditures of the public funds; ix. All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution; Const.P. No.2/2011, etc. -: 26 :- x. If material changes are brought about in agreements subsequent to the bidding to benefit a particular party, this will in fact negate the notion of a fair and open competitive bidding process; and xi. Courts should ordinarily refrain from interfering in the policy making domain of the Executive or in the award of contracts and should not substitute its decision for that of the latter unless the acts or omissions smack of arbitrariness, favoritism and a total disregard of the mandate of law. 14. In light of the aforementioned principles, it is worthy to point out briefly the glaring facts from admitted documents which do not require a detailed inquiry or examination, and thus make the instant matter a fit case for judicial review:- i. The terms of the Agreement pertaining to the area of the property to be leased out, the term of the lease and the revenue sharing formula, were changed to benefit one bidder; ii. The terms and conditions of the Agreement were substantially and materially different from what was advertised; iii. Whole of the information was not available to all the potential bidders hence there was no level playing field; and iv. The project involved public money. In light of the foregoing, the objection raised by the learned counsel for the MHPL regarding the maintainability of the instant petition is misguided and thus overruled. 15. In order to determine the legality of the process that culminated into the Agreement, certain admitted documents need to be examined in chronological order in light of the principles of judicial review highlighted above. The process for awarding the contract pertaining to the Club appears to have begun with the advertisements. The First Advertisement is very vague and apart Const.P. No.2/2011, etc. -: 27 :- from stating that the Club is being offered on commercial lines for recreational purposes on lease/rental basis and that the site includes approximately 103 acres of the Golf Course, there are no other details about the project. Then the Second Advertisement was issued approximately five months later which contained more details. It was an invitation for expressions of interest from national and international parties having specific qualifications and experience in developing and managing golf courses with fully developed recreational, sports facilities and/or allied services for the development and management of the Club on a lease/rental or joint venture basis. It also provided that the property is currently an 18 hole, par-72 status golf course spread over approximately 103 acres which has a club house and a fully functional swimming pool. The Third Advertisement was issued approximately three weeks later which was almost a replica of the second, except one major, albeit camouflaged, change, i.e. details of prior experience in financing, development and management of five star hotels was required in addition to that of golf courses. It is clear from the foregoing that all three advertisements explicitly state that the lease or joint venture offer is for a site of 103 acres of land which was the entire 18 hole golf course along with a club house and a fully functional swimming pool. None of the advertisements mention that any area in excess of 103 acres was being offered. Thus the contention of the respondents that the property offered for lease was more than 103 acres is incorrect. Furthermore, the Third advertisement seems to have been issued to accommodate the afterthought of the construction of a five star hotel within the project premises. 16. Adverting to the bid documents dated 02.01.2001, in Appendix A to the form of the bid, the term of the Agreement is stated to be “33 years, further extendable with mutual consent of the parties”. In the technical proposal under the heading of ‘Explanation of Scope of Work’ it is also mentioned that the Club shall be available “for an initial period of thirty three (33) years (extendable with mutual consent of the parties)”. Furthermore, the bid evaluation form does not mention any evaluation criteria and corresponding weightage for the hotel and is restricted to the golf Const.P. No.2/2011, etc. -: 28 :- course, the club house and sports facilities. Be that as it may, on 28.01.2001, a computer generated response was sent by fax by Mr. Waseem Aslam, Deputy Director Marketing addressed specifically to Mr. Pervez Qureshi of Unicon Consulting which stated that additional land adjacent to the Golf Club can be made available subject to you’re (sic) requirements so as to facilitate the establishment of a hotel/resort.” Learned counsel for the respondents have sought to rely on the aforementioned fax to argue that the area of the land on offer was not restricted to 103 acres and that in fact they could have bid for any area of land considered desirable by them. It is an admitted fact that no fresh public advertisement was issued in this regard. As held in the case of Habibullah’s case (supra), “an advertisement is universally accepted as a condition precedent for ensuring a free, fair, open, competitive and transparent process for transfer of public assets or rights therein.” We are of the view that a change in one of the essential terms of the project specifically mentioned in the advertisements could not have been made without a fresh advertisement enabling all potential bidders to participate in the process. No compelling arguments have been put forward by the respondents for non-issuance of such advertisement, rather the learned counsel for MHPL tried to justify this omission by stating that a similar letter was issued to at least one other pre-qualified bidder. Be that as it may, that does not divest Pakistan Railways from following the proper procedure of having this change in one of the essential terms of the project advertised because had an advertisement to this effect been issued, it would have had an impact on the number of parties which submitted their expressions of interest. Besides, it is a computer generated letter which was not signed by any individual. Therefore, it is clear that the fax dated 28.02.2001 was a private communication which falls foul of the principles of due process and transparency that is attached to bidding pertaining to state land. Further, none of the respondents has been able to explain, under what authority of law did Mr. Waseem Aslam, Deputy Director Marketing, change a fundamental and vital term of what was advertised, and also incorporated in the bid documents. We therefore find that the said act of the Deputy Director Marketing was patently illegal, without Const.P. No.2/2011, etc. -: 29 :- lawful authority and clearly meant to favour one bidder to the complete exclusion of other interested and potential bidders. 17. The bid dated 06.04.2001 submitted by the Maxcorp consortium transgressed the terms of the advertisements in that it was for an area of 141 acres (as opposed to 103 acres in the advertisements) and was also for a period of 66 years as opposed to 33 years mentioned in the bid documents, although it was extendable with the mutual consent of the parties. Furthermore, the financial proposal for royalties provided for 10% of the total amount of Club membership fees (membership entrance fees and monthly subscription fees), revenue from sports and recreational facilities and revenue from the sale of consumer and other items to be paid to Pakistan Railways per annum with a minimum guaranteed amount of Rs.700,000, Rs.500,000 and Rs.600,000, respectively. There was no exclusion of revenue generated from any class of items falling under the head of ‘consumer and other items’, particularly from the sale of food and beverage. It was intended to cover all sales to consumers at the premises of the Club by the lessee and was not to be restricted to the sharing of “revenue from sale of merchandise products at the Golf Club” as eventually mentioned in the Agreement. This exclusion constituted a material departure from the financial proposal and would have led to a substantial reduction of amounts payable to Pakistan Railways and a corresponding increase in the income of Maxcorp consortium. This was clearly malafide and designed to cause wrongful loss to Pakistan Railways and wrongful gain for Maxcorp consortium. By consciously and deliberately agreeing to such departure, the concerned officials acted illegally and in violation of their mandate and caused huge financial losses to Pakistan Railways. 18. According to the Bids Evaluation Report dated 20.04.2001, out of six applicants who were pre-qualified, only three submitted their bids. The documents of Bradenton International Enterprises were returned for not being a “responsive” bid. The remaining bidders, i.e. Maxcorp and Pakistan Services Ltd., were awarded the following scores:- Const.P. No.2/2011, etc. -: 30 :- Applicant Financial (30%) Technical (70%) Total Marks Pakistan Services Ltd. 19.5 16.5 36 Maxcorp 25.5 63.5 89 It was further stated with regard to Pakistan Services Ltd. that they “have not complied with the Project concept that was advertised nor have they submitted a conceptual layout of the project they have proposed. In addition their proposal does not appear to be able [to] support the financial submission they have offered. Their submission does not sufficient (sic), logical and analytical basis for earning strong and stable base line with intermental (sic) potential, a percentage of which has to be given to PR.” Be that as it may, in the Golf Club/TOR Evaluation (Summary) and the Golf Club/TOR Evaluation attached thereto, it is specifically stated that the contract period for Maxcorp was to be 33 years. The Golf Club/TOR Evaluation also mentions a rate of 10% revenue sharing for the sale of consumer goods. Furthermore, while the Golf Club/TOR Evaluation makes reference to a hotel, there are no details regarding the same and only “Phase II” is mentioned with respect to both Maxcorp and Pakistan Services Limited. Finally, the document remains silent with regard to the area to be leased out. 19. On the same day that the Bids Evaluation Report was compiled, i.e. 20.04.2001, a letter was submitted by Mr. Khalid Naqi, Director Marketing, Lahore to the Executive Committee of the Railway Board, Islamabad for its approval, specifying the terms on which a contract may be awarded to the Maxcorp consortium (“First Letter of Contract Awarding”). It describes the Club spread over an area of approximately 103 acres with no mention of 140 acres. The terms prescribed therein were a land usage charge of Rs.21.6 million per annum (with 15% increase every three years) and royalty of 10% of the gross revenue (or a minimum guaranteed amount of Rs.1.8 million per annum) without any exclusions. It also mentions the lease period as 33 years, extendable. Const.P. No.2/2011, etc. -: 31 :- 20. Again on the same day, i.e. 20.04.2001, a letter of intent (“Letter of Intent”) was issued to the Maxcorp consortium informing them of being the successful bidder for the project. It also mentions that the draft agreement shall be forwarded to them in due course of time. It is worthy to note how the Bids Evaluation Report, its assessment by the Evaluation Committee, the First Letter of Contract Awarding, its approval by the Executive Committee of the Railway Board, and the Letter of Intent are all dated 20.04.2001. What is more peculiar is the fact that the First Letter of Contract Awarding issued by Mr. Khalid Naqi, Director Marketing who was stationed at the Directorate of Marketing of the Ministry of Railways at Lahore was transmitted to and signed by all four members of the Executive Committee of the Railway Board at Islamabad. The undue and unholy haste with which the foregoing documents were issued raises serious questions regarding their compliance with the rules and regulations as well as legality. Such activity was a mala fide attempt to give an appearance and false façade of a legal cover to the whole process which was clearly a sham. 21. In the meanwhile, on 23.04.2001, the President/General Manager of the Club gave instructions to close the golf course from 01.05.2001 for a period of 18 to 24 months and to cancel all memberships of the Club which would be re- opened when the new golf course of international standards is complete on the terms and conditions then specified, and that a notice to this effect be issued on the notice board which was done on the same date. 22. Then a letter dated 21.07.2001 was issued by Mr. Khalid Naqi, Director Marketing, Lahore to the Executive Committee of the Railway Board, Islamabad for its approval, modifying some of the terms on which the contract may be awarded to the Maxcorp consortium (“Second Letter of Contract Awarding”). The term of the lease was mentioned as 49 years, extendable, instead of 33 in the First Letter of Contract Awarding, and a Phase II was incorporated mentioning the licensing fee and the fixed guaranteed revenue share. There was still no mention Const.P. No.2/2011, etc. -: 32 :- that the area of the land that was to be leased out was to be 140 acres. 23. Finally, the Agreement was executed on 26.07.2001, pursuant whereto a private limited company under the name and style of “Maxcorp-Husnain (Private) Limited” was incorporated. According to the said company’s memorandum of association, the shareholding was as follows: five nominee directors of Maxcorp (Asia) Overseas Ltd. (a subsidiary of Maxcorp) held a total of 51 shares therein; three nominee directors of Husnain Construction Company held a total of 40 shares therein; and one nominee director of Unicon Unicon Global Services (Pvt.) Ltd. held nine shares therein. Possession of the property in question was handed over to the Maxcorp consortium. In order to cater for the increased area from 103 acres to 140 acres, several houses of the employees of Pakistan Railways (various houses and a number of quarters of low paid employees) were demolished. The finding of the NA Report was that this factum was established on the record. Besides, the said assertion has not been denied or contradicted during the course of the hearing. Under what authority of law was the additional land taken over and who ordered demolition of houses worth millions of rupees remains shrouded in mystery. It is pertinent to note the dates of the signatures of the members of the Executive Committee of the Railway Board on the Second Letter of Contract Awarding. While the signature of the Secretary/Chairman Railways is undated, that of the G.M. (M&S) Carriage Factory, ISD, Member Finance M/O Railways and G.M. (Ops) PR Headquarters are dated 24.07.2001, 25.07.2001 and 26.07.2001, respectively. Then on the same day that the G.M. (Ops) PR Headquarters signed the Second Letter of Contract Awarding, the Agreement was signed which indicates that the former was a mere eyewash. Furthermore, no initial draft of the Agreement was ever made a part of the bid documents or shown to any of the pre-qualified parties apart from the Maxcorp consortium after the issuance of the Letter of Intent wherein it was stated that the draft agreement shall be forwarded to them in due course of time. Const.P. No.2/2011, etc. -: 33 :- 24. Be that as it may, the terms eventually included in the Agreement were drastically and materially different from the terms originally conceived in the documents examined above. The first issue is regarding the area of the property in question. Recital A of the Agreement provides that “The Lessor is the owner of all those pieces of freehold land measuring approximately one hundred and forty (140) acres held under the name and more particularly described and marked in Exhibit A hereto”. Under Clause 1.1 of ‘Interpretations and Definitions’, “Property” is defined as “all those pieces of freehold land measuring approximately 140 acres, subject to Clause 2.6(i)(a) held under and more particularly described and marked in Exhibit A hereto”. This area of 140 acres was contrary to the acreage originally conceived for the project, i.e. 103 acres. The second issue is that of Phase II of the project, i.e. construction of a hotel. Under Clause 1.1 of ‘Interpretations and Definitions’, “Lessee’s Work, Phase II” is defined as “the financing, erection, procurement, construction, renovation, reconfiguration, redesigning, completion, operation, maintenance, management and possession of the Hotel” and Phase II of the “Project” is defined as “The erecting, procuring, constructing, developing, financing, managing, operating, running, possessing, maintaining, and controlling including lease or sub-let of the Hotel and earning of all the money from carrying out the above for the Lease Term and doing all acts and things necessary to achieve the above purposes.” Although the construction of a hotel was mentioned in the Third Advertisement, there are no details mentioned regarding Phase II of the project in any of the documents preceding the Agreement. The third issue is that of Phase III of the project as contemplated by the Agreement. Under Clause 1.1 of ‘Interpretations and Definitions’, “Lessee’s Work, Phase III” is defined as “the financing, erection, procurement, construction, renovation, reconfiguration, redesigning, completion, operation, maintenance, management and possession of any additional facility or facilities which may be mutually agreed by both Parties which may include but not necessarily [be] restricted to condominiums/apartments/office blocks” and Phase III of the “Project” is defined as “The erecting, procuring, constructing, developing, financing, managing, operating, running, possessing, maintaining, and controlling Const.P. No.2/2011, etc. -: 34 :- including lease or sub-let of any additional facilities that may be mutually agreed by both Parties including but not restricted to condominiums/apartments/offices blocks and earning of all the money from carrying out the above (the technical, financial details along with revenue share of Lessor shall be mutually agreed) for the Lease Term and doing all acts and things necessary to achieve the above purposes.” These provisions in the Agreement relating to Phase III of the project were nowhere mentioned in any of the documents prior to the Agreement, including the advertisements. It is unclear as to how this term could be subsequently incorporated into the Agreement at this final stage. The fourth issue pertains to revenue share which is defined under Clause 1.1 of ‘Interpretations and Definitions’ as “the percentage of the Gross Receipts payable by the Lessee to the Lessor as Revenue Share with respect to the activities as specified in Clause 6.1(i).” The noted clause provided for 10% per annum of the total amount of Club membership fees (membership entrance fees and monthly subscription fees) and revenue from sports and recreational facilities as mentioned in the financial proposal. However, the 10% per annum revenue from the “sale of consumer and other items” as envisaged in the financial proposal was changed to “sale of merchandise products at the Golf Club” in the Agreement. This is a stark contrast with the original revenue sharing formula and essentially excludes every item falling under the head of consumer and other items besides merchandise products. As regards the allegation regarding the change in usage charges of land from Rs.21.6 million in the First Letter of Contract Awarding to Rs.4/- per square yard in the Agreement, we find that as explained by the Director Marketing of Pakistan Railways, the figure of “21.6” million appears to be a result of a typographical error where the usage charges of land of 135 acres (540,000 square yards) multiplied by Rs.4 per square yard turns out to be “2.16” million. Be that as it may, it is manifest from the above that the Agreement that was finally executed between Pakistan Railways and the Maxcorp consortium was significantly and substantially different from the terms originally conceived in the various documents mentioned in the course of this opinion in order to benefit the Maxcorp consortium at the cost of causing losses to Pakistan Railways and consequentially the national Const.P. No.2/2011, etc. -: 35 :- exchequer. Further, all changes were made non-transparently, without following the processes and procedures and in utter and total disregard of the interest of Pakistan Railways, the very organization that these officials were employed to serve and protect. 25. Furthermore, it is an undisputed fact that Maxcorp left the consortium through a shareholder buyout by Husnain Construction Company on 15.01.2003 after building the first nine holes of the golf course although subsequently it was given a sub- contract by the latter to build the remaining nine holds. Thereafter vide Certificate of Incorporation on Change of Name dated 20.07.2004 issued by the Securities and Exchange Commission of Pakistan, the name of “Maxcorp Husnain Pakistan Limited” was changed to “Mainland Husnain Pakistan Limited”, i.e. respondent No.17. A public notice regarding the shareholder buyout and the change of name was issued in “The News” on 06.08.2004. We have been apprised that certain outstanding dues of Maxcorp remain unsettled in which regard litigation is pending in Pakistan. Such a convenient exit should not have been allowed under the Agreement in view of the fact that the name, antecedents, experience, financial resources and know-how of Maxcorp consortium in setting up and operation golf and country clubs was used as a major qualification to win the project. Be that as it may, this makes it apparent having fraudulently used the name of Maxcorp for the sole purpose of winning the project, Husnain Construction Company and Unicon Consulting maliciously elbowed it out to run the project on their own despite the fact that they did not have any prior experience in construction, development or financing of a golf club which was necessary for pre-qualification, for winning the project in the first place. 26. Finally, vide letter dated 26.05.2016 issued by the Secretary/Chairperson, Ministry of Railways, the Agreement was terminated on the grounds of failure to make timely payments, failure to send audited statements, failure to construct a five-star hotel and unauthorized construction and use of marquees and cinemas for public consumption. We have been apprised that the Const.P. No.2/2011, etc. -: 36 :- said termination letter has not been challenged in any Court of law by the private respondents. The learned counsel for the respondents have not disputed the said fact. That being the case, even otherwise the Agreement between the parties stands terminated. We see no lawful reason or basis for insistence of MHPL that they be put back into possession of the leased property and assets existing on the leased land and/or management of the Club. 27. We are of the opinion that considering the admitted documents on the record, the foregoing discussion evidences the various illegalities, procedural improprieties and violations of the well-established principles of due process and transparency involved in bidding which ought to be a fair and competitive process. The procedure adopted was tainted with mala fide and nepotism in order to award the project to a pre-determined party to the exclusion of others and was therefore devoid of transparency, fairness and openness. This rendered the whole process from the issuance of the advertisements to the execution of the Agreement unlawful. The transaction has been disowned by Pakistan Railways itself which has taken the categorical stand that the aforenoted process was plagued with lapses and irregularities by the then office bearers in collusion with MHPL in order to benefit the latter. This has necessarily resulted in huge losses to Pakistan Railways and the national exchequer on account of non-payment and/or withholding of dues which were already reduced by inclusion of unlawful terms in the Agreement excluding certain revenue. Litigation regarding various issues, including outstanding dues, violation of terms and conditions of the Agreement and membership fees, has seriously affected the functioning of the Club and further development of phases came to a halt. Bad blood and mistrust has developed between the parties and the pending litigation has prospects of lingering on for years on end without the possibility of any resolution. Withholding of potential income from leasing the property of Pakistan Railways is resulting in further losses. Const.P. No.2/2011, etc. -: 37 :- 28. We are in no manner of doubt that the entire process was tainted with mala fide and nepotism and no feasible resolution of the disputes between the parties is possible in the foreseeable future. In order to prevent future loss, this Court passed an order dated 27.12.2018 (reproduced earlier in this opinion) as a stop gap arrangement which is continuing but needs to be replaced by a more permanent arrangement. 29. The Federal Minister for Pakistan Railways has entered appearance on his own accord and requested to be heard in person in such capacity. In the interest of justice, we have permitted him to do so. The Honourable Minister has systematically taken us through the record and vehemently emphasized that valuable and expensive State property including Pakistan Railways Club which is situated in the heart of Lahore were given as largesse for political and personal considerations without due process following the principles of openness and transparency and at the whims of few individuals holding high offices without considering the fact that a State institution would suffer substantial loss and injury on account of their acts of misguided generosity at State expense. He submits that Pakistan Railways which has consistently suffered losses worth Billions of Rupees on account of incompetence, political free loading and gross mismanagement and irresponsible and criminal political favour giving was used as a proverbial sacrificial lamb to meet personal ends. Properties including Pakistan Railways Club which could have fetched considerable and substantial sums of money and hence contributed towards reducing the huge losses being continuously suffered were jettisoned from the pool of valuable assets on terms clearly and patently unfavorable, unreasonable and unconscionable to the determent of the said State institution. The Honourable Minister has made an impassioned appeal that this Court should interfere in the matter to undo the callous and ruthless wrong done to a State institution through self serving, irresponsible and motivated actions on the part of the State functionaries. He maintains that unless this Court interferes in the matter, the illegality and wrong shall continue indefinitely without Const.P. No.2/2011, etc. -: 38 :- any possibility whatsoever of a just and fair solution owing to the fact that the parties are well connected and are utilizing all conceivable tactics to frustrate resolution of the dispute and undoing the injustice caused to Pakistan Railways. In the above context, on a Court query, the Minister for Railways has apprised us that various international parties from Dubai, Qatar and Malaysia, etc. have expressed interest in taking leasehold rights of the Club which would result in substantial income for Pakistan Railways. We are conscious of the fact that investment in the Club has taken place and assets have been created by the respondents for which financing has been taken or the Club’s own funds, including income and security deposits of members have been utilized, therefore in order to put the parties in substantially the same position as they would have been in if there was no Agreement, we consider it just and equitable that a detailed forensic audit be conducted in which, after taking into consideration all factors, the respective financial liabilities of the parties towards each other would be determined. In doing so, the financial benefits derived by the Respondents shall be identified and quantified and shall be factored in while determining the respective rights and liabilities of the parties. The audit shall also determine the amount of financing availed for the project from different financial institutions, whether such funds were utilized entirely for the purposes of the project, the securities given and the legal and contractual obligations of the party required to repay the amount of financing availed. Once this exercise is complete, this Court would determine the manner and time frame in which the party which owes money would pay the other such amount. 30. Before parting we deem it appropriate to mention that in view of the cases of Raja Mujahid Muzaffar (supra), Khawaja Muhammad Asif (supra) and In the matter of: Alleged Corruption in Rental Power Plants etc. (supra), there is no bar against this Court that precludes it from exercising its jurisdiction under Article 184(3) of the Constitution and passing a declaration to the effect that an agreement/contract is void ab initio while simultaneously referring the matter to NAB to determine criminal liability related to the transaction in question. Therefore, the argument of the Const.P. No.2/2011, etc. -: 39 :- learned counsel for the respondents that the findings in this opinion would cause prejudice to some of the parties in the criminal proceedings is misconceived. 31. For the reasons recorded above, the following declarations and directions are issued:- i. The Agreement with the Maxcorp consortium/MHPL is non est, null and void ab initio and of no legal effect; ii. Possession of the land given to the lessee under the Agreement is to be handed over to Pakistan Railways (“PR”) forthwith along with all the assets and infrastructure thereupon. A.F. Ferguson shall complete handing over of all records and transfer management of the Club within 7 days hereof. Henceforth PR shall be responsible for running the Club. PR shall nominate its officer(s) or a team of independent professionals, if it deems appropriate to take over and run the Club: iii. A. F. Ferguson & Co., was appointed as the receiver of the Club vide order of this Court dated 27.12.2018. A. F. Ferguson having been appointed by this Court with a specific mandate shall stand indemnified and held harmless against any claim, law suit or any other proceedings before any Court, authority, Tribunal or functionary that may be contemplated or initiated by any of the parties for any act or omission on its part in the course of performance of its functions. Notwithstanding anything stated hereinabove, any dispute, claim or complaint by any of the parties against the receiver shall only be filed before this Court. In that event, the matter shall be decided in accordance with law. iv. We direct the Auditor General of Pakistan to:- a. Conduct a detailed forensic audit of the Club; b. Determine the scope and extent of the work done under the Agreement; c. Determine the amount owed by Pakistan Railways to the Maxcorp consortium/MHPL and/or vice versa (if any); Const.P. No.2/2011, etc. -: 40 :- d. In doing so, the Auditor General shall identify and quantify the financial benefits derived by the Respondents from the Club which shall be duly factored in while calculating and determining the liabilities of the Respondents. Such liabilities alongwith other amounts found payable by the Respondents will be set off against its verified claims against the Petitioner and the differential/balance amount shall be paid or recovered; and e. Any other matter ancillary or incidental thereto. A.F. Ferguson shall assist and facilitate the Auditor General’s office in conducting the forensic audit. Such exercise shall be undertaken within one month, at the end of which the Auditor General of Pakistan shall submit its report to the Implementation Bench constituted below. Once this exercise is complete, the said Bench would determine the manner and time frame in which the party which owes money would pay the other such amount. The logistic support and recurring expenses of the Auditor General shall be borne by both parties equally. The fee of A. F. Ferguson & Co. for services performed shall be paid out of the funds of the Club against proper receipt. The rate of such fee shall be determined by the Implementation Bench; v. As represented by the Federal Minister for Railways, we direct that the Ministry of Railways/Pakistan Railways shall float an international tender in accordance with the laws pertaining to public procurement for a fresh lease of the Club. Such process including the final award of the new contract/lease shall be completed within three months or such further time as may be allowed by this Court pursuant to an appropriate application being moved. The Ministry of Railways/Pakistan Railways is required to submit weekly progress reports in this regard before the Implementation Bench constituted below; vi. In the meantime, the normal activities of the Club and its operations shall not be impeded in any manner whatsoever Const.P. No.2/2011, etc. -: 41 :- including but not limited to its dining areas, golf course, gymnasium, sports activities, swimming pools, cinema halls and wedding functions that have already been booked and are to be held therein, which shall be allowed to be held strictly as per the booking orders etc. All assets including receivables, all systems including software/security, etc of MHPL having any nexus with the Club/MHPL shall be taken over and vest in PR. All employees of the Club/MHPL shall continue to work for the Club subject to any orders that may be passed by PR. All Bank accounts in the name of the Club/MHPL shall be taken over, vest in and be operated by the nominees of PR. MHPL shall henceforth have no right over such accounts/receivables, etc. All statutory registrations of the Club shall also stand transferred to PR/Club. PR shall provide all requisite financial support to the Club in the interregnum; vii. The proceedings before the Accountability Court in Reference No.9/2018 shall continue in accordance with law. Monthly progress reports shall be submitted by NAB for the perusal of the members of the Implementation Bench in Chambers. It is however made clear that the Accountability Court shall decide the matter(s) before it independently, transparently and strictly in accordance with law on the basis of the evidence before it; and viii. For the purpose of implementation of this judgment and its continuous compliance, subject to approval of the HCJ we hereby constitute an Implementation Bench which shall comprise of Faisal Arab, J and Ijaz ul Ahsan, J which shall meet as and when the need arises. In case at any point in time it is not possible for both members to be present at the Principal Seat of this Court at Islamabad, the Hon’ble Chief Justice of Pakistan may, on a case to case basis, nominate another Bench provided that at least one original member of the Implementation Bench who is present and available in Islamabad shall constitute part of the said Bench; ix. Let the matter be re-listed before the Implementation Bench after one month. 29. The constitution petition and human rights cases are allowed in the aforementioned terms. As the main petition stands decided, the criminal review petitions, criminal original petitions Const.P. No.2/2011, etc. -: 42 :- and civil miscellaneous applications are disposed of as having been rendered infructuous. After due consideration, we deem it appropriate to send Writ Petition No.22818 of 2016 titled ‘Mainland Husnain Pakistan Limited v Pakistan Railways, etc.’ back to the learned Lahore High Court for further appropriate orders on the basis of the findings recorded in this judgment. The office is directed to send all the files and records of the noted case to the learned Lahore High Court forthwith. JUDGE JUDGE JUDGE Announced in open Court on _________ at ____________. Judge APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Munib Akhtar CONSTITUTION PETITION NO.2 OF 2022 (Re: restraining Political Parties from holding Public Meetings in Islamabad before Voting on No-confidence Motion) Supreme Court Bar Association of Pakistan through its President …Petitioner(s) Versus Federation of Pakistan through M/o Interior Islamabad and others …Respondent(s) For the Petitioner(s) : Mr. Mansoor Usman Awan, ASC. Mr. Ahsan Bhoon, ASC thr. VL Lahore. Mr. Waseem Mumtaz Malik, Secy. SCBA. For Federation of Pak : Mr. Khalid Javed Khan, Attorney General for Pakistan. a/w Ahsan Younas, IGP Islamabad & Mr. Muhammad Ayub, Addl. Secretary Interior. For Govt. of Sindh : Mr. Rafiq Rajorvi, Addl. AG Sindh. Date of Hearing : 19.03.2022 O R D E R The learned counsel for the petitioner has read to us the first prayer in his petition which is to the following effect: “Direct all Sate functionaries to act strictly in accordance with the Constitution and the law and they be restrained from acting in any manner detrimental to and unwarranted by the Constitution and the law.” 2. Certain unpleasant happenings that occurred last evening at the gate of the Sindh House, situate in the Red Zone in Islamabad, have been mentioned to the Court. The learned Attorney General for Pakistan, present in Court, was candid Const.P.2/2022 2 enough to express deep regret, particularly the resort to violence by the protestors who caused damage to and pulled down the gate of the Sindh House. He informs that a FIR No.179 of 2022 dated 18.03.2022 about the said occurrence was lodged by SHO of Police Station Secretariat, Islamabad under Sections 149, 147, 188, 186 and 427 of PPC. This was followed by the arrest of 13 persons. The offences mentioned above are all bailable and this morning all the accused persons have been released on bail by the Executive Magistrate, Islamabad. He also informs us that the Federal Government is filing a Reference under Article 186 of the Constitution of Islamic Republic of Pakistan (“Constitution”) seeking delineation of the scope and meaning of certain provisions contained in Article 63A of the Constitution. 3. The petitioner, Supreme Court Bar Association, is before us in aid of public interest to assure that the rights of Parliamentarians are exercised in accordance with the Constitution and the law. The Attorney General for Pakistan has assured us of the Federal Government’s commitment to the process under Article 95 of the Constitution to be followed strictly in accordance with law. Whilst expressing his regret on behalf of the Federal Government about the events that took place last evening, he affirms the Government’s resolve for the law to take its course with respect to the offences that were committed during the said incident. The Inspector General of Police, Islamabad is directed to file a report on the action taken by Islamabad Police regarding the said incident and the present status of the case. Notice is also issued to the respondents in this petition for their assistance in Const.P.2/2022 3 this matter of ensuring a smooth, lawful and peaceful completion of the process under Article 95 of the Constitution. 4. Insofar as the political aspect of the proceedings under Article 95 of the Constitution is concerned, that is a non-legal matter which does not relate to jurisdiction of this Court. With respect to the proceedings under Article 95 of the Constitution being conducted in accordance with the Constitution and the law, except the incident of the last evening, there is presently nothing before us that invites our attention either in the public interest or on account of the violation of constitutional principles. Be that as it may, the said political process involves certain political parties. It is important that the political parties which are not before us presently be issued notices for rendering their assistance in the matter. Accordingly, notice be issued to Pakistan Tehreek-e-Insaf, Pakistan Muslim League (N), Pakistan People’s Party, Jamiat Uleme-e-Islam(F), Balochistan National Party (Mengal) and Awami National Party through their respective Secretary Generals, who shall be heard only through their counsel on their behalf. To come up for hearing of this petition along with a Reference, if any, that is filed under Article 186 of the Constitution on 21.03.2022 at 1:00 pm. Chief Justice Islamabad 19.03.2022 Judge NOT APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED CONSTITUTION PETITION NO. 30 OF 2013 Khawaja Muhammad Asif …. Petitioner Versus Federation of Pakistan & others …. Respondents AND CMAs NO. 2991 & 3015 OF 2013 IN CONST. PETITION NO. 23 OF 2013 (Appointments, postings and transfers made by the Caretaker Government) A/W CIVIL MISC. APPLICATION NO. 3331 OF 2013 (Application of Mr. Sikandar Ahmed Rai, Acting Secretary W&P) CIVIL MISC. APPLICATION NO. 3343 OF 2013 (Application of Mr. Sanaullah Shah, M.D. ENAR) CIVIL MISC. APPLICATION NO. 3354 OF 2013 (Application of Rana Asad Amin, Advisor Finance Division) CIVIL MISC. APPLICATION NO. 3355 OF 2013 (Application of Mr. Muhammad Amir Malik, Member I.T) CIVIL MISC. APPLICATION NO. 3356 OF 2013 (Application of Kamran Ali, Member Legal/MP-I) CIVIL MISC. APPLICATION NO. 3373 OF 2013 (Application of Dr. Fayyaz Ahmed Ranja, D.G. Pakistan Manpower) CIVIL MISC. APPLICATION NO. 3375 OF 2013 (Application of Mr. Tariq Mehmood Pirzada, MD PHA) CIVIL MISC. APPLICATION NO. 3376 OF 2013 (Application of Mr. Tariq Shafi Chak, E.D. NAVTTC) Const.P.30/13 etc. 2 CIVIL MISC. APPLICATION NO. 3377 OF 2013 (Application of Mr. Farooq Sultan Khattak, Director CDA) CIVIL MISC. APPLICATION NO. 3378 OF 2013 (Application of Mr. Rizwan Mumtaz Ali, Chairman NFC) CIVIL MISC. APPLICATION NO. 3379 OF 2013 (Application of Mr. Asad Ahmed Jaspal, Director Training PTV) CIVIL MISC. APPLICATION NO. 3380 OF 2013 (Application of Mr. Zafar Iqbal Bangash, Producer PTV) CIVIL MISC. APPLICATION NO. 3382 OF 2013 (Application of Mr. Wasim Muhammad Khan, Chairman NTC) CIVIL MISC. APPLICATION NO. 3383 OF 2013 (Application of Mr. Abid Javed Akbar, CE, TDA) CIVIL MISC. APPLICATION NO. 3385 OF 2013 (Application of Mr. Asif Ghafoor, Addl. Secy. National Heritage) CIVIL MISC. APPLICATION NO. 3396 OF 2013 (Application of Mr. Muhammad Altaf Bawan, D.G. HRM (NAB) CIVIL MISC. APPLICATION NO. 3397 OF 2013 (Application of Mr. Tahir Alam Khan, DIG (Security) CIVIL MISC. APPLICATION NO. 3403 OF 2013 (Application of Syed Khalid Ali Raza Gardezi, J.S. M/o Finance) CIVIL MISC. APPLICATION NO. 3404 OF 2013 (Application of Mr. Umar Ali, J.S. State & Frontier Region Div.) CIVIL MISC. APPLICATION NO. 3405 OF 2013 (Application of Dr. Imran Zeb Khan, Chief Commissioner Afghan Refugees) CIVIL MISC. APPLICATION NO. 3406 OF 2013 (Application of Mr. Amjad Nazir, Secretary States and Frontier Region Div.) CIVIL MISC. APPLICATION NO. 3407 OF 2013 (Application of Mr. Waheed ur Rehman Khattak, Addl. SP (Saddar)) Const.P.30/13 etc. 3 CIVIL MISC. APPLICATION NO. 3408 OF 2013 (Application of Mr. Muhammad Khalid Khattak, DIG (HQ) Ibd) CIVIL MISC. APPLICATION NO. 3409 OF 2013 (Application of Mr. Sabih Hussain, SP (HQ), Ibd) CIVIL MISC. APPLICATION NO. 3410 OF 2013 (Application of Mr. Muhammad Ahsan Raja, Chairman PM Insp. Commission) CIVIL MISC. APPLICATION NO. 3438 OF 2013 (Application of Mr. Abdur Rashid, Director, DRAP) CIVIL MISC. APPLICATION NO. 3451 OF 2013 (Application of Mr. Mumtaz Khan, Member IRSA) CIVIL MISC. APPLICATION NO. 3467 OF 2013 (Application of Mr. Viqar Rasheed Khan, Chairman NTC) CIVIL MISC. APPLICATION NO. 3478 OF 2013 (Application of Dr. Shahbaz Ahmad Kureshi, Consultant, Poly Clinic) CIVIL MISC. APPLICATION NO. 3479 OF 2013 (Application of Mr. Noor Zaman Khan, Director NACTA) CIVIL MISC. APPLICATION NO. 3480 OF 2013 (Application of Mr. Muhammad Nadeem AGM Marketing) CIVIL MISC. APPLICATION NO. 3481 OF 2013 (Application of Dr. Anees Kausar, M.O. Poly Clinic) CIVIL MISC. APPLICATION NO. 3492 OF 2013 (Application of Mr. Tahir Maqsood, D.G. PITAD) For the Petitioner Miangul Hassan Aurangzeb, ASC Syed Safdar Hussain, AOR assisted by Syed Ali Shah Gilani, Advocate On Court Notice Mr. Irfan Qadir, Attorney General for Pakistan Mr. Dil Muhammad Alizai, DAG For Estt. Division Mr. Sher Afzal, Joint Secretary Const.P.30/13 etc. 4 For the applicants (In CMA 3331/13), Mr. Muhammad Shoaib Shaheen, ASC (In CMA 3343/13), Nemo (In CMA 3354/13), Mr. Shah Khawar, ASC (In CMA 3355-56/13), Sardar Muhammad Aslam, ASC (In CMA 3373/13), Nemo (In CMA 3375/13), Mr. Tariq Mehmood Pirzada, in Person (In CMA 3376/13), Mr. Tariq Shafi Chak, in person (In CMA 3377/13) Mr. Farooq Sultan Khattak, in person (In CMA 3378/13), Mr. Aftab Rana, ASC (In CMA 3379-80/13), Mr. Shahid Mehmood Khokhar, ASC (In CMA 3382/13), Nemo (In CMA 3383/13), Rai Muhammad Nawaz Kharral, ASC (In CMA 3385/13), Mr. Asif Ghafoor, In person (In CMA 3396/13), Nemo (In CMA 3397/13), Mr. Tahir Alam Khan, in person (In CMA 3403/13), Syed Khalid Ali Raza Gardezi, in peson (In CMA 3404-3406/13), Mr. Muhammad Akram Gondal, ASC (In CMA 3407/13), Nemo (In CMA 3408/13), Nemo (In CMA 3409/13), Nemo (In CMA 3410/13), Mr. Muhammad Ahsan Raja, in person (In CMA 3438/13), Nemo (In CMA 3451/13), Mr. Waqar Rana, ASC (In CMA 3467/13), Mr. Viqar Rasheed Khan, in person (In CMA 3478 & 3481/13), Mr. Tariq Asad, ASC (In CMA 3479/13), Mr. Noor Zaman, in person (In CMA 3480/13), Nemo (In CMA 3492/13), Nemo Date of hearing: 06.06.2013 J U D G M E N T IFTIKHAR MUHAMMAD CHAUDHRY, CJ.— This Constitution Petition has been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan by one of the elected Parliamentarians, namely, Khawaja Muhammad Asif, wherein he has sought the following reliefs: - “Declare, in the circumstances aforesaid, the acts of the care-taker government in effecting the aforesaid transfers/postings/shuffling null and void, void ab initio and of no legal effect being in contravention of Constitution, constitutional conventions and law. In the alternative, declare that the aforesaid acts of the care-taker government of passing and signing of the Const.P.30/13 etc. 5 orders affecting the aforesaid transfers/postings/shuffling were never, in fact, signed and/or passed and/or communicated for further necessary action. Direct, in the circumstances aforesaid, that all the postings/transfers/shuffling be reversed and the status quo ante be reverted to, i.e. the position when the care-taker government was sworn in. Direct the Federation/care-taker government to refrain from effecting any further appointments/transfers/shuffling during their remaining tenure.” 2. As in CMAs 2991 & 3015 of 2013 in Constitution Petition No.23 of 2012 identical issues about appointments, transfers and postings, etc., were raised, therefore, a learned Bench of this Court, vide order dated 28.05.2013, referred the said miscellaneous applications to this Bench, to avoid overlapping of the proceedings and/or the possibility of rendering of conflicting judgments on similar issues in the event of parallel proceedings being conducted in two different benches simultaneously. 3. On 22.05.2013 and 04.06.2013, orders were passed and the Secretaries of the concerned Ministries/Divisions of the Federal Government were called upon to furnish details of the Government servants/employees, who were appointed, transferred, posted, etc. Relevant paras there from are reproduced hereinbelow respectively:- Order dated 22.05.2013 “3. He has stated that the Caretaker Government has made inter alia following transfers and postings in the civil service, statutory bodies, autonomous or semi autonomous bodies, corporations and regulatory authorities :- a) The Chairman of the National Highway Authority, Hamid Ali Khan was replaced, on 16.05.2013, by Sajjad Hussain Baloch; b) The Chairman NEPRA was replaced, on 16.05.2013, and Justice (R) Ahmad Khan Lashari has been appointed; c) The Managing Director SNGPL, Arif Hameed was replaced, on 15.05.2013, by Amin Tufail; d) The Managing Director SSGCL was replaced, on 15.03.2013, by Rahat Kamal Siddiqui; Const.P.30/13 etc. 6 e) The Managing Director, Pakistan Mineral Development Corporation, Khalid Khokhar was replaced by Saifullah Khan; f) The Chairman, National Fertilizer, Rizwan Mumtaz Ali was removed on 09.05.2013; g) The Managing Director, Oil and Gas Development Corporation, Masood Siddiqui was removed on 06.05.2013; h) The Chairman, State Life Corporation was removed on 16.05.2013; i) The Chairman, Pakistan Tourism Development Corporation has reportedly been removed and an another appointed in his stead; j) The Chairman, Pakistan Software Export Board has been removed and in his stead Saleem Ahmed Ranjha has been appointed who is a direct inductee of Yusuf Raza Gillani the previous Prime Minister; k) The Director General, FIA who was appointed one month back is also reportedly in the process of being replaced; l) That certain employees/officers of the Pakistan Telecommunication Authority have reportedly been removed from service without following the procedure as set out under the relevant statute; m) That reportedly many other mid – level staff of such like aforesaid corporation/bodies have been shuffled/ transferred/removed”. 7. We do allow the learned Attorney General for Pakistan to take instructions from the Government but in view of the importance of the issue involved in the petition, we direct that: - all the appointments, transfers and postings, which have been made by the Caretaker Government, referred to hereinabove, shall stand suspended and till pendency of this petition no further appointment, transfer and posting shall be made by the Caretaker Government including the appointment of Federal Ombudsman, Tax Ombudsman and Anti-Dumping Tribunal, except the postings and transfers, which relate to day-to-day business of the government and are required to be made in the interest of State and also to watch the interest of public, strictly following the rules and regulations on the subject, and in a transparent manner.” Order dated 04.06.2013 “2. Khawaja Muhammad Asif, petitioner, appeared in person and stated that the order dated 22.05.2013 has not been complied with in letter and spirit inasmuch as the Caretaker Government without lawful authority terminated the services of some of those officers who were already working and performing their duties in Finance Division and I.T., either as Advisors or on contract. As duly elected government is likely to take over within a day or so and Const.P.30/13 etc. 7 budget is likely to be prepared shortly, therefore, due to unlawful action of Caretaker Government concerned Divisions are facing a lot of difficulties. He has further stated that about more than 100 officers have been sent on deputation to different organizations from the Province of Balochistan after 22nd May, 2013 without adhering to the rules and regulations knowing well that the orders relating to the policy making cannot be passed by the Caretaker Government. 4. Since all these issues are important in nature, therefore, we direct the Secretaries, Establishment, Cabinet, Health, Water & Power, Finance Division(s) and all other concerned Departments/Corporations to file lists of the officers – (a) who were appointed against any post by the Caretaker Government after taking over including Chairmen etc of the Corporations whose list finds mention in the order dated 22.05.2013; (b) whose services were acquired on deputation from different organizations on different positions in the Departments and Corporations controlled by the Federal Government; (c) whose services were terminated because they were holding different positions on contract basis in all the Government Departments/Hospitals; (d) Whose transfers have been made contrary to the Judgment of Anita Turab’s case, etc; (e) Deputationists brought to Federal Government Departments from the Province of Balochistan.” In response to the above orders, summary of the transfers, postings, termination of service/contract of the employees was submitted vide CMA No.3515/2013, which reads as under: - STATEMENT INDICATING POSTINGS/TRANSFERS/APPOINTMENTS MADE BY THE CARETAKER GOVERNMENT Sl. No Group/ Service Promotion Directive Ministries/ Division’s Proposal Repatriated Addl. Current Charge Routine Postings Transfers Contract appointments Transfer on deputation Total 1. Autonom ous Bodies - 03 11 03 02 - 11 - 30 2. Secretari at Group 31 59 18 07 - 24 - - 139 3. Pakistan Administr ative Services 17 15 07 - - 33 - - 72 4. Police 67 09 06 01 - 33 - - 116 Const.P.30/13 etc. 8 5. Ex-Cadre - 02 09 - - - - - 11 6 Misc. - 06 - - - 24 - 44 74 Total 115 94 51 11 02 114 11 44 442 4. It may be mentioned here that in the order dated 22.05.2013 it had been observed that any individual whose posting, appointment or transfer was suspended and he was aggrieved of the said order, he might come forward by making application(s), which would be dealt with after hearing him/them. 5. It may be observed that learned Attorney General informed that Justice (R) Faqir Muhammad Khokar, Chairman Anti- Dumping Appellate Tribunal, Justice (R) Ahmed Khan Lashari, Chairman NEPRA and Justice (R) Kalash Nath Kohli, Chairman Sacked Employees’ Review Board have tendered resignations, which are under process, except the resignation of Chairman Anti-Dumping Tribunal, which has already been accepted on 31.05.2013. Mr. Sher Afzal, Joint Secretary is directed that no sooner their resignations are accepted, he may inform the Court. 6. Learned counsel for the petitioner contended that under the Constitution of the Islamic Republic of Pakistan, the elected Parliamentary Government is responsible to achieve the object of good governance and in continuance of the same, it is obliged to post suitable persons being in the employment of the Government/private sector to head various departments, corporations and organizations controlled by the Government to run their result-oriented administration, as such elected Government has to fulfill the object and purpose of welfare of the citizens. The Caretaker Government, which is installed for a limited period of 2/3 months with the object of Const.P.30/13 etc. 9 assisting the Election Commission of Pakistan in organizing fair, free, honest and just elections, cannot be considered to be the replacement of the elected Government. As such, the Caretaker Government is debarred from making large scale transfers, postings, re-shuffling of the Government employees, having far reaching effects/impact on the administration, commercial and industrial departments/organizations, because if a person is appointed against an important position, and his performance is not found suitable or it is not in accordance with the policies of the elected Government, it would not be possible for the Government to implement its policies. He further argued that the Caretaker Government had also exceeded its authority in assigning the reasons that the appointments, postings, transfers, reshuffling, etc., have been made following the directions/observations contained in the letter dated 02.04.2013 of the Election Commission of Pakistan. 7. Learned Attorney General for Pakistan did not address arguments on the issues involved in these cases as such and only confined to making certain references to the record, e.g., CMA 2676 & 2770/2013 in Constitution Petition No.23/2012 filed pursuant to the Court’s directions as well as CMA No.3514/2013, etc., filed in the case. 8. In pursuance of this Court’s order dated 22.05.2013, various individuals filed applications seeking relief against their postings, transfers, etc. and such of the applicants, who were present in Court, were also afforded opportunity of hearing. Some of them did not press their applications and requests so made by them were allowed. For convenience of reference, details of the applications are reproduced hereinbelow:- Applications dismissed in default: Const.P.30/13 etc. 10 S.# CMA No. Applicant’s Name Designation/Deptt. Grievance/Remarks 1. CMA.3343/13 Sanaullah Shah M.D. ENAR, Petrotech Service Ltd. His services were placed at the disposal of SEC vide letter dated 9.4.2013 2. CMA.3373/13 Dr. Fayyaz Ahmad Ranjha Director General Pakistan Manpower Institute He was pre-mature repatriated to Province of Punjab vide Notification dated 9.5.2013 3. CMA.3382/13 Wasi Muhammad Khan Chairman NTC Applicant has challenged the notification dated 30.4.2013 whereby Mr. Viqar Rasheed Khan was appointed on contract basis as Chairman NTC by ignoring him 4. CMA.3396/13 Muhammad Altaf Bawany D.G. (HRM,), NAB The applicant being regular Officer of NAB was serving as Chief Instructor, NIM (formerly NIPA) on deputation and vide Notification dated 28.2.2011 he was repatriated to his parent department to join new assignment as D.G. NAB 5. CMA.3407/13 Waheed ur Rehman Khattak Addl. SP (Saddar) Applicant was transferred from Punjab to Balochistan vide notification dated 16.5.2013 by ignoring the seniority as two of his colleagues were senior to him 6. CMA.3408/13 Muhammad Khalid Khattak D.I.G. Headquarters, Islamabad Applicant was promoted from BS-19 to BS-20 vide Notification dated 3.4.2013 and thereafter vide notification dated 10.4.3013 he was transferred from the post of AIG (General) to DIG (HQ) and prayed that his case does not strictly fall in any kind of transfer and posting 7. CMA.3409/13 Shabih Hussain PSP BS-18-AC c/o ICT Police, Islamabad The applicant was serving in KPK and Vide Notification dated 15.5.2013 his services have been placed at the disposal of Federal Government for further posting in Islamabad Police and it was a routine transfer 8. CMA.3438/13 Dr. Abdul Rashid Director, Pharma Licensing, Quality Assurance & Quality Control, Drug Regulatory Agency of Pakistan Vide Notification dated 21.3.2013 the applicant has been transferred from the post of Director Pharma Licensing Quality Assurance & Quality Control to the post of Deputy Director General (Pharmacovigilance) DRAP, Islamabad 9. CMA.3480/13 Muhammad Nadeem Asstt. Gen. Manager Marketing The applicant has been transferred vide Office Order dated 5.4.2013 from Zonal Head Gujranwala to AGM Const.P.30/13 etc. 11 (Marketing) Lahore 10. CMA.3492/13 Tahir Maqsood Additional Secretary (awaiting posting) The applicant was serving as Senior Joint Secretary and his services have been placed at the disposal of Estt. Division vide Notification dated 10.5.2013 Applications dismissed where alternate remedy was availed: S.# CMA.. Applicant’s Name Designation/Deptt. Remarks 1. CMA.3383/2013 Abid Javed Akbar C.E. Trade Development Authority Rai Nawaz Kharral, learned counsel stated that the applicant has already approached to the Islamabad High Court for redressal of his grievance regarding termination of his contract. Dismissed. 2. CMA.3478/13 Dr. Shahbaz Ahmad Kureshi Consultant Physician (Cardiology) in Polyclinic Islamabad Mr. Husnain Ibrahim Kazmi, learned counsel for the caveator (Dr. Nasir Moin) has filed CMA No. 3491/13 and stated that the applicant’s Writ Petition No.1999/2013 has already been dismissed on 13.5.2013 and no CPLA has been filed before this Court against the said order and contrary to it the applicant opted to approach the Service Tribunal where the matter is pending. When it was brought into the notice of the learned counsel for the applicant he stated that he may be allowed to withdraw this CMA. Dismissed as Withdrawn. 3. CMA 3481/13 Dr. Anis Kausar Medical Officer, FG Polyclinic Islamabad Mr. Tariq Asad learned counsel for the applicant is not in attendance. This application is identical to CMA 3478 which we have already dismissed. Const.P.30/13 etc. 12 This application is also dismissed. Application dismissed on the ground that appointment/transfer was made in routine: 1. CMA No.3479/2013 Noor Zaman Khan Director NACTA, Islamabad Applicant was serving as Senior Government Pleader in KPK and he has been transferred as Director NACTA, Islamabad and now has reported back to his parent department. Plea of the applicant is that his spouse is working in Islamabad, therefore, he was brought on deputation. Since the applicant has been reverted back to his parent department in routine, no interference is called for in the instant proceedings. Dismissed. Applications which were not entertained: 1. CMA No.3375/2013 Muhammad Tariq Mehmood Pirzada M.D. PHA Applicant appeared and stated that he has been transferred on completion of tenure period, does not press this petition. Dismissed as not pressed. 2. CMA No.3377/13 Farooq Sultan Khattak Director CDA, Islamabad Applicant states that he has been sent back to his parent department, therefore, does not press this CMA. Dismissed as not pressed. 3. CMA No.3378/2013 Rizwan Mumtaz Ali Chairman NFC Mr. Aftab Alam Rana, learned counsel for the applicant has no instructions because he could not answer to our queries. Dismissed accordingly. 4. CMA No.3379/2013 Asad Ahmed Jaspal Dir. Training Academy PTV Mr. Shahid Mehmood Khokhar, learned counsel for the applicant states that applicant is in the employment of PTV Corporation and he is aggrieved from his transfer on the verbal orders of the Acting Manager. As the applicant is in the employment of a Corporation, therefore no indulgence can be shown in the instant proceedings. Dismissed. 5. CMA No.3380/2013 Zafar Iqbal Bangash Producer, PTV Mr. Shahid Mehmood Khokhar, learned counsel for the applicant states that applicant is in the employment of PTV Corporation and he is aggrieved from his transfer Const.P.30/13 etc. 13 on the verbal orders of the Acting Manager. As the applicant is in the employment of a Corporation, therefore no indulgence can be shown in the instant proceedings. Dismissed. 6. CMA No.3397/13 Tahir Alam Khan DIG Security Mr. Tahir Alam Khan, applicant appeared and stated that his case pertains to actualisation, therefore, he does not want to press this application. Dismissed as not pressed. 7. CMA No.3403/13 Syed Khalid Ali Raza Gardezi J.S. M/o Finance GoP Syed Khalid Ali Raza Gardezi, applicant appeared and stated that he has been sent back to his parent department, therefore, does not press this petition. Dismissed as not pressed. 8. CMA No.3404/2013 Umar Ali J.S. States & Frontier Regions Division Mr. Muhammad Akram Gondal, learned counsel stated that the applicants have been promoted on merits, therefore, he does not press these applications Dismissed as not pressed. 9. CMA No.3405/2013 Dr. Imran Zeb Khan Chief Commissioner Afghan Refugees, Ibd. 10. CMA No.3406/2013 Amjad Nazir Secretary, States & Frontier Regions Division 9. It is to be observed that the other learned Bench of this Court, while hearing Constitution Petitions No.23/2013 on 09.05.2013 was, prima facie, of the opinion that notification of the Election Commission dated 02.04.2013 did not provide any valid justification, much less a compelling reason, so as to justify the transfers, postings, etc., in question. The contents of notification of the ECP are reproduced hereinbelow: - “ELECTION COMMISSION OF PAKISTAN NOTIFICATION Islamabad the 2nd April, 2013 No.F.8(12)/2012-Cord(1)- WHEREAS it is expedient to ensure that all those who are in the service of Pakistan perform their duties to serve public interest and assist the Const.P.30/13 etc. 14 Election Commission of Pakistan in the conduct of General Elections 2013 fairly, justly, honestly and in accordance with law; AND WHEREAS it is also expedient to take pre-emptive steps so that no employee in the service of Pakistan should try to influence the election process in any manner to favour any particular political party or a candidate; NOW THEREFORE, in exercise of the powers conferred upon it under Article 218(3) of the Constitution read with sections 103(c) and 104 of the Representation of the People Act 1976, the directions dated 08.06.2012 of the Supreme Court of Pakistan in Workers’ Party Pakistan’s case and all other powers enabling it in that behalf, the Election Commission of Pakistan is pleased to direct the Federal and Provincial Caretaker Governments to: (i) Shuffle/transfer all Federal and Provincial Secretaries. However, if the caretaker government considers that a federal or provincial secretary need not be transferred/shuffled, it may refrain from doing so and intimate the same to the Election Commission. (ii) (ii) Assess whether the Chairpersons / Chief Executives of all autonomous and semi-autonomous and/or state owned bodies, IG Police, CCPOs, City Commissioners, DCOs, DPOs, SHOs, patwaris and EDOs are independent individuals and transfer those who do not meet this criteria. 2. Clauses (iii) and (iv) of this Commission’s Notification No.8(12)/2012-Cord(1) dated 26th March, 2013 are hereby withdrawn. This directive shall not apply to specific transfers made under the directions of the Election Commission. By Order of the Election Commission of Pakistan. Sd/- (Syed Sher Afgan) Acting Secretary” 10. A perusal of the above notification suggests that it was issued by the ECP under Article 218(3) of the Constitution read with sections 103(c) and 104 of the Representation of the People Act, 1976 and the directions dated 08.06.2012 of this Court issued in Worker’s Const.P.30/13 etc. 15 Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) and all other powers enabling it in that behalf, directing the Federal and Provincial Caretaker Governments to transfer/shuffle all Federal and Provincial Secretaries. However, if the Caretaker Government considered that a Federal or Provincial Secretary need not be transferred/shuffled, it would refrain from doing so and intimate the same to the ECP. We tend to agree with the learned counsel for the petitioner that under the notification noted hereinabove; the Caretaker Government had been authorized not to transfer/shuffle any Government servant, if it considered that it was not expedient to do so. But, at any rate, no powers were given to requisition the services of the employees on deputation or make fresh appointments against the available vacancies, or make proforma promotions of officials of all grades in autonomous and semi-autonomous bodies, corporations, regulatory authorities, statutory bodies, government controlled corporations, etc. 11. It is to be seen that the Caretaker Cabinet/Prime Minister were installed in the Federation and Provinces in the month of March, 2013 after dissolution of the National and the Provincial Assemblies on completion of their respective terms provided under Article 224(1) & (1A) of the Constitution, which read as under: - 224. Time of election and bye-election.— (1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day. (1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a caretaker Cabinet: Const.P.30/13 etc. 16 Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: Provided further that if the Prime Minister or a Chief Minister and their respective Leader of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care-taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed : Provided also that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be. 12. As in instant case the Caretaker Prime Minister could not be appointed in terms of Article 224(1A) of the Constitution for want of consensus between the former elected Prime Minister and the Leader of the House, therefore, the provisions of Article 224A of the Constitution were invoked, and ultimately on account of inability of the Committee constituted under Article 224A(1) & (2) to decide the matter, the names of the nominees were referred to the Election Commission of Pakistan for finalizing the name of the caretaker Prime Minister within two days, thus, as a result of deliberations by the ECP, Caretaker Prime Minister was appointed in accordance with the provisions of Articles 224(1A) and 224A(1) & (2) of the Constitution. 13. Essentially, according to the settled and accepted norms/practice, the Caretaker Government (Prime Minister and Cabinet) is required to perform its functions to attend to the day-to- day matters, which are necessary to run the affairs of the State and also to watch the national interests, etc., in any eventuality in absence of an elected Government, and such Government is not authorized to Const.P.30/13 etc. 17 make decisions/appointments having effect on the working/policies of the future Government, which is likely to take over after the elections. Apart from providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country, it is not vested with the authority to take decisions concerning the affairs of the Government, which are bound to pre-empt the scope and sphere of activity, powers and jurisdiction of an elected Government. A Caretaker Government possesses limited powers and authority particularly in view of the fact that when it is appointed, there is no National Assembly in place and thus the all important aspect of accountability is absent. Further, the exercise of complete powers by the Caretaker Government goes against the doctrine of separation of powers which is the lifeline of any vibrant democracy. As noted earlier, the absence of legislature results in lack of checks and balances. The Caretaker Government also lacks the mandate of the majority of people, which is to be acquired by elected government through the general elections. Therefore, if a Caretaker Government is allowed to exercise complete powers available to an elected Government, it may make an attempt to continue to remain in office for a longer period of time or may take such decisions which may cause problems for the future elected government. 14. As per the scheme of the Constitution, prior to the 18th Constitutional Amendment, where the President dissolved the National Assembly under Article 48(5), he shall, in his discretion, appoint care- taker Cabinet. Similarly, if the President, dissolves the National Assembly on the advice of the Prime Minister, he is required to put in place an interim set up or a temporary arrangement to ensure the Const.P.30/13 etc. 18 continuity of the functions of the Government to run day-to-day affairs of the State till the appointment of duly elected Government with its Cabinet after completion of the election process. Unfortunately, after the promulgation of the Constitution of 1973, during the Martial Law regime of General (R) Zia-ul-Haq in 1985, by means of the 8th Constitutional Amendment, an infamous provision, namely, Article 58(2)(b) was inserted into the Constitution, which provided that the President may dissolve the National Assembly in his discretion where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The said provision was later deleted by means of Thirteenth Constitutional Amendment in 1997. During the next Martial Law regime of General (R) Pervez Musharraf, the same was again inserted through the 17th Constitutional Amendment passed in 2003. However, after the restoration of democratic governance in the country, the new elected Government again deleted the said provision from the Constitution through the 18th Constitutional Amendment passed in 2010. It is to be noted that in exercise of the powers under the said provision, for more than one time, the National Assembly was dissolved and the elected Prime Minister/Cabinet were removed, and caretaker Prime Minister and Cabinet were appointed. 15. The object and purpose of making reference to these provisions is to highlight that the functions of the elected Government have remained under serious threats. At the same time, it is also significant to point out that despite appointment of the Caretaker Prime Minister/Cabinet, no guidelines were ever provided laying down Const.P.30/13 etc. 19 the parameters to be observed by the Caretaker Governments in the exercise of their powers. As far as Constitution is concerned, Article 2A envisages that State shall exercise its powers and authority through the chosen representatives of the people and a comprehensive procedure, including qualifications and the disqualifications for the persons to be elected as Members of Majlis-e-Shoora (Parliament) has been prescribed. Thus, it is the chosen representatives of the people who have to run the affairs of the State for a fixed term of five years. Such representatives of the people are required to ensure good governance, lay down policies, and ensure betterment of the general public through legislative and executive actions. On the contrary, a Caretaker Government as compared to an elected Government remains in office for a very limited period whose first and last concern is to ensure that fair, free, honest and just elections are held in the country. The concept of caretaker or interim Government, in absence of an elected government is in vogue in a number of countries since the ancient times. Inasmuch as, in the Constitution of some of the countries, the concept of caretaker government does not specifically find a place, yet the practice of appointing caretaker government is in vogue those countries. Such countries include India, Australia, Canada, Bangladesh, Holland, New Zealand, UK, etc. With the passage of time, all those countries have developed Constitutional conventions, on the basis of which the caretaker governments are put in place to run the affairs of the State during the interim period, i.e. till returning to power of the duly elected governments having full powers and such caretaker governments do not, in general, take any major policy decisions, including making appointments of civil servants, etc., Const.P.30/13 etc. 20 particularly in the manner it has been done by the Caretaker Government that had come into existence on completion of the term of the previous Government. 16. At this stage, reference may be made to the Constitutional system of Australia. As per the scheme of the Australian Constitution, the caretaker government is expected to conduct itself in accordance with a series of conventions administered by the department of the Prime Minister and Cabinet, although there is no law compelling the caretaker government to do so. Usually, there is no separate appointment of a caretaker government and the outgoing government continues to function as caretaker government. During the 1975 Australian constitutional crisis, the then Governor-General appointed a new government with the assurance that it would immediately advise a general election, and it would operate on a caretaker basis in the meantime. The political system of Australia ensures that a Cabinet is always maintained and that caretaker governments abide by the conventions. Any flouting of the conventions by a caretaker government would immediately come to light, and could go against them in the election campaign. In this regard, a document titled “Guidance on Caretaker Conventions” has been administered by the Department of the Prime Minister and Cabinet. Section 1.2 of the Caretaker Conventions provides that a caretaker government operates until the election result clearly indicates that either the incumbent party has retained power, or in the case where there is to be a change of government, until the new government is appointed by the Governor-General. The relevant clauses of the guidelines are reproduced hereinbelow: - Const.P.30/13 etc. 21 “3. SIGNIFICANT APPOINTMENTS 3.1 Governments defer making significant appointments during the caretaker period. When considering the advice it would give on whether an appointment qualifies as ‘significant’, the agency should consider not only the importance of the position, but also whether the proposed appointment would be likely to be controversial. 3.2 If deferring the appointment is impracticable, usually for reasons associated with the proper functioning of an agency, there are several options:  the Minister could make an acting appointment where permissible;  the Minister could make a short term appointment until shortly after the end of the caretaker period; or  if those options are not practicable, the Minister could consult the relevant Opposition spokesperson regarding a full term appointment.” In Canada too, “Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants during an Election” have been issued which provide, inter alia, as under: - GUIDELINES ON THE CONDUCT OF MINISTERS, SECRETARIES OF STATE, EXEMPT STAFF AND PUBLIC SERVANTS DURING AND ELECTION This does not mean that government is absolutely barred from making decisions of announcements, or otherwise taking action, during an election. It can and should do so where the matter is routine and necessary for the conduct of government business, or where it is urgent and in the public interest – for example, responding to a natural disaster. In certain cases where a major decision is unavoidable during a campaign (e.g., due to an international obligation or an emergency), consultation with the Opposition may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse. Contracts, G&Cs and Appointment Appointments should normally be deferred. The Prime Minister’s Office must be consulted before making any commitments concerning appointments that cannot be deferred. Const.P.30/13 etc. 22 As far as UK is concerned, they have also issued similar guidelines in 2010. Relevant guidelines are reproduced hereinbelow: - SECTION G Government Decisions 1. During an election campaign the Government retains its responsibility to govern and Ministers remain in charge of their Departments. Essential business must be carried on. In particular Cabinet Committees can continue to meet and consider correspondence if necessary, although in practice this may not be practical. If something requires urgent collective consideration, the Cabinet Secretariat should be consulted. 2. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long-term character. Decisions on matters of policy, and other issues such as large and/or contentious procurement contracts, on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the Election, provided that such postponement would not be detrimental to the national interest or wasteful of public money. SECTION H Public and Senior Civil Service Appointments 1. All appointments requiring approval by the Prime Minister, other Civil Service and public appointments likely to prove sensitive, (including those where Ministers have delegated decisions to officials or other authorities, such as appointments to certain NHS boards), should effectively be frozen until after the Election. This applies to appointments where a candidate has already accepted a written offer. The individual concerned should be told that the appointment will be subject to confirmation by the new Administration after the Election. 2. It is recognised that, should this procedure result in the cancellation (or substantial delay) of an appointment by the new Administration, the relevant Department could be vulnerable to legal action by a disappointed candidate who had already accepted a written offer. To reduce the risk of this happening, Departments might wish to:  recommend to their Secretary of State the advisability either of delaying key stages in the process, or of consulting the Opposition (e.g. on a short-list of candidates or a single name for final selection) where an appointment is likely to take effect just before or after an election; Const.P.30/13 etc. 23  issue a conditional letter of offer, making it clear that the formal offer of the appointment will need to be confirmed by a new Administration. 3. In cases where an appointment is due to end between the announcement of the Election and Election Day, and no announcement has been made concerning the new appointment, it will normally be possible for the post to be left vacant until incoming Ministers have been able to take a decision either about re-appointment of the existing appointee or the appointment of a new person. This situation is also likely to apply to any appointments made by Letters Patent, or otherwise requiring Royal approval, since it would not be appropriate to invite Her Majesty to make a conditional appointment. 4. In the case of public and Senior Civil Service appointments, Departments should delay the launch of any open competition during an election period, to give any incoming Administration the option of deciding whether to follow the existing approach. 5. In those cases where an appointment is required to be made, it is acceptable, in the case of sensitive Senior Civil Service positions, to allow temporary promotion or substitution. In the case of public appointments, the current term may be extended to cover the Election period, or as required, with the prior approval of the Commissioner for Public Appointments. This will allow time for new Ministers to take a decision about longer term appointment. In any cases of doubt, and particularly where circumstances make it difficult to apply these temporary arrangements, Departments should consult the Propriety and Ethics Team in the Cabinet Office. The Cabinet Manual: A guide to laws, conventions and rules on the operation of government, 1st edition, October 2011 provides, inter alia, as under: - PARLIAMENT 7. Parliament has a number of functions, which include: controlling national expenditure and taxation; making law; scrutinising executive action; being the source from which the Government is drawn; and debating the issues of the day. All areas of the UK are represented in the House of Commons, which provides a forum for Members of Parliament (MPs) to speak and correspond on behalf of their constituents, where they can seek redress if necessary. Const.P.30/13 etc. 24 8. Parliament comprises the Sovereign in Parliament and two Houses: the House of Commons, which is wholly elected, and the House of Lords, which comprises the Lords Spiritual and Temporal. Parliament has overall control of the public purse; the Government may not levy taxes, raise loans or spend public money unless and until it has authorisation from Parliament. The House of Commons claims exclusive rights and privileges over the House of Lords in relation to financial matters, and the powers of the House of Lords to reject legislation passed by the House of Commons are limited by statute. 9. In the exercise of its legislative powers, Parliament is sovereign. In practice, however, Parliament has chosen to be constrained in various ways – through its Acts, and by elements of European and other international law. 10. Parliament also scrutinises executive action. Indeed, the government of the day is primarily responsible to Parliament for its day-to-day actions. This function is exercised through a variety of mechanisms, such as the select committee system, Parliamentary questions, oral and written statements, debates in both Houses and the Parliamentary Commissioner for Administration. See Chapter Five for more on Parliament. [Emphasis supplied] 11. By the Scotland Act 1998, the Government of Wales Acts 1998 and 2006 and the Northern Ireland Act 1998, Parliament devolved powers over areas of domestic policy such as housing, health and education to directly elected legislatures in Scotland, Wales and Northern Ireland. Parliament retains the legal power to continue to legislate on these matters, but it does not normally do so without the consent of these devolved legislatures. See Chapter Eight for more on devolution. 17. Coming to the case in hand, it may be mentioned here that this is not the first time that this Court is confronted with such a situation. Earlier too, identical matters have been dealt with by the Superior Courts of Pakistan. In the case of Khawaja Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lahore 725) wherein the Lahore High Court held that caretaker Cabinets have to confine themselves to take care of the day-to-day administration of the State. Relevant portion of the judgment reads as under: - Const.P.30/13 etc. 25 “26. The learned Attorney-General submitted that it is quite correct that Caretaker Cabinets have to take care of the day-to-day administration of the State. There may be no bar to take policy decisions if so required by the circumstances. He is right. Caretaker Cabinets have to confine themselves to take care of the day-to-day administration of the State. They can take all decisions requiring attention or action, may be having far-reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being Caretaker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of Caretaker Government at the expense of other political forces or people at large. Neutrality, impartiality, detachment and devotion to duty to carry on day-to-day affairs of the State without keeping in view one’s own interest or of one’s party are the sine qua non of a Caretaker Cabinet.” [Emphasis supplied] In the case of Regional Commissioner of Income Tax v. Zaffar Hussain (PLD 1992 SC 869) Mr. Justice (R) Abdul Shakurul Salam J., in his dissenting note held as under: - “3. The following points are obvious and noteworthy. Firstly, that when the leader of the Opposition became care-taker Prime Minister, displeasure or rancour of the Opposition was given vent to by ordering the removal of the respondents from their service. It was rather petty. Secondly, as far as the authority of the Care-taker Cabinet is concerned, I had said in the case of "Muhammad Sharif v. Federation of Pakistan" (PLD 1988 Lahore 725) in the Lahore High Court that "Care-taker Cabinets have to confine themselves to take care of the day to day administration of the State. They can take all decisions requiring attention or action, may be having far-reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being Care-taker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of care-taker Government at the expense of other political forces or people at large. Neutrality, impartiality, detachment and devotion to duty to carry on day to day affairs of the State without keeping in view one's own interest or of one's own party are the sine qua non of a Care-taker Cabinet. The judgment was upheld by this Const.P.30/13 etc. 26 Court in "Federation of Pakistan v. Haji Muhammad Saifullah Khan and others" (PLD 1989 SC 166). The action of removal of the respondents clearly did not fall within the scope or ambit of the Care-taker Cabinet whose primary function was to hold election and carry on( day to day administration with the civil servants available and not to throw out those who had been given employment by the previously elected Government.” [Emphasis supplied] In the case of Tanveer A. Qureshi v. President of Pakistan (PLD 1997 Lahore 263) it has been held as under: - “26. Another principal attack on the formation of the C.D.N.S. by the petitioner was that the decision to set up such a council being of great importance and a matter of policy could not have been taken by the Caretaker Cabinet appointed under Article 48(5) of the Constitution. It was emphasised by Mr. Talib H. Rizvi, as also Mr. Abdul Rehman Cheema that the life of the Caretaker Cabinet being for 90 days it cannot take decisions of permanent nature but its activities are confined only to running day- to-day affairs of the Government and should be geared towards holding of free and fair elections. Reliance has been placed on Kh. Muhammad Sharif v. Federation of Pakistan and 18 others PLD 1988 Lah. 725, Federation of Pakistan etc. v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 and Madan Murari Verma v. Ch. Charan Singh and another AIR 1980 Calcutta 95. 28. Article 48(5) of the Constitution enjoins the President to appoint a caretaker Cabinet to run the affairs of the country pending the elections to the National Assembly and formation of Government. The use of word ‘Caretaker’ is not without significance and has to be given some meaning. The argument of the learned Attorney-General and Mr. Sharif-ud-Din Pirzada that ‘Caretaker’ signifies the temporary nature of the tenure appears to be attractive and coming from a jurist like Mr. Sharif-ud-Din Pirzada is entitled to great respect but with due deference we are unable to agree with them. A Cabinet appointed by the Prime Minister to run the affairs of the country till the next General Elections by its very nature is temporary and the life of it is limited by the Constitution itself till the next General Elections which are to be held within 90 days. It was thus not necessary to use the word ‘Caretaker’ to indicate temporary nature of the tenure. On the other hand we are of the view that this word has been used in Article 48(5) to emphasises the purpose of appointment end the nature of the power available to the Caretaker Government. … … Const.P.30/13 etc. 27 30. … … Although no hard and fast rules can be laid down in respect of the, powers available to the Caretaker Cabinet to take decisions as the answer would depend upon facts of each case but generally speaking a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected representatives of the people, moreso when the Caretaker Cabinet cannot claim to have been given any mandate by the people. There may not be any express restriction on the powers of the Caretaker Cabinet by the Constitution itself but the conclusion reached by us flows from the use of words “Caretaker Cabinet” in Article 48(5) of the Constitution as also very nature of the Caretaker Cabinet and the purpose for which it has been appointed. In the case of Khawaja Ahmad Tariq Rahim v. the Federation of Pakistan (PLD 1992 SC 646), this Court held as under: - “5. … … The object of the Care-taker Cabinet is to fill a temporary void, so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far- reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery or funds are channelled in favour of any political party.” In the case of Madan Murari Verma v. Choudhuri Charan Singh (AIR 1980 Cal 95), the Court held as under: - “The President has accepted the resignation of the respondent No. 1 and his Council of Ministers and has asked them to continue in office “till other arrangements are made”. It is the limited pleasure indicated and in that field only in my opinion the respondent No. 1 and his Council of Ministers can function. There is no mention of any care-taker Government as such, in our Constitution or in the constitutional law, though Sir Ivor Jennings has described in his book -- Cabinet Government, Third Ed. p. 85 the ministry that was formed by Mr. Churchill in England after the war before and pending the General election in 1945 as care-taker Government. But an extraodinary situation like the present, in my opinion, calls for a care-taker Government and therefore, the respondent No. 1 and his Council of Ministers can only carry on day-to- day administration in office which are necessary for carrying on “for making alternative arrangements”. In Const.P.30/13 etc. 28 effect the President, in my opinion is therefore, not obliged to accept the advice that the respondent No. 1 and his Council of Ministers tender to him except for day-to-day administration and the Council of Ministers and the respondent No. 1 should not make any decisions which are not necessary except for the purpose of carrying on the administration until other arrangements are made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent number 1 and his Council of Ministers. With this limitation the respondent No. 1 and the Council of Ministers can only function. And in case whether such advice is necessary to carry on the day-to-day administration till “other arrangements are made” or beyond that, the President, in my opinion, is free to judge. It is true again that this gives the President powers which have not been expressly conferred by the Constitution. But, in my opinion, having regard to the basic principle behind this Constitution under Article 75(3) read with Article 74(1) in the peculiar facts and circumstances of this case is the only legitimate, legal and workable conclusion that can be made. In the case of R. Krishnaiah v. State Of Andhra Pradesh (AIR 2005 AP 10) it was held that: - “10. In support of his submissions learned Counsel placed reliance on the recommendations of the Sarkaria Commission referred to by a Constitution Bench of the Supreme Court in S.R. Bommai and Ors. etc., etc. v. Union of India and Ors. etc., etc., , more particularly, recommendation No. 6-8-04(A) that after dissolution of the Assembly and till new Government takes over, during the interim period, the Caretaker Government should be allowed to function. But as a matter of convention, Caretaker Government should merely carry on day-to-day Government and desist from taking any major policy decision. He thus urged that issuing Ordinance permitting to withdraw amount from the Consolidated Fund of the State of Andhra Pradesh to meet (a) the grants made in advance in respect of the estimated expenditure for a part of the financial year commencing on the 1st April, 2004 as set forth in Column (3) of the Schedule appended to the Ordinance and (b) the expenditure charged on the Consolidated Fund of the State of Andhra Pradesh, for the part of the same financial year, as set forth in Column (4) of the Schedule, is nothing but a major policy decision which ought not to have been taken. ……………………………… 16. Therefore, the submission that the Ordinance could not have been promulgated is misconceived. Ordinance has the same force and effect as any Act of the State Const.P.30/13 etc. 29 Legislature and there is no prohibition in the Constitution that during the period an Assembly is dissolved and fresh Assembly has not yet been constituted, that Ordinance could not have been promulgated by the Governor. This act of the Governor will be deemed to be an exercise of power of the Legislative Assembly, as envisaged under Article 206 and even under Article 205 and as noticed above. Clause (3) of Article 203 is a prohibition not to withdraw from the Consolidated Fund any amount being subject to provisions of Articles 205 and 206 of the Constitution. The Ordinance having validly been promulgated there is hardly any force in the other submission that a situation has arisen where power must be exercised or directed to be exercised by the President of India under Articles 356 or 360 of the Constitution.” 18. The crux of the above case-law and conventions/guidelines is that the Caretaker Government/Cabinet has to confine itself to the running of the day-to-day administration of the State. Indeed, it may take decisions required for ordinary orderly running of the state, but decisions having far-reaching effects should only be taken in extraordinary circumstances, like in war, earthquake, floods, etc. Although there may not be any express restriction on the powers of the caretaker government by the Constitution itself, but a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected government. Thus, there can be no two opinions that the caretaker government has to exercise the powers for a limited purpose as it has been highlighted hereinabove, namely, relating to the elections and not to make fresh appointments of the civil servants or make appointments of the heads of the Autonomous, Semi-Autonomous Bodies, Corporations, Regulatory Authorities, etc., appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the Const.P.30/13 etc. 30 scope of their efficacy to share higher responsibilities to run the affairs of the Government. 19. In the context of instant case, besides relying upon the guidelines in the judgments noted hereinabove, one may conveniently pose a question, particularly in view of Article 48(5) of the Constitution and other constitutional provisions, as to why a caretaker cabinet/government appointed under Article 224 or as the case may under Article 224A of the Constitution, should not exercise powers available to a duly elected government? Answer to this question lies in the expression “Interim Cabinet” used in Article 48(5) of the Constitution, which enables to draw the inference that the interim Cabinet or caretaker Cabinet headed by a Prime Minister means a caretaker cabinet or a government, which has been entrusted temporary charge of government during the period when the National Assembly is dissolved because ordinarily for a period of five years under Article 58, the National Assembly exists for the purpose of running the affairs of the State and in absence of elected Parliament, continuity of the governance system in the country has to be kept intact, otherwise running the affairs of the State would not be possible at all. In addition to it, although in our country in respect of the powers of the caretaker government no conventions have been developed and for such reasons the instant Caretaker Government indulged in taking vital policy decisions and making postings and appointments of heads of statutory bodies, postings and appointments in civil service, statutory bodies, autonomous, semi-autonomous bodies, corporations and regulatory authorities, including appointments on contract or accepting the services of various persons Const.P.30/13 etc. 31 on deputation by allowing them to occupy one step higher positions than the one, which they were holding previously. 20. Petitioner Khawaja Muhammad Asif appeared and pointed out that caretaker government had made transfers/postings in civil service, statutory bodies, autonomous, semi-autonomous bodies, corporations and regulatory authorities, etc., the list of which has been made part of the record. 21. The learned Attorney General while appearing in Constitution Petitions No.14 of 2013, etc., made a statement, already mentioned in the order dated 22.05.2013, which is reproduced hereinbelow: - “12. That the federation is already on record in taking up a principled stand before this Hon’ble Court that the care- taker government needs only to confine their work to ‘day to day’ routine matters and effectively maintain the status quo for the incoming elected government, while submitting the views of the federation vide a CMA filed in Constitutional Petition Nos.14, 16 to 18 of 2013. It is submitted that vide the said CMA the Attorney General submitted that the care-taker government should avoid taking and controversial step and should not commit any process that is not reversible by the incoming elected government and further that the care-taker government should restrict itself to activity that is a) routine, b) non- controversial, c) urgent and in public interest, d) reversible by the elected government; and e) any significant appointment thereby avoiding any major decisions except agreed to by the opposition. 13. That the learned Attorney General whilst representing the case of the federation in the foresaid constitutional petitions also relied upon Australian Caretaker Conventions Const.P.30/13 etc. 32 and highlighted that the key elements of the code of conduct should include: a) avoiding major policy decisions, b) avoiding any significant appointments, c) signing any major contract, d) avoiding international treaty or commitment, etc. It was in the same light that the learned Attorney General submitted before this Hon’ble Court that the care- taker government had deferred some items of the Council of Common Interests (CCI) in a recently held meeting and was not, therefore, making any binding decisions/commitments with IMF, World Bank or any other donor agency and had further decided not to enter into any binding agreement or treaty to bind the future elected government. It is submitted, therefore, that the care-taker government having earlier taken a principled stand cannot thereafter be allowed to recuse from the same.” Similarly, the Law Minister of the Caretaker Government also objected to the appointments, which were being made directly or indirectly under the verbal or written directions/observations of the caretaker Prime Minister or Cabinet Ministers or the heads of different Departments, Divisions, Ministries, etc. Relevant extract from his statement was published in Daily Dawan, Islamabad dated 19.05.2013, which is reproduced hereinbelow: - “… caretaker Law Minister Ahmar Bilal Soofi has also criticised the postings and transfers being made by the government of Prime Minister retired Justice Mir Hazar Khan Khoso. He warned the caretaker set-up against transgressing its mandate by making undue transfers and postings in important government departments. In a letter to his cabinet colleagues a copy of which he also sent to the Prime Minister Secretariat and the establishment secretary, Mr Soofi said: “Cabinet members Const.P.30/13 etc. 33 should abide by the legal limitation they enjoy under the constitution. They should not trespass the mandate of the interim government. “I would again reiterate that we may continue the prevalent transparency and may not take action which may be counter-productive to the important role performed by the caretaker government.” Talking to Dawn on Sunday, the law minister confirmed that he had highlighted in the letter the issue of unnecessary postings and transfers being carried out by some of his colleagues in the cabinet. But he did not mention any specific posting or transfer. He said the letter had been dispatched on Saturday. In his letter Mr Soofi has also mentioned the cancellation of contract of two officials of the information ministry and the recent replacement of the National Highway Authority’s chairman. The letter also referred to a statement he had earlier made in cabinet that it was advisable to avoid making controversial appointments in major departments and leave them to the elected government.” 22. We consider it appropriate to make reference of the case titled as In re: Abdul Jabbar Memon (1996 SCMR 1349) wherein it has been observed that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad-hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad-hoc appointments into regular appointments. It was held that this practice is prima facie violative of Fundamental Right enshrined in Article 18 of the Constitution guaranteeing to every citizen freedom of profession, which must be discontinued forthwith and immediate steps should be taken to rectify the situation, so as to bring the practice in accord with the Constitutional requirement. But unfortunately it has been noticed that the guidelines/principles have neither been followed by the duly elected governments in the past nor by the caretaker governments. Inasmuch as, principle of transparency Const.P.30/13 etc. 34 has not been adhered to in the appointments of the Members of the Federal Public Service Commission under the Ordinance of 1977 to conduct tests/examinations for recruitment of persons to all Pakistan Services, Civil Services of the Federation and civil posts in connection with the affairs of the Federation and Provinces. No transparent system is in place to ensure merit-based selection of persons for appointment as the heads of the autonomous, semi-autonomous bodies, corporations, organizations, etc. Record available in archives would indicate that except for a shorter period, despite presence and availability of renowned knowledgeable and reputable personalities, these vacancies were allowed to be occupied by persons having connections with the higher functionaries of the State, who openly indulged in favourtism and nepotism. In such a scenario, how the object of making appointments on merit could be achieved, including by the elected government. 23. It is to be noted that reportedly there are more than 100 organizations/corporations, which are causing colossal loss of trillion of rupees to the public exchequer, like Pakistan International Airline, Pakistan Railways, Pakistan Steel Mills, PEPCO, PASCO, Utility Stores Corporations, OGDCL, NEPRA, PEMRA, PTA, KESC, SSGPL, NICL, etc. It is a fundamental right of the citizens of Pakistan under Article 9 of the Constitution that the national wealth/resources must remain fully protected whether they are under the control of the banks or the autonomous and semi-autonomous bodies. 24. There are cases where favorites were appointed despite lacking merits to hold such posts/positions. Reference may be made to the case of Adnan A. Khawaja v. The State Const.P.30/13 etc. 35 (2012 SCMR 1434) where a convict, who was acquitted of criminal charges taking benefit of NRO, was appointed as the head of OGDCL. Similarly, in the case of Mir Muhammad Idris v. Federation of Pakistan (PLD 2011 SC 213), the validity of the reappointment of Syed Ali Raza as President of the National Bank of Pakistan for fifth time for one year was challenged. The Court declared the said reappointment to be unconstitutional. Relevant para therefrom is reproduced hereinbelow: - “11. … Since, admittedly, the amendment made in section 11(3)(d) of the Act of 1974 by the Finance Act, 2007 was unconstitutional and illegal, the appointment of respondent No.3 made under an unconstitutional and illegal legislation would not remain unaffected as the foundation on which its superstructure rested stood removed. The argument of the learned counsel for respondent No. 3 that the appointment of respondent No.3 was made by the Federal Government in exercise of the power conferred upon it by a legislative instrument passed by the concerned legislature, therefore, the same was not liable to be interfered with being a past and closed transaction is not tenable. If the appointments of Judges were affected on account of a similar defect in legislation, how the appointment of respondent No.3, who, too, was appointed under such an unconstitutional and. illegal amendment could be protected. 13. … The reappointment of respondent No.3 Syed Ali Raza as President NBP by way of notification dated 10.4.2010 is declared to be unconstitutional and he shall cease to hold office as President NBP with immediate effect.” In the same context, reference may also be made to the case of Chairman of NICL Ayaz Khan Niazi, who again was appointed without determining whether he is fit and proper person to hold the said post as a result whereof the government exchequer had to suffer an enormous loss, some of its portions have been recovered and still cases are pending before the Courts. This Court in Suo Moto Case No. 18 OF 2010 (PLD 2011 SC 927) Const.P.30/13 etc. 36 directed the Secretary Commerce to lodge complaint before FIA against the concerned persons for causing loss to the public exchequer. Similarly, the appointment of one Mr. Tauqir Sadiq as Chairman of the Oil and Gas Regulatory Authority was challenged before this Court on the ground that he did not posses the necessary credentials for holding the said office. The Court in the case reported as Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), after considering the importance of the OGRA and scrutinizing the appointment process of its Chairman, declared his appointment void ab initio. There are other cases where some of the persons had succeeded in getting contract employments after their retirement in violation of section 14 of the Civil Servants Act, 1973 as well as instructions contained in ESTA Code. Reference may be made to Suo Motu Case No. 24 of 2010 (PLD 2011 SC 277) wherein it was observed that in the disciplined forces, particularly, like police and FIA where people have to work in a well defined discipline, the persons supervising the forces were permitted to hold charge of the posts on contract basis. It may not be out of context to note that in terms of the definition of section 2(1)(6)(ii) of the Civil Servants Act, 1973, a person who is employed on contract does not fall within the definition of a civil servant, so his authority to command and maintain discipline can be well imagined from the fact that if a person himself is not a civil servant, he is considered only bound by the terms and conditions of his contract and not by the statutory law, because if any condition laid down in the contract is violative of any statutory provision, he would only be Const.P.30/13 etc. 37 subject to action under the said contract. In this view of the matter, the officers who were reemployed after retirement, were directed to be removed. In a recent case titled as Muhammad Ashraf Tiwana v. Pakistan (Constitution Petition No.59 of 2011), this Court found that the appointments of Chairman and Members of the Securities & Exchange Commission of Pakistan did not meet the requirement of the Securities & Exchange Commission of Pakistan Act, 1997 as such, the same too, were set aside. Last but not the least, this Court while hearing the case regarding implementation of directions issued in Suo Motu case No.16/2011 regarding law and order situation in Karachi, directed the Government of Sindh to terminate the services of 86 employees appointed in different grades from 12 to 21 on contract basis in various provincial departments. 25. During hearing of the case, it has been pointed out to petitioner Khawaja Muhammad Asif that although he being an elected Member of the Parliament had raised questions touching upon the transparency in the appointment of the heads of the autonomous, semi-autonomous bodies, corporations, regulatory authorities, etc., but in his own capacity as a public representative, he had also to ensure that all the appointments in such like bodies as well as the appointments on contract basis must be made in a transparent manner. In some of the countries, effective steps have been taken to stop such colossal loss of the national resources by day-to-day measures to improve the professional quality and political neutrality of appointments to public bodies/regulatory authorities by ensuring that selection in such bodies is based on merit, fairness and openness. It Const.P.30/13 etc. 38 may not be out context to note that in UK, an independent Commissioner is available to regulate, monitor, report and advice the public appointments, the performances etc. All the government departments while making such appointments are bound to follow the code of practice which has been issued by such Commissioner. Similarly, in Canada all appointments for Chief Executives, Directors and Chairpersons of public sector corporations are subject to strict merit-based system. It may be noted that elected government has to heavily rely upon public bodies to implement their policies and the object essentially cannot be achieved if honest and competent persons are not holding such public offices. While making such appointments, following parameters are to be considered: - (1) Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might seek to influence them in the performance of their official duties. (2) Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choice solely on merit. (3) Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. (4) Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. (5) Honesty: Const.P.30/13 etc. 39 Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. (6) Leadership: Holders of public office should promote and support these principles by leadership and example. 26. Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi-autonomous bodies, etc. The Commission should be mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions: - (i) Regulate public appointments processes within his remit; (ii) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections; (iii) chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary; (iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate; Const.P.30/13 etc. 40 (v) report publicly on a public/statutory body’s compliance with the Code of Practice, including examples of poor and good performance, and best practice; (vi) investigate complaints about unfair appointment process; (vii) Monitor compliance with the Code of Practice; (viii) Ensure regular audit of appointments processes within his remit; (ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March; \ (x) Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against. 27. The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question. No public appointment must take place without first being recommended by the Commission. The appointments procedures should be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity. The information provided about the potential appointees must be made public. The Commission may from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. He may also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized. Const.P.30/13 etc. 41 28. In light of discussion made hereinabove, we hold that: - (a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc. (b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily. (c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people. (d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet/government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country. 29. As we have noted hereinabove that since the Caretaker Government after its appointment, had made more than 400 appointments, transfers and postings of Government servants/employees, including transfer on deputation with promotion to next higher grade or as the case may be, heads of autonomous, semi-autonomous bodies, regulatory authorities, heads of government controlled institution, etc., therefore, it may not be possible for this Court to discuss and deal with each and every case in these Const.P.30/13 etc. 42 proceedings, therefore, their cases shall be subject to declaration, which is being made hereinbelow. 30. Thus, at the touchstone of the parameters laid down in the paras supra about the powers of the Caretaker Cabinet/Government, it is declared and held as under: - (a) The orders of appointment/deputation, transfers as well as postings, etc., of civil servants and Chief Executive Officers of statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc., made by the Caretaker Cabinet/Prime Minister are hereby declared to be void, illegal and of no legal effect w.e.f. date of issuance of notifications respectively, except the transfers and appointments of senior government officers including the Chief Secretaries and IGP of any of the Provinces during the election process. (i) However, the Federal Government, in exercise of its powers would be authorized to allow to continue any of such appointments, transfers made by the Caretaker Cabinet/Government in the public interest, subject to following requisite provision of law. (ii) As far as the issue of notifications in the cases of (i) Mumtaz Khan (CMA 3451/2013), (ii) Muhammad Nadeem, AGM Marketing (CMA 3480/2013) and (iii) General Syed Wajid Hussain, Chairman HIT Taxila are concerned, their notification of appointment shall remain frozen as process of their appointments had taken place before assumption of charge by Caretaker Cabinet/Government but their notifications were issued by the Caretaker Government. However, the Federal Const.P.30/13 etc. 43 Government through competent authority shall decide fate of their cases within 15 days after receipt hereof and copy of decision shall be sent to Registrar for our perusal in Chambers. (iii) Needless to say that if there are identical cases as noted in para (a)(ii), same shall be dealt with in the same manner. (b) All the orders of removal or transfers as well as posting on deputation of civil servants and Chief Executive Officers of statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc., by the Caretaker Cabinet/Prime Minister are hereby declared void, illegal and of no legal effect w.e.f. date of issuance of notifications respectively, however: (i) the Federal Government would be empowered to continue the removal or transfers, etc., of Chief Executive Officers/heads of the departments, statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc. in the public interest, subject to following requisite provision of law. (c) As far as contract employees are concerned, whose contracts have been cancelled or those to whom fresh contracts of service have been given by the caretaker Cabinet/Government, shall stand cancelled as holders of contract employment of both these categories deserve no interference in view of the judgment of this Court in the case of State Life Insurance Employees Federation of Pakistan v. Federal Government of Pakistan (1994 SCMR 1341), because no relief can be granted to them in these proceedings as no question of public importance with Const.P.30/13 etc. 44 reference to enforcement of their any of the fundamental rights arises; (d) As far as the cases of the transfers of the civil servants/employees before the completion of tenure made allegedly in violation of the law laid down by this Court in Anita Turab case are concerned, the concerned departments of Federal Government shall examine their individual cases on the touchstone of the principles laid down in the said case. However, decision given on the complaint of any of the employees by this Court alleging violation of the principles enunciated in the judgment referred to hereinabove, shall be deemed to be in accordance with law. (e) The appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons are appointed on the right job, in view of the observations made in above paras (Para. No. 25 & 26); and (f) The Federal Government through the concerned Secretaries shall take up the issue of postings of 100 officers on deputation from Balochistan, as it was pointed out during the hearing of this case on 22.05.2013 and accomplish the same, if required, in accordance with law. 31. The Secretary Establishment is directed to communicate this judgment to all other Divisions, Ministries, Organizations, etc. for implementation of the same. 32. The case of the Ombudsman be de-linked and it shall be heard/decided separately in view of the question of interpretation of law on the subject namely, Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Const.P.30/13 etc. 45 33. In the result, Constitution Petition No.30 of 2013 partially allowed and the titled CMAs as well as CMAs No.2991 & 3015/2013 in Constitution Petition No.23/2012 are disposed of accordingly. CHHIEF JUSTICE JUDGE JUDGE ANNOUNCED IN OPEN COURT ON ________ AT ISLAMABAD CHHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED CONST. PETITIONS NO.31/2011, 45/2007, 111 & 123/2012. Imran Khan. (in Const.P.31/2011) Mohtarma Benazir Bhutto. (in Const.P.45/2007) Syed Munawar Hassan and others. (in Const.P.111/2012) Saleem Zia. (in Const.P.123/2012) … Petitioners. VERSUS Election Commission of Pakistan and others. (in Const.P.31/2011) Chief Election Commissioner of Pakistan. (in Const.P.45/2007) Federation of Pakistan and others. (in Const.P.111 & 123/2012) … Respondents. For the petitioner: (in Const.P.31/2011) Mr. Hamid Khan, Sr. ASC Mr. Waqar Rana, ASC Mr. M.S. Khattak, AOR. For the petitioner: (in Const.P.45/2007) Sardar Khurram Latif Khan Khosa, ASC Mr. Arshad Ali Chaudhry, AOR For the petitioners: (in Const.P.111/2012) Mr. Rashid A. Razvi, Sr. ASC For the petitioner: (in Const.P.123/2012) Dr. M. Shamim Rana, ASC with Mr. Saleem Zia, Adv. For the applicant: (in CMA No.4840/2012) Dr. Muhammad Farogh Naseem, ASC For the Federation: Mr. Dil Mohammad Alizai, DAG For Election Commission: Mr. Muhammad Munir Paracha, ASC Syed Sher Afghan, DG (Elections) Mr. Muhammad Nawaz, Law Officer. For NADRA: Mr. Mehmood A. Shaikh, AOR Mr. Muzaffar Ali, DG. Date of Hearing: 28.11.2012 Const. P No.31-2011, etc. 2 JUDGEMENT Sh. Azmat Saeed, J.- The Constitution of the Islamic Republic of Pakistan, 1973 envisages a parliamentary system of government. It provides for a Parliament (National Assembly and the Senate of Pakistan) for the Federation and the Provincial Assemblies for the provinces. The people are to be governed by their chosen representatives and the Fundamental Rights including Article 17 guaranteed under the Constitution are to be enforced. It may be advantageous to reproduce the said Article, which reads as under: - Freedom of association: (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. (2) 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 such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Every political party shall account for the source of its funds in accordance with law. 2. A comprehensive mechanism is provided to facilitate the people to choose their representatives in accordance with the Constitution and the laws on the subject regulating different aspects of the election process including Articles 218 and 219 of the Constitution Const. P No.31-2011, etc. 3 and the Electoral Rolls Act, 1974. Under Article 218(3), it is the duty of the Election Commission of Pakistan to organize and conduct the elections and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, be it a general election or a bye-election. Whereas under Article 219 of the Constitution, the Election Commission of Pakistan is charged with the duty of preparing electoral rolls and revising the same periodically so as to enable all the eligible voters to exercise their right of franchise. 3. It may be pertinent to mention here that Constitution Petition No. 45 of 2007 was filed by Mohtarma Benazir Bhutto (late) under Article 184(3) of the Constitution with the prayer that the respondents (ECP & others) be directed to update the computerized/electronic voters lists to encompass the names of all persons entitled to vote in terms of Article 51(2) of the Constitution and the condition of CNIC for registration of eligible voters may be declared as without lawful authority and of no legal effect. The said petition came up for hearing before this Court on 10.08.2007, when an order was passed, relevant para of which is reproduced herein below:- “2. It may be noted that the Election Commission has submitted parawise comments, in which a schedule for the additional entries in the computerized electoral roll 2006-2007 has been provided, according to which a process has commenced from 3rd August, 2007 and it will end on 20th December, 2007 and in this way 140 days are required to complete the same. We have minutely gone through the same. The time being consumed to complete certain steps is on the high side. We believe that such exercise can be completed within a minimum period because the matter is quite simple as on the one hand there is Const. P No.31-2011, etc. 4 electoral list of the voters prepared for the election of 2002, according to which the number of voters is 71.86 million whereas in the electoral list which has been presently prepared, number of voters has been shown to be 5,21,02,428. There is approximately a difference of about 2 crores. Therefore, the Election Commission after minusing (sic) the votes, already recorded, has to check only in respect of the genuineness or otherwise of the remaining votes and for that purpose, they can provide forms, etc. to those voters whose names have not been recorded by taking out the names from original list, through post-offices or any means within a minimum time and by increasing the number of staff twice or thrice this exercise can be completed within a period not more than 30 days. However, further improvement in such exercise can also be made by the Commission with a view to minimize the period of recording the names of the left over voters in existing electoral list and to ensure that there must be fair and transparent elections, which are scheduled to be held in the near future.” 4. The case was then taken up on 04.10.2007 when the representative of the ECP stated that in pursuance to the directions of this Court, the exercise has been completed and 27 million voters have been added in the electoral rolls. It was further stated that there were a total of 80 million people who were eligible for exercising the right of vote but some more time would be required to complete the printing and publication of the electoral lists in accordance with the rules. Accordingly, ECP was directed to complete the printing/publishing exercise up to 25.10.2007 whereafter the list would be placed on the website of the Commission. 5. On 07.04.2011, Mr. Imran Khan, Chairman, Pakistan Tehrik-e-Insaf filed Constitution Petition No. 31 of 2011 with, inter Const. P No.31-2011, etc. 5 alia, the prayer that the ECP be directed to prepare fresh electoral rolls eliminating all bogus votes and introducing and incorporating the new eligible votes who can be verified from the relevant database and record of NADRA. And to include the names of the voters, as per their addresses given in the CNIC. The petition was heard from time to time and necessary orders were passed. On 04.07.2011, the Secretary ECP appeared before the Court and stated that a Proforma has been prepared allowing the voter to exercise his/her option to vote either at the permanent place of residence or where he/she is temporarily residing on account of his/her place of work, etc., and the option so exercised by him/her shall be printed in the voters’ list. 6. In the meanwhile, Workers Party Pakistan filed Constitution Petition No. 87 of 2011 with, inter alia, the prayer that the prevailing electioneering practices involving wealth, power and influence are against the mandate of the Constitution and are an impediment to a free, fair, just and honest elections on a level playing field, which needs to be remedied. The said petition was disposed of by means of judgment reported as Workers’ Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) wherein it was held and directed, inter alia, as under: - “(j) To achieve the goal of fair, free, honest and just elections, accurate preparation/revision of electoral roll is immediately required to be undertaken by the Election Commission through credible and independent agencies. Accordingly, we direct the Election Commission to undertake door-to-door checking of voters’ lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps to ensure transparency, if need be.” Const. P No.31-2011, etc. 6 7. Thereafter, Constitution Petition No. 111 of 2012 was filed on behalf of Syed Munawwar Hassan, Amir Jamat-e-Islami and 2 others with, inter alia, the prayer that the electoral rolls prepared by the ECP which are tainted with irregularities and errors in the Province of Sindh especially Karachi be declared illegal, unlawful and that the respondents be directed to revise the electoral rolls and to correct the same on the basis of the present address of the voter in the city where he is residing. Mr. Saleem Zia, Secretary General, Pakistan Muslim League (N) Sindh filed Constitution Petition No. 123 of 2012 with an identical prayer. On 22.11.2012, Dr. Farogh Naseem, learned ASC filed CMA No. 4840 of 2012 on behalf of Muttahida Qaumi Movement (MQM) for impleadment as a co-respondent and giving him a right of audience on behalf of the intervener, which was allowed on the same day. All these matters have been heard together. 8. We have heard M/s Hamid Khan, Rashid A. Razvi, Dr. Muhammad Shamim Rana, Dr. Farogh Naseem, Sardar Khurram Latif Khan Khosa, Muhammad Munir Paracha, learned counsel for the parties and Mr. Dil Mohammad Alizai, learned DAG. 9. The main grievance raised before us by the learned counsel for the petitioners is that the judgment of this Court in the case of Workers’ Party Pakistan (supra) has not been complied with in its letter and spirit by the ECP, inasmuch as, there have been gross errors and irregularities in the preparation of the Electoral Roll of Karachi wherein a large number of voters have been disenfranchised and their names have been removed from the Electoral Roll. In response to the above, a rather evasive reply has been submitted on behalf of the Election Commission which is of not much significant, in Const. P No.31-2011, etc. 7 the presence of the material, placed before us, including a comparative statement of the Electoral Roll, wherein 663 electors have been registered to be the residents of House No.E-43, PECHS, Block-II, Karachi, allegedly constructed on a 120 square yards. And the statement made by Dr. M. Shamim Rana, ASC that names of a large number of voters have been deleted from the Electoral Roll of Karachi and shifted to different parts of the country arbitrarily including his own vote. To further demonstrate his pleas, he has also referred to relevant material filed by him through CMA No.4830 of 2012. Mr. Hamid Khan, Sr. ASC contended that according to credible information, while revising the voter lists, as per commitment of the Secretary, ECP, made in the order dated 4.7.2011, only 10% voters were approached by the Electoral Staff. 10. Learned counsel for the petitioners further alleged that approximately 50% votes of the electors of Karachi have been shifted to other parts of the country and in their places, names of unverified voters have been inserted, which is likely to lead to rigging in the forthcoming elections as a result whereof it would not be possible to fulfill the command of the Constitution of ensuring right of franchise a fundamental right of each actual/real voters, whose names stand verified for the last 2/3 general and bye-elections and the object of holding free, fair, honest and just election will be defeated unless the names of voters are re-verified on a door-to-door basis in accordance with the Constitution and the Law through their CNIC. 11. Sardar Khurram Latif Khan Khosa, learned counsel in Const.P.No.45/2007 has urged that an identical complaint was highlighted in the petition filed by Mohtarma Benazir Bhutto (late), the then Chairperson of PPP invoking jurisdiction of this Court under Article Const. P No.31-2011, etc. 8 184(3) of the Constitution, now represented by Mr. Jehangir Badar, Secretary General of the Party. He has reiterated the assertion made by Mr. Jehangir Badar, Secretary General, Pakistan Peoples Party while appearing before this Court on 21.11.2012 that the Electoral Roll of Karachi prepared by the ECP contains gross errors/violations, which need to be rectified/corrected as prayed for by the learned counsel appearing on behalf of other petitioners. He has referred to the order of this Court dated 16.08.2007 passed in Const. Petition No.45/2007, wherein the ECP was directed to complete the exercise within a period of 30 days from the date of the said order, in the light of the observations made in the order dated 10.08.2007 reproduced hereinabove. 12. Dr. Farogh Naseem, learned counsel for applicant-MQM, on the other hand, has contended that the exercise of preparation of the Electoral Rolls in Karachi has been completed and until the elections are announced, they can be varied and altered at the behest of the individual voter only, and not on the request of any of the political parties and there is no ground for fresh revision of Electoral Roll nor will it be just. In this regard, he has placed reliance upon the cases titled as Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others (AIR 985 SC 1233) and C. Lakshmi Narain v. The Chief Election Commission (AIR 1997 Madras 125). 13. Mr. Muhammad Munir Paracha, learned counsel appearing for the Election Commission, on the other hand, has contended that the exercise of preparing the Electoral Roll of Karachi has already been completed and that the Election Commission has filed its reply in which it has explained its position. He has contended that annual revision of the Electoral Rolls of Karachi at this stage is not permitted by law and Const. P No.31-2011, etc. 9 such revision can only be carried out in the next year, as the law requires annual revision of the Electoral Rolls. He, however, contended that individual grievances, if raised in accordance with law, can always be entertained and redressed until elections are announced. Mr. Dil Muhammad Alizai, learned DAG has adopted the arguments of Mr. Muhammad Munir Paracha, learned ASC. 14. Adverting first to the objection raised by Dr. Farogh Naseem, learned counsel appearing on behalf of MQM that the alleged complaints made by the petitioners are individual in nature and mechanism of redressal of such individual complaints is provided for in the Electoral Rolls Act, 1974 and the Rules framed thereunder and the petitioner-political parties have no locus standi to agitate the matter in these proceedings. In the instant case, Article 184(3) of the Constitution has been invoked and suffice it to say that with the passage of time, the scope of jurisdiction of this Court under Article 184(3) of the Constitution has steadily evolved and expanded with its contours now well established through the successive judgments handed down by this Court. It has been declared that proceedings under Article 184(3) are not limited to adversarial proceedings to be initiated by a wronged litigant seeking redressal of his individual grievance. Likewise, the rule of locus standi has also not been held applicable to the cases involving questions of public importance with reference to enforcement of the Fundamental Rights, especially in the domain of Public Interest Litigation to ensure a meaningful protection of the Rule of Law to all citizens, as has been laid down in judgments reported as Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Dr. Akhtar Hassan Khan and Const. P No.31-2011, etc. 10 others v. Federation of Pakistan and others (2012 SCMR 455) and Muhammad Yaseen v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132)]. 15. As regards the objection to the maintainability of the instant petitions under Article 184(3) of the Constitution in the context of elections and the rights of the political parties to agitate for the due fulfillment of the Constitutional and legal requirements in respect thereof, this Court in its judgment reported as Workers’ Party (supra) has held as under:- “33. The scope of jurisdiction of this Court under Article 184(3) of the Constitution by now is fairly settled in a plethora of case-law, therefore, there is no necessity to recapitulate the constitutional provision or to refer to the entire case-law for the purpose of deciding the question of maintainability of the instant petition. This Court, in the cases of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Haji Muhammad Saifullah Khan v. Federation of Pakistan (PLD 1989 SC 166) and Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) has already held that the right to form, or be a member of a political party guaranteed under Article 17 of the Constitution subsumes the right to participate or contest in the election, and to form government if successful. The petitioners have vehemently averred that the impugned practices violate the fundamental right of the citizenry at large guaranteed by Article 17 read with Article 25 of the Constitution. None of the respondents has rebutted the above assertion of the petitioners. Const. P No.31-2011, etc. 11 Accordingly, the instant petition is held to be maintainable. 34. It may be mentioned here that the instant petition falls in the public interest litigation, which is not adversarial but inquisitorial in nature. In the cases of Watan Party v. Federation of Pakistan (PLD 2011 SC 997) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1) referred to by Mr. Farogh Naseem, ASC, this Court has held that it has the jurisdiction to adjudicate upon a case if it falls within the ambit of inquisitorial proceedings. It is also well settled that while entertaining a direct petition under Article 184(3), this Court has ample power to examine the varies of laws, rules or regulations. Reference in this regard has been made to the cases of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1988 SC 1263), Farooq Ahmad Khan Laghari v. Federation of Pakistan (PLD 1999 SC 57), Jalal Mehmood Shah v. Federation of Pakistan (PLD 1999 SC 395), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Muhammad Mubeen-us-Salaam v. Federation of Pakistan (PLD 2006 SC 602).” Reference in this behalf may also be made to the judgment of this Court reported as Mubasher Lucman v. Federation of Pakistan and others (PLD 2011 SC 775). Thus, in the light of the law laid down in the aforesaid cases, it is clear that this Court, under Article 184(3) of the Constitution, not only has the jurisdiction to pass appropriate orders in the cases involving questions of public importance with reference to enforcement of fundamental rights guaranteed under the Const. P No.31-2011, etc. 12 Constitution but is also empowered to ensure fulfillment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law. Hence, these petitions are held to be maintainable and the grievances raised therein are justiceable by this Court in the present proceedings. The objection raised by Dr. Farogh Naseem, learned ASC appears to be misconceived and the judgments relied upon by him irrelevant in the facts and circumstances of the case. 16. We have considered the submissions of the learned counsel for the parties on merits and have also gone through the material placed before us, and also the law relied upon by them. 17. It is the command of the Constitution under Article 218(3) that the Election Commission of Pakistan is charged with the duty to ensure free, fair and just elections in the country, be it a general election or bye-election. Whereas, under Article 219 of the Constitution, the Election Commission of Pakistan is also commanded to revise the electoral list annually, object of which is none else, except that free and fair elections are held. 18. Before dilating upon the laws on the subject, we consider it appropriate to reproduce herein below the number of constituencies of the National Assembly and the Provincial Assembly of Karachi Division, as per the gazette of Pakistan, June, 2002, from where electors are required to choose their representatives as per the mandate of the Constitution:- KARACHI DIVISION No. and Name of NA Constituencies NA 239 Karachi-I to NA-258 Karachi-XX (20 Seats) No. and Name of PA Constituencies PS-89 Karachi-I to PS-130 Karachi-XLII (42 Seats) Const. P No.31-2011, etc. 13 It is equally important to note that following number of voters in Karachi have been brought on final Electoral Roll, 2012:- Name of District Male Female Eunuch Total Karachi Central 897443 712916 5 1610364 Karachi East 1129217 901466 6 2030689 Karachi South 603258 464342 3 1067603 Karachi West 856085 560314 12 1416411 Malir 426562 300314 5 726881 Total 3912565 2939352 31 6851948 19. The Election Commission of Pakistan filed a reply vide CMA No.4654/2012, wherein it has admitted that the process of revision of Electoral List pertains to the month of April-May, 2011. Extract from the reply is reproduced herein below:- “8. Above-mentioned reasons enforced ECP and NADRA to align their databases with respect to addresses according to New Census Blocks. For this purpose, a Proforma was devised to capture and link current location of families with newly created Census Blocks. These Proformas were filled by enumerators during Housing Census – 2011 conducted in April-May 2011 countrywide.” 20. The grievance raised primarily with reference to Karachi through the instant Constitution Petitions must necessarily be examined in the above backdrop. It is the case of the Election Commission of Pakistan that door-to-door verification in Karachi has in fact been effected in respect of approximately 82% of the population. This fact is vehemently disputed by the learned counsel for the Const. P No.31-2011, etc. 14 petitioners, who have contended that such door-to-door verification was not carried out in Karachi, which fact is obvious from the discrepancies and flaws identified by them by way of examples including the rather strange and physically impossible situation of over 600 voters having been registered, as residents of a house measuring 120 Sq. Yards. 21. The primary basis for the Electoral List of the Housing Census carried out in April-May 2011. Even after the preparation of the Final Electoral Roll, the necessity of a further door-to-door verification was conceded by the Election Commission in para 23 of the above-said CMA, which is reproduced as follows:- “23. Voters having different current and permanent address can be re-verified through subsequent door to door verification along with fresh CNIC registrations.” 22. It may be observed that Karachi has a peculiar background, which includes a serious law & order situation, detailed stock of the same has been taken by this Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997). In this judgment categorical directions were made for delimitation of the constituencies of Karachi in the following terms: - “Further observe that to avoid political polarization, and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police station, 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 Const. P No.31-2011, etc. 15 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 behalf.” We believe that so far, the above directions have not been implemented, therefore, Election Commission owes an explanation to this Court. Needless to observe that the above directions were made in the backdrop of the said case and was discussed at length. Another relevant portion from the said judgment is reproduced hereinbelow: - “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 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.” … … … “92. An identical situation was prevailing in Malaysia and that Government with full Const. P No.31-2011, etc. 16 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 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 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 Const. P No.31-2011, etc. 17 cleansing process of such people and NADRA must have separate records and computer files based on proper and cogent evidence. NADRA and police should co-operate in Karachi through an intensive drive to identify foreigners, block their NIC cards after due process of law and special teams should be appointed and dedicated for this job by DG NADRAT and IGP so that this can be completed in the course of next one year or so. Then the law must take it own course in each case. This must be given high priority.” 23. The apprehensions of all the petitioners cannot be brushed aside in view of the reasons (directions) quoted above. It is also to be noted that the above judgment is intact as it has not been challenged by filing review petition. Thus a concluded judgment, furnishes strong reasons to hold that in such a situation when there were NO GO Areas, in Karachi; police has been politicized (as per statement of IGP, 30% to 40% of the Principal Law Enforcing Agency, has been politicized); political parties, barring a few have militant groups; life and property of the citizen is not protected; etc., the process of preparing of Electoral Rolls or revising the same transparently was not likely, as alleged by the petitioners. Furthermore, in a situation where life and property of the people is not protected, how electors would come forward to co-operate with the staff of election department for such purpose, and there is every likelihood of illegalities having taken place. 24. Viewed in the above perspective, the discrepancies in the Electoral Roll of Karachi identified by the learned counsel for the Petitioners by way of example, examined in conjunction with the admitted position of the Election Commission that a door-to-door Const. P No.31-2011, etc. 18 verification of the entire residents of Karachi has not been carried out leads to the conclusion that the Electoral Rolls of Karachi do not inspire confidence and the possibility that a significant number of residents of Karachi may have been disenfranchised cannot be ignored. An accurate Electoral Roll is a sine quo non for the holding of a free, fair and transparent election, which is not only the command of the Constitution but also a Fundamental Right of the citizens, which appears to have been compromised qua the residents of Karachi. 25. It may not be out of context to mention that this Court while deciding the case of Workers’ Party Pakistan (supra) has already highlighted the importance of preparation of the electoral list to ensure free and fair elections and has held as under: - “67. Fair, free, honest and just elections are since qua non for strengthening of democracy. To achieve this goal, accurate preparation/revision of electoral roll is immediately required to be undertaken by the Election Commission through credible and independent agencies. In so doing, the convential ways and means of merely depending upon NADRA alone or other similar bodies must be discontinued forthwith. Accordingly, we direct the Election Commission to undertake door-to-door checking of voters’ lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps, if need. ……” 26. It may be noted that Article 219 of the Constitution, which is an enabling provision, contemplates an annual revision of Electoral Roll subject to law including the Electoral Rolls Act, 1974 and the Rules framed thereunder. It is an admitted position that the matter of the Const. P No.31-2011, etc. 19 revision of the Electoral Roll was communicated to this Court by Secretary, Election Commission. The relevant portion of the order dated 4.7.2011 reads as under: - “Mr. Ishtiaq Ahmed, Secretary Election Commission of Pakistan stated that:- (i) In view of the report of NADRA following categories of unverified voters have been removed from the database of NADRA:- Category of unverified Voters Voters Count Voters without any Identity Number 15,028,808 Voters with Invalid CNIC 2,140,015 Voters with Duplicate CNIC entries 2,491,090 Voters with Duplicate MNIC entries 6,469,310 Voters with MNIC not registered with NADRA 11,056,775 Total unverified Voters: 37,185,998 (ii) In the place of above removed voters, 36 million voters have been entered into the database and verification of both the categories is to be carried out by visiting/approaching the house of each voter by the representative of the Election Commission door to door. This exercise shall commence from 18th of July, 2011 and is likely to be completed on 16th of August, 2011. He added that further procedure of publishing/displaying these lists shall be carried out according to law and in this respect, a comprehensive plan has already been chalked out, copy of which has been placed on record. According to him, the whole procedure is likely to be completed by 16th of December, 2011 and thereafter the lists shall be handed over to NADRA for scanning and printing.” This process was undertaken in the month of May, 2011 but the final notification has been issued in May, 2012. Thus, we have to refer to Const. P No.31-2011, etc. 20 the meaning of Annual, which could mean, after one year or during a year, from time to time. For reference the meaning and definition of “annual” is given below: - Annual Meaning and Definition The World Book Dictionary, Volume One 1. Coming once a year: Your Birthday is an annual event. 2. In a year; for a year: What is his annual salary? 3. Lasting for a whole year; accomplished during a year: The earth makes an annual course around the sun. 4. Living but one year or season: Corn and beans are annual plants. The Major Law Lexicon Pertaining or relating to a year; yearly; as the annual growth of a tree; annual profits; annual rents; relating to the events or transactions of a year; as, an annual report. The word ‘annual’ means something which is reckoned by the year. The American Heritage® Dictionary of the English Language, Fourth Edition 1. (n.) A thing happening or returning yearly; especially a literary work published once a year. 2. (n.) A Mass for a deceased person or for some special object, said daily for a year or on the anniversary day. 3. (a.) Performed or accomplished in a year; reckoned by the year; as, the annual motion of the earth. 4. (a.) Lasting or continuing only one year or one growing season; requiring to be renewed every year; as, an annual plant; annual tickets. 5. (a.) Of or pertaining to a year; returning every year; coming or happening once in the year; yearly. an·nu·al ( n y - l) adj. 1. Recurring, done, or performed every year; yearly: an annual medical examination. 2. Of, relating to, or determined by a year: an annual income. Const. P No.31-2011, etc. 21 3. Botany Living or growing for only one year or season. n. 1. A periodical published yearly; a yearbook. 2. Botany A plant that completes its entire life cycle in a single growing season. [Middle English annuel, from Old French, from Late Latin annu lis, ultimately from Latin annus,year; see at- in Indo-European roots.] Collins English Dictionary annual adj 1. occurring, done, etc., once a year or every year; yearly an annual income 2. lasting for a year an annual subscription n 1. (Life Sciences & Allied Applications / Botany) a plant that completes its life cycle in less than one year Compare perennial [3] biennial [3] 2. (Communication Arts / Journalism & Publishing) a book, magazine, etc., published once every year [from Late Latin annuālis, from Latin annuus yearly, from annus year] The American Heritage® Science Dictionary annual ( n y - l) Adjective Completing a life cycle in one growing season. Noun An annual plant. Annuals germinate, blossom, produce seed, and die in one growing season. They are common in environments with short growing seasons. Most desert plants are annuals, germinating and flowering after rainfall. Many common weeds, wild flowers, garden flowers, and vegetables are annuals. Examples of annuals include tomatoes, corn, wheat, sunflowers, petunias, and zinnias. Compare biennial perennial Webster's 1913 Dictionary 1. Of or pertaining to a year; returning every year; coming or happening once in the year; yearly. The annual overflowing of the river [Nile]. -- Ray. 2. Performed or accomplished in a year; reckoned by the year; as, the annual motion of the earth. A thousand pound a year, annual support. - -Shak. Const. P No.31-2011, etc. 22 3. Lasting or continuing only one year or one growing season; requiring to be renewed every year; as, an annual plant; annual tickets. --Bacon. Annual (n) 1. A thing happening or returning yearly; esp. a literary work published once a year. 2. Anything, especially a plant, that lasts but one year or season; an annual plant. 3. A Mass for a deceased person or for some special object, said daily for a year or on the anniversary day. In the case of National Insurance Company v. Life Insurance Corporation (AIR 1963 SC 1171) it has been held that the word “annual” must be given its full meaning. By the word “annual” is meant something which is reckoned by the year. In the case of Prem Kevalram Shahani v. Government of Pakistan (PLD 1989 Karachi 123) it has been held that a plain reading of Article 218 shows that its clauses (1) and (2) provide the constitution of the Commission and its composition, whereas clause (3) provides its duties, namely, that it shall be the duty of the Election Commission in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against, whereas Article 219 lays down the duties of the Commission, namely, preparing electoral rolls for election to the National Assembly and the Provincial Assemblies and revising such rolls annually, organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly and appointing Election Tribunals. There can be no escape from the fact that a free, fair, just and transparent election is the very heart of our democratic system, as envisaged by the Constitution. Such elections must not only be held in Const. P No.31-2011, etc. 23 a fair, just and honest manner but also appear to be so; in order to inspire the confidence of the electorate. The provisions of Article 219 of the Constitution and the Electoral Rolls Act, 1974 and rules framed thereunder must necessarily be interpreted in manner so as to achieve the said object. Consequently, Election Commission must fulfill its obligation cast upon it by Article 218 of the Constitution of ensuring the holding free, fair and transparent elections and to achieve such purpose seek assistance, if necessary from the Executive Authorities in the Federation in this behalf which are obliged to render such assistance by virtue of Article 220 of the Constitution. 27. There is no denial of the fact that free, fair, honest, transparent and just election is demand of the day as the Parliamentary system of the country is strengthening day by day. Therefore, all eligible citizens have a fundamental right of franchise, which must be protected by issuing appropriate directions. 28. In the above circumstances, it is clear that the Electoral Rolls of the city of Karachi are required to be revised by the Election Commission in exercise of powers conferred upon it under Article 219 of the Constitution read with Electoral Rolls Act, 1974 to achieve the object, which is to be ensured by the Commission in terms of Article 218 of the Constitution. Thus, the Election Commission of Pakistan is directed to carry out proper and complete door-to-door verification in Karachi so as to ensure that no voter is disenfranchised or dislocated and all other discrepancies are rectified as early as possible. In view of the peculiar security situation in Karachi highlighted hereinabove such verification must be carried out by the Election Commission with the help and assistance of Pakistan Army and the FC. 05.12.2012 Const. P No.31-2011, etc. 24 29. For the foregoing reasons, Constitution Petitions No.45 of 2007 and 111 & 123 of 2012 are disposed of in the above terms. Constitution Petition No.31 of 2011 is adjourned to a date in office. Chief Justice Judge Judge Announced in open Court on _________, Islamabad. ‘Approved for reporting’ Judge                         Const. Petitions No. 31/2011, 45/2007, 111 & 123/2012      in Const. P. 31/2011    in Const. P. 45/2007    in Const. P. 111/2012      in Const. P. 123/2012       in Const. P. 31/2011        in Const. P. 45/2007      in Const. P. 111 & 123/2012                   in Const. P. 31/2011       1                  in Const. P. 45/2007           in Const.P.111/2012                   in Const. P. 123/2012             in CMS No. 4840/2012                                             2012   28             1973          2                  17                                    1                  2                                                                        3             2               (Electoral Roll 1974    219  218            218 (3)       Act 1974)                     219                                                45/2007         3         184/3                           3             51/2                                  10-08-2007             2006            2            2007      2007  20    2007   03           140                                                   2002            71.86          5,21,02,428                                                                                                                             04-10-2007      4                         27                80    4                      25-10-2007                        07-04-2011  5               31/2011                                                           04-07-2011                                                         87/2011            6                                      PLD 2012 SC                         681          (j)                                                                7              111/2012                                                       5                          22-11-2012    123/2012           CMA No. 4840/2012                                                              8                                   9                                                                     E-43 PECHS, Block 2,                   663    120Sq Yards   Karachi                                CMA No. 4830/2012                                                             04-07-2011                                                               6                                        45/2007       11                             184/3                           21-11-2012                                         16-08-2007       45/2007                                      10-08-2007                    12                                                       AIR 985 SC 1233                 AIR 997 Madras 125                    13                                                                                               7                      14                                1974                             184(3)             184(3)                                           184(3)                                                  (PLD 1988 SC 416)       2012             (PLD 1993 SC 473)                        SCMR 455    (PLD 2012 SC 132)        184(3)          15                                       184(3)     33                                 (PLD 1988 SC 416)            (PLD 1989 SC 166)            (PLD 1993 SC 473)                 8               25                                                                34                    All Pakistan Newspapers Society VS  (PLD 2011 SC 997)       (PLD 2012 SC 01) Federation of Pakistan                                           184(3)                        (PLD 1988 Sc 1263)                   (PLD 1999 SC 57)          (PLD 1999 SC      (PLD 1999 SC 395)       (PLD 2010 SC 265)      504)       (PLD 2006 SC 602)     (PLD                             2011 SC 775)        184(3)                                                                                          9                  16                               218(3)     17 219                                        18             2002              XX-  258  I-  239    20     XLII-  130  I-  89    42       2012                     1610634 5 712916 897443    2030689 6 901466 1129217   1067603 3 464342 603258   1416411 12 560314 856085   726881 5 300314 426562  6851948 31 2939352 3912565       4654/2012       19 10       2011         -                  8                        2011                                      20     82%                                600  120                          2011       21     23                            23              22                (PLD 2011 SC 997)                       "                                        11                                                       "                                                                   26                                                                       27                                                           " 92                                                                                 12        2.5                                                                                                       Foreigner Act                    NADRA                 NADRA       NADRA                         NADRA                        "                              23               no               40 30       go areas                                                            13             24                                                                                          25                              .67                                                                              219     26           1974                     04-07-2011                    i          15,028,808    2,140,015     14 2,491,090          6,469,310      MNIC    11,056,775    MNIC    37,185,998              36      ii                       2011   16     2011  18                                     2 0 1 1  1 6                           2012      2011             "  "      "   "   -:     The World Book Dictionary, Volume One           1         2                :     3              4 The Major Law Lexicon                                   "  " The American Heritage (R) Dictionary of the English Language, 4th ed. 15                  (n) 1                (a) 2                   (a) 3                   (a) 4                           (a) 5 "  " an-nu-al (an'yoo-al) Adj.   "  "         1                2            /   3 n.             1                 2 Late Latin    Old French "Annual /  "    Middle ]    Indo-European  annua-lis, Collins English Dictionary                              16               /                    /    (3)      /          annus    annualis       annus                                                                                               1913                                             shak                              Bacon              ;            .    ;                           National Insurance Company vs. Life Insurance Corporation (AIR 17                1963 SC 1171)        Prem Kevalram Shahani v. Government of Pakistan (PLD 1989     218      Karachi 123)     3       (2)  (1)                                        219                                                                                       1974      219                             218                     220                   27                                            28    219                               1974                218                 18                                                  111123/2012  45/2007         29  31/2011                           19

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Constitution Petition No.31 of 2019. (Under Article 186-A of the Constitution of the Islamic Republic of Pakistan, 1973 - transfer of case from Islamabad High Court to any other High Court) Raja Arshad Mehmood …Petitioner(s) Versus Mst. Maliha Malik & others …Respondent(s) For the Petitioner(s): Mr. Muhammad Ahsan Bhoon, ASC Ch. Akhtar Ali, AOR For Respondents(1-3) Mr. Faisal Siddiqui, ASC with respondents No.1 & 3. Date of hearing: 08.11.2019 ORDER Qazi Muhammad Amin Ahmed, J. The petitioner is amongst the accused, contesting indictment for homicide as well as murderous assault, before the learned Special Judge Court-I Anti-Terrorism, Islamabad, during pendency whereof, he was admitted to bail by the trial Court vide order dated 30-4-2018; an even dated application presented by deceased’s mother, Mst. Maliha Malik, respondent herein, was entertained by the office as a Constitutional petition and posted for hearing before a learned Division Bench of Islamabad High Court, same day, whereupon operation of the order passed by the learned trial Judge was suspended; the petition was numbered as W.P. No.1721 of 2019 titled as Mst. Maliha Malik Vs. Raja Arshad Mehmood, etc.; it is now clubbed with Crl. Misc. No.326-BC/2019 titled as Malik Tariq Ayoub and Muhammad Jawad Sohrab Vs. Raja Arshad Mehmood, etc, seeking cancellation of bail, in exercise of Constitution Petition No.31 of 2019. 2 powers under section 497 (5) of the Code of Criminal Procedure, 1898. These petitions are pending adjudication in the Islamabad High Court and the petitioner seeks withdrawal thereof from the said High Court for their transfer to any other High Court in the country on the ground that three out of four Judges including the Hon’ble Chief Justice had earlier recused to hear the allied matters and, thus, according to the learned counsel, the transfer of the cases would be most expedient in the interest of justice, a plea vehemently resisted by the respondent with the plea that the Judges had since recalled their recusals with the consent of both sides and, thus, there was no occasion for transfer of cases to some other High Court. 2. The case has a chequered history; motions by both sides were earlier attended by the different Benches of the Islamabad High Court. In Criminal Original No.281-C of 2015 Barrister Fahad Sohrab Malik Vs. Maliha Sohrab Malik, etc., Athar Minallah, J. as he then was, recused on account of personal acquaintance with both sides. On 9-11-2017, respondent sought recusal of Shoukat Aziz Siddiqui, J. as he then was, from a Division Bench hearing W.P. No.178 of 2017 Malik Tariq Ayoub & another Vs. The State, a request acceded to, though disapprovingly; the same Constitutional petition came up for hearing before a Division Bench comprising Athar Minallah and Miangul Hassan Aurangzeb, JJ. when they declined to hear the case on 19-10-2017 on account of acquaintance with one of the petitioners, namely, Muhammad Jawad Sohrab whose counsel also prayed for transfer of the case to some other Bench. In yet another contest in W.P. No.1721/2019 titled as Mst. Maliha Malik Vs. Raja Arshad Mehmood, etc, on 19.8.2019, both members of the Division Bench comprising Athar Minallah, CJ. and Mohsin Akhtar Kayani, J. recused themselves in the face of objections raised by both the sides. In supra criminal miscellaneous, the petitioner sought recusal of Mohsin Akhtar Kayani, J. from a Division Bench headed by Aamer Farooq, J., a request once Constitution Petition No.31 of 2019. 3 again granted, with intense disapproval. In this uncanny state of affairs, three out of four available Judges in the Islamabad High Court had recused to hear the case, either on their own or on the request of the parties, on more than one occasion. 3. Ordinarily a High Court does not have to be precluded to exercise authority conferred upon it by the Constitution and the Law, in cases/matters falling within its jurisdiction, therefore, this Court would exercise powers of transfer under Article 186-A of the Constitution, most sparingly as well as cautiously in extraordinary situations, to secure the ends of justice, certainly not in the run of the mill cases for the satisfaction of disgruntled parties, however, in the present case, we have noticed that three Judges of the Islamabad High Court had earlier recused to hear the case that requires hearing by a Division Bench and, thus, in the presence of available Judges, there was no option for them to once again attend the plea without leaving the parties remediless, therefore, we find it expedient as well as in the interest of justice to withdraw W.P. No.1721 of 2019 titled as Mst. Maliha Malik Vs. Raja Arshad Mehmood, etc. as well as Crl. Misc. No.326-BC/2019 titled as Malik Tariq Ayoub and Muhammad Jawad Sohrab Vs. Raja Arshad Mehmood, etc, from Islamabad High Court and transfer the same to Peshawar High Court for disposal in accordance with law. Constitutional Petition No.31 of 2019 is accordingly allowed. Judge Judge Judge Islamabad 8th November, 2019 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MUHAMMAD ATHER SAEED CONSTITUTION PETITION NO. 32 OF 2013 (Constitutional petition under Article 184 of the Constitution against the order of Election Commission regarding counting of all the rejected votes in NA 266, Nasirabad/Jafferabad) Mir Zafarullah Khan Jamali … Petitioner VERSUS Election Commission of Pakistan and others … Respondents For the Petitioner: In person For the Respondent: N.R. Date of Hearing: 24.05.2013 ORDER TASSADUQ HUSSAIN JILLANI, J.- Petitioner in person submits that he is a returned candidate from the National Assembly Seat NA-266 Jafferabad cum Naseerabad, Balochistan; that the Election Commission of Pakistan vide the notification dated 22.5.2013 has already notified the petitioner as a Member of the National Assembly; that on the application of one of the defeated candidates, the Election Commission of Pakistan vide the order dated 22.5.2013 has directed that recounting of rejected votes be carried out and report be submitted to the Commission by 25.5.2013; that the Returning Officer has not so far carried out recounting; that the ex-parte order is unjust, arbitrary and against the law declared by this Court as also by the High Court; that the proper remedy for a defeated candidate after the Elections have been notified was to file an Election Petition under Section 52 of the Representation of the People Act; that a few days prior to the polling day, the Deputy Commissioner and Commissioner, Constitution Petition No. 32/2013 2 Naseerabad were transferred on the direction of the Caretaker Government and that petitioner apprehends that after the polling day i.e. between 11.5.2013 and 22.5.2013 the sanctity of the ballot papers may have been compromised. 2. On court query as to why the petitioner has filed the petition directly before this Court under Article 184(3) of the Constitution when he has a remedy of moving the learned High Court, petitioner submitted that he got to know about the order of the Election Commission when he was in Islamabad and there was not sufficient time to move the Balochistan High Court. He adds the he is prepared to withdraw this petition to move the learned High Court but till then the order of the Election Commission of Pakistan dated 22.5.2013 be suspended. 3. Petitioner primarily has voiced an individual grievance. However, in view of the fact that the petition is directed against an ex-parte order and he has leveled serious allegations in the petition, while permitting him to move the learned High Court, we are persuaded to dispose of this petition with the observation that let the petitioner move the proper High Court against the order of the Election Commission of Pakistan within 5 days from today and till 29.5.2013 the order of the Election Commission of Pakistan dated 22.5.2013 impugned herein shall not be given effect to. Disposed of in terms noted above. JUDGE JUDGE Islamabad, the 24th of May, 2013 Not Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE KHILJI ARIF HUSSAIN Const. Petitions Nos. 33 & 34 of 2005 & HRC No. 5332/2006 & CMA No.4567/2012. Engineer Iqbal Zafar Jhagra. … Petitioner (Const. P.33/05) Senator Rukhsana Zuberi. … Petitioner (Const. P.34/05) Appliction by Sannaullah Bhutta. … Petitioner (HRC 5332/06) VERSUS Federation of Pakistan etc. … Respondents … For the Petitioners: Mr. Ikram Chaudhry, ASC Nemo For applicants: Miangul Hassan Aurangzeb, ASC Mr. M.S. Khattak, AOR (In CMAs 4544-4545/12) Mr. Waseem Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR (In CMA 4567/12) Mr. M. Asif Chaudhry, ASC Mr. M. S. Khattka, AOR (In CMA 4707/12) Ch. Akhtar Ali, AOR (In CMAs 4760-61/12) In CMA No.5288/12 Hafiz Muhammad Idrees, ASC In CMA No. 4765/12: Zulfiqar Ali (in person) For CNG Association Station Owners: Mr. Giyas Paracha, President & Khalid Rashid. For the Respondents: Mr. Asim Mansoor Khan, ASC Raja Abdul Ghafoor, AOR Mr. Waqar Masood, Secy. Petroleum. For the Federation: Mr. Dil Muhamad Khan Ali Zai, DAG For NAB: Mr. Fawzi Zafar, (Addl. P.G.), NAB For FBR: Malik Shakil-ur-Rehman, ASC For OGRA: Mr. Salman Akram Raja, ASC Malik Ghulam Sabir, Advocate Mr. Mahmood A. Sheikh, AOR Mr. Saeed Ahmed Khan, Chairman Ms. Misbah Yaqoob, JED (F) Syed Faisal Ishtiaq, LO Mr. Iltaf Hussain, DED(F) Mr. Abdul Basit Qureshi, SLO Const. Petitions 33 & 34 of 2005 2 For SNGPL & SSGC: Mr. Abid Hasan Minto, Sr. ASC Mr. Asim Iqbal, ASC Mr. Mahmood A. Sheikh, AOR with Mr. Arif Hameed, MD, SNGPL Mr. Shoaib Warsi, SGM (D) SSGC Mr. Faisal Iqbal GMF, SNGPL Mr. Aamir Nasim, SGMD) Date of Hearing: 20.12.2012 … ORDER Jawwad S. Khawaja, J. These two constitutional petitions (C.P 33 of 2005 and C.P 34 of 2005) have been filed by Engr. Iqbal Zafar Jhagra and Senator Rukhsana Zuberi. The petitioners have raised a number of issues about the pricing of petrol and natural gas which have a direct bearing with the enforcement of the fundamental rights of the people of Pakistan who have to bear the brunt of such prices. 2. Amongst other things, the petitioners allege that the price at which Compressed Natural Gas (CNG) is being sold to vehicle owners is not being determined in accordance with the law and is therefore inflated. There is no denying the fact that CNG prices have indeed increased over the last few years. According to figures provided by the Secretary, Ministry of Petroleum, in August 2008, CNG was being sold in Pakistan at the rate of Rs. 33 per kg. Only four years later, in September 2012, it was being sold at Rs. 95 per kg – almost three time the original prices. The number of citizens affected by this increase is also very large. According to figures provided by the Oil and Gas Regulatory Authority (OGRA), no less than 3395 licenses for CNG marketing have been granted. The number of users of CNG whether direct, or as poor commuters traveling on the roofs of buses, who depend on public transport is estimated to run into millions, and around 12% of the total gas in the national transmission system is devoted to the CNG sector. 3. While the petitioners have raised a number of issues, in the present order, we confine ourselves to only one: the pricing process for CNG. The Court did hear some arguments about the issue of pricing process of natural gas sold directly to consumers by SSGC and SNGPL and the impact of unaccounted for natural gas (UFG) losses on its determination. However, Mr. Abid Hasan Minto, Sr. ASC, learned counsel for SSGC and SNGPL apprised the Court that the same issue was moot in writs filed before the High Courts of Sindh and Lahore. In the latter court, arguments have been concluded and the determining the sale price of CNG for consumers falls on OGRA. Rule 13 of the Compressed Const. Petitions 33 & 34 of 2005 3 judgment is presently reserved. Mr. Minto therefore, requested that consideration of the issue relating to UFG losses be postponed to a date till at least one of the High Courts has pronounced its judgment. This suggestion has been made to enable all concerned to examine the reasoning which prevailed with the High Court. The suggestion being reasonable, we confine ourselves to the issue of CNG pricing, leaving the rest of issues for subsequent hearings. 4. It is clear from a review of the relevant laws that the primary responsibility for Natural Gas (Production and Marketing Rules), 1992 states that: “The Authority [OGRA] shall determine and notify the sale price in accordance with the policy guidelines issued by the Federal Government, from time to time. (2) No license[e] shall charge price from its consumer which is higher than the sale price notified by the Authority, [OGRA] from time to time.” 5. It is correct, therefore, that the policy guidelines issued by the Federal Government are to be given consideration by OGRA. Section 21 of the OGRA Ordinance also states in similar vein that “… the Authority [OGRA] shall comply with the policy guidelines [issued by the Federal Government]…” If read out of context, these provisions could create the impression that in matters such as price determination, the Federal Government enjoys co-extensive powers with OGRA; or that, at least, its policy guidelines trump any other considerations which OGRA may have before it. However, this reading of the text runs against the overall scheme and text of the OGRA Ordinance. Policy guidelines are exactly what they purport to be i.e. guidelines at most. The statute envisages that the regulatory functions are to be performed by an Authority which is “independent in the performance of its functions”, (S. 3(2)). This independence is actualized by laying down stringent objective appointment criteria of “eminent professionals of known integrity and competence” for key decision-makers (Section 3), vesting them with security of tenure (S. 3(8) and S. 5) and funding OGRA through its own statutory fund (S. 18). Clearly, all of these measures were taken by the legislature to provide OGRA with a strong measure of independence from the Federal Government. The measures would be rendered entirely superfluous if we construe Section 21 of the Ordinance and Rule 14 in a manner which makes OGRA bound by the directives of the Federal Government. Since, the general principle of statutory interpretation is that the language of the legislature must not be rendered superfluous, we take it that that Section 21 and Rule 14 imply only Const. Petitions 33 & 34 of 2005 4 that OGRA must include the policy guidelines of the Federal Government in its consideration and decision-making process; it is not, however, bound by the same. That the legislature chose the term “policy guideline” instead of “directive” or “order”, corroborates this interpretation. We may also add that one of the principal raisons d’etre of OGRA as clearly spelled out in its statute is the protection of the consumer who ultimately is to bear the price of CNG. 6. Accordingly, we consider OGRA the primary bearer of regulatory power and have examined its exercise of this power. In our order dated 25.10.2012, we examined the break- up of CNG retail price submitted by OGRA. The same is also reproduced as under:- CNG CONSUMER PRICE DETAILED BREAK UP. S r # Components Price w.e.f.22.10.2012 Region-I Rs./Kg Rs.MMBtu % Price w.e.f.22.10.2012 Region-II Rs./Kg Rs.MMBtu % A. B. C. D. Average Well head price/cost of gas paid to exploration companies* Operating Cost of Gas Companies Return on investment to gas companies Other incomes (net of Prior year adjustment, if any, etc.) 18.04 358.87 92% 1.14 22.69 6% 0.872 17.34 4% -0.53 -10.63 -3% 16.48 358.87 92% 1.04 22.69 6% 0.796 17.34 4% -0.49 -10.63 -3% E=A to D Average Prescribed price of natural gas 19.51 388.27 100% 17.83 388.26 100% F Sale Price of natural gas for CNG stations as advised by Federal Govt. under section 8(3) of OGRA,Ordinance including GDS/cross subsidization. 35.19 700.32 38% 32.14 700.02 38% G. **Operating Cost of CNG Stations 20.80 113.80 22% 20.80 453.01 25% H Profit of CNG Station Owners. 11.19 222.60 12% 10.59 230.61 13% I. GIDC 13.25 263.57 14% 9.18 200.00 11% J GST (25% of Price F+1) 12.10 240.69 13% 10.33 225.00 12% K Differential Margin for Region –II --- 1.50 32.67 2% Const. Petitions 33 & 34 of 2005 5 Total CNG Consumer Price (F-K) 92.53 1,840.98 100% 84.54 1,841.31 100% Petrol Price (Rs./Ltr) 102.08 3.069 102.08 3.069 *Well head price (cost of gas price) as per GPAS for Sui & Kandhkot is attached for illustration (copy annexed) **Operating Cost includes compression cost, maintenance, depreciation, fee etc as per MoU signed b/w CNG Association & FG. CNG Price Petrol Price 7. We have concluded that various items in this formula appear to have been determined arbitrarily and not in accordance with law and without any reference to the accounts of CNG stations. The operating cost of CNG Stations was, for instance, admittedly calculated “as per MoU signed b/w CNG Association & [Federal Government]. Upon examination, it turned out that the said Memorandum of Understanding dated 25th August, 2008 had been entered into by the Government of Pakistan and the All Pakistan CNG Association, CNG Dealers Association and CNG station owners. This MoU purported to fix the price of CNG in the whole country for a certain period and was “subject to revision, through identical consultative process between the parties, on bi-annual basis…” (clause e, MoU). Fixing the sale price of CNG in this manner represents a clear violation of the law. OGRA, which bears the primary responsibility in this area, was not even a party to the MoU. Yet, instead of intervening to protect the public interest, it simply chose to enforce the MoU. This constitutes a blatant abandonment of its duties and abdication of its statutory role as protector of the interests of the citizens who have to bear the brunt of unjustifiable prices. Essentially, this represents one of those sad episodes of our history where the cartel of suppliers, the government and the regulator came together to enact a grand exploitation of the poorest and most helpless amongst the country’s citizens. 8. Taking notice of this situation, in our order dated 25.10.2012, we adjourned the matter “with direction to the Chairman OGRA to fix the price of CNG” in a fair, lawful and diligent manner. It may be reiterated that in that order the Court did not fix the price of CNG; it only referred the matter to OGRA and the Federal Government for ensuring due Prices on 15.10.2012 94.66 1,883 103.40 3,139 86.48 1,883 103.40 3,139 Const. Petitions 33 & 34 of 2005 6 and proper pricing as commanded by law. Pursuant to that order, on the same date, OGRA determined a new price, vide S.R.O. ------ (1)/2012, which came to Rs. 61.64 for Region I and Rs. 54.16 for Region II. 9. In response to this second price formula, during the hearing on 01.11.2012, Mr. Wasim Sajjad and Mr. Abdul Hafiz Pirzada learned Sr. ASCs entered appearance on behalf of the CNG licensees and sought two weeks time, which was granted. They contended that the price set by OGRA was too low and not commercially feasible. On 19.11.2012, OGRA submitted a report (CMA No. 4762/12) which suggested a new consumer price supported by a certain audit report. Adjourning the matter, the Court once again directed the “stakeholders [to] discuss amongst themselves and come up with an acceptable price formula, keeping in view the interest of all of them, particularly the consumers” as mandated by law. 10. During hearings on 04.12.2012, 05.12.12 and 06.12.12, OGRA contended that it could not come up with a satisfactory pricing formula since it had not received the audited accounts of licenees, which would allow it to determine the various price items in a fair and informed manner. The Secretary, Ministry of Petroleum apprised the Court that the Federal Government, on its part, was yet to issue policy directions, but the matter would soon be taken up by the Economic Coordination Committee of the Cabinet. On 17.12.2012, OGRA submitted another report (CMA No. 5189/2012) proposing a price of Rs. 73.96 for Region I and Rs. 65.52 for Region II. As late as the last hearing, ie. 20.12.2012, neither had OGRA been able to come up with a fairly determined, evidence-based pricing formula, nor had the Cabinet issued any directions to resolve this long-standing dispute. 11. From the foregoing, it is clear that there are differing views prevalent about appropriate price of CNG. What has, however, been thrashed out in great detail, through these proceedings, is the process whereby OGRA is legally required to determine prices as well as the principles which it is supposed to apply during this process. OGRA, it may be reiterated, has been envisaged as an independent body which is supposed to protect the public interest. Its failure to protect ordinary consumers from oligopolistic and monopolistic activities cannot be condoned. 12. The learned counsel for OGRA candidly conceded that the earlier pricing formula did not meet the legal criteria as demanded by statute. In fact, this act of OGRA as well as various other practices represented gross violations of the law, resulting in the infringement Const. Petitions 33 & 34 of 2005 7 of the fundamental rights of the people of Pakistan by extracting from them, unconscionable amounts for the unjust enrichment of the few. It may be recalled that in Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), the Court had taken note of the state of affairs at OGRA, striking down the illegal appointment of Tauqeer Sadiq as Chairman OGRA. In that judgment, the Court also took note of serious allegations of financial wrongdoings amounting to billions of Rupees, ordering NAB to investigate the matter. Those investigations are still going on. Whatever its state of affairs in the past may have been, OGRA is once again directed to discharge its duty in a legal and fair manner. A day-light assault on the fundamental rights of the people of Pakistan and their exploitation in violation of Articles 3 & 5 of the Constitution cannot be allowed to continue. 13. We reiterate that the determination of prices is a power vested by various laws on the executive functionaries and agencies of the State established under law. Consequently, the executive has also been equipped by the law with sufficient expertise and enforcement capability for this purpose. Our duty however, extends to reviewing the manner in which the executive exercises its powers and to see that the fundamental rights of citizens including the right to their hard earned income is protected. This has been highlighted in the judgment in the case of Muhammad Yasin supra. In the present case, through our order dated 25.10.2012, we exercised this power by striking down OGRA’s pricing formula and directing it to prepare a new formula, in accordance with law. As the protector and enforcer of the fundamental rights of the people of Pakistan, the Court could not have done otherwise. 14. We note with great regret that throughout these hearings on issues of the greatest public importance, the approach of the executive authority which shares with OGRA the responsibility for sorting out this matter of highest significance, has not been helpful. In various hearings we were informed that the Federal Government is seized of this important issue and would take steps for its resolution. On 17.12.2012 we were again told that the Cabinet was to meet on 18.12.2012 and would takes decisions for resolution of the issue and also give policy guidelines. Yet, even as millions of CNG users continue to suffer because of the prevailing deadlock no guidelines were issued on 18.12.2012. 15. Since OGRA has still not been able to come up with a pricing formula based on evidence and in accordance with the prescribed process, it is directed once again to Const. Petitions 33 & 34 of 2005 8 discharge its obligations in accordance with the law. It must do so in a swift manner, and after obtaining all necessary feedback from the stakeholders. 16. The questions relating to UFG losses and other issues raised in the Constitution Petitions will be considered at the next hearing. Judge Judge Islamabad 21.12.2012 A. Rehman APPROVED FOR REPORTING.                         5332/2006      2005   34  33       4567/2012 Const. P.33/05          (Const. P. 34/05)        (HRC 5332/06)                                                      CMAs 4544-4545/12           (CMA 4567/12) 1                     (CMA 4707/12)       ( CMAs 4760-61/12)        CMA No. 5288/12      CMA No. 4765/12                                                                                     2                                            (C.P 33/2005  CP34/2005     1                               (CNG)              2                    2012      33   2008             95                                 3395                          12%            3                                                              3                                                                 4    1992                                        (2)          CNG                                    5                21                                                                                            3.2(2)               3                             3(8)  3(5)                      (3.(18))                                 14   21     4                                                                                                6    25-10-2012             CNG                               5        6                       7                   (MoU)                        2008   25                                                                                                              25-10-2012        8                                  SRO (1)/2012         7           54.16II    61.64I                01-11-2012     9                   19-11-2012                        (CMA No. 4762/2012)                                                                            06-12-2012  05-12-2012, 04-12-2012 10                                 (ECC)            (CMA           17-12-2012      I         No. 5189/2012)            6 3 . 5 2 I I       7 3 . 9 6                20-12-2012                11                                                       8                         12                                                      (PLD 2012 SC 132)                            5  3                                13                                             25-10-2012                                         14                      17-12-2012                                       9                                  15                        (UFG losses)          16     10        

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CONSTITUTION PETITION NO.33 OF 2013 Asaf Fasihuddin Khan Vardag. Petitioner(s) VERSUS Government of Pakistan and others. Respondent(s) For the Petitioner(s) : Mr. Asaf Fasihuddin Khan Vardag, ASC (in person) On Court’s Notice: Mr. Munir A. Malik, AGP with Capt. Rtd. Shujaat Azeem in person. For Respondents No.1 & 2 : Mr. Shah Khawar, Additional A.G.P. Qari Abdul Rashid, AOR For Respondent No.3 (Air Marshal (R) Khalid Ch.) : Syed Iftikhar Hussain Gilani, Sr. ASC Air Marshal ® Khalid Chaudhry, DG, CAA Mr. Obaid ur Rehman Abbasi, Sr. Law Officer For Respondent No.4 (Ch. Muhammad Munir) : Mr. Shahid Hamid, Sr. ASC Mr. M.S. Khattak, AOR For Respondent No.5 (M/s. Louis Berger) : Mr. Uzair Karamat Bhandari, ASC For Technical Associates : Mian Gul Hassan Aurangzeb, ASC For LTH (JV) : Kh. Haris Ahmad, Sr. ASC For M/s. China State Construction Engineering : Syed Ali Raza, ASC Mr. Tariq Aziz, AOR For FWO : Mr. Asad Rajpoot, ASC For M/s. Sambu Construction & Sachal Engineering : Mr. Tariq Aziz, AOR. Const. P. 33 of 2013 2 For Habib Construction : Syed Ali Zafar, ASC Raja Zafar Khaliq, ASC For M/s. Al-Tariq Construction : Mr. Tariq Mehmood, Sr. ASC For M/s. Ciemens : Mr. Imtiaz Rasheed Siddiqui, ASC Mr. Hasnain Ibrahim Kazmi, ASC For M/s. Xinjiang Beixin : Mr. Shahid Kamal Khan, ASC For M/s. Gammon Pakistan : Mr. Muhammad Munir Paracha, Sr. ASC For M/s Izhar (Pvt) Ltd : Mr. Babar Ali, ASC Remaining Contractors : Nemo Date of Hearing : 25.07.2013. O R D E R The learned Attorney General for Pakistan appeared alongwith Capt. (Retd.) Shujat Azim, Advisor to the Prime Minister on Aviation. He stated that he was appointed as the Advisor upon the desire of the Prime Minister and not by his own choice. It is also true that he had been Court-martialed upon the allegations of insubordination and not on account of any moral turpitude and further that he has resigned as the CEO of Royal Airport Services prior to occupying the office of Advisor to the Prime Minister. 2. However, in view of the controversy that has erupted regarding his appointment he has decided to tender his resignation to the Prime Minister in order to avoid being embroiled further in such controversy. 3. Be that as it may, let him tender his resignation and the learned Attorney General for Pakistan shall place on record the notification of the acceptance of his resignation in due course of time. Chief Justice Judge Judge Islamabad 25.7.2013. M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Umar Ata Bandial, C.J. Mrs. Justice Ayesha A. Malik Mr. Justice Athar Minallah Constitution Petitions Nos.34 & 38 of 2022 (Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan.) Rana Tahir Saleem …Petitioner in Const.P.34/2022 Muhammad Javaid …Petitioner in Const.P.38/2022 Versus Province of Punjab thr. Chief Secy. to the Govt. of Punjab, Lahore and others…Respondents in Const.P.34/2022 Federation of Pakistan thr. Secretary Establishment, Islamabad and another …Respondents in Const.P.38/2022 For the petitioner(s): Mr. Muhammad Shahzad Shaukat, ASC (Via video-link, Lahore) Mr. Anis Muhammad Shahzad, AOR (in Const.P.34/2022) Barrister Haris Azmat, ASC (in Const.P.38/2022) For the respondent(s): N. R. Date of hearing: 23.11.2022 O R D E R Learned counsel for the petitioner submits that the Police force in a Province provides an essential service to the public: it includes, inter alia, maintenance of peace and order in society and prevention, detection and investigation of offences. The role of the Police force is critical for maintaining social stability and peace in the society. For such purpose, a Police force that is independent, efficient and enjoys trust of the people promotes a healthy society. He submits that there are 36 districts in the Province of Punjab. During the last four years, each of the districts has witnessed transfers of the DPO, who is the fulcrum of the police force administration and for the conduct of criminal Const. Petitions Nos.34 and 38 of 2022 (2).doc 2 investigation in every district. The consolidated average tenure of service of all the DPOs during the last four years in all the districts of Punjab is 5.86 months. On the other hand Article 15(2) of the Police Order, 2002 (“Police Order”) provides for a tenure of three years for the post of DPO. Article (15)(3) of the Police Order allows early transfer of a DPO in case of inefficiency or ineffectiveness but with the concurrence of both the District Government Head and the District Public Service Safety Commission. The provincial government has failed to follow the statutory command and is in continuous breach of Article 15 ibid. Likewise, the petition shows that the average tenure of an Inspector General of Police in the Province of Punjab during the said period is 6.25 months. In this regard Article 12 of the Police Order prescribes that the term of office of a Provincial Police Officer and a Capital Police Officer shall be 3 years. 2. Learned counsel adds that the frequent transfer of the Police Officers in the Province of Punjab has occurred on account of political influence/intervention. He has highlighted the recent instance of transfer of the lady DPO in District Layyah allegedly on account of political intervention. Frequent transfer of administrative heads of the police force of Districts, Metropolitan Cities and the Provinces affects the command structure of the force and its capability to effectively render public service in accordance with the law. Resultantly, the performance of the criminal justice system is diminished thereby injury the quality of life of the ordinary citizen. Moreover, insecurity of tenure leads to a tendency among police officers to seek political patronage for securing or retaining the important posts which in turn worsens the service fibre. 3. Learned counsel has explained that one of the Provinces, namely, Khyber Pakhtunkhwa has implemented the Police Order faithfully. The police force in that Province is therefore credited to be independent and fair in the performance of its duties in comparison to their counterparts in the other Provinces. He adds that the police force in the Province of Balochistan, despite Const. Petitions Nos.34 and 38 of 2022 (2).doc 3 difficult circumstances, also enjoys public support and respect of the public because the officers face lesser political interference. However, he states that the situation in the Province of Punjab is different. For the enforcement of the fundamental rights of the people and of the law as laid down in the Police Order, the provincial government is liable to account. 4. The issue in hand concerns the enforcement of citizens’ fundamental right of life and liberty quite apart from the lawful enforcement of the Police Order in the Province. In the above facts the conditions of Article 184(3) are duly complied. 5. The police force cannot be made an instrument for the promotion of vested/elite interests. Integrity, independence and trustworthiness are crucial attributes of the Police force for ensuring peace in and smooth functioning of the society. To secure such conditions is a priority for the Police force in the entire country. In the first instance, notice be issued to the Provincial Police Officers and Home Secretaries of the governments in all the Provinces and the ICT administration. They shall through their respective officers furnish data for the last eight years on the criteria and pattern tabulated in the petition. The Province of Punjab shall also file its reply to the allegations made in this petition. Needful be done within two weeks. Re-list in the week commencing 12.12.2022. Constitution Petition No.38 of 2022 Learned counsel shall further prepare himself on the questions posed to him during the hearing. Re-list. Chief Justice Judge Judge ISLAMABAD. 23rd November, 2022 M. Azhar Malik+Naseer

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED CONSTITUTION PETITION NO. 35 OF 2013 & C.M.A NOs. 4319, 4873, 6556, 6444, 6901, 6492, 7518, 7550, 7673, 7832, 7833, 6901, 4855 & 7122 OF 2013 (Against involvement of Zafar Iqbal Gondal, Former Chairman, EOBI, DG Investment and DG HR etc in multibillion scam in the Employees Old Age Benefit Institute) In Attendance: Hafiz S.A. Rehman, Senior ASC Mr. M.Bilal, Senior ASC Syed Safdar Hussain, AOR Raja Abdul Ghafoor, AOR Mr. Mehr Khan Malik, AOR Mr. M. S. Khattak, AOR Mr. Mehmood A. Sheikh, AOR Ch. Akhtar Ali, AOR Mr. Tariq Aziz, AOR Mr. Ali Sibtain Fazli, ASC Syed Iftikhar Hussain Gillani, Senior ASC Mian Abdur Rauf, ASC Mr. Irfan Qadir, ASC Mr. Tariq Mehmood, ASC Mr. Shahid Karim, ASC Mr. Afnan Karim Kundi, ASC Ch. Afrasiab Khan, ASC Mr. Muhammad Ikram Ch. Sr. ASC Mr. Shah Khawar, Addl A.G. Pakistan Mr. Sajid Ilyas Bhatti, DAG Mr. Qudratullah Khan, Dir FIA Lahore, Mr. Malik Javaid Ahmed, Dir (Law) FIA HQ Mr. Qaiser Masud, Dy Dir (Law) FIA HQ Ch. Zulfiqar Ali, Dy Dir (Law) FIA Lahore Mr. Qaisar Ashfaq, Dy Dir (SIU) FIA Date of Hearing: 06.01.2014 ORDER There is a written request for adjournment on behalf of Mr. Anwar Mansoor Khan, learned Sr. ASC. Let the main petition be fixed for 20.1.2014. The Director Law, FIA undertakes to submit the final report of investigation before the next date of hearing. CMA No. 7697/2013 2. Through this application, it is prayed that an amount of Rs. 52,527,187/- may be released to meet the expenses of salaries and allowance of DHA employees for the month of December, 2013. Subject to all just exceptions, this CMA is allowed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 6th of January, 2014

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Umar Ata Bandial Mr. Justice Faisal Arab CONSTITUTION PETITION NO.35 OF 2016 (Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973) Muhammad Hanif Abbasi ... … Petitioner VERSUS Imran Khan Niazi and others … ... Respondents . . . For the Petitioner : Mr. Muhammad Akram Sheikh, Sr. ASC (Assisted by Ms. Maryam Rauf and Ms. Umber Bashir, Advocates) Mr. Tariq Kamal Qazi, Advocate (With permission of the Court) Syed Rifaqat Hussain Shah, AOR For Respondent No.1 : Mr. Naeem Bukhari, ASC (Assisted by Mr. Kashif Nawaz Siddiqui, Advocate) Ch. Akhtar Ali, AOR For Respondent No.2 : Mr. Anwar Mansoor Khan, Sr. ASC (Assisted by Barrister Umaima Anwar, Advocate) Mr. Faisal Farid Hussain, ASC Mr. Fawad Hussain Chaudhry, ASC Ch. Akhtar Ali, AOR For Respondent No.3 : Mr. Muhammad Waqar Rana, Additional Attorney General for Pakistan Mr. M. S. Khattak, AOR For Election Commission : Raja M. Ibrahim Satti, Sr. ASC of Pakistan Raja M. Rizwan Ibrahim Satti, ASC Mr. M. Arshad, D.G. (Law), ECP Malik Mujtaba Ahmed, Addl.D.G.(Law) ECP On Court’s notice : Mr. Ashtar Ausaf Ali, Attorney General for Pakistan Dates of Hearing : 3.5.2017, 4.5.2017, 8.5.2017, 9.5.2017, 10.5.2017, 11.5.2017, 23.5.2017, 24.5.2017, 25.5.2017, 30.5.2017,31.5.2017 Const.P.35 of 2016 2 1.6.2017, 13.6.2017, 14.6.2017, 11.7.2017, 13.7.2017, 25.7.2017, 31.7.2017, 1.8.2017, 2.8.2017, 3.8.2017, 12.9.2017, 26.9.2017, 28.9.2017, 3.10.2017, 4.10.2017, 5.10.2017, 10.10.2017, 11.10.2017, 12.10.2017, 17.10.2017, 18.10.2017, 19.10.2017, 23.10.2017, 24.10.2017, 25.10.2017, 7.11.2017, 8.11.2017, 9.11.2017 and 14.11.2017 . . . JUDGMENT MIAN SAQIB NISAR, CJ. – This petition filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), in substance essence seeks a declaration by this Court that respondent No.1, Mr. Imran Khan Niazi (“the Respondent”), is not qualified to be and is disqualified from being a member of the National Assembly; and that upon his seat from constituency NA-56 (Rawalpindi-VII) falling vacant, respondent No.4, the Election Commission of Pakistan (“ECP”) be directed to hold fresh election in the constituency. 2. The Respondent is the Chairman of Pakistan Tehreek-e-Insaf (“PTI”), respondent No.2, a political party formed in 1996 and governed by, inter alia, the Political Parties Order, 2002. PTI has been contesting general elections held in the country since 1997. In its first contest in 1997, PTI did not win any seats in any legislature. In the next election held in 2002, the party secured only one seat in the National Assembly, namely, by the Respondent who was elected from NA-71, Mianwali-I. PTI boycotted the following general elections held in 2008. However, it contested the 2013 general election in which the party secured 33 seats in the National Assembly and respectively obtained 30, 4 and 61 seats in the Provincial Assemblies of Punjab, Sindh and Khyber Pakhtunkhwa (“KPK”). In the National Assembly, the PTI became the third largest majority party, while in the KPK Const.P.35 of 2016 3 Provincial Assembly it holds near majority and was able to form the government in coalition with Qaumi Watan Party and Jamaat-e-Islami. 3. On 3.4.2016, the International Consortium of Investigative Journalists (“ICIJ”) released certain information that had been hacked from the database of a Panama-based law firm, namely, Mossack Fonseca. This information described as the Panama Papers was published worldwide in both print and electronic media. It reveals the names of hundreds of persons who formed offshore companies in various tax haven jurisdictions for obtaining secrecy and tax immunity of private property and wealth secured by means that, inter alia, include fraud, money laundering and tax evasion. The list of such persons covers rich people from all over the world, including heads of states, their relatives and associates, politicians and public officials, etc. 4. Strikingly conspicuous Pakistani nationals mentioned in the Panama Papers are the three children of former Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif, namely, Mr. Hussain Nawaz, Mr. Hasan Nawaz (sons) and Ms. Mariam Safdar (daughter). Allegations were leveled against them by the political opposition that they own properties in London which were acquired by their father in 1990s through the misuse of his authority whilst he held the office of Prime Minister of Pakistan for two terms in 1993 and in 1997. Following worldwide outrage against political leaders abroad, the opposition in the Parliament and other political parties demanded that the Prime Minister should resign. Attempts were made for the constitution of a Judicial Commission to inquire into the allegations but as that did not materialize, the Respondent filed a petition under Article 184(3) of the Constitution (Const.P.No.29/2016) before this Court. This petition was decided by a larger Bench of five honourable Judges whereby Const.P.35 of 2016 4 two of the honourable Judges in the bench (“the Minority”), for the reasons recorded by them, disqualified Mian Muhammad Nawaz Sharif from being a Member of the National Assembly, thus ending his tenure as the Prime Minister of the country. On the other hand, the other three learned members of the Bench (“the Majority”) whilst taking serious note of the allegations and the supporting material, directed the constitution of a Joint Investigation Team (JIT) to probe further the questions highlighted in the Majority judgment of the Court and to report back thereon to the Court in order for the petition (Const.P. No.29/2016) to be finally decided. The JIT reported adversely against the Prime Minister and members of his family. Considering admitted material the learned 5 member Bench by their unanimous judgment dated 28.07.2017 disqualified the then Prime Minister and directed the filing of References under the National Accountability Ordinance, 1999 against him and his abovementioned family members. Petitioner’s case: 5. After filing of Constitution Petition No.29 of 2016, Mr.Muhammad Hanif Abbasi (“the Petitioner”) who is a member of Pakistan Muslim League (Nawaz) [“PML(N)”] the former Prime Minister’s party, filed the instant petition under Article 184(3) of the Constitution. He was the PML(N) candidate from NA-56 Rawalpindi-VII in the last general election of 2013 but lost the election to the Respondent. On the grounds set out in this petition the following relief is sought by the Petitioner: “I. Call upon Respondent No.1 to show the authority of law under which he purports to hold membership of the National Assembly, and his seat, NA-56, may kindly be declared vacant with the consequential direction to Respondent No.4 to hold election in this constituency in accordance with law. Const.P.35 of 2016 5 II. Declare Respondent No.1 to be not qualified for, and disqualified from being a member of the National Assembly; III. Declare Respondent No.1 to be ineligible from holding or retaining any office of a registered political party as provided under the Political Parties Order, 2002; IV. Direct that any contributions or donations acquired through prohibited sources by Respondent No. 1 and No. 2 may be confiscated in favour of the State; V. Declare Respondent No.2 to be a foreign-aided party; VI. Direct Respondents No. 3, 4 and 5 to probe and investigate into the financial mis-declarations, misappropriation and evasion of Respondents No. 1 and 2; VII. Direct Respondent No. 3 to carry out a comprehensive and detailed probe to scrutinize the tax returns and assets declarations of Respondent No. 1; VIII. Grant such other relief as this Honourable Court may deem just and appropriate and in the interest of justice; and” 6. Mr. Muhammad Akram Sheikh, learned Sr. ASC for the petitioner at the very outset of his submissions on a Court query categorically stated that the petition is in the nature of quo-warranto, the primary object whereof is to seek disqualification of the Respondent as a Member of Parliament (relief Clauses No.I, II and III). He also unequivocally stated that the petitioner does not seek dissolution of or imposition of any ban upon the PTI. The other reliefs sought (relief Clauses No.IV to VII) are statedly incidental to the above-noted main relief. Whereas Clause IV asks for a direction that contributions or donations collected by the Respondent Const.P.35 of 2016 6 and the PTI through sources prohibited under the Political Parties Order, 2002 (“PPO”) be confiscated in favour of the State, and Clause V seeks a declaration that PTI is a “foreign-aided political party” within the meaning of the PPO for having received foreign funds from prohibited sources, it follows from the submission of learned counsel that the directions in Clauses VI and VII are not pressed by him. 7. Learned counsel for the petitioner has accordingly articulated the following written formulations (submitted in Court): “i. Whether Respondent No. 1 has made false declarations – statements while issuing the certificates for the years 2010 to 2013 under section 13(2)(a) of the Political Parties Ordinance 2002 pledging therein that no funds from any source prohibited under the law were received by the Party? ii. Whether Respondent No. 1 has failed to disclose assets and concealed an offshore company while submitting his ‘statements of assets and liabilities’ therefore liable to be declared disqualified from being elected or remain member of the Parliament by this august court under Article 62 and 63 of the Constitution? iii. Whether Respondent No. 1 is guilty of offences of ‘corrupt practice’ and ‘tax evasion’ by declaring that the Banigala property is a gift from his former wife in his ‘statements of assets and liabilities’ whereas, admittedly, she was only a benamidar of the said property? iv. Whether mis-declarations, misstatements and contradictory pleases with regards to Banigala Const.P.35 of 2016 7 property make Respondent No. 1 disqualified under Article 62 (1)(f) of the Constitution? v. Whether Respondent No. 1 misused the tax amnesty scheme and played a fraud on public exchequer?” Certificate by the Respondent under Article 13(2) of the Political Parties Order, 2002. 8. Learned counsel for the petitioner submitted that PTI is a foreign-aided political party in terms of Article 2(c)(iii) of the PPO as it received contributions prohibited under Article 6(3) thereof read with Article 17(3) of the Constitution. He argued that despite the above-stated position, the Respondent personally issued certificates to the ECP in terms of Article 13(2) of the PPO to the effect that PTI does not receive funds from prohibited sources meaning thereby that it is not a foreign-aided political party. These certificates make a misdeclaration of fact and thus the Respondent has proven himself to be not sagacious, righteous, honest or ameen. He is, therefore, liable to be disqualified from holding elective office or being elected thereto under Articles 62(1)(f) and (g), and 63(1)(p) of the Constitution. The learned counsel conceded that the penalty of dissolution of the PTI as a foreign-aided political party, provided in Article 15 of the PPO, is not available to any person except by order of this Court passed on a reference filed by the Federal Government. Therefore, he maintains that the petitioner confines his prayer only to the consequence of disqualification of the Respondent resulting from his conscious act of issuing false certificates, thereby concealing of the funding provided to his party by foreign entities and nationals. 9. According to the learned counsel, the following facts establish that PTI is receiving prohibited funds. In the year 2010, the Respondent as Const.P.35 of 2016 8 the Chairman of PTI appointed PTI USA NA LLC, a Texas-based limited liability company, as its agent in the USA registered under the Unites States Foreign Agents Registration Act, 1938 (“FARA”), inter alia, for fund-raising for the PTI in the USA. Subsequently, in 2013 PTI USA LLC, a California- based limited liability company was substituted by the Respondent as PTI’s FARA Agent in the USA which retains its said status till date. Pursuant to their FARA registration, each of the said LLCs registered in Texas and California have during their appointment as PTI’s FARA Agent admittedly collected and transferred through banking channels funds from USA to PTI Pakistan. According to the learned counsel for the petitioner, the PTI USA LLC (California) was incorporated by an individual who is a US citizen. Two of the directors of PTI NA USA LLC (Texas) are Pakistani, whereas the remaining five are US nationals. He also contended that assuming the said controllers of PTI NA USA LLC (Texas) are US nationals having dual nationality of Pakistan, yet for all intents and purposes, a dual national is a foreigner which renders the PTI a foreign-aided political party. Being limited liability companies registered abroad, PTI USA LLC and PTI NA LLC are juridical entities that for all intents and purposes are a foreign national. Furthermore, both PTI NA LLC and PTI USA LLC received contributions from foreign nationals. From 2010 to 2013, these LLCs collected and transferred over $2.3 million to PTI Pakistan. The incorporation of the PTI USA LLC California is meant to conceal the true identity of its donors which includes both foreign nationals and companies. Its statements filed with FARA show that during 2013 to 2015, it collected US $1 million in the USA as political donations which were transferred to PTI Pakistan. Abraaj Capital Ltd. Dubai, a limited company which owns K-Electric Company, Karachi, sent Rs.56/- million on 7.5.2013 to one Tariq Shafi, the CEO of Crescent Const.P.35 of 2016 9 Industrial Chemical Ltd. which amount was transferred to PTI for unexplained reasons. Another amount of Rs.58.8 million was received on 26.3.2013 by Tariq Shafi from Harbour Services Inc., Dubai, which was also transferred to PTI. The documents relied upon by the learned counsel for the petitioner are: i. Five signed certificates pertaining respectively to the years 2010 to 2014 filed by of the Respondent before the ECP attesting that PTI did not receive any funds from the sources prohibited under the law (pages 288 to 292 of Const.P. No.35/2016); ii. The certificate of formation of PTI USA NA LLC (Texas) dated 9.2.2010 (page 162 of Const.P. No.35/2016); iii. The Respondent’s letter to the Justice Department USA dated 15.2.2010 notifying that PTI NA USA LLC (Texas) was appointed as PTI’s agent under FARA (page 166 of Const.P. No.35/2016). The aims and objects of the said LLC are mentioned therein; and item No.5 thereof categorically mentions collection of funds for PTI Pakistan; iv. The list of the board of directors of PTI NA USA LLC (page 165 of Const.P. No.65/2016), particularly the names of the directors (at page 168 thereof) out of which five are US nationals and two are Pakistani; v. The Respondent is aware of the facts and records of its FARA Agent and thus cannot claim ignorance about collections of funds made by it. (document at page 173 of Const.P.35/2016); vi. PTI has admitted in its concise statement that PTI NA USA LLC is its declared and lawful foreign agent under the laws of USA empowered to collect political donations and contributions (para 30 at page 9 of Const.P.35 of 2016 10 CMA 8037/2016). The Respondent has also admitted to this effect at pages 162 and 166 of Const.P. No.35/2016; vii. The FARA Exb.D statement dated 30.10.2014 submitted by PTI USA LLC (California) before FARA (page 277 and another Exb.D statement dated 30.04.2015 on page 287 of Const.P. No.35/2016) wherein it is mentioned that PTI USA LLC (California) received $83,400/- as funds and transferred $90,000/- to PTI Pakistan. There is a discrepancy as apparently the amount transferred was more than the amount collected. He also referred to the party campaign funds disbursements by FARA agent (at page 283 of the petition) and a chart in para 46 at page 16 thereof; viii. The FARA Exb.D for period February, 2010 to June, 2013 (at page-1 of CMA No.7231/2016) showing the names of the persons/ entities that made contributions of less than US $50/- each to PTI NA USA LLC (Texas) includes individuals, foreign nationals, limited companies, etc. This list has been filed by the FARA Agent of PTI before FARA. Another FARA Exb.D for the period November, 2014 to March, 2015 (at page 109 of the said CMA) mentions the names of donors making contributions in excess of US $50/- but some of the contributions do not have corresponding names; ix. The official website of FARA shows that the donors of PTI NA USA LLC include foreign nationals; and x. FARA returns and declarations filed by PTI NA USA LLC (Texas) at Pages 162 to 248 of Const.P. No.35/2016; at the same filed by PTI USA LLC California at page 249 to 289 exemplify the allegation Const.P.35 of 2016 11 of prohibited contributions being received by the PTI’s FARA agents. He relied upon the case of Miss Benazir Bhutto vs. Federation of Pakistan and another (PLD 1988 SC 416) to emphasize the significance of accountability of political parties for sources of its funding and how seriously funding from foreign sources is taken by the Constitution. 10. To explain the terms “honest” and “ameen” used in Article 62(1)(f) of the Constitution, learned counsel referred to the cases of Abdul Waheed Ch. vs. Rana Abdul Jabbar (CA No.95 of 2015) and Rai Hassan Nawaz vs. Haji Muhammad Ayub and others (PLD 2017 SC 70). Concealment of Niazi Services Limited (“NSL”) by the Respondent. 11. Learned counsel for the petitioner submitted that the Respondent was the absolute beneficial or real owner of NSL which was an offshore company, owned by three other offshore companies as shareholders, namely, Barclays Private Bank & Trust Limited, Barclay Trust Channel Islands Limited and Barclay Trust Jersey Limited (page 62 of Const.P. No.35/2016). NSL was incorporated and registered as a limited liability company on 10.5.1983 (page 22 of Const.P. No.35/2016) and filed its annual tax returns from 1983 till its dissolution on 01.10.2015 (pages 118 and 125 of Const.P. No.35/2016, dissolution notice dated 30.06.2015 at page 117 thereof). He stated that the Respondent admitted that he purchased a flat in the UK (“London flat”), however, on solicitors’ advice, NSL was established to own the flat (para 6 and 7 of CMA No.7925/2016). The Respondent is an income tax filer in Pakistan since 1982/1983 (both years were mentioned on different dates of hearing) and has been contesting elections since 1997. However, he never declared NSL in his income tax returns or his nomination Const.P.35 of 2016 12 papers filed before the ECP. Though the flat was sold in 2003, NSL remained in existence till 2015, thus the Respondent was bound to declare his ownership therein notwithstanding whether it owned any property or not. The Respondent also made a misdeclaration in the forms of the Tax Amnesty Scheme, 2000 to the effect that he was the owner of the London flat whereas it was NSL that admittedly owned such property. According to the learned counsel, the said statements amounted to misdeclarations made by the Respondent before the ECP and the tax authorities. Thus, he is not honest or ameen and is liable to be disqualified under Article 62(1)(f) of the Constitution. Learned counsel added that after the sale of NSL’s alleged sole property, the London flat in 2003, whether NSL was a shell company is doubtful because the company was kept alive for 12 long years thereafter, until 2015 during which its corporate and other returns continued to be filed by incurring substantial expense including recurring solicitors fees, trustees fees and registry fees; the latter amounting to £350/-, annual return fee evident from page 117 of Const.P. No.35/2016. To incur such a large recurring expense for keeping a mere shell company alive is highly improbable which supports the conclusion that there must be other assets of NSL that the Respondent kept hidden from the public eye. 12. In respect of the plea of concealment in the income tax returns, learned counsel referred to the statement of assets filed by the Respondent under Section 116(2) of the Income Tax Ordinance, 2001 (“the Ordinance, 2001”) for the year 2014-15 (pages 24-31 of CMA 7925/16). It is the petitioner’s case that when the Respondent became an income tax filer he was a resident in Pakistan. Thus he was bound under the law to disclose both local and foreign assets owned by him as and when he became a filer. Const.P.35 of 2016 13 Learned counsel submitted that under the Wealth Tax Act, 1963 repealed on 1.7.2003 (“the Act, 1963”) the Respondent was bound to declare NSL and the assets owned by it. He referred to Sections 4 [particularly sub-section (1)(a)(iii) and (5)] and 14 of the Act, 1963 and the Wealth Tax Forms (old and current). He also referred to Sections 2(64), 4, 9, 10, 11(5) and Section 116(2) of the Ordinance, 2001 to argue that when a resident person files his return he has to declare local and foreign income sources and correspondingly file a wealth statement. The form required to be filed under the Act, 1963 has a specific column for declaring assets. He also referred to a notification dated 26.6.2015. In support of his argument that the Respondent’s interest in NSL was an asset which had to be declared under the law, learned counsel referred to the definition of the term “share” in Section 2(58) of the Ordinance, 2001 and stated that since the word “asset” has not been defined in the said Ordinance, therefore, its definition has to be taken from common law and according to him “asset” includes “share”. He also argued that the Respondent accepted that he is the absolute owner of NSL (para 7 of CMA No.7925/2016) and also that he is its beneficial owner (para 7 and 21 of CMA No.7925/2016). As per a news item dated 14.5.2016, the Respondent admitted that he formed an offshore company to buy the London flat to avoid paying taxes in the UK during his cricketing days (page 130 of Const.P. No.35/2016). According to the learned counsel these are major contradictions which render the Respondent to be not honest and ameen and therefore disqualified. 13. Coming to the submission regarding concealment of foreign property and NSL before the ECP, learned counsel referred to the statement of assets and liabilities of the Respondent for the years 2013 and 2014 filed in his Annual Returns under Section 42A of the Representation of the People Const.P.35 of 2016 14 Act, 1976 (“ROPA”) with ECP (pages 154 to 156 and 159 to 161 of Const.P. No.35/2016), in which neither the property of nor the shares in NSL or the very existence of NSL is mentioned particularly under para 4(b) and 5(b) of the prescribed statement of assets in the forms. According to him the Respondent was bound to mention his foreign interests in his annual statement of assets and liabilities filed before the ECP under Section 42A of the ROPA. As per the said legal provision, if a person fails to file a statement of assets and liabilities the Chief Election Commissioner shall suspend his membership and he may be prosecuted for committing corrupt practices. Apart from the London flat, NSL was a juristic entity, incorporated and run for the benefit of the Respondent. Accordingly his ownership in NSL had to be mentioned in the declaration till dissolution of NSL on 2015. In this context learned counsel relied upon Rai Hassan Nawaz’s case (supra). 14. As regards the Tax Amnesty Scheme, learned counsel submitted that in 2000 the Respondent availed the incentive of a tax amnesty under the said Scheme announced by the then government under Section 59D of the Income Tax Ordinance, 1979 to whiten the amount of Rs.2/- million equivalent to the price of UK £117000/- paid for the London flat. For the said relief the Respondent paid income tax of Rs.240,000/-. However, NSL was not mentioned by the Respondent in his declaration under the Amnesty Scheme. He referred to the form of declaration of undisclosed income (page 50 of CMA No.7925/2016) filed under the Amnesty Scheme, wherein the Respondent admitted that in the income year 1983-84 (this is assessment year 1984-85), he had an undisclosed income of £117000 equal to Rs.2/- million to whiten the same, the Respondent paid tax in the amount of Rs.240,000/- (para 7 of CMA No.7925/2016). He submitted that what the Respondent could only whiten under the Amnesty Scheme is his personal Const.P.35 of 2016 15 incomes and not the London flat which was owned by NSL as a juridical entity. The claim by the Respondent that he had declared that London flat is a mis-statement exposing him to disqualification. Even otherwise the Respondent concealed the beneficial ownership of the flat for approximately 17 years (from 1983 to 2000) until he filed Nomination Papers for contesting the general elections in 2002. Thus the Respondent is not honest and ameen and liable to be disqualified under Article 62 of the Constitution. Alleged false and contradictory declarations about the Banigala property. 15. The crux of the submissions of the learned counsel in this regard is that the Respondent is guilty of money laundering and tax evasion with regard to his property in Banigala and the contradictory pleas taken in this regard amount to misdeclaration rendering the Respondent liable to be disqualified under Article 62(1)(f) of the Constitution being not sagacious and honest and ameen. According to the learned counsel, the above submission is borne out by the following facts. 16. The Respondent entered into an agreement for the purchase of land measuring 300 kanals and 5 marlas in village Mora Noor, Tehsil and District Islamabad vide agreement to sell dated 13.3.2002 (concise statement CMA No.7925/2016) for a total sale consideration of Rs.43.5 million payable by 30.06.2002. The concise statement states that Rs.6.5 million was paid as advance (page 15 of CMA No.7925/2016). However, the written agreement records that initially Rs.300,000/- was paid for expenses by cheque followed by payments of Rs.3.0 million on 13.3.2002 and Rs.3.5 million on 21.3.2002 totaling Rs.6.5 million. An amount of Rs.36.2 million was then paid in five installments made through cheques and another cash payment of Rs.800,000/- through cash (seller’s acknowledgment receipts at Const.P.35 of 2016 16 pages 75 and 76 of CMA No.7925/2016). Learned counsel for the petitioner stated that after payment of advance, the remaining sale consideration in the amount of Rs.36.2 million was allegedly borrowed by the Respondent from his ex-wife. However, no detail of any banking transfer made by the ex-wife from UK to Pakistan to the credit of the Respondent has been placed on record. Similarly, no transaction for the return of the borrowed money by the Respondent to his wife in the UK has been shown. In this regard, a certificate of Citibank was produced (page 64 of CMA No7925/2016) showing conversion of US$ amounts to PKR. These entries did not evidence any remittance nor show any connection between the remitter and the Respondent as recipient. Learned counsel submitted that the Banigala property was ‘parked’ in the name of his ex-wife, Ms. Jemima Khan. The spouses were divorced in June, 2004 (para 8 of concise statement, CMA 7925/2016). On 11.6.2005 vide mutation No.7361 land measuring 45 kanals bearing a sale value of Rs.6.5 million was mutated in the name of the Respondent’s ex-wife (page 85 of CMA No.7925/2016). Likewise, on the same day land measuring 50 kanals valuing Rs.7.25 million was also mutated in her name vide mutation No.7538. Why were mutation Nos.7361 and 7538 for land measuring 45 and 50 kanals respectively recorded in favour of Ms. Jemima Khan after her divorce and then ultimately retrieved by the Respondent vide gift mutation No.10696 dated 29.10.2005 whereby the entire chunk of 300 kanals land was transferred by Ms. Jemima Khan to the Respondent. This sequence of back and forth transfers was alleged by learned counsel for the petitioner to be farcical and a sham which went against the case of the Respondent as set out in his pleadings. These gift mutations in favour of the Respondent that took place in 2005 have no justification because by that time the divorce between Const.P.35 of 2016 17 the Respondent and his ex-wife had already taken place in June 2004. He submitted that the intention of the Respondent behind parking the Banigala property in his wife’s name was to avoid questions about the source of funding for the purchase of the Banigala property and to evade taxes. Learned counsel referred to the nomination papers of the Respondent filed on 28.8.2002 for the general elections held in 2002 (CMA No.3125/17). In particular he referred to pages 6 and 7 to submit that the benami transaction of Banigala property in favour of the Respondent’s ex-wife, the claimed loan from her and the three mutations already recorded in her favour were not mentioned in the relevant columns. He also referred to Annexure A of the nomination papers and stated that it was not a truthful disclosure of the position taken up by the Respondent himself. Learned counsel submitted that the London flat was sold for £715,000.00 (pages 58 and 59 of CMA No.7925/2016). After deducting the agent’s commission and other expenses; the net yield of £690,307.79 was received by the Respondent on 14.4.2003. Considering the exchange rate prevailing at that time the Respondent got approximately Rs.63 million from the said sale out of which Rs.39 million was the alleged loan amount given by his wife (figure taken from concise statement CMA No.7925/2016). No detail regarding the utilization of the balance amount of net sale value of the London flat, that is Rs.33.6 million, was provided by the Respondent. Further, there is no money trail (page 64 of CMA No.7925/2016) and there are two transfers on the same day, i.e. 31.08.2002, all of which point towards money laundering by the Respondent. 17. According to learned counsel for the petitioner, the Respondent gave three versions at different times with regard to the ownership of this Banigala property. One of the versions is that he purchased it himself. Then Const.P.35 of 2016 18 there is a general power of attorney dated 21.03.2005 (at page 157 of Const.P. No.35/2016) according to which his ex-wife claimed that the Banigala property was purchased by the Respondent but mutated in her name as a benami transaction; and she appointed Saifullah Sarwar Khan Niazi as an attorney to get it transferred back in the name of the Respondent. According to this version, the Respondent purchased the land from his own money but he ran short of funds. Therefore, he borrowed money from his ex-wife and mutated the land in her name but on the sale of the London flat he paid back the money to his ex-wife. The second version taken by the Respondent before the ECP is that this property was gifted to him by his ex-wife. Reference is made to the statement of assets and liabilities submitted before the ECP (page 34 and para (ii) at page-35 of CMA No.7925/2016) and the Respondent’s statement of assets and liabilities before FBR (page 24 of CMA No.7925/2016). The Respondent in his tax return filed before the FBR for the tax year 2014 mentions that 300 kanals 5 marlas house was gifted to him. In the statement of assets and liabilities submitted to the ECP (page 159 of Const.P. No.35/2016) it is also stated to be a gift. There is no gift deed on the record however the property is mentioned in the revenue record as hiba. According to the learned counsel, the Respondent paid Rs.3.8 million from his personal resources through money laundering as such his ex-wife cannot be a benamidar. Thus the statement that she was the benamidar is a misdeclaration. Had his wife paid the money she could not be a benamidar rather was the actual owner. It is settled that a benamidar cannot make a gift. He relied on Smt. Harjunder Kaur and others Vs. Mrs. Usha Gupta and another (1998 PTD 2477) = (222 ITR 200) and Sankara Hali and Sankara Institute of Philosophy and Culture vs. Kishore Lal Goenka [1996 (7) SCC 55 ]. During her interview with CNBC and Samaa, the Respondent’s ex- Const.P.35 of 2016 19 wife said that she never paid a single penny to the Respondent nor received the same from him whereas in his statement on ARY Channel, the Respondent said that the entire money from sale of the UK flat came to Pakistan (script of TV programmes at page 31 of CMA No.1169/2017). As precedent for disqualification of a legislator under Article 62(1)(f) of the Constitution, the learned counsel placed reliance on Allah Dino Khan Bhayo Vs. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Mian Najeeb-ud-Din Owasi and another Vs. Amir Yar Waran and others (PLD 2013 SC 482) and the case of Ch Muhammad Yousaf Kaselia Vs. Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 SC 689). 18. Learned counsel then referred to the Respondent’s speech made in Parliament on 18.5.2016 (page 3 and 17 of CMA No.1169/2017) and his Concise Statement (CMA No.7925/2016, page 4, para 13) to argue that both these statements were contradictory. Especially when claimed on the floor of Parliament there should be a banking transaction that all the money from the sale of the London flat was brought to Pakistan. Thus, the Respondent exposed himself to the liability of the penalty provided by Article 62(1)(f) of the Constitution on account of his deliberate, repeated mis- declaration and dishonest statements, thus he cannot be presumed to be honest and ameen. 19. Finally learned counsel submitted that both the Federal Government and ECP failed to perform their duty and since no forum is provided under the PPO for taking action when a false declaration is given by a party head, this Court can exercise its jurisdiction under Article 184(3) of the Constitution. Reliance was placed on the cases of Umar Ahmad Ghumman Vs. Government of Pakistan and others (PLD 2002 Lah 521), Air Const.P.35 of 2016 20 Marshal (Retd.) Muhammad Asghar Khan Vs. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), Pir Sabir Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another (PLD 1995 SC 66) and Miss Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416). 20. No arguments were made about the petitioner’s allegation regarding Constitution Avenue property. Respondent’s reply: 21. Mr. Anwar Mansoor Khan, learned counsel for Respondent No.2 PTI, whilst answering the pleas raised by the petitioner’s side about prohibited funding availed by PTI especially with reference to Clause IV, V and VI of the prayer made in the petition articulated the following formulations that were also submitted in Court in writing: “1. At the outset, the Chairman of his client PTI instructed him not to press any objections to the maintainability of this petition under Article 184(3) of the Constitution. 2. Whether receiving ‘contribution’ or ‘donations’ from abroad makes the PTI is a “Foreign Aided Political Party” under the Political Parties Order 2002? 3. Whether, once the accounts as required by Article 13 of the Political Parties Order 2002 have been filed by PTI, no objection having being raised by the Election Commission of Pakistan, and finding it to be proper, acted to publish it and allot the election symbol, the issue is past and closed? Const.P.35 of 2016 21 4. Whether the FARA Foreign Agents Registration Act, 1938 being a mandatory requirement in the USA, wherefore the registration of PTI’s agent in the FARA in fact makes transparent the accounts of the agent and donations and contributions collected from the members and supporters of PTI. Further where PTI USA LLC acted only as an agent of PTI Pakistan to remit funds received/ collected as ‘Contributions’/‘Donations’ to its principal then could the FARA agent said to have contributed/donated such funds as a body corporate?” 22. Learned counsel submitted that the two terms ‘aid’ and ‘contribution’ appearing in the PPO with reference to funds received by a political party are distinct from each other according to their respective dictionary meanings and signify different concepts in the PPO (he referred to Chambers Dictionary, Law Lexicon and Black’s Law Dictionary). Before considering the merits of the dispute, reference may be made to the following relevant provisions of the PPO that have a bearing upon the merits of the case: 2. Definitions.- In this Order, unless there is anything repugnant in the subject or context,- (a) … (b) … (c) “foreign-aided political party” means a political party which- (i) … (ii) … (iii) receives any aid, financial or otherwise, from any government or political party of a foreign country, or any portion of its funds from foreign nationals;" 6. Membership fee and contributions.- (1) A member of a political party shall be required to pay a membership fee as provided in the party’s constitution and may in addition, make voluntary contributions towards the party’s funds. Const.P.35 of 2016 22 (2) The contribution made by members or supporters of any party shall be duly recorded by the political parties. (3) Any contribution made directly or indirectly, by any foreign government, multinational or domestically incorporated public or private company, firm, trade or professional association shall be prohibited and the parties may accept contributions and donations only from individuals. (4) Any contribution or donation which is prohibited under this Order shall be confiscated in favour of the State in the manner as may be prescribed. Explanation.- For the purpose of this section, a “contribution or donation” includes a contribution or donation made in cash, kind, stocks, hospitality, accommodation, transport, fuel and provision of other such facilities. 13. Information about the sources of party’s fund.- (1) Every political party shall, in such manner and in such form as may be prescribed or specified by the Chief Election Commissioner, submit to the Election Commission, within sixty days from the close of each financial year, a consolidated statement of accounts of the party audited by a Chartered Accountant containing- (a) annual income and expenses; (b) sources of its funds; and (c) assets and liabilities. (2) The statement referred to in clause (1) shall be accompanied by a certificate signed by the party leader stating that- (a) no funds from any source prohibited under this Order were received by the party; and (b) the statement contains an accurate financial position of the party.” 15. Dissolution of a political party.— (1) Where the Federal Government is satisfied that a political party is a foreign-aided party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism it shall make such declaration by a notification in the official Gazette. (2) Within fifteen days of making a declaration under clause (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Where the Supreme Court upholds the declaration made Const.P.35 of 2016 23 against a political party under clause (1), such party shall stand dissolved forthwith.” Article 2(c)(iii) of the PPO uses the word ‘aid’ and the consequence of being a foreign-aided political party is contained in Article 15 thereof [read with Article 17(2) of the Constitution] which empowers a declaration of dissolution of the political party by the Federal Government. He stated that ‘foreign-aided political parties’ are those which work against the sovereignty and integrity of Pakistan and this phrase has only been used in Articles 2(c)(iii) and 15 of the PPO. Learned counsel then referred to Article 6(3) of the PPO which according to him is a separate and distinct provision which deals with prohibited contributions and donations made to a political party by certain specified entities/persons, for which the penalty of confiscation is provided in Article 6(4) of the PPO. Being a penal provision, Article 6(4) ibid must be strictly construed and applied. He particularly dilated upon the word ‘multi- national’ used in Article 6(3) ibid which according to him did not mean a foreign company, but a company incorporated under the laws of Pakistan which is operated by a foreign company. In this context he referred to the definition of ‘multi-national corporation’ in Black’s Law Dictionary. According to him, Articles 2(c)(iii) and 15 of the PPO on the one hand, and Articles 6(3) and 6(4) thereof on the other hand, are two distinct provisions of law which entail two different penalties. As regards the certificate to be given by a party head under Article 13 of the PPO wherein the expression ‘prohibited sources’ has been used, the relevant prohibition is contained only in Article 6(3) supra. He referred to SRO No.581(I)/2002 (page 16 of CMA No.3239/17) according to which US nationals of Pakistani origin can have dual Const.P.35 of 2016 24 nationality. Therefore the expression ‘foreign national’ used in Article 2(c)(iii) of the PPO exclude dual nationals, who are Pakistani citizens for all intents and purposes. 23. Learned counsel submitted that PTI submitted its annual audited accounts to the ECP, including the accounts relating to the PTI’s receipts of foreign funds commencing from the year 2010 and thereafter, after scrutiny these accounts were gazetted by the ECP for the information of the general public. Subsequently, under the provisions of Article 14 of the PPO and as evidence of approval of these accounts, ECP allotted an election symbol to the PTI on which it contested the general elections in 2013. A political party must fulfill two conditions under Article 14 of the PPO before the ECP can allot an election symbol to it. These conditions are: (i) to conduct intra-party elections under Article 12 of the PPO; and (ii) to submit their audited accounts to the ECP as required by Article 13 of the PPO. At this juncture, he referred to Sections 3 and 3A of the Political Parties Act, 1962 (“the Act, 1962”) to argue that under the said Act, every political party was required to submit its records to the officer nominated by the ECP for the audit of its accounts and source of funds. However, this provision for audit by the ECP is absent in the PPO and instead Article 13 thereof provides for audit to be conducted by chartered accountants appointed by the political party itself. He stated that this change in the law is important and must be given due meaning. Thus, the burden lies on the chartered accountants of a political party to scrutinize and submit accounts that comply with the provisions of the PPO. In case, anything is amiss in the audited accounts furnished then action is to be taken against him or for rectification. If the ECP finds any deficiency or defect in the accounts submitted, it can proceed under Rule 6 of the Const.P.35 of 2016 25 Political Parties Rules, 2002 (“Rules, 2002”) for obtaining information or directing correction. In the present case, the ECP did not do so at the relevant time. However, according to the learned counsel, after the issuance of symbols for the general election held in 2013, the petitioner cannot now be allowed to raise the issue of accounts before this Court. In terms of Article 14 and Rule 10 the matter of accounts submitted by PTI has become a past and closed transaction and ECP cannot review its order to re-open the matter as it has become functus officio. Furthermore, a third person does not have the locus standi to question before ECP the accounts of PTI by alleging that it has availed funding from prohibited sources. The ECP cannot accept such an application particularly after super-structural actions have taken place, namely, allotment of election symbols and holding of general elections. 24. Learned counsel stated that PTI’s accounts were audited by chartered accountants certified as ‘A’ class by the State Bank of Pakistan. Learned counsel referred to the auditor’s report (page 33 of CMA No.3239/2017) and the certificate by the party head that no fund has been received from prohibited sources (page 34 of CMA No.3239/2017). None of PTI’s accounts are qualified for being doubtful, erroneous or contrary to law as it would have appeared in the chartered accountants’ report. In fact, the accounts filed by other parties are qualified, e.g. PML(N) and PPP (pages 67 and 68 of CMA No.3239 of 2017). PPP also appointed a foreign agent under FARA. The Government of Pakistan was also registered with FARA as donor in 2012. He referred to the following: the internal procedure, checks and guidelines for receipt of funds by PTI (page 82 of CMA No.3239/2017). According to the guidelines, PTI requested the bank to return ₤97,680/- remitted by a foreign company; PTI’s fund raising policy and the rules in this Const.P.35 of 2016 26 regard (pages 2 and 3 of CMA No.3239/2017), particularly Para B (Fund Raising Team); the Bylaws of PTI NA LLC in which it is admitted that it is an agent of PTI Pakistan (aims and objectives at page 6 of CMA No.3239/2017; raising and disbursement of funds at page 9 and 10 of the said CMA; para–G, Clause 7 which mentions that money is only spent for the intended purposes defined in the FARA application (page 15 of CMA No.3239/2017). 25. With regard to the jurisdiction of ECP to scrutinize the accounts, learned counsel argued that Article 219 of the Constitution lays down the specific functions conferred upon the ECP; clause (e) thereof however, permits for such other functions of ECP to be provided as or specified by an Act of Parliament. The PPO provides for the submission to and scrutiny of accounts of political parties by the ECP. However, the PPO does not envisage ECP to conduct their audit. Therefore, the Rules cannot provide for what has not been provided in the parent law, i.e. the PPO, itself. According to him, the ECP under Article 6 of the PPO is neither a Court nor a Tribunal capable of making determinations; rather it can only exercise executive power under the PPO. At the time of submission of accounts of political parties containing the reports of the auditors, ECP can undertake their scrutiny and finalize such accounts. Once such accounts have been accepted by the ECP, their scrutiny cannot be reopened. Prior to the acceptance of audited accounts, their scrutiny by ECP can only be inquisitorial as opposed to adversarial in nature. In this context, he referred to Section 103AA of ROPA which confers a specific power of determination upon the ECP which is absent in the PPO. According to him, if a power has not been specifically given to the ECP by the PPO, such power cannot be read into the law and exercised by the ECP. Rule 6 which vests ECP with a power of deciding the validity of the accounts is excessive because the PPO Const.P.35 of 2016 27 itself does not confer such a power on the ECP. Thus any exercise of a determinative jurisdiction by the ECP would be improper and in excess of authority. Finally, he referred to Rule 4 of the Rules and Form-I. He also relied upon Rule 10 to argue that since the ECP did not return the statements of accounts submitted by PTI thus the ECP considered these to be correct and accepted the same. He referred to the judgments reported as Mian Umar Ikram-ul- Haque vs. Dr. Shahida Hasnain and another (2016 SCMR 2186), Independent Newspapers Corporation (Pvt.) Ltd and another vs. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533), Pir Sabir Shah’s case (supra) and Sindh High Court Bar Association through its Secretary and another vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879). In support of the contention that the ECP cannot act as a Court or Tribunal, learned counsel relied upon the judgments reported as Watan Party and another vs. Federation of Pakistan and others (PLD 2011 SC 997 @1053), and Philips Electrical Industries of Pakistan Ltd. vs. Pakistan and others (2000 YLR 2724 @2734-35). He relied on the judgment reported as A. R. Awan and 2 others vs. City District Government, Karachi and another (2011 SCMR 691) on the proposition that Courts should not extend the scope of a statute. 26. With regard to the issue of FARA, learned counsel began by reading the definitions of ‘foreign principal’ [in §611(b) and §611(2) of FARA] and ‘agent of a foreign principal’ [in §611(c) of the Chapter on FARA in Title 22-Foreign Relations and Intercourse]. He also referred to §611(d) of FARA which provides what the term ‘agent of a foreign principal’ does not include. Const.P.35 of 2016 28 According to him, PTI USA LLC falls within §611(c)(1)(iii) of FARA. It is registered in the name of an individual. It has got nothing to do with Pakistan per se but it acts as an agent of PTI for the purposes of collection and remittance of money to Pakistan as directed by the principal and in accordance with the arrangements with that agent. The agent is a body corporate for which PTI has not invested a penny. He referred to the by-laws of PTI USA LLC (page 6 of CMA No.3239/2017, particularly Para G on page 9). He referred to the letter issued by PTI (page 2 of CMA No.3239/2017), PTI Pakistan’s letter of appointment of PTI USA LLC as an agent (page 14 of CMA No.3239/2017) and PTI Pakistan’s fund raising Policy (page 3 of CMA No.3239/2017, hereinafter referred to as the “Policy”). It is permissible in the USA for foreign political parties to collect funds. However, it is a requirement of FARA that this is done through an agent. In fact, individuals cannot send money to political parties abroad. He also referred to §612(a) of FARA commentary in this regard. He referred to the Policy (Para E on page 4 of CMA No.3239/2017) and Section 188 of the Contract Act, 1872 which pertains to agency and submitted that PTI USA LLC is a foreign company but it is an agent of PTI Pakistan, therefore it is not sending its own funds to PTI Pakistan but collecting money on behalf of PTI Pakistan and merely sending these collections to PTI Pakistan. Therefore such receipts do not fall within the prohibited sources under Article 6(3) of the PPO. The rationale of Article 17(2) of the Constitution read with Article 2(c)(iii) of the PPO is that no harm is done by any political party to the sovereignty and integrity of Pakistan. According to him, a “foreign national” referred in Article 2(c)(iii) means a national of a foreign state exclusively and not a dual citizen. With respect to his contention that dual nationals are not foreigners and can make contributions and donations under Article 6 of the Const.P.35 of 2016 29 PPO, learned counsel referred to the judgments reported as Nasir Iqbal vs. Federation of Pakistan (2013 SCMR 874) and Syed Mehmood Akhtar Naqvi vs. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089, Justice Jawwad S. Khawaja’s note at 1128) and Umar Ahmad Ghumman’s case (supra) and the judgment rendered in Const.P. No.26/1993 dated 15.11.1993 (Yasmin Khan vs. Election Commission of Pakistan). 27. Learned counsel pointed out that other political parties also have appointed foreign agents under FARA in the United States. These include MQM, PPP, APML. PML(N) has an agent registered in England as a private company. Its objects are to borrow or raise money, trade or business, to enter into an arrangement with any government, authority or charter (Clauses 3.1.8 to 3.1.10 at page 3 of the Memorandum of Association). According to him, this is a direct violation of Article 2(c)(iii) of the PPO. Thus, the petitioner who belongs to PML(N) has come to this Court with unclean hands. 28. Mr. Naeem Bukhari, learned ASC for the Respondent No.1 made the following submissions: i. Till October 2002, the Respondent was not a public office holder; ii. From 1971 till 1988 the Respondent was a professional cricketer who played county cricket in England for the Worcestershire Cricket Club and the Sussex Cricket Club, and in Australia for the Kerry Packer World Series under contract with Channel 9; iii. The Respondent did not file tax returns in Pakistan until 1981 because he was a non-resident for income tax purposes (Learned counsel placed the original copies of his returns in a sealed envelope for this Court’s consideration). During this period the Respondent was not a holder of public office; Const.P.35 of 2016 30 iv. The Respondent purchased Flat No.2, 165 Draycott Avenue, London, United Kingdom, SW3 (London flat) in 1983 for a price of £117,000/-. To finance the purchase of the property, he got a mortgage on it which he redeemed after six years by payment of the mortgage money. The London flat was purchased with the income he earned from professional cricket; v. On professional legal advice, the London flat was purchased through NSL. It was advised that purchase of the property through an offshore company would relieve the Respondent from liability to pay capital gains tax at the time of its disposal; whereas if the property were purchased in his name such tax would be leviable. It is with the said purpose that NSL was got incorporated on 10.5.1983 (page 22 of Const.P.No.35/2016); vi. The subscribed capital of NSL was £9/-. Three financial institutions, namely, Langtry Trustees Limited, Langtry Secretaries Limited and Langtry Consultants each held £3 worth of shares in NSL (page 105 of Const.P. No.35/2016). However, there was a subsequent change in the shareholding as Barclays Private Bank and Trust Ltd. took Langtry’s place and managed NSL thereafter; vii. Though the object of purchasing the London flat in the name of an offshore company was to limit the tax liability of its beneficial owner, the Respondent, who was then resident of UK (thus non-resident in Pakistan). But by 1983 the Respondent became non-resident in UK and resident in Pakistan. Accordingly, he started filing his income tax returns from the year 1983. Since he became a non-resident in the UK at the time of sale of the London flat in April, 2003, the Respondent was not liable to capital gain tax. In hindsight the setting up of NSL was a waste of effort; viii. According to the learned counsel, having disclosed the London flat (in the Amnesty Scheme), the omission of non-disclosure of Const.P.35 of 2016 31 an offshore company with a subscribed shareholding of merely £9/- (with the Respondent having no share) rendered it a shell company. Its non-disclosure does not amount to concealment of an asset and the Respondent cannot be disqualified for it. The flat was disclosed in the income tax returns and the nomination papers filed by the Respondent in 2002. Ultimately the said flat of the Respondent was sold in 2003; ix. The London flat purchased in 1983 was not declared in any tax return in Pakistan on advice that since it had been purchased with foreign income, there was no requirement to declare it. However, when the Amnesty Scheme was announced on 1.3.2000 (page 44 onwards of CMA No.7925/2016), the Respondent took advantage of it and on 30.9.2000 declared the income with which the London flat was bought (page 50 of CMA No.7925/2016) as well as the flat itself (page 51 of CMA No.7925/2016). Tax was paid thereupon at the rate prescribed in the scheme and the matter stood settled. The Central Board of Revenue and its successor, the Federal Board of Revenue, have not raised any issue till date. x. According to Clause 10 of the Amnesty Scheme (page 45 of CMA No.7925/2016), the proceedings thereunder attain finality where undisclosed income is declared and tax is paid thereupon. The Respondent was always the beneficial owner of the London flat. Non-declaration of NSL is absolutely irrelevant because the finance for the purchase of the London flat was provided by the Respondent after it was sold by him in 2003 he received the sale price thereof (subject to certain deductions as is shown in the chart/statement available at page 58 of CMA No.7925/2016). xi The Respondent never considered NSL to be his asset. It was merely a single purpose vehicle meant to be a holding entity. The Respondent was never a shareholder of NSL, therefore, it was neither declared in his tax returns nor in his nomination papers before the ECP or his statement of assets and liabilities Const.P.35 of 2016 32 filed under Section 42A of ROPA. Returns of NSL had to be filed by its directors or its shareholders in Jersey and not Pakistan. Thus there was no ground for the Respondent to disclose anything about NSL in Pakistan. The Respondent has given an affidavit to the effect that NSL did not hold any other asset apart from the London flat; xii. The London flat was declared by the Respondent in the nomination papers dated 28.08.2002 for general elections 2002 (page 6 of CMA No.3125/2017). This is the first time the Respondent secured public office. He declared the London flat prior to assuming the public office of Member National Assembly in Annex-A to his nomination papers (page-9 of CMA No.3125/2017) in which the Banigala property belonging to his then wife was also disclosed. Thus he submitted that having declared the London flat in the Amnesty Scheme and then in his nomination papers of 2002, the matter stands settled after sale of the flat in 2003. Property at One Constitution Avenue: xiii. As regards the property at One Constitution Avenue, learned counsel submitted that the Respondent had paid an amount of Rs.2,970,000/- as advance for the purchase of a flat in One Constitution Avenue, Islamabad. He had duly disclosed this amount in the tax returns filed by him for the year 2014 (page 25 of CMA No.7925/2016). It is the exact same amount as alleged by the petitioner (page 153 of Const.P. No.35/2016). This amount is shown to be an advance payment in his tax return. However, since no flat was allocated to him at that time, therefore, he did not mention the amount of advance paid for the purchase of the said flat in his 2014 statement of assets and liabilities filed with the ECP under Section 42A of the ROPA. Nevertheless, when a specific flat was allotted to the Respondent and its flat number became known to him, he declared that property in his 2015 statement of assets and liabilities filed with the ECP (page 32 of CMA No.7925/2016). Const.P.35 of 2016 33 Moreover, since further installments for the said flat had been paid, therefore, in his 2015 tax return (page 30 of CMA No.7925/2016) the further amounts paid were added to the advance deposit to reflect the total amount of prepayment as Rs.5,970,000/-. Further sums were paid subsequently, therefore in the 2016 statement of assets and liabilities filed by the Respondent with the ECP he disclosed the further amounts deposited till that time to be Rs.11,970,000/- (page 38 of CMA No.7925/2016). Therefore, the question that the Respondent had concealed the details of his payment for the flat and in his tax returns is absolutely unfounded. Banigala property: xiv. Learned counsel referred to the agreement to sell dated 13.3.2002 (page 60 to 63 of CMA No.7925/2016). It is undisputed that the agreement is between the seller of the Banigala property and the Respondent. The price of Rs.43.5 million is also undisputed. The agreement refers to initial down payment of 6.5 million by the Respondent. Further payments are referred in the acknowledgment receipt dated 24.7.2003 issued by the seller (page 75 of CMA No.7925 of 2016). The date for completion of the sale was extended to 23.1.2003 (when the last payment made to seller) except for the said down payment and last installment of Rs.800,000/- the remaining amount of sale consideration was paid through banker’s cheques (page 77 to 83 of CMA No.7925/2016). The amount paid with these banking instruments was provided by foreign exchange remittances made by Ms. Jemima Khan the Respondent’s wife through banking channels to the account of the Respondent’s representative Rashid Ali Khan. The encashment certificates of the remitted foreign exchange to PKR are at pages 65 to 74 of CMA No.7925/2016. xv. Since the London flat could not be sold timely primarily due to a dispute with its tenant that ultimately went to Court, and as according to the agreement to sell of the Banigala property, the Const.P.35 of 2016 34 Respondent had to discharge the total sale price on or before the completion date, therefore, a bridge finance was obtained by the Respondent from his wife Ms. Jemima Khan in order to meet his obligation to pay the balance sale consideration of the Banigala property. In this context, as mentioned earlier, apart from payments of Rs.7.3 million by the Respondent to the seller of the Banigala property, the remaining amount of Rs.36.2 million was temporarily funded by Ms. Jemima Khan; xvi. For all intents and purposes the Banigala property was meant for the use of the Respondent’s family, his wife Ms. Jemima Khan and their two sons. Had Ms.Jemima Khan not insisted to return the property to the Respondent after their divorce, he would never have got it transferred to his name; xvii. The London flat was sold in April 2003 on account of which the net amount of £690,307.79 (statement at page 59 of CMA No.7925/2016) was recovered on 14.4.2003. Out of the aforesaid amount, the Respondent paid £562,415.54 to Ms. Jemima Khan (page 12 of CMA No.3657/2017), inter alia, to settle the bridge finance of Rs.36.2 million extended by her for purchase of the Banigala property; xviii. He referred to a Citibank certificate (page 64 of CMA No.7925/2016), letter from Citibank establishing the identity of the remitter (page 13 of CMA No.3657/2017) and the letter dated 22.5.2017 stating the remittance of the said amount by the Respondent to his ex-wife (page 12 of CMA No.3657/2017); xix. The Respondent’s case is that in May 2003 he returned an amount of £562,415.54 to his wife that was well above the amount she had loaned to him, through her foreign currency remittances made to Mr. Rashid Ali Khan; xx. According to the learned counsel, the Banigala property was meant to belong to the Respondent’s wife and had their marriage not broken down it would still have been hers. The Const.P.35 of 2016 35 Respondent’s marriage with Ms. Jemima Khan ended in June 2004. He referred to pages 137 and 138 (of Const.P. No.35/2016) to state that mutations of the Banigala property at serial No.1 to 5 are in the name of Ms. Jemima Khan. As regards the fact that two of the mutations were sanctioned on 11.6.2005 much after the sale of the property, learned counsel submits that these mutations were entered in 2002-2003 but their sanction by the competent revenue officer was delayed until 2005 (tareekh-i-faisla). He then referred to the mutations on pages 139 onwards of Const.P. No.35/2016. He also referred to page 85 of CMA No.7925/2016; xxi. Learned counsel clarified that it was never the Respondent’s case that the property was benami rather it was bought in his wife’s name. The word benami only appears in her power of attorney (page 157 of Const.P. No.35/2016). He states that hiba of the Banigala property was then made by her attorney in favour of the Respondent; 29. Learned counsel referred to the five mutations in favour of Ms. Jemima Khan and their sanction dates, namely, mutation No.7056 on 26.4.2002, mutation No.7225 on 16.8.2002 and mutation No.7246 on 28.8.2002. He added that the dispute raised by the learned counsel for the petitioner is confined to the last two mutations No.7361 and 7538 which were entered on 11.11.2002 and 4.2.2003 respectively, but were sanctioned on 11.6.2005 because of the delay in their finalization. He explained that the Respondent is in no way responsible for the delay in the sanction of the last two mutations. Although the Respondent and Ms. Jemima Khan stood divorced in 2004, these mutations had to be sanctioned in the name of Ms. Jemima Khan because the original entries in the rapat roznamcha were made in these terms in the years 2002 and 2003. Therefore the Respondent neither made a false statement nor manipulated or fabricated the revenue record. He further Const.P.35 of 2016 36 submitted that on 21.3.2005 Ms. Jemima Khan appeared before a notary public in England to execute a general power of attorney favouring Saifullah Khan Sarwar Niazi for the Banigala property (page 157 of Const.P. No.35/2016). In this power of attorney Ms.Jemima Khan categorically states her intention to give the Banigala property back to the Respondent (paragraph 2 of the power of attorney). In this regard she authorized her attorney/agent to either transfer the said property in the Respondent’s name or in the alternative to gift it to him. The attorney while exercising his lawful power under the power of attorney got a gift mutation No.10696 dated 29.10.2005 (oral hiba) sanctioned in favour of the Respondent. 30. As regards the question of non-declaration of NSL by the Respondent in his tax returns and the statement of assets and liabilities filed before the ECP, learned counsel pointed out that none of the documents on record that relate to NSL including those produced by the petitioner (pages 22 to 129 of Const.P. No.35/2016) show the Respondent as being a shareholder or a director of NSL. Rather, NSL’s shareholders were three trustee companies; and its directors at one stage were Ms.Aleema Khan and Ms.Uzma Khan, sisters of the Respondent (at pages 60, 103, 105, 107 and 111 of Const.P. No.35/2016) but later institutional directors were appointed. According to the petitioner (sub-para-c, page 10 of Const.P.No.35/2016) the Respondent’s sisters are alleged to be his benamidars. That is futile because directors of a company cannot own its assets. The sisters were merely trustee directors of NSL. As the Respondent was neither a shareholder nor a director in NSL, therefore, he was not obliged to disclose the existence of NSL in his tax returns nor in his statement of assets and liabilities. In any event, NSL is a legal vehicle for owning an asset and not an asset itself. The incorporation of and affairs of NSL were handled by a solicitor, chartered accountants and its Const.P.35 of 2016 37 trustee directors. NSL owned the London flat and the Respondent is the beneficial owner of that asset. According to an information memo about Jersey Island laws (page 34 of CMA No.3657/2017) the beneficial ownership of a property has to be disclosed to the authorities, which according to the Respondent was done. In the Tax Amnesty Scheme, 2000 requiring declaration of undisclosed income and assets, the Respondent declared his beneficial ownership in the London flat and also foreign after tax UK income, with which he had purchased the same. According to the learned counsel, the Amnesty Scheme confers privileges and rights as envisaged in Section 59D of the Ordinance, 1979. Therefore, once having declared the London flat in the year 2000, disclosure was complete with respect to income earned and the asset acquired by the Respondent, thereby entitling him to complete immunity from all tax consequences on account of past non-disclosure. The declaration of asset by the Respondent made in the year 2000 was continued and reiterated in all the tax returns of the Respondent and his statements of assets and liabilities filed before the ECP along with his nomination paper filed for the 2002 general elections. 31. Without prejudice to the plea that the Respondent was not obliged to mention the existence of NSL in his tax returns, it is further argued that in the Respondent’s statements of assets and liabilities filed with the ECP, such failure at the most tantamounts to an omission on the part of the Respondent but cannot be considered an act of dishonesty. Disqualification could only be attributed to the Respondent if he was adjudged a tax defaulter by the competent authority. Till date the erstwhile CBR and its successor the FBR have not raised any objection vis-à-vis the London flat. While answering the question as to whether NSL had any other assets, learned counsel stated that the fact that NSL has no other assets is a negative Const.P.35 of 2016 38 fact, which is difficult to prove. The fact of ownership of other assets by NSL is supposed to have been proved by the petitioner. While referring to accounting details by Barclays Bank about NSL provided incompletely in CMA No.3800 of 2017, CMA No.6799 of 2017 and CMA No.7459 of 2017, learned counsel on Court’s direction provided the complete bank statements of NSL from 10.3.2003 to 23.8.2012. He explained that NSL owned only the London flat and no other asset. He stated that the figure of £117,500/- in the NSL accounts of 2001-02 (CMA No.3800 of 2017) pertain to the price of the London flat, whereas the additional amount under the head ‘Cash and Contracts’ is the rent received from that flat. As regards the document of 2004, the head ‘Investments’ in the NSL accounts is reported as £0, because by that time the flat had been sold. The figure reported under ‘Cash and Contracts’ is the amount for payment to the solicitors for the tenancy litigation pertaining to the flat. He stated that after the London flat was disposed of, no other asset has remained with NSL. In fact, only the litigation with the tenant survived which was concluded on 10.2.2004 vide judgment of the English Court of Appeal. He refuted the petitioner’s conjecture that since NSL was alive till 2015, therefore, it was doing some other business or held other properties (in addition to the London flat). However, the actual reason for keeping NSL alive was that it was embroiled in litigation with the tenant of the London flat. He stated that the Trial Court in England had granted a decree in favour of the company on 25.6.2003 which was subsequently modified by the learned Court of Appeal vide its judgment dated 10.2.2004 (page 14 to 17 of CMA No.3657/2017) that reduced the compensation awarded by the learned Trial Court from £48,000/- (plus interest) to roughly £39,000/- (plus interest). It was for the recovery of that amount from the Dutch tenant through execution launched in London and Const.P.35 of 2016 39 then in Holland that NSL was kept alive to effect recovery in its name because NSL was the landlord. 32. Adverting to the question of the disconnect between the encashment amount of US Dollars claimed to have been remitted by Ms. Jemima Khan on the one hand and the Citibank document dated 7.1.2004 on the other hand, learned counsel referred to two documents issued by Citibank (at page 13 of CMA No.3657/2017 and page 64 of CMA No.7925/2016). He explained that under the agreement to sell for the Banigala property dated 13.3.2002 (page 61 to 63 of CMA No.7925/2016) the payment of the entire sale consideration amount is Rs.43,500,000.00 was made to the seller as follows (chart at page 12 of CMA No.3800/2017): i. Rs.300,000/- paid in cash by the Respondent on 7.3.2000 (note: this amount was adjusted towards brokerage fee and other miscellaneous charges); ii. Rs.3,000,000/- paid by the Respondent on the date that the agreement was executed, so acknowledged in the agreement itself (vide cheque dated 14.3.2002 on page 77 of CMA No.7925/2016); iii. Rs.3,500,000/- was paid vide cheque dated 28.3.2002 by the Respondent to the seller (page 78 of CMA No.7925/2016). Thus the total amount paid was Rs.6,500,000 (excluding the initial cash payment); iv. Rs.14,500,000/- was paid by Rashid Ali Khan vide bank draft dated 11.4.2002 (page 79 of CMA No.7925/2016); v. Rs.10,000,000/- was paid by Rashid Ali Khan vide bank draft dated 1.8.2002 (page 80 of CMA No.7925/2016); Const.P.35 of 2016 40 vi. An amount of Rs.2,500,000/- was paid by Rashid Ali Khan vide bank draft dated 13.9.2002 (page 81 of CMA No.7925/2016); vii. An amount of Rs.3,500,000/- was paid by Rashid Ali Khan vide bank draft dated 2.10.2002 (page 82 of CMA No.7925/2016); viii. An amount of Rs.5,700,000/- was paid by Rashid Ali Khan vide bank draft dated 23.1.2003 (page 83 of CMA No.7925/2016); and ix. Rs.800,000/- paid in cash by the Respondent acknowledged by the seller through an consolidated receipt dated 24.7.2003 (page 75 of CMA No.7925/2016). Excluding the initial payment of Rs.300,000/- the above payments total an amount of Rs.43,500,000/- which is acknowledged by the consolidated receipt dated 24.7.2003 issued by the seller who has raised no dispute or complaint about non-payment of any amount due from the Respondent or about the dishonour of any of the cheque or bank draft due from the Respondent issued on behalf of the latter. 33. He explained that remittances were made by Ms. Jemima Khan in chunks that were not necessarily encashed and converted fully into rupees immediately. In this behalf, he referred to an updated chart of remittances made by Ms. Jemima Khan to Mr. Rashid Ali Khan (page 10 of CMA No.3800/2017) which are as under:- i. The first remittance to the Citibank, Islamabad account No.9010327943 of Mr. Rashid Ali Khan is for an amount of $258,333/- from the account of Ms. Jemima Khan at the same branch. The total transferred amount was converted on 11.4.2002 at an exchange rate of $1=Rs.59.70 equivalent to the amount of Rs.15,422,480.10 (encashment certificate is at page 66 of CMA No.7925/2016). The statement of account of Ms. Const.P.35 of 2016 41 Jemima Khan’s Citibank account reflecting the said transfer is attached at pages 7-10 of CMA No.4217/17; ii. A remittance of $275,678/- was received by Mr. Rashid Ali Khan from Ms. Jemima Khan on 31.07.2002 Citibank, Islamabad’s letter dated 7.1.2004 (page 13 of CMA No.3657/2017) certifies the said remittance. This amount was not converted to rupees in lump sum but in the following parts:- a. $200,000/- converted on 1.8.2002 at the exchange rate of $1 = Rs.59.15 and the amount received was Rs.11,830,000/- (encashment certificate at page 67 of CMA No.7925/2016); b. $45,000/- converted on 31.8.2002 at the exchange rate of $1 = 59.00 and the amount received was Rs.2,655,000/- (encashment certificate at page 68 of CMA No.7925/2016); c. $20,000/- converted on 31.8.2002 at the exchange rate of $1 = 59.00 and the amount received was Rs.1,180,000/- (encashment certificate at page 69 of CMA No.7925/2016); and d. $10,660/- converted on 10.9.2002 at the exchange rate of $1 = 58.85 and the amount received was Rs.627,341/- (encashment certificate at page 70 of CMA No.7925/2016). iii. An amount of £20,000/- was remitted (electronic transfer) from Ms. Jemima Khan’s UK account on 2.10.2002 and credited after conversion to rupee into a PKR account of Mr. Rashid Ali Khan. Thus encashment of the remittance was done by the bank without a separate transaction at the exchange rate of £1= Rs.91.4496 amounting to Rs.1,828,992/- (page 14 of CMA No.3800/2017); Const.P.35 of 2016 42 iv. An amount of $16,000/- was transferred to Mr. Rashid Ali Khan and converted on 5.10.2002 at the exchange rate of $1=Rs.58.65. The amount received was Rs.938,400/- (encashment certificate at page 71 of CMA No.7925/2016). However, this amount is not established to have been referred by Ms. Jemima Khan. v. A cash deposit of $5,000/- was converted on 19.11.2002 at the exchange rate of $1= Rs.58.15 amounting to Rs.290,750/- (encashment certificate at page 72 of CMA No.7925/2016). However, this transaction has no nexus with a remittance by Ms. Jemima Khan. vi. Another cash deposit of $5,000/- was converted on 11.12.2002 at the exchange rate of $1= Rs.58.10 amounting to Rs.290,500/- (encashment certificate at page 73 of CMA No.7925/2016). However this deposit suffers from the same defect as the previous one. vii. An amount of $100,000/- was remitted from the USA and converted on 23.1.2003 at the exchange rate of $1 = Rs.57.85. amounting to Rs.5,785,000/- (encashment certificate at page 74 of CMA No.7925/2016). However, there is no proof that this remittance was made by Ms. Jemima Khan. viii. Lastly, an amount of $100,029/- was remitted by Ms. Jemima Khan on 20.5.2013. It was received after the last crossed payment of Rs.5.7 million on 23.1.2003 was made by Mr.Rashid Ali Khan to the seller of Banigala property; therefore, remittance was not encashed. (Reference is made to Citibank letter dated 07.1.2004 at page 13 of CMA No.3657/2017 and page 75 of CMA No.7925/2016). 34. As of 23.1.2003 the total amount remitted by Ms. Jemima Khan was Rs.33,543,813/-. As regards the remittances made after the extended cut- Const.P.35 of 2016 43 off date for payment of the Banigala property, i.e. 23.1.2003, learned counsel submitted the following explanation regarding the amounts received by Mr. Rashid Ali Khan (appearing in the Citibank certificate at page 13 of CMA No.3657/2017). He stated that these amounts were not utilized towards payment of the Banigala property: i. $110,000/- received on 12.4.2003 was not from Ms. Jemima Khan rather Mr. Rashid Ali Khan’s own sources; ii. $100,029/- was received from Ms. Jemima Khan on 20.5.2003 but was not encashed; and iii. As regards the amount of $20,000/- received on 29.5.2005, Mr.Rashid Ali Khan has no recollection as to how this amount is reflected in his statement or from whom this amount was received. However, being a businessman, learned counsel states that such transactions are not unusual. At the very outset Mr. Bukhari has explained the rationale behind the remittances made by Ms. Jemima Khan not directly to the Respondent but to Rashid Ali Khan which is reflected in the latter’s affidavit (page 20 to 23 of CMA No.3657/2017) as follows:- “In 2002 Ms. Jemima Khan left for London with her two sons forcing Imran Khan to relocate himself in UK which seems the only way to save their marriage as she has refused to continue living in Pakistan on account of consistent harassment and lodging of FIR against her”. Thus as the Respondent had to travel frequently between Pakistan and England, therefore, to be on the safe side that no default occurs in payment of consideration to the seller, the arrangement was made that the money should come to Rashid Ali Khan for onward payment to the seller. He pointed out that Rashid Ali Khan is a close friend of the Respondent. Const.P.35 of 2016 44 35. Learned counsel also assailed the bona fide of the petitioner to file this petition on the ground that he had lost the general elections to the Respondent held in May, 2013; neither were his nomination papers challenged nor was an election petition filed against him. Rather, it was filed as a counterblast to Constitution Petition No.29/2016 filed by the Respondent. Evaluation and Analysis: 36. Heard. On account of the pleadings of the parties and the oral submissions made, we find that the following questions of law and fact are involved in the matter:- 1. Whether PTI is a foreign-aided political party in terms of Article 2(c)(iii) of the PPO? What is the mechanism and the forum to adjudicate this question and what are the consequences? 2. Whether PTI has received contributions and donations prohibited by Article 6(3) of the PPO? What is the mechanism and the forum available to determine this aspect and what is the penalty? 3. If questions No.1 and 2 are answered in the affirmative, whether the certificates issued by the Respondent as the head of PTI in terms of Article 13(2) of the PPO are false and thus he should be disqualified in terms of Articles 62(1)(f) of the Constitution not being honest and ameen? 4. Whether the Respondent was required under the law to declare NSL in his statements of assets and liabilities filed in 2002 with his nomination papers for a National Assembly seat and in the statements of assets and liabilities filed yearly before the ECP as a member of the National Assembly? Whether he was required under the law to declare NSL in the income tax Const.P.35 of 2016 45 returns and the wealth tax statements and if so, what is the effect of non-declaration? 5. Whether the Banigala property was purchased through the amount substantially sent by Ms. Jemima Khan from abroad through Mr. Rashid Ali Khan? Whether this was the amount utilized for the payment of the balance consideration of the Banigala property? 6. Whether the amount contributed by Ms. Jemima Khan for the purchase of the Banigala property was repaid to her after the sale of the London flat by the Respondent? 7. Who is the owner of the Banigala property? Whether a valid gift of the said property was made by Ms. Jemima Khan in favour of the Respondent through an attorney? 8. Whether the Respondent failed to disclose the amount paid as advance for the purchase of the flat at One Constitution Avenue, Islamabad in his tax returns? Whether he failed to disclose such flat in his statement of assets and liabilities before the ECP? If so, its effect? 1. Whether PTI is a foreign-aided political party in terms of Article 2(c)(iii) of the PPO? What is the mechanism and the forum to adjudicate this question and what are the consequences? 37. This question essentially pertains to relief Clause V whereby the petitioner seeks a declaration that PTI is a foreign-aided political party. Before answering this question, we find it expedient to briefly discuss the background of the relevant law. The preamble of the Constitution, which by virtue of Article 2A is now a substantive part thereof, inter alia, provides: “Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; Const.P.35 of 2016 46 Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;” [Emphasis supplied] A combined reading of the aforementioned clauses of the preamble to the Constitution make it clear that Pakistan is a democratic state where its citizens shall have freedom of association and the right to choose their representatives through whom the State shall exercise its powers and authority. Political parties are an essential pillar of true and effective democracies. This takes us to the fundamental right enshrined in Article 17(2) of the Constitution which reads as under: (2) 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 such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Every political party shall account for the source of its funds in accordance with law. [Emphasis supplied] Article 17(2) ibid basically confers a fundamental right upon every citizen to form and be a member of a political party, subject to certain restrictions imposed by the Constitution and the law in the interest of the sovereignty or Const.P.35 of 2016 47 integrity of Pakistan. Thus, every citizen (not being a civil servant) can form and become a member of a political party. But if such party is formed or is functioning in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall take a decision and make a declaration to this effect and refer the matter to the Supreme Court of Pakistan which shall then determine the validity of the decision of the Federal Government. The ‘law’ envisaged by sub-Articles (2) and (3) of Article 17 of the Constitution, is the PPO which stipulates the reasonable restrictions to be complied by political parties, the sources of prohibited funding and the process available to the Federal Government when a political party is formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is a foreign aided political party. The preamble to the PPO reads as follows:- Whereas it is intended to create a political environment conducive to the promotion of a federal democratic system as enshrined in the Constitution; And whereas political parties play a pivotal role in fostering a constitutional, federal democratic political culture; And whereas the practice of democracy within the political parties will promote democratic governance in the country for sustaining democracy; And whereas it is expedient to provide for the formation and regulation of political parties: The crux of the preamble to the PPO makes it clear that it is a legislation enacted to foster democratic principles enunciated by the Constitution and to provide for a mechanism for the regulation of political parties which, as mentioned above, are an important element of any democratic party. Const.P.35 of 2016 48 Proceeding ahead to discuss the substantive provisions of the PPO, Article 3 provides: 3. Formation of political parties, etc.– (1) Subject to the provisions of this Order, it shall be lawful for any body of individuals or association of citizens to form, organize, continue or set-up a political party. (2) … (3) … (4) Notwithstanding anything contained in sub- section (1), a political party shall not– … … (f) be formed, organize, set-up or convened as a foreign-aided political party. [Emphasis supplied] Article 3 of the Order allows for formation of a political party, inter alia, subject to the restrictions contained in sub-Article (4), out of which clause (f) is relevant to the instant matter as it pertains to foreign aided political parties. The term ‘foreign-aided political party’ has been defined in Article 2(c)(iii) of the PPO which reads as follows:- 2. Definitions.– In this Order, unless there is anything repugnant in the subject or context,– (c) “foreign-aided political party” means a political party which– (i) has been formed or organized at the instance of any government or political party of a foreign country; or (ii) is affiliated to or associated with any government or political party of a foreign country; or (iii) receives any aid, financial or otherwise, from any government or political party of a foreign Const.P.35 of 2016 49 country, or any portion of its funds from foreign nationals; [Emphasis supplied] It is clear from the letter and spirit of our Constitution that democracy is the essence and basic feature thereof; whereby the State shall exercise its power and authority through the chosen representatives of the people and where the principles of democracy shall be fully observed. To achieve this purpose and goal, it is essential that political parties which form the backbone of a real democratic process should be independent of any kind of foreign influence, affiliation or control, so that it should serve the State and the people, not on the basis of the dictates of vested interests and foreign elements but in the national interest. The object, purpose and rationale embedded in Article 3(4)(f) of the PPO read with Article 2(c)(iii) thereof is to bar political parties from having anything to do with foreign countries, to ensure total and complete insulation from foreign elements in order to protect the sovereignty and integrity of Pakistan as enshrined in Article 17(2) of the Constitution. While interpreting Article 17(2) of the Constitution and the term ‘foreign-aided party’ as found in the Act, 1962 (which is identically defined in the PPO), an eleven member bench of this Court in Benazir Bhutto’s case (PLD 1988 SC 416) held that: “A foreign-aided party is not expected to function within the framework of the Constitution and in the milieu of sovereignty or integrity of Pakistan it cannot be allowed to operate as it would then lead to undermining the security, solidarity and sovereignty of Pakistan as was held in Abdul Wali Khan’s case. In this case there was evidence to suggest that the political party had started a large-scale guerilla campaign and insurrection with the material help and support of a Const.P.35 of 2016 50 neighbouring country which fact was taken into consideration while reaching the conclusion as stated above. The right which is guaranteed to a citizen to form a political party or be a member of a party necessarily connotes one whose activities are lawful and within the framework of the Constitution. Necessarily, therefore, the activities of such a foreign-aided party being prejudicial to the sovereignty or integrity of Pakistan will be covered by the expression sovereignty or integrity of Pakistan.” 38. It is not the petitioner’s case that PTI was formed or organized at the instance of any government or political party of a foreign country, is affiliated to or associated with any government or political party of a foreign country, or receives any aid, financial or otherwise, from any government or political party of a foreign country. Rather, the allegation is that PTI has been receiving financial contribution and/or a portion of its funds from foreign nationals (as not only the directors of PTI USA LLC are American citizens, but contributions have been collected from individuals and the companies that are admittedly foreign nationals). Nevertheless, Article 2(c) supra is only a definition clause and is therefore not self-executory or self-operative. A definition clause is generally meant to be declaratory in nature for the purposes of assigning some meaning to a particular word or phrase that appears in the operative provisions of a statute. However, a definition must not be inflicted unnecessarily where it does not fit with the context or the subject. [Bank of Bahawalpur Ltd. vs. Chief Settlement & Rehabilitation Commissioner, West Pakistan, Lahore (PLD 1977 SC 164); Iftikhar Ahmad vs. President, National Bank of Pakistan (PLD 1988 SC 53)]. The said definition in Article 2(c) ibid is to be read in conjunction with Article 3(4)(f) supra which, as mentioned above, contains a prohibition against forming, Const.P.35 of 2016 51 organizing, setting-up or convening foreign-aided political parties. More importantly, this definition is purposeful when it is read in the context of Article 15 of the PPO. To our minds Article 15 of the PPO is a machinery provision which has utilized and given effect to the definition of ‘foreign- aided political party’ contained in Article 2(c) supra. The clear and penal language of Article 15 makes it a mandatory provision. The said Article reads as follows: 15. Dissolution of a political party.– (1) Where the Federal Government is satisfied that a political party is a foreign-aided party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, it shall make such declaration by a notification in the official Gazette. (2) Within fifteen days of making a declaration under clause (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Where the Supreme Court upholds the declaration made against a political party under clause (1), such party shall stand dissolved forthwith. [emphasis supplied] It is worthwhile to note that Article 15 ibid uses the terms ‘foreign-aided party’ as opposed to ‘foreign-aided political party’ but we do not consider the omission of ‘political’ to have any significance whatsoever; the intention is clear that reference is being made to foreign-aided political parties. Article 15 ibid is explicit and unequivocal. It is for the Federal Government to determine, on the basis of the material before it and by application of proper mind and by meeting the criteria of the rule of ‘satisfaction’ as enunciated by Const.P.35 of 2016 52 the superior Court, to determine and declare if a political party is a foreign- aided political party in terms of Article 2(c) of the PPO and action is warranted under Article 15(1) thereof. In the judgment reported as Messrs Mustafa Impex, Karachi and others vs. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808), the phrase ‘Federal Government’ has been defined as the ‘Cabinet’ meaning thereby that all the material which comes before the executive body of the State should be placed before the Federal Cabinet which, on the basis thereof, may make the requisite declaration that shall pursuant to Article 15(2) of the PPO be referred within fifteen days of such declaration to the Supreme Court of Pakistan for adjudicating the validity of the declaration. After providing an opportunity of hearing to the concerned political party and on the basis of allegation that proved or disproved before this Court, a decision shall be given by this Court. In case the declaration of the Federal Government is upheld by this Court then according to Article 15(3) of the PPO, inter alia, a foreign-aided political party shall stand dissolved forthwith. This is the clear mandate and command of the law, without following which no political party can be declared to be a foreign-aided political party. We find it pertinent to mention that though the phrase ‘foreign-aided political party’ does not feature in Article 17(2) of the Constitution, however, in light of the reasoning of Benazir Bhutto’s case (supra) reproduced above the harmonious construction of Article 17(2) ibid and Article 15 of the PPO that avoids redundancy shows that a foreign aided-political party is inevitably prejudicial to the sovereignty and integrity of Pakistan. As mentioned earlier, the idea behind the prohibition of foreign-aided political party is to safeguard Pakistan from foreign elements to secure the independence of its political parties and protect them from foreign vested interests and influence. Const.P.35 of 2016 53 39. It is worthy to note at this juncture that prior to the PPO, the law on the present subject was the Act, 1962. The relevant provisions thereof pertaining to foreign aided parties are reproduced hereinbelow: 3. Formation of certain political parties prohibited.– (1) No political party shall be formed with the object of propagating any opinion, or acting in a manner, prejudicial to the Islamic ideology, or the integrity or security of Pakistan. (2) No person shall form, organize, set up or convene a foreign aided party or in any way be associated with any such party. 2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,– (b) “foreign aided party” means a political party which– (i) has been formed or organized at the instance of any Government or political party of a foreign country; or (ii) is affiliated to or associated with any Government or political party of a foreign country: or (iii) receives any aid, financial or otherwise, from any Government or political party of a foreign country, or a substantial portion of its funds from foreign nationals; 6. Reference to Supreme Court regarding certain parties.–(1) Where the Central Government is of the opinion that any political party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court, and the decision of the Supreme Court in such question, given after hearing the person or persons concerned, shall be final. (2) Where the Supreme Court, upon a reference under sub-section (1), has given a decision that a political party Const.P.35 of 2016 54 has been formed or is operating in contravention of section 3, the decision shall be published in the official Gazette, and upon such publication, the political party concerned shall stand dissolved and all its properties and funds shall be forfeited to the Central Government. Although the definition of ‘foreign aided party’ under the Act, 1962 and ‘foreign-aided political party’ under the PPO are identical, the mechanism to deal with such a party was slightly different under the Act, 1962. According to the mandate of the Act, 1962, where the Central Government was of the view that a political party was formed or was operating in breach of Section 3 of the Act, 1962 which included a foreign aided party as defined in Section 3(2) of the Act, 1962, then the Central Government was to refer the matter to the Supreme Court. Thereafter it was for the Supreme Court to decide such question after giving an opportunity of hearing to the person(s) concerned and if it came to the conclusion that a political party was indeed a foreign aided party in terms of the Act, 1962, it would publish its decision in the official Gazette after which the political party would stand dissolved and its funds forfeited to the Central Government. 40. In the light of the above, the Federal Government is the competent forum to determine whether a political party is a foreign-aided political party in terms of Article 2(c) of the PPO and thus its formation is prohibited by Article 3(4)(f) thereof attracting the consequence of a declaration of its dissolution. Once the Federal Government makes such a declaration by a notification in the official Gazette as per Article 15(1) of the PPO, only then can the Supreme Court take cognizance of such matter upon a reference made by the Federal Government. Consequently, we do not find it proper to bypass the above mandate of law making it redundant and nugatory, by exercising our jurisdiction in terms of Article 184(3) of the Const.P.35 of 2016 55 Constitution to peremptorily adjudicate the petitioner’s objection that PTI is a foreign aided political party. 2. Whether PTI has received contributions and donations prohibited by Article 6(3) of the PPO? What is the mechanism and the forum available to determine this aspect and what is the penalty? 41. To answer this question, we need to examine Article 6 of the PPO which provides as under: 6. Membership fee and contributions.- (1) A member of a political party shall be required to pay a membership fee as provided in the party’s constitution and may, in addition, make voluntary contributions towards the party’s funds. (2) The contribution made by members or supporters of any party shall be duly recorded by the political parties. (3) Any contribution made, directly or indirectly, by any foreign government, multi-national or domestically incorporated public or private company, firm, trade or professional association shall be prohibited and the parties may accept contributions and donations only from individuals. (4) Any contribution or donation which is prohibited under this Order shall be confiscated in favour of the State in the manner as may be prescribed. Explanation.- For the purpose of this section, a “contribution or donation” includes a contribution or donation made in cash, kind, stocks, hospitality, accommodation, transport, fuel and provision of other such facilities. [Emphasis supplied] A plain reading of the above Article 6 suggests that both members and supporters of a political party can make contributions thereto. The express prohibition is against contributions made by any foreign government, multi- national or domestically incorporated public or private company, firm, trade or professional association; however, political parties can accept contributions and donations from individuals. Const.P.35 of 2016 56 42. The question that arises is which forum determines whether contributions and donations received by a political party are from sources prohibited under Article 6(3) of the PPO and what is the penalty for contravention of the said Article. According to Article 17(3) of the Constitution, “Every political party shall account for the source of its fund in accordance with law.” This means that a political party is obliged to account for, i.e. to give a satisfactory record of its funds under the law. Undoubtedly the law framed in this context is the PPO. The mechanism for identifying the prohibited contribution offending Article 6(4) ibid is provided by the Political Parties Rules, 2002 framed under the PPO. According to the Rules the forum for making the requisite determination is the ECP. Proceeding further, Article 6(4) of the PPO expressly visualizes such a provision by the Rules. It stipulates that any contribution or donation which is prohibited under the PPO shall be confiscated in favour of the State in the manner as may be prescribed. The expression ‘prescribed’ has been defined in Article 2(e) of the PPO to mean “prescribed by rules made under this Order”. Article 19 of the PPO provides that the ECP may, with the approval of the President, make rules for carrying out the purposes of the PPO. The Rules were promulgated pursuant to Article 19 ibid. Rule 6 thereof reads as under:- 6. Confiscation of prohibited funds.– Where the Election Commission decides that the contributions or donations, as the case may be, accepted by the political parties are prohibited under clause (3) of Article 6, it shall, subject to notice to the political party concerned and after giving an opportunity of being heard, direct the same to be confiscated in favour of the State to be deposited in Government Treasury or sub- Treasury in the following head of the account:- Const.P.35 of 2016 57 “3000000-Deposits and Reserves-B-Not Bearing interest- 3500000-Departmental and Judicial Deposits-3501000- Civil Deposits-3501010-Deposits in connection with Elections”. [Emphasis supplied] Furthermore, Rule 6 specifically confines the ambit of proceedings before the ECP to the “contributions or donations, as the case may be, accepted by the political parties are prohibited under clause (3) of Article 6.” A cumulative reading of Article 6(4) of the PPO and Rule 6 makes clear that a specific and complete power has been conferred upon the ECP to decide whether the contributions or donations accepted by a political party are prohibited under Article 6(3) ibid. This is to be done after giving notice to such political party and an opportunity of hearing leading to confiscation of such prohibited contribution and donation in favour of the State for deposit in the Government Treasury or sub-Treasury in the head of account provided in Rule 6 ibid. There is no doubt in our mind, and it is very clear from the unambiguous language of the provisions of the PPO and the Rules that the forum and penalty provided to determine whether contributions or donations are received from prohibited sources are different and distinct from the forum and penalty provided to determine whether a political party is a foreign-aided political party. If the ECP comes to the conclusion that a case falls within the mischief of Article 6(3) of the PPO the penalty provided is confiscation of such contributions or donations and cannot impose a ban on the political party which action is restricted to only foreign-aided political parties to be decided by the proper forum; firstly, through a declaration made by the Federal Government and then the determination made by Supreme Court as mentioned above. Const.P.35 of 2016 58 43. Certain ancillary questions pertaining to the above view surfaced during the course of the proceedings, including: what is the nature of the jurisdiction exercised by the ECP under Article 6(4) of the PPO read with Rule 6 of the Rules (Court, Tribunal, etc.); whether the ECP can exercise its powers under Article 6(4) ibid suo motu or upon an application by someone; and whether there is a time limitation on the ECP with regard to the exercise of its powers under Article 6(4) ibid. 44. The ECP is a constitutional body created under Article 218 of the Constitution, sub-Article (3) whereof provides: “It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.” The ECP’s duties are contained in Article 219 of the Constitution and include, inter alia:- (e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament): Although the PPO is the Chief Executive’s Order (No.18 of 2002), one may argue that it is not an Act of Parliament. We find that considering the period and the circumstances in which the PPO was passed, this edict falls within Article 270AA(2) of the Constitution and has thereby been saved and declared by the said Article to continue in force. The PPO has accordingly been given due status in law. The provisions of the PPO specify the functions of the ECP in relation to matters pertaining to the formation and regulation of political parties. As mentioned above, Article 19 of the PPO has given the ECP rule-making power but exercisable subject to the approval of the Const.P.35 of 2016 59 President. The ECP is an independent and autonomous body which exercises executive and regulatory powers derived from the Constitution. Though it has the power to appoint Election Tribunals [Article 219(c) of the Constitution] which exercise judicial powers under Article 225 of the Constitution, the ECP itself is a supervisory body which exercises regulatory and administrative powers under the Constitution and the law. 45. Undoubtedly, the ECP is not a Court or a Tribunal as argued by the learned counsel for PTI. However, he conceded that ECP is an administrative authority and in terms of Article 17(3) of the Constitution it is the forum to which political parties are obliged to and must account for the sources of their funds. Besides being a limb of the executive that is charged with the duty to conduct and oversee elections in the country, we find that the ECP must necessarily possess the power to collect facts, information and data that enable it to properly and effectively perform such duty. Such a capability represents the constitutional and inherent legal power of the ECP. Therefore, in exercise of its powers under Article 6 of the PPO read with Rule 6, the ECP has all the necessary authority to ask for and collect the requisite information and facts that enable it to decide and determine whether the contributions or donations accepted by a political party are prohibited under Article 6(3) supra. Without such power, we are of the opinion that the ECP’s power to decide as to whether a political party is receiving contributions or donations from sources prohibited under Article 6(3) ibid would for all practical intents and purposes be rendered redundant, nugatory and ineffective. Such a result would be against the clear command of Article 17(3) of the Constitution and the provisions of the PPO and the Rules. 46. We are not persuaded to agree with the learned counsel for the PTI that Section 3A of the Act, 1962 supports the view that the ECP lacks the Const.P.35 of 2016 60 power to call financial information and data from political parties to verify the status of contributions collected by them and the correctness of their reported accounts. Under Section 3A of the Act, 1962, the finances and accounts of a political party were to be audited by an officer or authority authorized by the ECP (see also Rules 4 and 6 of the Political Parties Rules, 1986), whereas presently under the PPO (particularly Article 13) and the Rules, the audit of accounts of a political party is undertaken by a chartered accountant appointed by the party and not by the ECP. It is urged by the learned counsel that such accounts that have been audited by a chartered accountant would upon submission to the ECP be taken to be valid for all intents and purposes, particularly, with reference to any contributions or donations that are received from the sources prohibited under Article 6(3) of the PPO. Accordingly, once the audited statement of accounts by a political party is accepted and such accounts are published by the ECP in the Official Gazette, followed by the allotment of symbol to the concerned political party in terms of Article 14 of the PPO and Rule 10, then the ECP becomes functus officio to undertake scrutiny for establishing the status of contributions received by that party under Rule 6. 47. We find it hard to fathom the contention that the intention behind the PPO and the Rules is to take away the administrative and regulatory power of the ECP derived from the Constitution, to call for any record, information or data from a political party to ascertain the sources of its contributions and donations; and to place such power exclusively in the hands of a party appointed chartered accountant. Learned counsel has not been able to show us from the provisions of the PPO and the Rules framed thereunder nor from any other principle of law laid down by this Court that Const.P.35 of 2016 61 failure by the ECP to object the audited statement of account of a political party before its Gazette publication and before the allotment of a symbol to such party, then such action would tantamount to the acceptance of the said accounts and that thereafter the ECP would become functus officio. With the result that the violations, defects and omission in the accounts become a past and closed transaction and the ECP cannot inquire the matter under an implied bar against exercising its power under Article 6 supra and Rule 6 supra; or that such recourse by the ECP would be tantamount to a review which power, according to the learned counsel for PTI, is not available to the ECP under the PPO or the Rules. 48. We are not persuaded to hold that the principle of past and closed transaction would be attracted to the audited statements of accounts of a political party which have been duly published. This is because neither the PPO nor the Rules contain a provision imposing a time bar on action being taken by the ECP under Article 6(3) or Rule 6. Equally there is no direction in the said law that bestows finality upon either the event of publication of audited accounts of a political party or upon the allotment of an election symbol to such political party. 49. Similar is our view about the contention that to reconsider the statements of accounts after they have been published is tantamount to a review and such power (of review) is not available to the ECP. In this regard, it may be observed that a review (if provided by the law) is of an order passed by a judicial or quasi-judicial forum subject to the settled principles of review being squarely met. But when no order has been passed by the ECP and it is not shown that a detailed or even a cursory scrutiny of the statements of accounts submitted by a political party was undertaken by the Const.P.35 of 2016 62 ECP; yet the said accounts were published as a matter of routine and in the ordinary course; then upon receipt of any information subsequently showing that contributions and donations from prohibited sources were part of such accounts, the ECP retains its jurisdiction to evaluate the status of such accounts under Article 6 of the PPO which in no way tantamounts to a review. To our mind the publication of the statement of accounts of a political party have the effect of placing these (statements of accounts) in the public domain and thereby make an invitation for bona fide comment from the concerned persons to apprise and intimate the ECP if such statement of accounts are not in accordance with law or contains contributions and donations from prohibited sources. 50. The abovementioned power of the ECP under Article 6 of the PPO read with Rule 6 is in our view a continuous supervisory power which may be exercised at any time by the ECP. Either upon an application by a third party or suo motu. We are not persuaded to read into the law and in the powers of the ECP any limitation as has been suggested and canvassed by the learned counsel for PTI. This power of assessing and deciding whether a political party has received contributions or donations from any sources prohibited under Article 6(3) supra can be exercised by the ECP on its own motion based upon the facts available in the public domain or revealed by information provided to it, subject to the condition that the information emanates from a credible source, that it is reliable and verifiable and is not a mala fide fabrication meant to harass and prejudice a political party, its leaders or its members. As regards the lukewarm attack made by the learned counsel for PTI on Rule 6 supra for suffering from excessive delegated legislative power, suffice it to say that as mentioned above, Article 19 of the Const.P.35 of 2016 63 PPO gives specific power to the ECP to frame rules with the approval of the President. The rules have been framed after complying the statutory requirements, so that for all intents and purposes the provision made in the Rules shall have the force of law; and be understood and considered to have been prescribed by the statute itself. [Sabir Shah vs. Shad Muhammad Khan (PLD 1996 SC 66)]. 51. To sum up, it is the ECP that has the jurisdiction to determine whether a political party has received contributions or donations from prohibited sources under Article 6(3) of the PPO read with Rule 6, which jurisdiction it can exercise at any reasonable point in time even after the allotment of symbol to a political party but upon the receipt of reliable and verifiable information from a third party or on its own motion. And if such determination is made against a political party, the penalty to be imposed is confiscation of such contributions and/or donations as per Article 6(4) of the Order. We consider it reasonable, if the record or information that precipitates the said penal action against a political party is entertained within five years of the date on which its objected account was published in the official Gazette. 3. If questions No.1 and 2 are answered in the affirmative, whether the certificates issued by the Respondent as the head of PTI in terms of Article 13(2) of the PPO are false and thus he should be disqualified in terms of Articles 62(1)(f) of the Constitution being dishonest and not ameen? 52. It is the petitioner’s case that the certificates issued in terms of Article 13(2) of the PPO by the Respondent as the Chairman of PTI were false. Article 13 of the PPO reads as under:- 13. Information about the sources of party’s fund.- Const.P.35 of 2016 64 (1) Every political party shall, in such manner and in such form as may be prescribed or specified by the Chief Election Commissioner, submit to the Election Commission, within sixty days from the close of each financial year, a consolidated statement of accounts of the party audited by a Chartered Accountant containing- (a) annual income and expenses; (b) sources of its funds; and (c) assets and liabilities. (2) The statement referred to in clause (1), shall be accompanied by a certificate signed by the party leader stating that- (a) no funds from any source prohibited under this Order were received by the party; and (b) the statement contains an accurate financial position of the party. [Emphasis supplied] The question whether the certificates tendered by the Respondent under Article 6(2) above are false, would arise if the answer to either of the two questions posed above is in the affirmative. In other words, there must first be a finding either that: (i) PTI is a foreign-aided political party in terms of Articles 2(c)(iii), 3(4)(f) and 15 of the PPO; and/or that (ii) PTI has received contributions and/or donations from sources prohibited under Article 6(3) of the PPO. 53. As regards the issue of PTI being a foreign-aided political party, we are of the view that Article 15 of the PPO specifies the mechanism whereby only the Federal Government can make a declaration of a “foreign aided political party” and the exclusive forum for adjudicating such declaration is the Supreme Court leading to the dissolution of such a party in Const.P.35 of 2016 65 case of an affirmative finding is given. The said special procedure and forum has been promulgated pursuant to Article 17(2) of the Constitution. In the light of the said constitutional scheme, we are not persuaded to preempt its outcome by exercising our jurisdiction under Article 184(3) of the Constitution in the instant matter. In any event, the said declaration against a political party is available solely at the instance of the Federal Government. On the other hand, the petitioner, a private individual lost the election as a contesting candidate against the Respondent. Having challenged neither the Respondent’s nomination papers nor his election through an election petition, he now seeks the disqualification of the Respondent on the allegation that the latter misrepresented that PTI has not received funds from a prohibited source. We are of the view that in light of the applicable law, the petitioner altogether lacks locus standi to seek the declaration as per relief relief Clause V, i.e. “Declare Respondent No.2 to be a foreign-aided party”. Such a declaration is absolutely alien to the nature of a quo-warranto petition which according to the learned counsel for the petitioner the instant petition is meant to be. Besides when specifically asked, learned counsel for the petitioner also categorically stated that the petitioner does not seek a ban or dissolution of PTI, rather is asking for the said declaration for the limited purpose of demonstrating that the certificates issued by the Respondent pursuant to Article 13(2) of the Order are false and consequently he is not honest in terms of Article 62(1)(f) of the Constitution. 54. We now advert to the other issue of PTI having received contributions or donations from sources prohibited under the law. We were told that there are some proceedings already pending before the ECP in the context of Article 6(3) of the PPO. The record in this regard was requisitioned which shows that the precise allegation under Article 6(3), raised before us Const.P.35 of 2016 66 has been levelled against the Respondent and PTI by a former office bearer of PTI on the basis of the same record. The pendency of these proceedings is sufficient for us to refrain from exercising our jurisdiction under Article 184(3) of the Constitution enabling the ECP to take a decision as warranted by law. It is perhaps relevant to mention here that during the course of proceedings, learned counsel for PTI on a Court’s query and even voluntarily stated that PTI shall have no issue if the ECP is appointed as a Commission to inquire into the question as to whether any contributions or donations have been received from a prohibited source in terms of Article 6(3) supra. We have considered the proposal and are not inclined to constitute or appoint any Commission when the ECP is the designated forum under the law; and the particular issue regarding contributions and donations received by PTI from allegedly prohibited sources under Article 6(3) ibid is already pending before it. The ECP is duly empowered under the PPO and the Rules to proceed of its own motion to determine the question of receipt of contributions or donations from prohibited sources by a political party. It has a duty to ensure compliance with the law by all political parties that seek allotment of an election symbol. In this respect the proceedings undertaken by the ECP must adhere the principles of fair hearing and due process. 55. It is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly. Therefore, as mentioned above, before any finding by a Court of law can be given as to whether a certificate issued by a head of a political party under Article 13(2) of the PPO is false or not, the question whether that political party has either received contributions or donations prohibited under Article 6(3) supra or is a foreign-aided political party in terms of Const.P.35 of 2016 67 Article 2(c) supra must respectively be addressed and determined by the competent forum. Subject to an adverse finding and corresponding penal action taken under the PPO, the issue of the falsity of the certificate under Article 13(2) would then be ascertainable as a secondary fact by a competent Court of law. Accordingly, it would be appropriate for this Court not to exercise its jurisdiction under Article 184(3) of the Constitution so as to avoid interfering with the power and jurisdiction specifically conferred by the PPO upon the special fora i.e. the Federal Government and the ECP respectively. This is more-so the case when the petitioner himself, relies upon Article 2(c)(iii) and 6(3) PPO for seeking relief from this Court but has failed to approach the respective fora provided under the law for such relief. In view of the non-determination of the primary facts by the competent fora, we are not inclined to adjudicate the relief claimed by the petitioner that the Respondent is disqualified under Article 62(1)(f) of the Constitution for having filed false certificates under Article 13(2) of the PPO. 4. Whether the Respondent was required under the law to declare NSL in his statements of assets and liabilities filed in 2002 with his nomination papers for a National Assembly seat and in the statements of assets and liabilities filed yearly before the ECP as a member of the National Assembly? Whether he was required under the law to declare NSL in the income tax returns and the wealth tax statements and if so, what is the effect of non-declaration? 56. At the very outset of the proceedings, we questioned the learned counsel for the petitioner as to whether a Pakistani national is prohibited, under the laws of Pakistan, from purchasing property abroad when the law of the foreign country in which such property is being bought permits the same. He answered the query in the negative. We also asked as to whether such property can lawfully be bought only in one’s personal Const.P.35 of 2016 68 name or also in the name of a company (albeit an offshore company). The answer to this question was given in the affirmative. However, the learned counsel added a clear rider that such asset and the company through which such asset was purchased is to be disclosed in Pakistan in the income and wealth tax returns of the Pakistani buyer. And if such person runs for election, he must in the statement of assets and liabilities attached with his nomination papers disclose such property. Upon becoming a member of the National or a Provincial Assembly, such person must also make the same disclosure in his statement of assets and liabilities filed every year under the provisions of ROPA. According to the learned counsel for the petitioner, this was not done by the Respondent which renders him liable to be disqualified under Article 62(1)(f) of the Constitution. 57. In this context, let us examine the admitted facts of the case. The Respondent was a professional cricketer for most of the period between 1971 and 1992. He played for the Pakistani cricket team of which he also remained captain. During the 1970s, he also played county cricket for Worcestershire and Sussex in the UK and in 1977 played the Kerry Packer Series organised by Channel Nine, Australia. These are publicly known facts which have not been denied by the petitioner’s side. According to the Respondent, with his earnings from the above mentioned engagements, he purchased Flat No.2, 165 Draycott Avenue, London, SW3 (“London flat”) United Kingdom, in 1983 for £117,500/-. However, in order to avoid liability to capital gains tax payable in the event of disposal of the London flat, the Respondent whilst acting upon legal advice, put the legal ownership of the flat in an offshore company called Niazi Services Limited (“NSL”). NSL was a Jersey-based limited liability company formed on 10.5.1983. It had a nominal capital of £10,000/- divided into 10,000 shares worth £1 each. Out of Const.P.35 of 2016 69 these, 9 shares having a capital value of £9/- were subscribed by three founding members, namely, Langtry Trustees Limited, Langtry Secretaries Limited and Langtry Consultants Limited, each of which held three shares of NSL. By 1990, these trustee shareholders were replaced by Barclay Trust International Limited, Barclay Trust Channel Islands Limited and Barclay Trust Jersey Limited. According to the learned counsel for the Respondent and as is evident from the annual corporate returns of NSL filed in different years, the two directors of the company were Ms. Uzma Khan and Ms. Aleema Khan, both sisters of the Respondent. The Respondent was thus neither a shareholder nor a director of NSL. However, it is accepted by him that the sole purpose of NSL was to own and hold the London flat for the benefit of the Respondent. As such the Respondent was the beneficial owner of the London flat which was the only asset held by NSL. 58. At this juncture that we would like to briefly delve upon the concept of offshore companies. In the recent past, particularly after the outbreak of the Panama papers scandal, the term ‘offshore companies’ has carried a negative connotation. Such entities are often associated with the retention of the illegal gains of unlawful acts, such as fraud, money laundering and tax evasion by wealthy and influential people around the world. However, this perception is not always correct. Essentially, an offshore company is incorporated and or resident in a foreign country or jurisdiction with the object of having operations outside such country or jurisdiction. Registration of a company in a foreign jurisdiction is aimed at availing legal, financial or tax benefits offered under their local laws. No doubt it is lawful to establish and utilize an offshore company to avail the benefits assured by the local laws of its country of residence, however, such an entity can become an illegal vehicle if it is used for nurturing the fruits of Const.P.35 of 2016 70 fraud, money laundering or tax evasion. There is a different between tax evasion and tad avoidance. The common and lawful reason for setting up an offshore company is to avoidance of tax due to the availability of tax benefits or exemptions in an offshore jurisdiction that is commonly described as a tax haven. One such tax haven is Jersey, an island located in the Channel between England and France. NSL was incorporated in Jersey because it does not impose capital gains tax. Broadly speaking, capital gains tax is the tax paid on the profit made upon disposal of an asset which has increased in value over time. According to UK law at the time of purchase of the London flat in 1983, capital gains tax was chargeable generally upon disposal of immovable property at varying rates. However, any capital gains made on disposal of residential property in the UK were not chargeable to tax if its legal owner was a non-resident for tax purposes. Hence, the proliferation in the use of offshore companies for owning property in the UK. Thus setting up an offshore company in Jersey in order to avoid capital gains tax on property owned by such company in the UK was a widely practiced arrangement back in 1983 or so. Recently, in the last few years, the UK law has blurred the line between UK resident and non-residents for tax purposes, rendering the latter liable to pay certain taxes, including capital gains tax, regardless of the fact that they are non-UK residents. In light of the above discussion and the petitioner’s failure to bring forth any concrete evidence to establish a different purpose for NSL, we have no hesitation in believing the Respondent’s contention that NSL was created solely to own and hold the London flat in order to avoid capital gains tax. Therefore, we consider that any insidious purpose attributed to NSL by the learned counsel for the petitioner with respect to its ownership of the London flat is unwarranted. Const.P.35 of 2016 71 59. Coming back to the factum of non-declaration of the London flat and NSL, the learned counsel for the Respondent informed that the Respondent began filing his income tax returns in Pakistan in 1981. It is an admitted fact that he neither disclosed NSL nor the London flat in such income tax returns. It is the Respondent’s case that he did not disclose NSL as an asset in his tax returns for the reason that it is a juristic person of which he was not a shareholder, director or owner. He also did not disclose the London flat upon legal advice that since it was purchased with foreign income, there was no requirement to make its declaration in his income or wealth tax returns. The fact is that the Respondent purchased the London flat in 1983, two years after he became an income tax filer in Pakistan in 1981. Even if foreign earnings as non-resident were the source of funding for the London flat, yet it was an asset which he was bound to disclose in his wealth tax return under the Wealth Tax Act, 1963 after he became a filer in 1981. Therefore, the Respondent was a defaulter in relation at least to his duty under the Wealth Tax Act, 1963. This situation continued until 1.3.2000, when the Central Board of Revenue (“CBR”) announced a Tax Amnesty Scheme 2000 (“the Amnesty Scheme”) vide Circular No.4 of 2000 (Income Tax) dated 01.08.2000 issued under Section 59D of the Ordinance, 1979 which reads as under: 59D. Tax on undisclosed income.- (1) Notwithstanding anything contained in this Ordinance, the Central Board of Revenue may, make scheme of payment of tax in respect of undisclosed income. (2) Where any person declares his undisclosed income in accordance with the scheme and the rules the tax on such income shall be charged at such rate as may be prescribed. (3) Where a person has paid tax on his undisclosed income in accordance with the scheme and the rules, he shall- Const.P.35 of 2016 72 (a) be entitled to incorporate in his books of account such undisclosed income in tangible form; and (b) not be liable to pay any tax, charge, levy, penalty or prosecution in respect of such income under this Ordinance. (4) For the purpose of this section "undisclosed income" shall mean any income (including any investment to be deemed as income under section 13 or any other deemed income) for any year or years, which was chargeable to tax but was not so charged. [Emphasis supplied] The relevant clauses No.8 and 10 of the Amnesty Scheme are reproduced hereunder: 8. Immunity (1) Where a person has paid tax on his undisclosed income in accordance with the Scheme, he shall not be liable to any further tax, charge, levy, penalty or prosecution in respect of such income under the Income Tax Ordinance, 1979. (2) The undisclosed assets declared in accordance with the Scheme and on which tax has been paid would be exempt from wealth tax under the Wealth Tax Act, 1963, for any assessment year commencing on or before the first day of July, 1999, and for five assessment years next following. 10. Finality of proceedings under the scheme (2) Where a declaration in respect of undisclosed income has been properly made and the tax due on such income has been fully paid, such declaration shall be accepted by Deputy Commissioner of Income Tax concerned without any further proceedings and the declarant shall be informed accordingly. [emphasis supplied] What is a tax Amnesty Scheme? It is an incentive given by government or tax authorities to people having undisclosed income or wealth to declare such Const.P.35 of 2016 73 income and assets by paying tax thereupon in exchange for immunity against penalty or prosecution for previous non-disclosure. In other words, undisclosed income or assets are thereby whitened and legitimized. Such a scheme extends a promise or undertaking on behalf of the State to existing or potential tax payers that the source of their undeclared income or assets would neither be probed nor be subjected to action if any person avails such scheme. According to Section 59D(3)(b) of the Ordinance, 1979 read with the immunity clause No.8 of the Amnesty Scheme, when a person pays tax on his undisclosed income pursuant to the Amnesty Scheme and the rules, he shall be entitled to incorporate such undisclosed income in his books of account and would not be liable to pay any tax, charge, levy, penalty or be prosecuted in respect of such income under the Ordinance, 1979. As per clause No.10 of the Amnesty Scheme, where a declaration in respect of undisclosed income has been properly made and the tax due on such income has been fully paid, such declaration shall be accepted by the Deputy Commissioner of Income Tax concerned without any further proceedings and the declarant shall be informed accordingly. 60. According to his Form of Declaration of undisclosed income, the Respondent has disclosed under the head ‘INCOME’ as under: Income Year in which income earned Assessment Year Undisclosed income (Amount/ value as per part II) Tax paid 1983 – 84 1984 – 85 £117,000/- Rs.2,000,000/ - 240,000/- Total: 240,000/- The Respondent also declared the London flat under the head ‘(E) IMMOVEABLE PROPERTY’ on the said form as follows: Description of property Location and Identification No. of Property Income Year in which acquired Comercial/ residential Size of plot etc. Covered area Valuation as per Rule 12 of the Scheme Tax paid 165 – Draycot Avenue London SW-3 1984-85 Residential flat One bed Flat £117,000 Rs.2,000,000 240,000 Total: 2000000 - 240,000 Const.P.35 of 2016 74 There is an acknowledgment receipt on the record in the name of the Respondent, duly stamped by the Office of the Deputy Commissioner of Income Tax, Lahore. There is also some sort of tax payment receipt issued by the Income Tax Department, Government of Pakistan acknowledging the payment of Rs.240,000/- by the Respondent. Therefore, the Respondent made am express disclosure of his undisclosed income in UK Pound Sterling its equivalent in Pakistan Rupees and fully paid tax due thereon in the amount of Rs.240,000/-. His declaration was accepted by the income tax authorities; consequently, the Respondent became immune from any liability to pay any tax, charge, levy, penalty in respect of the newly declared income and also became protected from prosecution for such income under the Ordinance, 1979. 61. It is the Petitioner’s objection that the Amnesty Scheme was availed by the Respondent for a dishonest purpose and was misused by him. Suffice it to say that the scheme was not designed for nor availed by the Respondent alone under some colourable exercise of power by the Federal Government nor for that matter any mala fide can be imputed to the Respondent. The Amnesty Scheme was of general application having an object and purpose that is expressly contemplated by Section 59D of the Ordinance, 1979. Very many citizens availed the benefit under the Scheme and received immunity from liability of tax penalty and prosecution for hitherto undisclosed income or assets. Under the express terms of clause 8 of the Amnesty Scheme, like other beneficiaries thereof, the Respondent received such shelter from liabilities and action under both the Ordinance, 1979 and the Wealth Tax Act, 1963. Notwithstanding his default to pay wealth tax on the London flat from the date of becoming a resident and a tax return filer in Pakistan, the Respondent got immunity from liability and Const.P.35 of 2016 75 action for his past default. Therefore for all intents and purposes the legal implications and consequences of the Respondent’s past disregard or violation of tax law stood exonerated and cured. For clarity one may refer to definition of ‘amnesty’ in Words & Phrases, Permanent Edition, Volume 3, which reads as under: “The distinction between “amnesty” and pardon is one rather of philological interest than of legal importance. This is so as to their ultimate effect, but there are incidental differences of importance. They are of different character and have different purposes. The one overlooks the offense; the other remits punishment. The first is usually addressed to crimes against the sovereignty of the state, to political offences, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the state. “Amnesty” is usually general, addressed to classes or even communities,--- a legislative act, or under legislation, constitutional or statutory,--- the act of the supreme magistrate. There may or may not be distinct acts of acceptance. If other rights are dependent upon it and are asserted, there is affirmative evidence of acceptance. Burdick v. United States, N.Y., 35 S. Ct. 267, 271, 236 U.S.79, 59 L.Ed. 476.” [emphasis supplied] To subsequently impute dishonesty and to prosecute and punish a person for availing an amnesty scheme would violate the solemn assurance of immunity given by the law and the “forgiveness” that is thereby entailed. What cannot be done directly cannot also be done indirectly or collaterally. [ Farzand Ali vs. Province of West Pakistan (PLD 1970 SC 98]. The Const.P.35 of 2016 76 argument of the learned counsel for the petitioner that the Respondent undervalued the London flat in the form of the amnesty scheme in order to pay a lesser amount as tax, is not an issue before us. It was for the relevant quarters, i.e. the tax authorities, to accept the declared value or not and once that is done the matter is a closed chapter which cannot be re-opened now. 62. We are also not convinced that by disclosing the value of the London flat under the Amnesty Scheme, the Respondent made a misdeclaration to the effect that he was owner of the same whereas it is his stance before the Court that NSL owned the said flat. This alleged misdeclaration renders the Respondent to be dishonest attracting the penalty of disqualification under Article 62(1)(f) of the Constitution. 63. After the income with which the London flat was purchased and the value of the flat itself was declared by the Respondent under the Amnesty Scheme, he declared that property in his statement of assets and liabilities attached with his nomination papers for NA-71, Mianwali-I in the general election held in the year 2002. This was the first time the Respondent got elected as MNA and became the holder of public office, therefore he duly declared the London flat prior to the assuming a public office. We now advert to the argument regarding non-disclosure of the London flat in the annual statement of assets and liabilities for the year 2003 onwards submitted by the Respondent Section 42A of ROPA. According to Section 42(1) of ROPA, “Every member shall, on a form prescribed under clause (f) of sub-section (2) of section 12, submit a statement of assets and liabilities of his own, his spouse and dependents annually to the Commission by the thirtieth day of September each year”. Section 12(2)(f) of ROPA provides that “Every nomination…shall, on solemn affirmation made and signed by the candidate, accompany…a statement of his assets and liabilities and those of his spouse and Const.P.35 of 2016 77 dependents on the prescribed form as on the preceding thirtieth day of June;” [Emphasis supplied]. According to the completion of sale statement of the London flat, issued by the buyer’s conveyancing solicitor, the date of completion of sale for the said property was 14.4.2003. As the sale of the London flat had been finalized before 30.06.2003, therefore for the purpose of the Respondent’s annual statement of assets and liabilities under Section 42A ROPA made as of 30.6.2003, the London flat had ceased to be his asset. Therefore, the said property was not disclosed in that statement submitted for the years 2003 and after. 64. Declaration of the London flat in the Amnesty Scheme in 2000 followed by its disclosure in the Respondent’s wealth statement as of 30.06.2002 filed under Section 58 of the Ordinance, 1979 and reporting the same in the statement of assets and liabilities annexed by the Respondent with his nomination forms in the general election of 2002, he cannot be faulted for concealment or misdeclaration under the taxation laws of the country or the ROPA. Finally, when the London flat was sold in the year 2003, the obligation of the Respondent to declare the same ended. In the light of the above, it is clear that there was no concealment or non-disclosure on part of the Respondent in this regard. 65. We now move onto the Petitioner’s contention regarding non- disclosure of NSL by the Respondent in his statement of assets and liabilities (both in the nomination papers and yearly asset statement as a member of the National Assembly) before the ECP and in his tax returns. For all legal intent and purposes, NSL was a separate and independent juridical person from the Respondent. Barclay Trust International Limited, Barclay Trust Channel Islands Limited and Barclay Trust Jersey Limited were its shareholders and therefore under Company law principles, the residuary claimants upon Const.P.35 of 2016 78 NSL’s dissolution. The two sister of the Respondent were the directors and controllers of NSL. The Respondent was neither a shareholder nor director of NSL and therefore cannot be attributed the legal ownership of NSL. However, on the equitable plane, NSL was a vehicle owned and controlled by trustees/directors for the advancement and benefit of the Respondent. Accordingly, in his status of beneficiary under the trust carried out through NSL, the Respondent was the beneficial owner of assets of the NSL. These assets comprised solely the London flat with its bank accounts showing the receipts and expenses of the property plus £9/- share money contributed by NSL’s trustee share holders. The remaining administrative and logistic hardware for the operations of NSL was provided by its trustee share holders and their agents, who charged a fee for their services that was deducted from the accounts of NSL. As such NSL by itself was not an asset but an entity owning the London flat as its asset. Since the London flat was NSL’s sole asset and the Respondent was its sole beneficial owner; he declared the said property as his own under the Ordinance, 1979 and ROPA. Thereafter, the Respondent was not obligated to disclose the mere existence of NSL which, as mentioned earlier, owned only the London flat as its asset under a trust arrangement. Accordingly, we do not find that failure by Respondent to mention a trust vehicle company as his asset in which he neither held any shares nor any office in the management, can tantamount to misdeclaration or concealment constituting an act of dishonesty. This is especially so when we are not convinced of any benefit, financial or otherwise that was or could be derived by the Respondent on account of such non-disclosure. 66. From the record and the facts and circumstances before us, we find that after the London flat was sold by the Respondent, for all practical Const.P.35 of 2016 79 purposes NSL became an empty shell company. Learned counsel for the petitioner also argued that considering that NSL was kept alive without its disclosure before the ECP or the tax authorities in Pakistan for approximately twelve years after the sale of the London flat in 2003. In this respect, according to NSL’s investment portfolio report dated 30.4.2001 issued by Barclays Private Bank & Trust Limited, under the head ‘MISCELLANEOUS’ at page 2 thereof, there is an entry of the ‘United Kingdom’ which is valued at £117,500/-. On page 3 of the said report, the description of the miscellaneous entry is given as ‘Great Britain, UNITED KINGDOM, DRAYCOTT AVE 165 LEASEHOLD PROPERTY’ priced at £117,500/-. At the bottom of page 3 of the portfolio report, the ‘TOTAL INVESTMENTS’ and ‘OVERALL TOTAL INVESTMENTS’ are valued at £117,500/-. The other amounts in the portfolio are £24,005/- and $221/- under the head ‘CASH AND CONTRACTS’. The amount of £24,005/- is stated by the learned counsel for the Respondent to be the rent received for the London flat. The same is the position with the portfolio report as at 30.4.2002, save for the value of ‘CASH AND CONTRACTS’ which is £19,766/- only. The portfolio report as at 3.5.2004 shows the ‘Investments’ value to be 0. Therefore in 2001 and 2002, it is clear that the London flat was the only asset/investment held by NSL and after its sale in 2003, NSL had no investment left in 2004. 67. As regards the period from 1983 when NSL was incorporated till 2000 and 2005 till 2015, we have no reasons to disagree with the learned counsel for the Respondent that NSL had no other assets and that it was kept alive till 2013 only for the reason that there was some litigation going on between NSL and the tenant of the London flat. By judgment delivered on 10.2.2003, the English Court of Appeal awarded NSL as the owner of the flat, Const.P.35 of 2016 80 past rent amounting to £48,000/- whereas the tenant was given damages of £9050/- on his counter claim for defective installations in the flat. This brought NSL’s net entitlement roughly to £39,000/-. The judgment (“NSL judgment”) delivered by the Court of Appeal (Civil Division), London titled Niazi Services Ltd. vs. Van Der Loo ([2004] EWCA Civ 53) dated 10.2.2004 notes that: “2. Niazi Services Ltd have a long lease of Flat 2, 165 Draycott Avenue, Chelsea…The defendant, Mr. Van der Loo, was the sub-tenant of Flat 2, having taken a number of annual tenancies commencing in 1996. The tenancy formally terminated in October 2001 but Mr Van der Loo held over until May 2002. 3. … Disputes broke out because of items of disrepair. Mr Van der Loo at one point refused to pay the rent saying that there should be a reduction. He was sued for the rent and judgment was obtained for the amount owing. This dispute concerns items of disrepair, raised by counterclaim…” … 5. The judge's order was in the sum of £48,000 plus interest. The bulk of this was calculated by reference to a notional reduction of 40% of the rent for a 33-month period. He reached the 40% by way of a global assessment of all the defects which he found. There was added a minor amount, £4,500, for the repainting claim. … Order: Appeal allowed in part; the award of damages made by the County Court judge on the counterclaim set aside and the amount of £9,050 plus interest to be substituted; the respondent to pay 75% of the appellant's costs of the appeal; the defendant awarded 50% of his costs on the counterclaim; permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)” Const.P.35 of 2016 81 Pursuant to the Court of Appeal decree, a settlement was made with the tenant in 2006 whereunder NSL recovered £42,000/- from the tenant in installment paid until end of 2010, whereafter debit entries of only legal and administrative costs are visible in the account statements (reflected in NSL’s Euro Call Account Barclay’s Bank statement attached in Respondent’s CMA No.7012/2017). The requirement to keep NSL alive as a mere shell company after the sale of the London flat till conclusion of the execution proceedings under the said decree cannot be disbelieved in view of the banking record produced above. The Pound Sterling and Euro Call accounts statements at Barclay Bank show that after the sale of the London flat, there was no other property or asset owned by NSL. Until its dissolution, NSL was merely collecting payments made by the tenant under the settlement. Thus the assertion by the learned counsel for the petitioner that NSL owned assets besides the London flat is a baseless surmise. We also notice from the banking record of NSL that until 2013, substantial management fee of £3500/- per annum was charged, apart from solicitors’ fee regarding performance of the settlement with the tenant. Ultimately, it is ironic that name of NSL was struck-off the Register of Companies and was dissolved on 1.10.2015 for non-filing of the annual return and non-payment of late filing fee. In the light of the above, we do not find any substantive material for holding that the Respondent has incurred a disqualification under Article 62(1)(f) of the Constitution. 5. Whether the Banigala property was purchased through the amount substantially sent by Ms. Jemima Khan from abroad through Mr. Rashid Ali Khan? Whether this was the amount utilized for the payment of the balance consideration of the Banigala property? 68. The Respondent entered into an agreement to sell dated 13.03.2002 with one Mr. Muhammad Maqsood (the seller) for the purchase of Const.P.35 of 2016 82 land measuring 300 kanals and 5 marlas bearing Khasra No.1939 situated in Mouza Mohra Noor, Banigala, District and Tehsil Islamabad (the Banigala property) for a total consideration of Rs.43,500,000/-. Apart from the total consideration, initially the Respondent made a cash payment of Rs.300,000/- to the seller for the purposes of brokerage fee and other miscellaneous charges. Out of the total consideration, the following payments were made by the Respondent: i. Rs.3,000,000 vide Citibank manager’s cheque No.007751 dated 14.3.2002 (first payment); ii. Rs.3,500,000 vide Bank Alfalah Limited banker’s cheque No.001496 dated 28.3.2002 (second payment); and iii. Rs.800,000 in cash (final payment) sometime after 23.1.2003. 69. The Respondent’s case is that the remaining payments were to be made by him from the anticipated proceeds of sale accruing from the sale of the London flat. However, as already noted above the London flat became the subject matter of serious litigation between NSL and the tenant which delayed its sale until April, 2003. On the other hand completion of sale of the Banigala property was agreed to be around end January, 2003. 70. Leasehold as opposed to freehold title is a common form of ownership of immovable property in England; particularly for flats forming part of multistoried buildings comprising several units occupied by as many tenants. The NSL judgment observes that the NSL has a leasehold interest in the London flat. The tenant Mr. Van der Loo is, therefore, referred as the sub- tenant in that judgment. It is clearly mentioned there that although Mr. Van der Loo’s tenancy ended in October 2001, he held over the premises until May 2002 but was successfully sued by NSL for non-payment of past rent vide judgment presumably delivered before sale of the London flat in April, Const.P.35 of 2016 83 2003. Conversely, the sub-tenant also sued NSL for defective installations. On the other hand, the two initial payments of sale consideration for the Banigala property were made by the Respondent in March 2002. Also the NSL judgment dated 10.02.2004 merely reduced the damages awarded against the Respondent to £9050/-. The Euro bank statement of NSL (CMA No.7012 of 2017) shows that the judgment debtor tenant took a good five years to pay his decreed rental obligation on the basis of a 2006 compromise (CMA No.7012 of 2017). Be that as it may, the date for completion of sale of the Banigala property originally fixed as 30.06.2002 vide Clause No.3 of the agreement to sell. However, it is the Respondent’s case that this date was extended till 23.1.2003 by mutual consent of the parties and the final payment of the sale consideration was made to the seller on or about the said later date. According to the London Solicitors’ completion of sale statement, the sale transaction of the London flat was completed on 14.4.2003 i.e. three months after the final payment of the sale price of the Banigala property was made by the Respondent. 71. It is for the reason of the abovementioned delay in the sale of the London flat that, according to the Respondent, he entered into an arrangement with his wife, Ms. Jemima Khan to transfer during the period April 2002 until January, 2003 the requisite funds (in foreign currency) from abroad to make payment of the sale price of the Banigala property. Such remittances were made to the bank account of Mr. Rashid Ali Khan, a close and trusted friend of the Respondent, who converted the same to Pak rupees and utilized such amount for payment to the seller through part payments of the total sale consideration. It was also mentioned by the learned counsel for the Respondent that the raison d’être for remitting the money to Mr. Rashid Ali Khan’s account and not directly to account of the Respondent, was to Const.P.35 of 2016 84 ensure that payments were timely made to the seller of the Banigala property. The likelihood of failure in this regard was a real possibility because Ms. Jemima Khan along with her two sons had moved in 2002 from Pakistan to London as it turned out for a separation. This situation compelled the Respondent to frequently travel between Pakistan and London in an unsuccessful effort to save the marriage which ultimately ended in divorce in June, 2004. This position is so expressed in the Respondent’s affidavit and is also corroborated by the events that followed including the place of residence taken up by Ms. Jemima Khan and her sons followed by breakup of the Respondent’s marriage. Therefore, we have no reason to disbelieve the version given by the Respondent. 72. In any event, we consider that as long as the remittances to Mr. Rashid Ali Khan were indeed paid to the seller of the Banigala property, the factors causing the terms of the financial arrangement between the Respondent and Ms. Jemima Khan become irrelevant. As mentioned above, out of the total consideration of Rs.43,500,000/-, the Respondent initially paid an amount of Rs.6,500,000/- by two cheques to the seller of Banigala property in March, 2002. [first payment and second payment by leaving aside the disbursement of initial Rs.300,000/- for miscellaneous and brokerage etc.) and then disbursed Rs.800,000/- final payment to the seller in cash sometime after January, 2003. 73. Accordingly, it is now appropriate to consider whether the remaining sale consideration was funded by the amount remitted by Ms. Jemima Khan from abroad to Mr. Rashid Ali Khan or those transfers were a mere smokescreen to launder the Respondent’s tax evaded money. It may be noted that the balance consideration to be paid to the seller of the Banigala property came to Rs.36,200,000/-. In this regard, the remittances made by Const.P.35 of 2016 85 Ms. Jemima Khan and their onward conversion to rupee amounts and payment to the seller of Banigala property shall now be examined in the following paragraphs. 74. The first remittance of an amount of $258,333/- is reflected in the following documents. According to a letter dated 8.4.2002 (bearing the letterhead of Ms. Jemima Khan), there is a request to BNP Paribas, Luxembourg, that $270,000/- be transferred from a USD account to Citibank, New York with ABA No.FW 021000089 (a routing or routing transfer number) for account No.10999612 at Citibank, Islamabad for further credit to the account No.9- 010534-809 of Ms. Jemima Khan. The Respondent has placed on record a bank statement in the name of ‘Khan’ issued by BNP Paribas of a USD current account reporting a transfer of $270,000/- on 8.4.2002. This connects with an account statement of Ms. Jemima Khan’s savings account in Citibank, Pakistan bearing account No.9-010534-809 for the period 1.2.2002 to 30.4.2002 that shows an incoming telex transfer from Luxemburg on 9.4.2002 (one day after the transfer from BNP Paribas, Luxemburg on 8.4.2002) making a deposit of $270,000/-. This account number corresponds with the account number of Ms. Jemima Khan that is mentioned in her request to BNP Paribas for the purpose of making further credit. The account statement of Ms. Jemima Khan’s saving account at Citibank, Islamabad reflects a debit/withdrawal bearing number 0411105835 of $258,333/- to have been made on 11.4.2002 (page 9 of CMA No.4217 of 2017). Correspondingly, a Citibank, Pakistan account statement for the period 1.2.2002 to 30.4.2002 of Mr. Rashid Ali Khan’s savings account No.9-010327-943 records the deposit of $258,333/- on 11.4.2002 through an ‘Islamabad – House Check 0411105835. The same House Check number also features as ‘Islamabad – Debit’ number in the Citibank, Pakistan account statement of Ms. Jemima Khan. Again on Const.P.35 of 2016 86 11.4.2002 the US Dollar credit of $258,333/- to Mr. Rashid Ali Khan’s Citibank, Pakistan account is shown to be transferred on 11.04.2002 vide entry ‘Trf To 0521588012’ which is his Citibank PKR current account. The account statement dated 21.10.2002 of the said Citibank PKR current account indicates the said mode of transaction. From these entries in the account statement (page 66 of CMA No.7925 of 2016), we understand that the first remittance by Ms. Jemima Khan to Mr. Rashid Ali Khan was encashed into Pak rupees vide encashment certificate with Ref. No.CBEC 2438 dated 11.4.2002 whereby $258,333/- were converted at the then prevailing exchange rate of USD 1 = PKR 59.70 which came to Rs.15,422,480.10. Again on 11.4.2002 the said PKR amount was partly withdrawn in the amount of Rs.14,500,000/- vide Citibank Manager’s Cheque bearing No.008111 dated 11.4.2002 issued in favour of the seller of the Banigala property (third payment). 75. The second remittance made by Ms. Jemima Khan to the same recipient Mr. Rashid Ali Khan is for an amount of $275,678/-. Again, by a letter addressed to BNP Paribas, Luxembourg dated 29.7.2002 but this time on the letterhead of one Verton Holdings Ltd., a request is made by order of Ms. Jemima Khan for transfer from a USD account of an amount of $275,678/- in favour of account No.9-010327-943 of ‘Rashid Khan’ Citibank Pakistan. An account statement of a USD current account in the name of ‘Verton Holdings Limited/JK’ issued by BNP PARIBAS records the transfer as requested of $275,678/- on 30.7.2002. (page 5 of CMA No.4217 of 2017). Correspondingly, a Citibank, Pakistan account statement of Mr. Rashid Ali Khan’s USD savings account No.9-010327-943 for the period 1.5.2002 to 30.7.2002 reflects an ‘Incoming Telex Transfer Fm Usa b/o J Khan’ of an amount of US $275,678/- on 31.7.2002. Confirmation is also a Citibank, Const.P.35 of 2016 87 Pakistan letter dated 7.1.2004 (page 67 of CMA No.7925 of 2016) addressed to Mr.Rashid Ali Khan regarding entries in his account No.9010327943 in which a telegraphic transfer from ‘USA B/O J. Khan’ on 31.7.2002 for an amount of $275,678.62 is shown. 76. According to the learned counsel for the Respondent, the remitted amount of US $275,678.62 was encashed piecemeal in four transactions. This appears to be true in light of the four encashment certificates filed on record: (i) The first encashment is reflected in Mr. Rashid Ali Khan’s Citibank bank statement of his foreign currency account No.9-010327-943 for the period 1.8.2002 to 31.10.2002 (“FX statement of account”) [CMA No.4217 of 2017]. This reports a transfer of $200,000 on 1.8.2002 to his PKR current account bearing No.0521588012. The said transfer corresponds to the encashment certificate bearing Ref. No.CBEC 2428 dated 1.8.2002 in respect of $200,000/- lying in the foreign currency account of Mr. Rashid Ali Khan that were encashed at the then prevailing exchange rate of USD 1 = PKR 59.15 amounting to Rs.11,830,000/-. There is a corresponding Citibank Manager’s cheque bearing No.009078 dated 1.8.2002 for an amount of Rs.10,000,000/- drawn in favour of the seller (fourth payment). (ii) The second encashment is of an amount of $45,000/-. According to Mr. Rashid Ali Khan’s FX statement of account, the said amount of $45,000/- was transferred on 31.8.2002 to his PKR current account bearing No.0521588012. This transaction corresponds to the encashment certificate with Ref. No.CBEC 2429 dated 31.8.2002, in which $45,000/- from the foreign currency account of Mr. Rashid Ali Khan was encashed at the then prevailing exchange rate of USD Const.P.35 of 2016 88 1 = PKR 59.00 that came to Rs.2,655,000. There is a corresponding Citibank Manager’s cheque bearing No.009467 dated 13.9.2002 for an amount of Rs.2,500,000 drawn in favour of the seller (fifth payment). (iii) The third encashment is of an amount of $20,000. According to Mr. Rashid Ali Khan’s FX statement of account for the period 1.8.2002 to 31.10.2002, there is a transfer of $20,000/- to his PKR current account bearing No.0521588012 on 31.8.2002. This corresponds to the encashment certificate with Ref. No.CBEC 2430 dated 31.8.2002, in which $20,000/- from the foreign currency account of Mr. Rashid Ali Khan was encashed at the then prevailing exchange rate of USD 1 = PKR 59.00 which came to Rs.1,180,000/-. (iv) The fourth encashment is of an amount of $10,660/-. According to Mr. Rashid Ali Khan’s FX statement of account, there is a transfer of $10,660/- to his PKR current account bearing No.0521588012 on 10.9.2002. This corresponds to the encashment certificate bearing Ref. No.CBEC 2431 dated 10.9.2002 in which $10,660/- from the foreign currency account of Mr.Rashid Ali Khan was encashed at the then prevailing exchange rate of USD 1 = PKR 58.85 which came to Rs.627,341/-. It is worthy to note that no corresponding cheques were issued to the seller from third and fourth encashed amounts. However, as shall be seen below, these funds were utilized along with the third remittance towards subsequent payments made to the seller. 77. The third remittance by Ms. Jemima Khan is of an amount of £20,000/-. This amount was directly remitted to Mr. Rashid Ali Khan’s Citibank PKR current account bearing No.0521588012 as is clear from the Const.P.35 of 2016 89 bank statement dated 21.2.2002 of the said account in which there is entry for an ‘INCOMING TELEX TRANSFER GBP20,000/- @91.4496 FM U.K.B/O. JEMIMA KHAN LTD.’ on 2.10.2002 showing a credit of the rupee equivalent amount of Rs.1,828,992/- in the account. As mentioned earlier, the amounts of Rs.1,180,000/- and Rs.627,341/- encashed on 31.8.2002 and 10.9.2002 had not been utilized for payment to the seller but were retained in Mr. Rashid Ali Khan’s Citibank PKR current account bearing No.0521588012. When the latest encashed amount dated 02.10.2002 is added to abovementioned two conversions to rupee amounts, their total comes to Rs.3,636,333/-. The balance amount in the said rupee account as on 2.10.2002 is shown in the PKR bank statement to be Rs.3,620,103.88. From this credit balance as on 2.10.2002, a corresponding Citibank Manager’s cheque bearing No.009639 dated 2.10.2002 for an amount of Rs.3,500,000/- was issued in favour of the seller (sixth payment). 78. A remittance of an amount of $16,000/- on 5.10.2002 is included in the chart of fund transfers submitted by the learned counsel for the Respondent (CMA No.4217 of 2017). However, the origin of this remittance has not been traced to Ms. Jemima Khan. Therefore, Mr. Rashid Ali Khan’s Citibank bank statement (CMA No.4217 of 2017) for the foreign currency account No.9-010327-943 for the period 1.8.2002 to 31.10.2002, showing the transfer of $16,000/- on 5.10.2002 to his PKR current account bearing No.0521588012 is inconsequential. Likewise, the corresponding encashment certificate bearing Ref. No.CBEC 2432 dated 5.10.2002 reflecting the conversion of $16,000/- transferred from the foreign currency account of Mr.Rashid Ali Khan at the then prevailing exchange rate of USD 1 = PKR 58.65 amounting to Rs.938,400/- is also of no utility to the Respondent. 79. The FX statement of account of Mr. Rashid Ali Khan records two cash credit. The first on 19.11.2002 states ‘Islamabad – Cash Deposit Const.P.35 of 2016 90 1119111633 Value Nov 19, 02’ for an amount of $5,000/- which was subsequently transferred to an account bearing No.5521588014 on the same date. This transfer corresponds to the encashment certificate bearing Ref. No.CBEC 2433 dated 19.11.2002 in which $5,000/- from the foreign currency account of Mr. Rashid Ali Khan was encashed at the then prevailing exchange rate of USD 1 = PKR 58.15 which came to Rs.290,750/-. According to Mr. Rashid Ali Khan’s FX statement of account, there is a second foreign currency cash credit entry that states ‘Islamabad – Cash Deposit 1209094013 Value Dec 09, 02’ on 9.12.2002 for an amount of $5,000/- which was subsequently transferred to an account bearing No.5521588014 on 11.12.2002. This corresponds to the encashment certificate with Ref. No.CBEC 2434 dated 11.12.2002 in which $5,000/- from the foreign currency account of Mr. Rashid Ali Khan were encashed at the then prevailing exchange rate of USD 1 = PKR 58.10 which came to Rs.290,500. Neither of these cash deposits of $5000/- each constitute a remittance and therefore cannot be attributed to Ms. Jemima Khan as their sender. Therefore, these deposits cannot be evidence of the Respondent’s plea that these funds originated from Ms. Jemima Khan for the purchase of the Banigala property. 80. In the above context of an unascertainable source of transfer of foreign funds to the account of Mr. Rashid Ali Khan, there is a claimed remittance of $100,000/- by Ms. Jemima Khan for which positive documentary proof is not available. According to Mr.Rashid Ali Khan’s FX statement of account, a credit entry on 22.01.2003 records an ‘Incoming Telex Transfer Fm USA B/O Citibank Value Jan 22, 03’ on 22.1.2003 for an amount of $100,000/- which was transferred to an account bearing No.5521588014 on 23.1.2003. This is followed by the telegraphic transfer of $100,000/- from ‘USA B/O Citibank’ on 22.1.2003 into Mr. Rashid Ali Khan’s foreign currency account No.9010327943 as reported to him vide the Citibank Const.P.35 of 2016 91 Pakistan letter dated 7.1.2004 (CMA No.3657 of 2017). This amount corresponds to the encashment certificate with Ref. No.CBEC 2435 dated 23.1.2003 in which $100,000/- from the foreign currency account of Mr. Rashid Ali Khan were converted encashed at the then prevailing exchange rate of USD 1 = PKR 57.85 amounting to Rs.5,785,000/-. With the accumulated funds in the PKR account of Mr. Rashid Ali Khan, a corresponding Citibank manager’s cheque bearing No.010657 for an amount of Rs.5,700,000/- was issued in favour of the seller of the Banigala property (seventh payment). However, since the last remittance into the foreign currency account of Mr. Rashid Ali Khan cannot be traced to Ms. Jemima Khan, therefore, notwithstanding the payment to the seller, that is derived from it, the said remittance cannot be attributed to Ms. Jemima Khan nor can the Respondent’s plea of funding by her receives strength from it. 81. The documents submitted on record reveal that four foreign currency remittances have been shown on record by the Respondent to have been made by Ms. Jemima Khan to Mr. Rashid Ali Khan who converted the same to Pak rupees to finance seven onward payments to the seller of the Banigala property: Sr. No. Date: Amount received in Mr. Rashid Ali Khan’s foreign currency account bearing No.9010327943 Encashed Value Banker’s Cheque to seller Remaining Credit Balance: 1 08.04.2002 $258,333/- Rs.15,422,480/10 Rs.14,500,000/- Rs.922,480/- 2 31.07.2002 $275678/- $200,000/- Rs.11,830,000/- Rs.10,000,000/- Rs.2,752,480/- $45,000/- Rs.2,655,000/- Rs.2,500,000/- Rs.4,714,821/- $20,000/- Rs.1,180,000/- Rs.3,500,000/- Rs.3,043,813/- $10,660/- Rs.627,341/- 3 02.10.2002 £20,000/- (direct transfer to PKR account) Rs.1,828,992/- 4 22.01.2003 $100,000/- (Excluded) Rs.5,785,000/- (Excluded) Rs.5,700,000/- 5 23.01.2003 (Extended) Rs.2,656,187/- Total amount proven from Ms. Jemima Khan Rs.33,543,813/- (-) Rs.2,656,187/- Total amount paid to seller Rs.36,200,000/- Total amount of shortfall Const.P.35 of 2016 92 To recapitulate, as regards the amounts of $16,000/-, $5,000/- and $5,000/- credited to the foreign currency account of Mr.Rashid Ali Khan mentioned above, there is no indication on the record that this money was transferred by Ms. Jemima Khan; also, these accounts did not find any corresponding cheques for onward payment to the seller of the Banigala property. Therefore, these three credit amounts do not require further discussion. In this respect although during arguments learned counsel had made the claim, but he has not produced any documents to establish that said incoming telex transfer of US$100,000/- remitted on 22.1.2003 to the foreign currency account of Mr. Rashid Ali Khan had been effected on the instructions and account of Ms. Jemima Khan. Notwithstanding the availability of the corresponding encashment certificates and a Citibank Manger’s cheque in favour of the seller of the Banigala property, the link with and remittance from Ms. Jemima Khan is not established. Therefore, the said remittance although noticed for payment to the seller of the Banigala property cannot be accepted as supporting the Respondent’s plea regarding the source of funding for purchase of the Banigala property. 82. On the other hand, there is also a telegraphic transfer of $100,029/- bearing the description ‘B/O Jemima Khan’ dated 20.5.2003 into Mr. Rashid Ali Khan’s foreign currency account. However, the learned counsel for the Respondent stated that notwithstanding the remittance having been made by Ms. Jemima Khan, yet this amount was never encashed for payment to the seller of the Banigala property. Accordingly, this is an internal transaction and a matter between Ms. Jemima Khan and Mr.Rashid Ali Khan. Therefore, we have no reason to disagree with the learned counsel for the Respondent. Besides, we are not, in the instant proceedings, Const.P.35 of 2016 93 scrutinizing the banking transactions of Mr.Rashid Ali Khan that do not bear nexus with the issue before us today. The payments made by him to the seller and duly acknowledged by the latter correspond to remittances (including $100,000/- made on 22.1.2003 but excluded for non-proof) that are established to have been sent by Ms. Jemima Khan. Therefore, we are of the opinion that three out of foreign currency remittance by Ms. Jemima Khan from abroad to Mr.Rashid Ali Khan were fully utilized for the payment of the balance sale consideration of the Banigala property. The fourth remittance of $100,000/- dated 22.1.2003 converted to Rs.5.785 million was also paid to the seller of the Banigala property by cheque for Rs.43.5 million dated 23.1.2003. However, that remittance is not proved to have been made by Ms. Jemima Khan. Therefore, her proven remittances equal Rs.33.543 million (i.e. Rs.39.32 million minus Rs.5.785 million). Against the said proven receipt of Rs.33.543 million, Mr. Rashid Ali Khan paid the seller an amount of Rs.36.20 million to the seller showing a shortfall of Rs.2.656 million in proven funding by Ms. Jemima Khan. 83. To conclude, the agreement to sell the Banigala property and its sale consideration of Rs.43.5 million are not disputed. The first, second and final payments were made to the seller by the Respondent from his funds whereas the third, fourth, fifth and sixth payments were made from the funds sent by Ms. Jemima Khan through Mr. Rashid Ali Khan. Their sum total comes to Rs.40.843 million short by Rs.2.656 million from the total payment of Rs.43.5 million made to the seller. The shortfall is not decisive because it is addressed by the amount of repayments made by the Respondent to Ms. Jemima Khan. One cannot overlook the fact that the seventh payment of Rs.5,700,000/- made on 23.1.2003 by Citibank cheque to Const.P.35 of 2016 94 the seller of Banigala property draws upon funds remitted from abroad on 22.1.2003. However, this remittance has not been connected with Ms. Jemima Khan through evidence, therefore, it has been excluded from the count. Be that as it may, she transferred another amount of $100,029/- on 20.5.2003 to the foreign currency account of Mr.Rashid Ali Khan. This remittance is proven through bank documentation to have been transferred by Ms. Jemima Khan (CMA No.3657 of 2017). However, this amount was not encashed by Mr.Rashid Ali Khan statedly because full payment of sale consideration had been made to the seller of Banigala property. If it is assumed that $100,000/- credited to the account of Mr.Rashid Ali Khan on 22.1.2003 originated from his own source, then the remittance of $100,029/- by Ms. Jemima Khan to his account on 20.5.2003 reimbursed his contribution. The fact is that the amounts remitted by Ms. Jemima Khan fully funded the payments made by Mr.Rashid Ali Khan to the seller including the seventh payment amounting to Rs.5,700,000/-. This view is reinforced by the amount paid subsequently by the Respondent to Ms. Jemima Khan which aspect is examined shortly herein below. Therefore, we do not find any fraud, money laundering or misdeclaration on behalf of the Respondent in this regard, warranting his disqualification under Article 62(1)(f) of the Constitution. 6. Whether the amount contributed by Ms. Jemima Khan for the purchase of the Banigala property was repaid to her after the sale of the London flat by the Respondent? 84. The total amount that Ms. Jemima Khan remitted to Mr.Rashid Ali Khan was approximately $665,340/- after excluding the cash deposits and $100,000/- telex transfer not shown to be from her. The breakdown of the established remittances by Mr.Jemima Khan is as follows:- Const.P.35 of 2016 95 Sr. No. Amounts Comments 1. $258,333/- )8.4.2002) Amounts converted and utilized for payment to the seller of the Banigala property. 2. $275,678/- (31.7.2002) 3. £20,000 = $31,300/- (2.10.2002) (at the exchange rate of £1 = $1.565 prevalent on 2.10.2002) 4. $100,000/- (22.1.2003) (claimed but excluded) Amounts claimed as remitted and encashed and utilized towards payment for Banigala property but excluded as unproved. 5. $100,029/- Amount remitted but not encashed. 6. $665,340 = £417,900.89 (at the exchange rate of £1 = $1.5921 prevalent on 7.5.2003, the date payment was made to Ms. Jemima Khan) As mentioned earlier, the London flat was sold on 14.4.2003 for an amount of £715,000/-. According to the completion certificate, after deducting the proportion of ground rent from 15.4.2003 to 23.3.2004 (344 days) at £125/- per annum, and subtracting various expenses (estate agent’s commission, solicitors’ costs, etc.), the net proceeds of sale of the London flat that NSL received were £690,307/-. Out of this amount, NSL on behalf of the Respondent paid an amount of £562,415.54 on 07.05.2003 to Ms. Jemima Khan. This payment was purported to be established by the learned counsel for the Respondent through a letter dated 22.5.2017 issued by one Ashley Cox, Managing Director of Zedra Trust Company (Jersey) (the successor to Barclay Trust Banking) confirming that: “Upon a letter dated 18 April 2003 from Mr I Khan requesting that a payment be made to Mrs Jemima Khan’s account with the Anglo Irish Bank, a payment of £562,415.54 was made from Niazi Services Limited’s account with Barclays Private Bank & Trust Limited to Mrs Khan’s account on the 7 May 2003.” (Note:- We have asked the counsel for the Respondent to give us the letter of Imran Khan dated 18.4.2003 and also the relevant proof from the bank statements of NSL or Jemima Khan). Const.P.35 of 2016 96 The Court was not satisfied by the said letter as evidence on the point. Accordingly, it was directed that the relevant proof from the bank statement of NSL or of Ms. Jemima Khan be placed on record. Consequently, through CMA No.6799 of 2017 (filed on 06.10.2017) the letter dated 18.04.2003 by the Respondent instructing aforesaid payment to Ms. Jemima Khan and copies of relevant Bank statements of Ms. Jemima Khan’s account and NSL’s account were filed on record. These documents clearly establish payment of £562,415.54 by NSL to Ms. Jemima Khan on 7.5.2003. According to calculations based on the amount of foreign currency remittances made by Ms. Jemima Khan to Mr.Rashid Ali Khan for onward payment for sale consideration of the Banigala property, the Respondent refunded to Ms. Jemima Khan approximately £114,514.65 (£562,415.54 minus £417,900.89) in excess of the foreign currency amount remitted by Ms. Jemima Khan to Mr. Rashid Ali Khan for payment of the price of the Banigala property. The excess payment made by the Respondent is in our opinion a matter between the spouses. It is relevant, however, to note that these inter se financial transfers took place while the Respondent’s marriage with Ms. Jemima Khan was still intact because they got divorced in June, 2004. Therefore, exact reconciled accounts between spouses is neither necessary nor expected nor a matter for the Court to probe. Be that as it may, the banking material placed on record is relevant to the point in issue, duly corroborated by other documents, emanating from competent sources and, therefore, reliable and trustworthy. In any event, the petitioner has brought no material to contradict the said evidence. In the circumstances, we consider that the money trial for the purchase of the Banigala property by the Respondent has been duly established before us. The method adopted by the Respondent for arranging timely funding for the sale consideration through his wife is a Const.P.35 of 2016 97 lawful arrangement. In any event, the funds that she contributed for the purchase of the Banigala property were duly returned by the Respondent from a lawful source that was a duly declared property. 7. Who is the owner of the Banigala property? Whether a valid gift of the said property was made by Ms.Jemima Khan in favour of the Respondent through an attorney? 85. It is the Respondent’s case that he purchased the Banigala property for his then wife, Ms. Jemima Khan, and their two sons. We have no reason to disbelieve such an object. Indeed, the first and second payments to the seller of the Banigala property were both made by the Respondent. He was expecting to pay the remaining sale consideration amount of the property from the sale proceeds of his London flat. However, due to delay in such sale in the circumstances mentioned above, he made a ‘bridge financing’ arrangement whereby Ms. Jemima Khan remitted foreign exchange from abroad to Mr.Rashid Ali Khan, who after conversion of such amounts to Pak Rupees, paid the same to the seller. Pursuant to the stated as well as apparent object, the transfer of the Banigala property through various sale mutations was, therefore, made in favour of Ms. Jemima Khan. For all intents and purposes these sale mutations indicated that she was the absolute owner of the same. 86. The various sale mutations of the Banigala property are as follows. The first mutation No.7056 records sale of 135 kanals of land in favour of Ms. Jemima Khan. The sale was reported to the patwari on 10.4.2002. He forwarded the matter on 25.4.2002 to his superiors with the note that the record is complete for sanction of the mutation. Accordingly, on 26.4.2002 the competent revenue officer sanctioned the first mutation. The second mutation No.7225 records the sale of 62 kanals of land in favour of Const.P.35 of 2016 98 Ms. Jemima Khan. The initial entry of particulars was made on 3.8.2002; the report of the qanoongo thereon is dated 15.8.2002 and the second mutation of sale was sanctioned by the competent revenue officer on 16.8.2002. The third mutation No.7246 records sale of 8 kanals of land in favour of Ms. Jemima Khan. The particulars of the transaction were entered on 20.8.2002; the report thereon by the qanoongo is dated 27.8.2002 and the third mutation of sale was sanctioned by the competent revenue officer on 28.8.2002. 87. The dispute raised by the learned counsel for the petitioner is regarding only the fourth and fifth mutation Nos.7361 and 7538. About these, the petitioner has questioned as to why they were sanctioned by the revenue officer in the year 2005 with a gap of nearly three years after the first three mutations finalized in the year 2002. The fourth mutation No.7361 records the sale 45 kanals of land in favour of Ms. Jemima Khan, the particulars whereof were entered in the revenue record on 11.11.2002 and the report by the qanoongo thereon was completed on 13.11.2002; however, the fourth sale mutation was belatedly sanctioned by the competent revenue officer on 11.6.2005. Likewise, the fifth mutation No.7538 records the sale of 50 kanals of land in favour of Ms. Jemima Khan, which was entered in the revenue record on 4.2.2003; the record was prepared by the qanoongo on 27.2.2003 and this mutation too was sanctioned by the competent revenue officer on 11.6.2005. Learned counsel for the Respondent has submitted that the particulars of both the sale mutations including the land to be conveyed were duly entered in the revenue record on 11.11.2002 and 4.2.2003 respectively. The record does not show that the Respondent is in any way responsible for the delay in the sanction of the said two mutations. We have perused both the mutations Nos.7361 and 7538 and note that each of these contains the phrase “التوا ِر یز منتقلی یبندا پ جہبو”. The said note in the file of both the Const.P.35 of 2016 99 mutations indicates that there was some prohibition preventing their sanction on an earlier date. The record does not discard the initial reports filed by the patwari on 11.11.2002 and 4.2.2003 so that the final sanctioned mutations are based on these reports. Therefore, we have no reason to disbelieve the Respondent’s stance in this regard. The petitioner also raised a question as to why mutation Nos.7361 and 7538 were sanctioned in the name of the ex-wife, Ms. Jemima Khan, when on the date of their sanction, i.e. 11.6.2005, she and the Respondent had already divorced on 22.6.2004. We have seen both the mutations and these are in favour of “ حمدا ناعمر جہوز نخا ا م ئجما ۃمسما یزنیا نخا”. It is also observed that the name of Ms. Jemima Khan was included in the initial entries and report for these mutations recorded on 11.11.2002 and 4.2.2003 respectively. At that time, the marriage between the Respondent and Ms. Jemima Khan was still intact. Therefore we do not find there to be any element of fraud or a sham entry in this record as asserted by the learned counsel for the petitioner. 88. It was after the Respondent had refunded, inter alia, the bridge financed amount to Ms. Jemima Khan on 7.5.2003 that their divorce took place in 2004. It appears that Ms. Jemima Khan reflected for sometime before deciding to return the Banigala property to the Respondent. For this purpose, she executed on 21.3.2005 before a notary public in England a power of attorney in favour of Mr. Saifullah Khan Sarwar Niazi in respect of the said property. The relevant portions of that power of attorney read as under: “That a land measuring 300 Kanals and 5 Marlas in Khasra No.1939 situated in the revenue estate of village Mohra Noor Tehsil and District Islamabad was purchased Const.P.35 of 2016 100 by Mr. Imran Ahmed Khan Niazi son of Ikramullah Khan Niazi. The land was transferred in my name through mutation Nos.7056, 7225, 7361, 7538, by my ex-husband Mr. Imran Ahmed Khan Niazi as a “Benami Transaction”. After the Separation/ Divorce between me and Mr. Imran Ahmed Khan Niazi, I do not intend to keep the land with me. Since I am unable to personally appear before the authorities to complete the transfer formalities in the name of Mr. Imran Ahmed Khan Niazi, therefore, I do hereby appoint Mr. Saifullah Sarwar Khan Niazi son of Imran Ahsan Khan Niazi resident of H. No. 103, St. No. 2, PTV Colony, Bara Kahu, Tehsil and District Islamabad to appear before the Revenue Office / Registrar, and get the land transferred in the name of Mr. Imran Ahmed Khan Niazi son of Ikramullah Khan Niazi resident of 11B Clara Apartments, Diplomatic Enclave, Sector G-5, Islamabad. The above mentioned is also authorized to appear, on my behalf in any court, authority in connection to the affairs of the land. The attorney is also authorized to engage an advocate if so required to complete the transfer formalities. Alternatively he is also authorized to make gift of the above mentioned entire land to the adverted Mr. Imran Ahmed Khan Niazi son of Ikramullah Khan Niazi residing in 11B Clara Apartment, Diplomatic Enclave, Sector G-5 Islamabad and complete all the legal formalities required under the law. It is therefore, confirmed that anything done or act performed by the said attorney will be done on my behalf. Const.P.35 of 2016 101 In witnesses, whereof the attorney signed / executed by me of my own free will without any inducement or coercion.” [Emphasis supplied] 89. The power of attorney clearly envisages that Ms. Jemima Khan intended to give the Banigala property back to the Respondent and in this regard authorized her agent, Mr. Saifullah Sarwar, to either transfer it in the Respondent’s name or in the alternative to gift it to him. The word ‘benami’ only finds mention in the power of attorney and nowhere else. According to the Respondent’s case, the Banigala property was always meant to be for his then wife. It was never the Respondent’s case that the transaction was a benami transaction and that he was the actual owner and his ex-wife, its ostensible owner. We have no reason to disbelieve the Respondent’s stance and it is both probable and plausible that the Banigala property was purchased in the name of Ms. Jemima Khan as a home for the family. And that the Respondent intended that she should own the property as its actual and not ostensible owner. Therefore, although part of the sale price of the Banigala property was paid by the Respondent himself yet it was mutated in favour of Ms. Jemima Khan. It appears that after the Respondent had repaid in May, 2003 the funds provided by Ms. Jemima Khan, their marriage broke down in June, 2004. It is plausible that as a consequence of her divorce, she did not need a home in Pakistan and decided to return the property to the Respondent. 90. In this regard, the power of attorney envisages two alternate methods of transfer which the attorney may have utilized: either to transfer the Banigala property to the Respondent or to make a gift of the same. The attorney while carefully exercising his power under the power of attorney got a gift mutation No.10696 dated 29.10.2005 (oral hiba) of the Banigala Const.P.35 of 2016 102 property sanctioned in favour of the Respondent. It was entered on 22.9.2005, the report by the qanoongo is dated 23.9.2005 and the mutation was sanctioned on 29.10.2005. Being the owner of the Banigala property, Ms. Jemima Khan could, through her attorney, validly make a gift or hiba of the same in favour of the Respondent. Therefore, the word ‘benami’ appearing in the power of attorney is more of a misconception about her status rather than a fraud or sham committed by the Respondent. The intention of Ms. Jemima Khan to transfer the Banigala property to the Respondent is obvious, therefore, the possible purpose to mention benami may have been to facilitate the property transfer by way of filing a suit or some other mode avoiding delay and expense. However, in the final analysis it was decided to make the transfer through an oral hiba. Therefore, the need for Ms. Jemima Khan to execute a release deed in order for the Banigala property to be returned to the Respondent did not arise. In any event, a gift is a matter between the donor and the donee which has not been disputed by or on behalf of the donor. The petitioner being a complete stranger to the gift has no locus standi to challenge the same. Therefore, we find that the aforementioned facts and circumstances do not in any way warrant the conclusion of the gift being a sham and fraud be sought by the learned counsel for the petitioner to the grant of the relief of disqualification under Article 62(1)(f) of the Constitution. 8. Whether the Respondent failed to disclose the amount paid as advance for the purchase of the flat at One Constitution Avenue, Islamabad in his tax returns? Whether he failed to disclose such flat in his statement of assets and liabilities before the ECP? If so, its effect? 91. It is the petitioner’s case that the Respondent paid an amount of Rs.2,970,000/- in cash on 21.4.2014 for the purchase of an apartment (2 bed flat, Type E, Level 11, Tower C) in One Constitution Avenue, Constitution Const.P.35 of 2016 103 Avenue, Islamabad (Apartment) and a further amount of Rs.3,000,000/- vide cheque No.0502349 dated 16.3.2015 but he failed to disclose the investment of Rs.2,970,000/- in his declaration of assets for the financial year 2014 furnished before the ECP. According to the petitioner’s case, this non- disclosure is a willful concealment and a clear violation of Section 12(2)(f) read with Section 42A of ROPA, and thus has committed a corrupt practice under Section 82 thereof. 92. The law relied by the learned counsel for the petitioner is as under: 12. Nomination for election.– (2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany– (f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day or June; 42A. Yearly submission of statements of assets and liabilities.–(1) Every member shall, on a form prescribed under clause (f) of sub-section (2) of section 12, submit a statement of assets and liabilities of his own, his spouse and dependents annually to the Commission by the thirtieth day of September each year. (4) Where a member submits the statement of assets and liabilities under sub-section (1) which is found to be false in material particulars, he may be proceeded against under section 82 for committing the offence of corrupt practice. 82. Penalty for corrupt practice.– Any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to three years, of with fine which may extend to five thousand rupees, or with both. [Emphasis supplied] Const.P.35 of 2016 104 According to the aforementioned law, every candidate is to file along with his nomination papers, a statement of his assets and liabilities and those of his spouse and dependents [Section 12(2)(f) of ROPA]. A member of an Assembly is also required to file such statement his assets and liabilities and those of his spouse and dependents every year [Section 42(1) of ROPA] and if the statement is found to be false in material particulars, such member may be proceeded against under Section 82 of ROPA for committing the offence of corrupt practices for which the punishment is provided therein. The question we are faced with is whether the Respondent’s statement of assets and liabilities filed in 2014 (as is the petitioner’s case) is false in material particulars in terms of non-disclosure of the investment of Rs.2,970,000/-. 93. In the statement of assets/liabilities filed along with his income tax return by the Respondent under Section 116(2) of the Ordinance, 2001 for the tax year 2014 (CMA No.7925 of 2016), the amount of Rs.2,970,000/- has been disclosed described as an ‘investment (non-business)’ category of personal assets/liabilities. This is the precise amount that according to the petitioner has been paid by the Respondent and acknowledged through a computer-generated receipt of such amount issued by Grand Hyatt, the stated developers of the high-rise tower called One Constitution Avenue. In any case, both the sides have no dispute about the amount of down payment being Rs.2,970,000/-. Thus there is an express and that too voluntary declaration of this amount. In his statement of assets/liabilities filed by the Respondent under Section 116(2) of the Ordinance, 2001 for the tax year 2015 (CMA No.7925 of 2016), the declared amount for the same investment is increased by Rs.3,000,000/- and disclosed as Rs.5,970,000/-. However, in the year 2014, there is difference in the description of the said asset. Rather than Const.P.35 of 2016 105 being placed in the category of ‘investment (non-business)’ the said asset has more accurately been described as ‘debt (non-business)’Advance for 2 Bed flat in 1 Constitution Avenue, Grand Hayat Development Islamabad”. 94. It is the Respondent’s case that he made a further payment of Rs.3,000,000/- for the Apartment in the financial year ending 30.6.2015, which amount also features in the petition. The figure of Rs.5,970,000/- is accordingly reflective of the combined amount of the initial deposit of Rs.2,970,000/- and the further payment of Rs.3,000,000/-. Thus again a clear and voluntary declaration of the total advance amount for the Apartment was made by the Respondent. Therefore, as far as declaration by the Respondent of his investment deposit for the Apartment in the tax return is concerned, his position is absolutely plain and accurate. However, we find the petitioner’s plea that such plain and accurate disclosure made by the Respondent in his statement of assets and liabilities for the year 2015 but not for the year 2014 filed with the ECP is deficient and dishonest, to be groundless. In 2015, the Respondent was allocated a putative flat in the Tower building and so he mentioned its particulars with financial details. On the other hand, it is explained that in the year 2014 the only payment made by the Respondent was a deposit of Rs.2,970,000/- without any booking, reservation or allocation of a future proprietary right. The Respondent explanation that the deposit did not constitute an asset has weight. This is because no sale had been effected in favour of the Respondent. In terms of the law, a sale transaction had been initiated. Neither the sale price been paid nor the Apartment been transferred to the Respondent. There is no property which may be considered to be the Respondent’s asset; therefore rendering him liable to disclose the same in his statement of assets and liabilities filed before the ECP. At the best on the payment of the deposit or advance Const.P.35 of 2016 106 amount, the Respondent had an agreement to sell in his favour. Section 54 of the Transfer of Property Act, 1882 mandates: “54. “Sale Defined”. “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid part-promised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” [Emphasis supplied] We have held in a number of judgments that an agreement to sell does not create any right, interest or title in the immovable property. At the most the vendee is entitled to seek specific enforcement of such an agreement in terms of the Specific Relief Act, 1872 and the principles settled by this Court in that regard. Therefore, the explanation by the Respondent that there was no asset to declare in the 2014 before the ECP is rational. Const.P.35 of 2016 107 95. Indeed this exposes the weakness of the petitioner’s argument that since the Respondent’s statement of assets and liabilities of 2015 filed before the ECP provides the particulars of the Apartment and the amount of the advance payment made for it, therefore, the Respondent’s failure to mention those facts be inferred that he concealed this fact in his earlier statement of assets and liabilities for the year 2014 amounts to concealment of an asset, hence an omission attracting disqualification. We are satisfied that at the time of filing his statement of assets and liabilities in 2014 before the ECP, the Respondent did not have a specific asset to declare. It was not contended that the cash amount of the deposit represents a concealed assets; and rightly so, because the movement of cash assets was never questioned. At a more practical level, the petition itself acknowledges that any omission or error in the statement of assets and liabilities under Section 42A of the ROPA is the rejection of the nomination paper not disqualification of candidature. That consequence follows from a Court of law under Article 62(1)(f) of the Constitution or Section 99(1)(f) of the ROPA. No such case has been pleaded or made out by the petitioner. In the light of the above, we are of the view that this plea of the petitioner is misconceived and unfounded and is thus discarded. The requirement of ‘dishonesty’ for disqualification under Article 62(1)(f) of the Constitution. 96. A great deal of emphasis has been laid by the learned counsel for the petitioner on the declaration given unanimously by a learned larger Bench of this Court in their final order of the Court dated 28.07.2017 reported as Imran Ahmed Khan vs. Muhammad Nawaz Sharif (PLD 2017 SC 692) at page-716 in the following terms: Const.P.35 of 2016 108 “2. It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation Respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).” [emphasis added] 97. Based on the foregoing declaration, the learned counsel has argued that the disqualification of the erstwhile Prime Minister proceeds solely on his false declaration made under solemn affirmation to constitute evidence of lack of honesty. There is as such no finding against the said public office holder of deception, fraud, cheating or unfair gain derived by him through the false declaration. Accordingly, the law as declared by the larger bench has made a false or incorrect declaration of assets and liabilities by a holder of public office to constitute a wrong entailing strict liability; therefore, any explanation or justification for such declaration being a bona fide, genuine or unmotivated omission, no longer has any relevance for ascertaining whether the Respondent has violated the condition of “honest and ameen” laid down in both Article 62(1)(f) of the Constitution and Section 99(1)(f) of the ROPA. 98. The upshot of the submission made by the learned counsel for the petitioner is that intention, object and purpose has nothing whatsoever to do with the commission of errant conduct contrary to Article 62(1)(f) ibid and Section 99(f) ibid. To our minds, the argument advanced by the learned counsel suffers from a misconception of the law. The final order of the Court Const.P.35 of 2016 109 unanimously passed by the learned larger Bench carefully opens with the following words: “This judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions Nos.29, 30 of 2016 and Constitution Petition No.03 of 2017 which ended up in the following order of the Court: …” Clearly, the earlier opinion in Imran Ahmad Khan Niazi vs. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), given by three members of the larger Bench leading to the constitution of a Joint Investigation Team (“JIT”) are integral to the final judgment announced by the larger Bench on 28.07.2017. Each of the three learned members of the Bench concluded for separate reasons given by them, that the provisions of Section 9(a)(v) read with Section 14(c) of the National Accountability Ordinance (“NAO”) would, prima facie, attract to the case made out by evidence on record against the erstwhile Prime Minister, his dependants and benamidars. It would, accordingly, be instructive to consider the context in which such a view was entertained in the first instance by each of the learned members of the majority in their respective opinions issued on 20.04.2017, that was subsequently reinforced in their final judgment dated 28.07.2017 culminating with a direction for the NAB to prepare and file before the Accountability Court, Islamabad within six weeks from the date of the said judgment several references against the erstwhile Prime Minister, his dependents and benamidars, in all 10 persons, based on material collected and referred to by the JIT in its report and such other material as may be available with the FIA and NAB having nexus with assets mentioned in the judgment or becoming known pursuant to mutual legal assistance requests by the JIT to different jurisdiction. The said evidentiary context is eminently described in the judgment dated 20.04.2017 titled Imran Ahmad Khan Niazi vs. Mian Const.P.35 of 2016 110 Muhammad Nawaz Sharif (PLD 2017 SC 265), in paragraphs 85 to 89 at pages 653ff, which are reproduced herein below: “84. The learned counsel for the Respondents have laid much stress on the powers of this Court under Article 184(3) of the Constitution and passing orders in terms of Articles 62 & 63 of the Constitution. In this context, the learned counsel for Respondent No.1 as well as Respondent Nos.6, 7 & 8 have emphasized that this Court has traditionally refrained from delving into situations/ cases which involve factual controversies requiring recording of evidence. The only exceptions being cases where irrefutable or unrebutted evidence is available or necessary facts are admitted by the parties. It may, however, be noted that new jurisprudence of this Court has evolved in the past few years in matters involving fake degrees and dual citizenship held by the Parliamentarians. The principles regarding exercise of powers under Article 184(3) of the Constitution are undergoing a process of evolution and fresh ground is being broken. The argument made by the learned counsel for the Respondents that evidence cannot be recorded or factual inquires cannot be conducted in exercise of powers under Article 184(3) of the Constitution may be based on some precedent but we find that this is not a hard and fast, inflexible and rigid principle of law. It has only been followed by way of practice and expediency with exceptions being created and jurisdiction being extended from time to time where the facts and circumstances so required. By way of illustration, the case of Pakistan Muslim League (N) v. Federation of Pakistan [PLD 2007 SC 642] may be cited. In this case, this Court held that that there was no bar on the power of this Court under Article 184(3) of the Constitution to record evidence provided voluminous record and complicated questions of fact and law were not involved. This Court is not a slave of the doctrine of stare decisis. We are not shackled by the chains of precedents where the interests of the people of Pakistan so demand. While remaining within the four corners of the law and limits set for us by the Const.P.35 of 2016 111 Constitution, in order to do complete justice, there is no bar on the power of this Court to record evidence in appropriate cases and pass such orders as may be necessary. 85. There are serious allegations of money laundering, corruption and possession of assets beyond known means and or acquiring assets, the sources of which have not been explained. It is also important to note that Respondent No.1 has repeatedly admitted that the Mayfair Properties were purchased by his family with the funds generated from sale of Steel Mills in Saudi Arabia. Respondents No.6 to 8 have also admitted that the said properties are owned by the Sharif Family while Respondent No.7 has been claiming that the properties were purchased by him. Neither Respondent No.1 nor Respondents No.6 to 8 have placed any credible evidence or material on record that may conclusively establish the real ownership of the Mayfair Properties. Despite at least 26 hearings spread over months, it has not been made clear to us whether the real owner of the properties is Respondent No.1, Respondent No.6 or Respondent No.7. Although it has been alleged by the petitioners that Respondent No.1 is real owner of the properties, they have not been able to produce any credible evidence to substantiate their assertion. The Mayfair Properties have been continuously in possession and use of the children of Respondent No.1 since 1993/96, when admittedly they had no independent sources of income. We have already discarded the explanation offered by Respondent No.7 based on the letters of Sheikh Hamad as dubious and hard to believe. Therefore, in the facts and circumstances of the case, the possibility of direct or indirect/Benami ownership of Respondent No.1 cannot be ruled out. The position that emerges is that it is not possible for us to conclusively hold that Respondent No.1 is the owner of the properties and thereby require him to explain the source of funds which were used to acquire such properties but it is equally difficult for us to hold that he is not the owner of the said properties. Owing to the fact that provisions of Section Const.P.35 of 2016 112 9(a)(v) read with Section 14(c) of the NAO are prima facie attracted, it is for them to produce the requisite evidence and record to show the real ownership of the properties and legitimate sources and transactional money trails to show lawful movement of funds for acquisition of the same in an investigation and then before Courts of competent jurisdiction. 86. It is also an admitted fact that Respondent No.7 owns and operates Hill Metals Establishment in Saudi Arabia. From the accounts of the said business, huge amounts of funds have been transmitted to Respondent No.1 in foreign exchange which have been declared by Respondent No.1 as gifts on which no income tax is payable. Respondent No.7 needs to produce all relevant evidence and record to show the source of funds utilized for the purpose of setting up the said business. 87. It is also an admitted position that Respondent No.8 set up a company under the name and style of Flagship Investments Limited which received substantial sums of money in the year 2001 when the said Respondent had no source of income. Over the course of the next few years, a number of other companies were set up/taken over by Respondent No.8 allegedly for the purpose of his real estate business. The sources from which the said companies/businesses were funded are also shrouded in mystery. There is yet another company under the name and style of Capital FZE, Dubai presumably registered under the laws of UAE. Funds also appear to have been routed through the said company from time to time by/and on behalf of Respondent No.7. The real ownership and business of the said company is unclear from the record which needs to be explained. No effort has been made on the part of the Respondents to answer the questions on the afore-noted matters. 88. In our opinion, considering the high public office that Respondent No.1 holds and the requirement of honesty, transparency, clean reputation, unquestionable integrity, financial probity and accountability for a person who holds the highest elected office of the land, it was Const.P.35 of 2016 113 necessary and incumbent upon Respondent No.1 to place all information, documents and record before this Court to clear his own position and that of the members of his family. Very serious and damaging questions were raised and grave allegations levelled by the Petitioners and the local as well as international Print and Electronic Media regarding money laundering, tax evasion, corruption and misuse of authority on the part of Respondent No.1 and members of his family. Although lofty claims were made by and on behalf of Respondent No.1 regarding readiness and willingness to face accountability and clearing his name, the claims remained hollow rhetoric. Regrettably, no effort was made either on the part of Respondent No.1 or that of Respondents No.7 & 8 who are his sons before this Court, to come clean, to clear their names, place the true facts and relevant record before us and the people of Pakistan by producing all documentary evidence which was either in their possession, control or accessible to them which could have answered all unanswered questions, removed all doubts and put all allegations to rest and cleared their names once and for all. This was not done and an opportunity squandered for reasons best known to the Respondents. Instead refuge was taken behind vague, ambiguous, fuzzy and hyper technical pleas. 89. Regrettably, most material questions have remained unanswered or answered insufficiently by Respondent No.1 and his children. I am also constrained to hold that I am not satisfied with the explanation offered by Respondent No.1 (Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan) and his children regarding the mode and manner in which the said properties came in their possession and what were the sources of funds utilized for acquisition of the same. Further, the source(s) of funding for Azizia Steel Mills and Hill Metals Establishment in Saudi Arabia, Flagship Investments Limited and a number of other companies set up/taken over by Respondent No.8 also need to be established. In addition to the affairs of Capital FZE, Dubai which also appears to be owned by Respondent No.7 need an inquiry. Const.P.35 of 2016 114 The aforesaid investigation and inquiry under normal circumstances should have been conducted by NAB. However, it has become quite obvious to us during these proceedings, Chairman NAB is too partial and partisan to be solely entrusted with such an important and sensitive investigation involving the Prime Minister of Pakistan and his family. Further owing to the nature and scope of investigation a broader pool of investigative expertise is required which may not be available with NAB.” 99. Having read the said background, it is clear that the precedent case has facts vastly different from the case in hand. That case involved robust allegations of corruption that resulted a unanimous finding reflected in the final order of the Court dated 28.07.2017 whereby directions were issued to the NAB to prepare and file the NAB references within six weeks of the judgment for the commission of offences, inter alia, including under Section 9(a)(v) read with Section 14(c) and Section 15 of the National Accountability Ordinance, 1999 that pertain to an accused, his dependents or benamidars, owning, possessing or having acquired a right in respect of assets, pecuniary resources disproportionate to his/their known sources of income, which he/they cannot account for. This is a case in which the learned larger Bench found sufficient evidence for directly launching a prosecution in respect of the aforementioned offences against the accused person, his dependents and benamidars. The gist of the allegations and the material before the Court has already been reproduced above in the quoted judgment of the learned member of the majority. It is in those circumstances that when new evidence about Capital FZE Dubai discussed in para-87 reproduced above, came to light pursuant to investigations by JIT, that the majority in its judgment dated 28.01.2017 opined as follows: “It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to Const.P.35 of 2016 115 salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un- withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.” [emphasis supplied] 100. In the passage referred above, the Court is addressing an undisclosed asset, existence whereof is expressly admitted through the coffers of an entity whose financial dealings were already doubted and formed part of the network of persons and entities allegedly holding disproportionate assets attributed to the erstwhile Prime Minister, his dependents and benamidars. It cannot, therefore, be contented that dishonesty is attributed in the said judgment without reference to any alleged design, intention, scheme, background or impropriety. Consequently, to our minds the larger Bench has not expunged the requirement of establishing the “dishonesty” of conduct of an aspirant or incumbent member of a Constitutional Legislature in order for the disqualification under Article 62(1)(f) of the Constitution and Section 99(f) of the ROPA to be attracted. Each and every word in the Constitution bears a meaning and place, which must be given effect because redundancy cannot be assigned to the Constitution. Accordingly, in earlier judgments by this Court in the matter of “dishonest conduct,” violation of constitutional norms required by Article Const.P.35 of 2016 116 62(1)(f) in its phrase “honest and ameen” have been deduced with caution and care. 101. Recently, the Court expressed its view on the subject in Hassan Nawaz vs. Muhammad Ayub (PLD 2017 SC 70). The operative passage therefrom is reproduced herein below: “16. Indeed, honesty, integrity, probity and bona fide dealings of a returned candidate are matters of public interest because these standards of rectitude and propriety are made the touchstones in the constitutional qualifications of legislators laid down in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan... . 17. … Therefore, the only conclusion that can be drawn from arguments rendered by the learned counsel for the appellant is that the property owned by the appellant from which he regularly derives substantial income is disclosed and declared with his knowledge in the income tax returns of a private limited company owned by the appellant and his family. This plea is totally irrelevant, facile and meritless to rebut the allegation under Section 78(3) ROPA regarding the false statement with respect to the concealment of ownership of urban commercial property by the appellant. Further more, it is apparent that the disguised ownership of the said properties is aimed at avoiding the personal scrutiny and accountability of the appellant under the Income Tax Ordinance, 2001. At the level of income derived by the appellant that process also requires the disclosure of wealth of an assessee and a reconciliation of his total means and total expenditures. The statement of assets and liabilities made by the appellant in his nomination papers is, therefore, intentional and not a bona fide or an innocuous omission made without design or purpose. It does not exonerate the appellant.” [emphasis added] 102. The element of dishonesty as an essential element of disqualification under Article 62(1)(f) of the Constitution has found Const.P.35 of 2016 117 recognition by earlier judgments of this Court. Reference is made to Mehmood Akhtar Naqvi vs. Federation of Pakistan (PLD 2012 SC 1089), wherein it has been observed that: “22. … A person who indulges into unfair means in procuring his educational qualifications and is also found guilty by the Disciplinary Committee, which is the only authority competent to inquire into the matters of such allegations against candidates appearing in the examination of the said University, does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members of National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by [the] competent authority are allowed to be given any entry into the doors of National or Provincial Assemblies [of] our country. The respondent No.1 not only is found guilty of a dishonest or cheatful involvement into the use of unfair means in procuring his B.A./degree/results from the University of Punjab but also made deliberately false statement before this Tribunal as well when P.W.1 was suggested that he was admittedly not holder of the B.A. degree from the University of the Punjab whereas in his written statement Exh.P12, the respondent where he was respondent No.4 in the said writ petition categorically took up the plea and claimed to be holder of a valid B.A. degree from the University of the Punjab. He is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be incharge of the Const.P.35 of 2016 118 National Exchequer (Exchequer) or be eligible to represent the people of Pakistan.” [emphasis supplied] To the same effect are observations made in Iftikhar Ahmad Khan Bar vs. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817): “14. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation ... posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating --- cheating not only his own constituents but the nation at large.” 103. The insistence by learned counsel for the petitioner that any error or omission in the declaration of assets by a candidate for election or a legislator incurs his disqualification under Article 62(1)(f) of the Constitution posits a wide proposition of law. If at all, this may have limited relevance where the context involves corruption or money laundering in state office, misappropriation of public property or public funds, accumulation of assets beyond known means or abuse of public office or authority for private gain. These allegations are not germane to the present case. There is no involvement here of public property or funds, abuse of public office and authority, corruption or breach of fiduciary duty. Consequently, the argument of the learned counsel for the petitioner on this score fails. Const.P.35 of 2016 119 Evidentiary objections by the petitioner: 104. The learned counsel for the petitioner has earnestly voiced his concern about the latitude which this Court has permitted the Respondent to file documents to explain his position regarding allegations, or otherwise insinuations that have been cast upon him by the petitioner during the course of these proceedings. The learned counsel for the petitioner has relied upon the procedural and evidentiary laws of the country that impose limits and checks upon the freedom of a litigant party to produce documents in Court. These rules are meant to prevent gaps and lacunae in a case being filled belatedly with fake or fabricated material. Such a course would be in abuse of the process of Court or in any event would prolong the proceedings impeding final resolution. 105. In the ordinary course of judicial proceedings, the reservation expressed by the learned counsel may have relevance and force. However, the proceedings under Article 184(3) of the Constitution are unique in the sense that these are inquisitorial in nature and are meant to safeguard and promote constitutional rights of the people. These proceedings are free of technical constraints imposed by the procedural and evidentiary laws of the country. Reference is made to the following instructive observations made in General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra vs. Director Industries and Mineral Development Punjab (1994 SCMR 2061 at page 2071): “5. … It is well-settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into questions of fact as well independently by recording Const.P.35 of 2016 120 evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline for exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should be in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case.” 106. However, it may be added that limits are imposed by constitutional guarantees of due process, fair trial and non-discriminatory treatment embedded in the fundamental rights. Indeed the quest to protect the fundamental rights of the people of Pakistan under Article 184(3) of the Constitution cannot be pursued by defeating the fundamental rights of a Respondent before this Court. Having already noticed that Article 184(3) proceedings are inquisitorial, it may further be observed that in order to resolve the controversy before it, the Court is empowered to ask for relevant and reliable evidence from the parties to the lis or from third persons irrespective of whether such evidence is otherwise withheld by them. 106. The whole process entails queries being posed by the Court and directions being issued to persons to produce evidence on record that is relevant to the matters under scrutiny. The queries or directions emanating from the Court may travel beyond the pleas set out in the pleadings of the parties because their answers are necessary to resolve a controversy pending before the Court. Therefore, such queries and directions cannot always be anticipated by the persons who are asked to provide evidence or information. It is this feature of the inquisitorial jurisdiction under Article Const.P.35 of 2016 121 184(3) of the Constitution that justifies considerable indulgence representing a fair and generous opportunity being granted to a party or person to answer a query or comply a direction that was otherwise unexpected or for which it was unprepared. 107. It cannot be disputed by the parties before us that owing to the public interest attributes of the present matter, this Court has made searching enquiries from the Respondent about important issues that had not been specifically raised in the challenge thrown by the petitioner. In this behalf, for instance, a probe into the means of the Respondent to acquire the London flat which was not disputed by the petitioner was undertaken by the Court. It was done in effect to assess whether there was any taint of money laundering or other illegality in the said acquisition causing the Respondent to avoid declaration of the London flat in his income and wealth tax returns filed in Pakistan for nearly two decades until the year 2000 under the Amnesty Scheme. Whereas, the petitioner’s allegation against the Respondent was limited to non-declaration of the London flat; the allegation of money laundering or commission of other illegality for acquisition of that asset was never part of the petitioner’s case. Since a new dimension of the case that could undermine the Respondent’s eligibility to hold public office was suo moto introduced by the Court, therefore time was repeatedly granted to the Respondent to collect documents going back 35/40 years to demonstrate the lawful means with which that foreign asset was acquired and also to establish that the assets representing its sale proceeds had been declared to the ECP. In our probe, counsel for the Respondent cooperated willingly and made repeated efforts to produce such documents that ultimately answered our queries. Const.P.35 of 2016 122 108. During the latter part of his arguments, an objection was raised by the learned counsel for the petitioner with respect to the Respondent’s participation in the 1997 general election allegedly by concealing his London flat in his nomination papers. This plea is not contained in his pleadings nor did he produce any evidence in support thereof. At best learned counsel voiced his suspicion about the disclosures made by the Respondent in his nomination papers filed in 1997, stating that the ECP had denied the availability of that nomination paper in its record, an oral request was made for the Court to order its production. Considering the unsubstantiated and belated plea taken, the Court did not grant indulgence on the oral request. The petitioner was merely speculating without certainty and with conjecture. The document in issue is twenty years old which the ECP statedly no longer had in its record. The nomination paper had been accepted without objection but the Respondent had lost the election. The matter was a past and closed transaction. The objection was raised as an afterthought and amounted to a random fishing enquiry. Therefore, the inquisitorial jurisdiction of the Court was declined on grounds having reference to relevance, reason and fairness. 109. As a background to the Court’s proactive and incisive approach are the settled principle of Qanun-e-Shahadat Order, 1984 that the Court is entitled to draw an adverse presumption [under Article 129(g) and Article 143(4)] when the best evidence is not produced by a party and an adverse inference when an answer on a point in issue is withheld by a witness [Article 122 and Article 143(2)]. Also, since disqualification under Article 62 of the Constitution or Section 99(1) does not involve a criminal offence, therefore, the protection against self incrimination under Article 13 of the Constitution is not available in the present proceedings. Consequently, Const.P.35 of 2016 123 the Court pressed for accurate documentary disclosures mostly from the records of foreign entities some of which had ceased to exist like Barclays UK Private Banking, having been acquired by ZEDRA. In these circumstances involving disclosure of foreign record that was decades old, it would have been grossly unfair if unanswered queries of this Court were used as traps against a party that failed to respond swiftly. Therefore, in order to ensure the fairness of our proceedings, the Court cautioned the parties on both sides about the adverse presumptions, inferences and deductions that were likely be drawn on account of their failure to produce relevant and cogent evidence on the points raised and particularly to cover the deficiencies or weaknesses in their availed pleas that had been taken before the Court. This included reference to the Court’s power of compelling an answer under Article 15 of the QSO. The Respondent reacted positively by placing further material on record to exonerate and protect himself from any adverse presumption, inference or deduction being drawn by the Court. Accommodation in terms of time and opportunity granted to the Respondent by the Court cannot, therefore, be faulted on technical rules of pleadings, procedure or evidence. 110. The ultimate object of our proceedings is to arrive at the truth and thereby to make a fair and meritorious resolution of the questions under adjudication. Our proceedings are free from the restraints otherwise imposed by law on the conduct of a trial by a Court in adversarial proceedings. The above view does not, insofar as reception of evidence is concerned, allow anything or everything produced by a party before the Court to be accorded credence and probity without checks by the Court. The admissibility and reliability of the evidence produced by a party must however undergo further scrutiny on the basis of fair criteria to assess the truth, coherence and credibility of such material. Accordingly, the material that we have believed, Const.P.35 of 2016 124 notwithstanding the fact that largely it did not comprise of original documents, is their contemporaneity with the events under scrutiny, the consistency and corroboration of the contents of such documents with the events or transactions to be proved and the custodial propriety from which such documents emanate. Most, if not all, documents produced by the Respondent have originated from a reliable source and invariably one with a living witness, be it the Respondent’s ex-wife Ms. Jemima Khan, his English accountant Tahir Nawaz or banking friend in Pakistan Mr. Rashid Ali Khan. In respect of each piece of evidence that the Court believed, the identity and credibility of the person through whom such material was produced; the credibility of the keeper of such documents; the consistency of the contents of such documents with the surrounding circumstances, contemporaneous events and persons was scrutinized before granting admissibility and making reliance. 111. Having said so, it cannot be overlooked that our proceedings are not a trial. Whereas in a case involving disqualification from elective office, the petitioner shoulders the burden of bringing positive and affirmative evidence that would condemn the Respondent to disqualification; however, the same standard of proof does not rest on an elected public officer, namely, the Respondent to make out his defence. He has to present a, prima facie, arguable defence about the disclosure of his assets. Arithmetical accuracy in reconciling amounts and events is not required in such a case of misdeclaration of assets. Only a coherent account of the sources of funds, their application and movement should be shown by reference to consistent and reliable evidence, even though it may suffer from gaps so long as the Court is satisfied that the account is not patchy, Const.P.35 of 2016 125 inconsistent or unreliable. That burden has been fully discharged by the Respondent before us. Objection re: maintainability of these petitions: 112. Certain scepticism surrounded the maintainability of these petitions; in particular, because our indulgence now may encourage challenges by all and sundry to the qualification of the legislators who hold public office. It deserves reiteration that this petition has not been heard and adjudicated because of the consent given by the Respondent to be accountable before the Court. This petition has been heard primarily because an international upheaval followed the disclosure of the Panama Papers in April, 2016. Several leading political personalities including the heads of government, most notably, in Europe and Asia stood exposed for directly or indirectly owning foreign undeclared assets through offshore trusts and/or companies established in tax haven jurisdictions of the world. These revelations implicated amongst others, the person and family of our former Prime Minister, Mian Muhammad Nawaz Sharif. The public outrage that followed in Pakistan was spearheaded by the Respondent before us. The momentum thereby generated embraced our Parliament which unsuccessfully attempted the formation of an Enquiry Commission into the allegation against the former Prime Minister; thereby landing a petition filed by the Respondent and against the Prime Minister and his family in the lap of the Court in the middle of the year 2016. The present petitioner filed the instant challenge shortly afterwards against the Respondent who was principal accuser and detractor against the former Prime Minister of Pakistan. Ultimately by a judgment of this Court given in Constitution Petition No.29 of 2016 the said former Prime Minister was disqualified from holding the office of Member National Assembly on account of concealing Const.P.35 of 2016 126 his foreign offshore assets. This petition which is based on the same genre of allegations, namely, concealment of ownership of foreign undeclared assets contrary to the election laws of the country, came up before us separately for hearing. The foregoing background of the case mandates that the Respondent as a public office holder should withstand the same rigour and test of scrutiny and accountability that he caused in the parallel proceedings on the same type of allegations. 113. Considering applicable legal criteria, it is a fundamental right of people of Pakistan that its public representatives discharge their offices in public interest and not for their personal gain. Such public officers are fiduciaries discharging a trust vested in them by the people of Pakistan for which office the attributes, inter alia, of probity, honesty, integrity and trustworthiness are constitutional requirements. The fulfillment of these conditions by the decision makers in Parliament and in government is essential for the existence and progress of a democratic and law based order in the polity which is a basic feature of our Constitution. Accordingly, to examine whether foreign assets were indeed owned by the Respondent that had been concealed in his declaration made before the ECP and whether any duty under law has been breached on account of or in relation to such assets, this Court on the touchstone that resort to undeclared offshore companies and trusts to conceal or shroud assets owned by public representatives cannot be allowed; and therefore unless it is established that such assets were acquired through lawful and bona fide means and have been declared in material particulars, the beneficial interest holders of such assets cannot remain qualified to hold legislative public offices. It is crucial at this stage to emphasize that we have expended time and efforts in our original jurisdiction for the sake of public interest in the circumstances of the public Const.P.35 of 2016 127 outcry against corruption that arose as a result of the Panama Papers’ leak. Otherwise, the appropriate forum in a case of such nature calling for the disqualification of an elected legislator is either the Election Tribunal or where there are established or admitted facts indicating disqualification, then before the learned High Courts of the country in their constitutional jurisdiction. Conclusion: 114. Having considered the evidence brought on record, the applicable law and the reasons given above leads us to the following conclusion: Firstly: The allegation that the PTI is a foreign aided political party can under Article 15 of the PPO be leveled only by the Federal Government for its validation on a reference made to this Court. The petitioner has no locus standi in this behalf. Whether the PTI has received political contributions and donations from sources that are prohibited under the provisions of Article 6(3) of the PPO is a matter, which for the reasons given in our opinion, is referred for determination in accordance with law by the ECP in exercise of jurisdiction conferred by the PPO and the Rules framed thereunder; Secondly It is the duty of the ECP to scrutinize accounts of political parties on the touchstone of Article 6(3) of the PPO read in the light of Article 17(3) of the Constitution. In this behalf, the ECP must act transparently, fairly and justly, without discrimination among different political parties seeking election symbols to contest the elections to the Constitutional Legislatures of Pakistan. For Const.P.35 of 2016 128 undertaking such scrutiny, it shall be reasonable for the ECP to examine the accounts of a political party within five years of the objected accounts of that party having been published in the official gazette; Thirdly: The alleged falsity of the certificates issued by the Respondent under Article 13(2) of the PPO is a secondary fact, ascertainable by a competent Court of law after the ECP gives its findings whether any prohibited funding has been received and collected by the PTI in terms of Article 6(3) of the PPO; Fourthly: We find that M/s NSL was established as a corporate vehicle for the legal ownership of the London flat, of which the Respondent was the beneficial owner. The Respondent was neither a shareholder nor a director of NSL which had a paid up capital of £9/- and the London flat as its sole asset. This asset held by NSL was declared by the Respondent under an Amnesty Scheme granted pursuant to Section 59D of the Income Tax Ordinance, 1979 therefore, the Respondent was under no legal obligation to disclose the corporate vehicle NSL as an asset either in his income tax returns or his statement of assets and liabilities filed with the ECP alongwith his nomination papers or in his annual returns filed under Section 42A of the ROPA; Fifthly: We find that the purchase price of Rs.43.5 million of the Banigala property was paid to the extent of Rs.7.3 million by the Respondent and the balance amount of Rs.36.2 million were paid with amounts converted from foreign currency remittances made by Ms. Const.P.35 of 2016 129 Jemima Khan, the ex-wife of the Respondent; Sixthly: We find that during the period 8.4.2002 until 22.1.2003 Ms. Jemima Khan provided a total amount of US$665,340/- (equivalent to UK£417,901/- according to the exchange rate prevalent on 7.5.2003) towards the purchase of the Banigala property. The Respondent repaid on 7.5.2003 an amount of UK£562,415.54 to Ms. Jemima Khan from the sale proceeds of his London flat in order to settle the funding temporarily provided by her; Seventhly: The Banigala property is owned by the Respondent after it was orally gifted to him by his ex-wife Ms. Jemima Khan vide gift mutation No.10696 dated 29.10.2005 after their divorce became effective in June, 2004. Prior to that, the Banigala property had been purchased by the Respondent as a family home for his wife and children for which the financial provision extended by his wife was more than reimbursed by the Respondent on 07.05.2003; Eighthly: We find that the Respondent has declared his advance payment made to 1-Constitution Avenue Tower, Islamabad in his statement of assets and liabilities filed with his income tax return in the tax year 2014. In the following year, the Respondent was allotted the flat and declared the same both in his assets and liabilities statement filed with his income tax return for the tax year 2015 as well as his annual return under Section 42A of the ROPA filed with the ECP in 2015. Therefore, we hold that no misdeclaration of assets was committed by the Const.P.35 of 2016 130 Respondent in relation to the said property in his annual return filed with the ECP in the year 2014. There is no dishonesty in the omission made by him. As a result of foregoing findings, there is no merit in this petition which is accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 15.12.2017 at Islamabad CHIEF JUSTICE APPROVED FOR REPORTING. Const.P.35 of 2016 131 Faisal Arab J.- I have had the privilege to go through the proposed judgment given by the Hon’ble Chief Justice and am in respectful agreement with the same except I wish to add my own opinion on the scope of the term ‘honest’ contained in Article 62(1)(f) of the Constitution. 2. One of the grounds on which respondent No.1’s disqualification from the membership of the National Assembly is being sought is his failure to disclose the ownership of Niazi Services Limited (NSL), an offshore company, in his nomination forms filed in 2002 and 2013 general elections and a residential flat in Grand Hyatt building, Islamabad in his yearly statement of assets and liabilities filed in 2014 with the Election Commission and thereby failing the test of honesty as envisaged under Article 62 (1) (f) of the Constitution. Before deciding the question whether non-disclosure of assets, as required under Sections 12 (2) (f) and 42A of (RoPA) amounts to dishonesty without any distinction, it would be appropriate to briefly discuss relevant facts of the controversy. 3. Taking the issue of non-disclosure of NSL in the statement of assets and liabilities, the documents filed by the petitioner show that respondent No.1 did not hold a single share in the said company. He only hired services of companies that act as trustees and hold assets in trust for the benefit of the real owner. For such purpose the trustees at the instance of the real owner form a company and become its shareholders and this company then holds the asset in its name in trust for the real owner. Hence at the instance of respondent No.1 a company by the name of NSL was incorporated in the Channel Island whose shareholders were three Const.P.35 of 2016 132 trust companies. After its incorporation respondent No.1 purchased a one-bedroom flat in London in the year 1983 in the name of NSL. This was done primarily to derive tax benefits such as to avoid capital gains tax upon its sale under the laws of England prevalent at that time. For rendering their services as trustees and to keep the company operational, the shareholders of NSL charged periodical fees from respondent No.1. The respondent being the real owner had the exclusive right to use, occupy, rent out and sell it whenever he so wished without prior approval of the shareholders of NSL. Hence, they were legally bound to convey the London flat in the name of the new purchaser, which they eventually did in the year 2003. It can very well be imagined that being the ostensible owner of the London flat, NSL could legally be sued with regard to any matter connected therewith, therefore, the only right which NSL had over the London flat was to seek discharge of all claims to which the shareholders of NSL may become liable against the London flat. This obligation of respondent No.1 was in addition to the periodical charges and fees which he was required to pay to the shareholders of NSL for holding his asset in trust and to keep NSL operational under the laws of Jersey Channel Islands. Neither NSL held any proprietary interest in the London flat nor did respondent No.1 possess any proprietary interest in NSL, so it was the London flat and not NSL of which respondent No.1 was the real owner, hence he was only obligated to disclose the London flat as his asset, which he did in his nomination form that was filed in the 2002 general elections. 4. In 1983, when respondent No.1 entrusted the London flat to the shareholders of NSL to hold it in trust for him, respondent No.1’s ambitions to enter politics were nowhere in sight. He formed Const.P.35 of 2016 133 his political party much later in the year 1997. No doubt even after the sale of the London flat in April, 2003, NSL remained operational for several more years, primarily on account of some litigation with the ex-tenant of the London flat, but it is hard to imagine that respondent No.1, way back in 1983 intended to park ill-gotten gains in NSL when he totally remained engaged in his cricketing career. It is quite visible from the record that right from 1971 to 1992, the respondent No.1 was a fulltime renowned professional cricketer of the cricketing world. He purchased a one bed-room London flat in December, 1983 for GBP117,500/- in the name of NSL for the purposes of availing tax exemptions, which was held in trust for him. The price for the purchase of London flat was paid along-with interest accrued on mortgage money over a period of six years starting from December, 1983 and ending in December, 1989. It is nobody’s case that throughout his cricketing career spanning over a period of 21 years, he held public office, so any amount that went into NSL was respondent No.1’s income earned either from playing cricket or rental earnings and proceeds of sale from the London flat, nothing else. Respondent No.1 for the very first time became the member of the National Assembly through general elections held in the year 2002. It may be mentioned here that in the 2013 general elections respondent No.1’s party formed a government in the province of Khyber Pakhtunkhwa but NSL was allowed to dissolve statutorily on account of non filing of annual return for the year 2014. Those who come into power with the intention to indulge in financial corruption would want such off-shore companies to remain operational in order to secretively park their ill-gotten wealth. In the present case the offshore company was not incorporated to park assets acquired from wealth accumulated through embezzlement or bribery or through tax Const.P.35 of 2016 134 evasion to keep it hidden from public eye. It is a case of acquisition of an asset from legitimate tax paid income earned abroad and that too at a time when respondent No.1 was a non-resident Pakistani holding no public office cannot be perceived with the same suspicion. 5. Much reliance was placed on the case of Imran Ahmed Khan Niazi Vs Mian Muhammad Nawaz Sharif (PLD 2017 SC 265) popularly known as Panama Case in order to draw parity between the two cases. The factual controversy in that case is drastically different from the facts of the present case. In that case serious allegations of money laundering, corruption and possession of assets beyond known means were made against Mian Muhammad Nawaz Sharif after he held public office. In fact he held high public offices several times in the past thirty years in his capacity as Finance Minister, Chief Minister and Prime Minister. It was observed in that case that for such a person, honesty, transparency, clean reputation and unquestionable integrity and financial probity were necessary in order to clear his position. The sources of acquiring several assets were not satisfactorily explained by him and his family members, which included purchase of four flats in London, setting up of Azizia Steel Factory in Saudi Arabia, Gulf Steel Mills in Dubai and receiving Rs.840 million on regular basis over a period of four years from 2011 to 2015 as gifts from an entity called Hill Metals established in Jeddah by Mian Muhammad Nawaz Sharif’s son. None of these assets were acquired prior to his holding of high public offices. There was either total or very little explanation as to how these assets were built, who its shareholders are, what the source of funds was and how funds were generated and routed. Then there was a company located in Jebel Ali Free Zone, United Arab Emirates in the name and Const.P.35 of 2016 135 style of Capital FZE of which Mian Muhammad Nawaz Sharif was chairman with a monthly salary of 10,000 UAE Darhams, through which certain funds were also routed. This company remained operational from 2003 to 2014. The existence of Capital FZE came to light in the report of the Joint Investigation Team, which was not disclosed by the accused but when confronted with this fact, he admitted his entitlement to the salary but took the stance that he did not draw it from his accounts. This Court held that such a stance stood belied by the Wage Protection System in operation under Jebel Ali Free Zone Rules, which requires payment of salaries into the accounts of all the employees electronically. Considering the high public office which Mian Muhammad Nawaz Sharif held over the years, accumulation of his monthly salaries from Capital FZE was considered as concealment of an asset which led this Court in the Panama case to hold that it was a dishonest act on his part, falling within the ambit of Section 99 (1) (f) of RoPA read with Article 62 (1) (f) of the Constitution. Under the income tax law, salary income falling in a particular tax year has to be treated as income of that year and if taxable is liable to be assessed in that tax year. No one can avoid tax liability on his salary income accrued in a particular tax year on the ground that he has not yet collected it from his employer. So tax liability on a salary income accrued in a particular tax year if not collected voluntarily by an employee would still be liable to tax and has to be treated as an asset of the employee generated in that particular year and correspondingly it becomes the liability of the employer in the same tax year. Therefore not to collect either whole or any part of it from the employer in a tax year in which it accrued is of no legal consequence. Non-disclosure of unspent salary income which had been accumulating for a period of time was treated as Const.P.35 of 2016 136 concealment of asset in the Panama case. In the present case, ownership of London flat was disclosed by respondent No. 1 in his nomination form filed in 2002 general elections. 6. It is however an admitted position that after giving up his non-resident status respondent No.1 did not declare the London flat in his income tax returns until the year 2000. The declaration came when respondent No.1 availed the benefit of an amnesty scheme launched in the year 2000 under the Tax Amnesty Scheme, 2000. This scheme was launched on the strength of the provisions of Section 59 (d) of the Income Tax Ordinance, 1979. Respondent No.1 paid the requisite tax i.e. Rs. 240,000/- being 10% of the purchase price of the London flat and obtained complete discharge from the tax authorities. In terms of paragraph 8 (1) of the Tax Amnesty Scheme, 2000, once the undisclosed income was declared and the requisite tax paid, the person making the declaration was not liable for any further tax, charge, levy, penalty or prosecution in respect of such income under the Income Tax Ordinance, 1979. In terms of paragraph 8 (2) of the Amnesty Scheme, any asset declared in accordance with the Tax Amnesty Scheme, 2000 also stood exempt from wealth tax under the prevalent Wealth Tax Act, 1963. What has come on record is that the only asset which NSL held in its name in trust for respondent No. 1 was the London flat. After securing full discharge from income tax and wealth tax liability under the amnesty scheme, the respondent No.1 listed the London flat as one of his assets in his nomination form filed in the general elections held in October, 2002. It may be mentioned here that the London flat was not something purchased from hidden, undisclosed, tax evaded income but was purchased from tax-paid clean income earned from Const.P.35 of 2016 137 playing years of professional cricket abroad. So it was not a case of taking advantage of the amnesty scheme in order to convert black money into white. In any case, with the declaration of the London flat and the payment of requisite tax under the amnesty scheme, the cause of action for its non-disclosure under the tax laws of Pakistan also died with it. 7. As to the issue of non-disclosure of respondent No.1’s residential apartment in Grand Hyatt Islamabad in his yearly statement of assets and liabilities, the factual position that emerged on record is that the apartment was booked in a building which was under construction against which an advance payment of Rs.2,970,000/- was made during the income year 2013-14 which was declared in the tax year 2014 after which further installment of Rs.3,000,000/- was paid in the tax year 2015, which is also reflected in the income tax returns. The occasion to make full payment and get the apartment transferred in his name had not yet arrived as the construction of the building had not been completed at the time. As long as a seller does not transfer the property in the name of the buyer, the property remains the asset of the former and all obligations attached with it such as municipal rates and taxes are of the seller and not of the buyer. This leads to the conclusion that as the title in the apartment located in an under construction building was yet to vest in the respondent, he was not liable to disclose it in his statement of assets and liabilities in the year 2014 or for that matter in 2015 with the Election Commission of Pakistan. 8. It is established from the record that the London flat upon its sale ultimately became the source of finance for the Const.P.35 of 2016 138 purchase of 300 Kanals of land in Banigala, Islamabad which was purchased for a total sale consideration of Rs. 43,500,000/-. The respondent No.1 claims that Banigala land was initially intended to be purchased from the sale proceeds of the London flat but as its sale could not be finalized at that time he paid Rs.6,500,000/- and borrowed the remaining amount from his the then wife Ms. Jamaima Khan with the understanding to repay her from the sale proceeds of the London flat. As for the receipt of the remaining sale consideration, the documents of banking transactions filed by respondent No.1 reflect that Ms. Jamaima Khan remitted a total sum of USD 634,040/- and GBP 20,000/- both payments in US Dollars amounts to USD 665,040/-. These remittances at the then prevalent conversion rates translate into 39.33 million rupees whereas the total amount towards balance sale consideration was paid to the sellers of Banigala land from the foreign remittances that translate into 37 million rupees. Thus the remittances were more than what was required to be paid to the sellers of Banigala land. The documents produced by respondent No.1 further show that sale of London flat was finalized on 14.04.2003 for GBP 715,000/- and after deducting Estate Agent’s commission and other costs and charges from this amount, the net balance that remained with NSL was GBP 690,307.79. Upon instructions of the respondent No. 1 through a letter dated 18.04.2003, NSL remitted GBP 562,415.54 into Ms. Jamaima Khan’s bank account on 07.05.2003. This remittance which was made in Pound Sterling at the then prevalent conversion rates is equivalent to approximately USD 890,000/- which amount was more than sufficient to cover USD 634,040/- and GBP 20,000/-remitted by Ms. Jamaima Khan. The amount borrowed by respondent No.1 from Ms. Jamaima Khan was eventually repaid to her on 07.05.2003 out of the sale proceeds of the Const.P.35 of 2016 139 London flat. The respondent No.1 has thus amply established that London flat was bought in the year 1983 i.e. about twenty years prior to his becoming a member of the National Assembly and how the proceeds of its sale have been utilized for the purchase of land in Banigala. 9. Under our Constitution, the authority of the State is to be exercised for the welfare of the people through their chosen representatives. To be a member of the National Assembly or a Provincial Assembly is to hold a public office that is a sacred trust. It is therefore highly imperative that the elected members should steer clear of financial corruption. The provisions of Sections 12 (2) (f) or 42A of RoPA are designed to bring the net-worth of all elected members on the record of the Election Commission. This is one of the tools to keep financial corruption in check after members assume charge of their office. The detail of their net-worth distinguishes the assets acquired prior to their becoming members from the assets acquired after assuming the responsibilities of office. Hence the disclosure of all assets is mandatory. Even an innocent omission to declare an asset at the time of filing of the nomination form may result in the rejection of candidate’s nomination under Sections 14 (3) (c) of RoPA. If for any reason that does not happen then after the elections he could be unseated for such an omission by the Election Tribunal through an election petition. It may be clarified that while rejecting the nomination form, dishonesty cannot be attributed for nondisclosure of an asset acquired prior to becoming a Member of Parliament. To attribute dishonesty to a person is to stigmatize his character. Dishonesty has to contain elements of deceitfulness shown in one’s character or behavior. In Collins dictionary, one of the synonyms of Const.P.35 of 2016 140 dishonesty includes ‘corruption’ as well. In a judgment from the foreign jurisdiction in the case of Aguilar vs. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that like bad faith, dishonesty is not simply bad judgment or negligence but is a question of intention. There can be many examples where it can be said that an omission on the face of it is not dishonest. Omission to list an inherited property or the pensionary benefits received by one’s spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be said that a member intentionally concealed its disclosure in order to cover some financial wrongdoing. Suchlike omissions at best could be categorized as bad judgment or negligence but not dishonesty. 10. In our jurisprudence, like in any other, one common penalty is never imposed for all kinds of dishonest acts, what to speak of imposing penalty for a dishonest act as well as for an omission made on account of negligence or bad judgment. Attributing dishonesty to every omission to disclose an asset should not be made a rule set in stone and applied to disqualify a member on the touchstone of Section 99 (1) (f) of RoPA or Article 62 (1) (f) of the Constitution. The courts should not close its eyes to an omission which on the face of it could not be said to be dishonest. It would turn Sections 12 (2) (f) and 42A of RoPA into the sword of Damocles hanging over the heads of the members of the National Assembly and the Provincial Assemblies, embroiling many of them in frivolous litigation even with regard to assets acquired prior to assuming the responsibilities of their office or acquired with clean money. Where an asset is acquired by a member or his spouse or any of his dependents Const.P.35 of 2016 141 after becoming a member and it surfaces through any source, which he has failed to disclose, the member in quo warranto proceedings can be called to explain the means of its acquisition. If he is unable to extend a judicially acceptable explanation, only then such non- disclosure would be regarded as a failure to pass the test of honestly as envisaged under Section 99 (1) (f) of RoPA read with Article 62 (1) (f) of the Constitution. Apart from being declared disqualified from holding his office, the member will also face charges for possessing wealth beyond his known sources of income. Thus concealment of an asset from the public eye that was acquired after entering upon office, for which the member is unable to give a judicially acceptable explanation, is to be treated as an act of concealment with dishonest intentions. This is the difference in attributing dishonesty with regard to an omission to disclose an asset acquired before and after becoming a member of the National or a provincial Assembly. 11. It may be clarified here that dishonesty can be attributed to a member for an act committed prior to his election if he has been so adjudicated by a court of law. This is the mandate of Article 62 (1) (f) of the Constitution which reads ‘A person shall not be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless- …… (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.’ The last phrase of Article 62 (1) (f) is clearly intended to mean that where a member is attributed to be financially corrupt before he has entered the arena to contest election for a seat in the National or Provincial Assembly then the complainant must demonstrate without any ambiguity that such a member has been declared by a court of law to be financially dishonest. Thus the term ‘honest’ contained in Article 62 Const.P.35 of 2016 142 (1) (f) of the Constitution has to be interpreted in a restricted sense keeping the last phrase of Article 62 (1) (f) in mind which states there being no declaration to the contrary by a court of law.’ If the application of these provisions is stretched beyond this, a political opponent in his desire to seek removal of his rival from the political scene would call in question an asset owned by his opponent that was though acquired not only prior to his becoming a member of the National or a Provincial Assembly but even prior to his holding any public office or for that matter any office of trusteeship or in his capacity as custodian of rights of others. Where a member has failed to declare an asset in his nomination form that was acquired prior to his election and there is no adjudication of dishonesty with regard to its acquisition by a competent court of law, the remedy provided under the election laws is to be availed, which only entails rejection of the nomination form simplictor. Once such remedy relating to such category of non-disclosure is availed under the provisions of election laws or the time to avail it has gone by, the same being not a case of disqualification falling within the ambit of Article 62(1) (f) of the Constitution, no more remains a live issue on account of the bar contained in Article 225 of the Constitution. 12. I am, therefore, of the considered opinion that a person’s honesty prior to his becoming a member of the National or a Provincial Assembly can be called in question only if he has accumulated wealth through fraud, embezzlement, bribery or tax evasion and has been so declared by a competent court of law. Insofar as his dishonesty with regard to the assets acquired after becoming a member of the National Assembly or a Provincial Assembly are concerned, the same can be scrutinized by the Court in the proceedings in the nature of quo Const.P.35 of 2016 143 warranto which will determine whether a case for acquisition of assets beyond known sources of income is made out. JUDGE Dated: 15th of December, 2017

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Mian Shakirullah Jan Mr. Justice Saiyed Saeed Ashhad CONSTITUTION PETITION NO. 36 OF 2005. (Conversion of Public Park into a Mini Golf Course) Moulvi Iqbal Haider Petitioner. versus Capital Development Authority etc. Respondents. For the Petitioner : Raja Muhammad Ibrahim Satti, ASC a/w Moulvi Iqbal Haider, Ch. Muhammad Akram, AOR. For respondent No.1 : Malik Muhammad Nawaz, ASC. Rai Muhammad Nawaz Kharral, ASC. Raja Abdul Ghafoor, AOR. For Respondent No. 2 : Mr. Ahmer Bilal Sufi, ASC. a/w Mr. Arshad Ali Chaudhry, AOR. Date of hearing : 07.02.2006. O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – This petition, filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as “the Constitution”], involves the question of public importance with reference to enforcement of fundamental rights, detail whereof, article-wise, has been mentioned in memo of the petition. 2. Petitioner has voiced against leasing out a piece of land, measuring approximately five acres, known as Jubilee Park, situated in Sector F-7, Islamabad by Capital Development Authority [herein after referred to as Const.P.36/2005 2 “CDA”] (respondent No.1), to Shah Sharabeel, owner of Al-Falah Mini Golf (respondent No.2), a Lahore based party, for development/ running a “Mini Golf Course”, as a joint venture, with local and international parties, It is also alleged that the deal between respondent No.1 and 2 shall cause huge loss to the public exchequer. 3. It is spelt out from the memo of petition that a Public Park, situated in Sector F-7, has been allowed to be converted into a Mini Golf Course and the land in this behalf has been leased out in favour of respondent No.2 for a period of 15 years, with extendable period, at the rate of Rs.2.55 million per annum, with increase of 25% in rent after every 5 years. It is also mentioned in lease agreement that the rent will start after twenty months (8+12=20) from the functioning of Mini Golf Course project. It is most important to note that CDA (respondent No.1) had also delegated its powers to respondent No.2 to enter into joint venture and franchise or give licence to local or international parties, food chains etc. Petitioner has alleged that as per the contents of the lease agreement, respondent No.2 has also been authorized to hold promotional functions like golf tournaments, funfair, Basant festival, theoretical activities, without paying any extra charges or rent to the CDA or seeking its prior permission, without caring that such a prime land has actually been reserved for general public park. It is alleged that initially respondent No.2 had deposited Rs.5 lacs with respondent No.1 at the time of signing of lease agreement and has been bound down to pay the amount of rent Rs.2.55 million per annum at the time of starting of the project. The transaction of leasing out five acres land concluded in an obscured manner as before allowing the conversion of the Public Park into the Mini Golf Course no opportunity was given to the Const.P.36/2005 3 general public and other stakeholders to submit their objections. Inasmuch as lease has been granted to respondent No.2 without inviting bids from the general public through newspapers, as such the transaction is unconstitutional and has no legal effect. 4. The petition was admitted on 26th December 2006 by means of following order :-- “Notice to respondents. 2. Learned counsel for the respondent No.2 stated that he needs some time to file documents. The petitioner who appeared in person argued that valuable plot measuring 5 Acres situated in F-7, Islamabad has been given on lease without adopting a transparent procedure. He has further stated that an amenity plot has been given on lease to respondent No. 2 which cannot be converted for commercial activities. According to him respondent No. 2 intends to construct outdoor entertainment park comprising of mini-golf etc, which would be out of reach of the members of the general public because all the activities shall be on commercial basis against the entry fee. In this behalf, it may be noted that this Court in the case of “Mian Fazal Din vs. Lahore Improvement Trust, Lahore and others” (PLD 1969 SC 223) has observed “that the plots in a Housing Scheme for public use cannot be converted for other use”, the relevant para for the convenience therefrom is reproduced herein below: - “---The deprivation of such a facility would, in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an application for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government.” 3. After hearing learned counsel and having gone through the above judgment, we direct that pending decision of the petition, no further construction or other developments or any other commercial activity shall be carried out on the plot. The order be communicated to Inspector General of Police, Islamabad for its enforcement/implementation forthwith. He shall submit report on the next date of hearing in this behalf. Adjourned to a date in office in the month of February, 2006.” Const.P.36/2005 4 5. Petitioner submitted an application for initiating procedings of contempt of Court as allegedly during pendency of the petition, the order passed by this Court reproduced herein above has been, prima facie, violated. Thus separate proceedings by means of order dated 6th February 2006 have been issued which shall be disposed of independently. 6. On behalf of petitioner, it is contended that :--- a) Whenever, a scheme under the Provisions of Section 12 of the Capital Development Authority Ordinance 1960 [herein after referred to as “the Ordinance, 1960”] is prepared by the CDA, immunity plots including the plot for Public Park, playing field, graveyard, and incidental open places, etc. are earmarked separately. b) Under Regulation No.3 of the Islamabad Land Disposal Regulation 1993 [herein after referred to as “the Regulation”] for the purpose of establishing Mini Golf Course on the Public Park, no permission was sought from the Federal Government nor objections were invited in this behalf in accordance with Section 19 read with Section 20 of the Ordinance, 1960. c) The transaction has been made by respondent No.1 with respondent No.2 without any lawful authority and jurisdiction, as such, in this manner the fundamental rights of the general public enshrined in Articles 9 and 26 of the Constitution have been denied. Const.P.36/2005 5 d) In a public park, citizens including children are not required to purchase tickets and once Mini Golf Course is established, the entry of general public would be obstructed in terms of imposing conditions, including purchase of tickets and to enjoy other amusement against payments. e) CDA is committed to provide a Public Park for the residents of Sector F-7, which will be maintained by the authority itself and it cannot be allowed to be converted into a commercial project by the third party, in terms of Article 12(3) of the Regulation. 7. On the other hand learned counsel appearing for respondent No.1 contended that :-- a) CDA being the competent authority has jurisdiction to lease out a property which has been acquired by it for the purpose of establishing public/amusement Park, to ensure entertainment facility to the inhabitants of the area. b) The transaction entered into by respondent No.1 with respondent No.2 is highly transparent as it was concluded after observing all codel formalities including making the same open through publication, allowing to interested parties to participate in bid and as respondent No.2 fulfilled the requisite criteria, therefore, its firm was declared successful bidder. Const.P.36/2005 6 c) Petition is not maintainable under Article 184(3) of the Constitution because no right of petitioner, guaranteed by the Constitution has been violated by respondent No.1. 8. Learned counsel appearing for respondent No.2 argued that:--- i) Respondent No.1 had not converted a Public Park into a commercial activity, except that an amusement Park for the purpose of entertainment, being built up with better facilities to entertain general public including the inhabitants of the area. ii) Lease has been given to respondent No.2 by respondent No.1 after observing all codel formalities, therefore, the same is not liable to be declared illegal as it is the obligation of the Courts to make all efforts to safeguard the official acts of the Government. iii) Respondent No.2, by now, had spent a considerable amount on the development of the Park, therefore, a valuable right has been created in his favour which is not to be interfered. 9. We have heard the parties counsel at length and have also gone through relevant record carefully including the concise statement submitted by CDA. 10. The concise statement filed by CDA proves that:--- i) The site, on which Mini Golf Course is being established, is a Public Park. It has not been developed into regular Park and its typography has remained intact all through. Const.P.36/2005 7 ii) The area of the land leased out to respondent No.2 is about five acres, situated in Markez F-7 and it is separated by a “Nullah” from the constructed and developed portion of Sector F-7. iv) The depth of the site of Mini Golf Course varies at different places from road level and there is a long ditch on this side as well, as such it is an ideal place for Mini Golf Course. 11. It is true that CDA vide publications appeared on 1st and 2nd February 2004 in “Daily Frontier Post” and “Daily Jang”, respectively, issued notices for development of entertainment spots, including Mini Golf Course on its land, to be leased out to provide entertainment, recreation projects and its allied features in Islamabad for its general public and invited proposals for the accomplishment of the project, on terms and conditions noted therein. These publications in newspapers were followed by a second publication appeared in “Daily Jang” and “Daily Dawn” dated 14th August 2004. In this publication technical/financial proposals were invited from interested parties to obtain the project on lease basis. For reference contents of the publication dated 14th August 2004 are reproduced herein below:--- “Development of Entertainment Spots on lease basis (Directorate General Environment) CDA intends to develop Entertainment Spots on the following sites on lease basis : Sr.No. Site Entertainment Activity 1. Jubilee Park F-7 Markaz Mini Golf course 2. Rawal Park Joy Land and other allied recreation 3. I-8/3 &F-9 Park Go carting 4. Hill Park F-6/3 Rock Climbing, paint ball and skating Rink 5. F-6 Markaz Foot Ball Ground Remote Control Car Racing 6. F-7/4 Children Park Fun Games 7. Suitable open spaces Community Sports Grounds i) No heavy Civil Structure will be allowed. ii) Open and soft landscaping will be done. Const.P.36/2005 8 iii) Rides should be environment friendly. iv) Heavy rides will only be allowed in joy land. The interested parties are required to submit their technical / financial proposal on lease basis for development of entertainment spots with layout/design alongwith the names of firms its Legal status, Registration with government / Semi Government Organizations, details of Technical staff, list of works of similar nature executed in past, List of similar works in hand and present status, list of T/P, Financial status, Income tax Registration with certificate with latest renewal and non- litigation certificate. The interested parties/ contractors fulfilling the above requirements should submit their technical /financial proposals for designing and construction of entertainment spots in a sealed cover so as to reach in this office of Directorate General Environment located in Room No.7, Block No.2 Sector G-7/4, latest by 26-08-2004. The undersigned can be contacted during the office hours for any information required. Director General Environment, CDA.” 12. It is most important to note that learned counsel for the CDA was time and again called upon to produce the order of the competent authority, on the basis of which the above noted projects, were launched, but he failed to do so. However, a perusal of summary prepared for the Board dated 22nd April 2005, copy of which is available alongwith the concise statement, filed by CDA, indicates that CDA Board in its meeting held on 15th February 2005 considered the summary (Non Agenda item No.8109/1006/2005-741/BF dated 15th February 2005). A perusal of this admitted document reveals that after making publications on 1st and 2nd February 2004 in “Daily Frontier Post” and “Daily Jang” respectively, some of the parties have given their proposals for development of Entertainment Spots etc. which also include the proposal of M/s Al-Falah Mini Golf, Lahore and its proposals were accepted for the following major terms and conditions:-- “The following major terms and conditions are framed for the agreement and will be made as a part of the lease agreement by the Authority for the lease of the said Jubilee Park which shall be binding on the firm /developer:-- Const.P.36/2005 9 i. 18 holes golf course to be completed within 8 months from the date of lease agreement and possession of the site. ii. Rs.2.55 million (Twenty five lacs and fifty thousand only) annual consolidated rent inclusive of all charges such as sponsorship tools/ signs in the project with 25% increase every five years for the land which is approximately 5.05 acres also known as jubilee park in F-7 Markaz as shown in the survey plan. iii. The title of the land will not be changed and CDA will remain the Sole Owner of the land and the total area of the park will be utilized for the development of the Mini golf course and its allied features keeping it predominantly open. iv. The covered / built up area for indoor services and facilities as office / Administration Block = 100 Sq. Yards, store room = 25 Sq. Yards, toilets = 20 Sq. Yards, ticket + Clubs / Putter booths = 20 Sq. Yards, Juice Bar = 60 Sq. Yards, indoor chai Ghar (Tea House) = 275 Sq. Yards and coffee shop / fast food café = 450 Sq. yards will be up to the maximum aggregate of 950 (Nine Hundred and Fifty) Sq Yards will be allowed. v. Semi Covered areas with all sides open, covered from the sky for table top games, snooker, pool and multiple ground level games /rides for families and children activities & eating Court. will be up to 1500 (Fifteen Hundred) Sq Yards. vi. All remaining area utilized for Mini Golf Course and other open air facilities and allied features will be highly landscaped. vii. No permanent structures/ construction will be allowed in the area so granted to the firm / developer except as mentioned above. viii. The entire area so granted by the Authority will be developed and maintained by the firm / developer at their own cost. ix. The party / firm will submit site specific design and a complete master plan with features of services and allied facilities Const.P.36/2005 10 conforming to international standard of Golf Hole Designs. x. A Bank draft / Pay order, in favour of Directorate Sports & Culture, CDA to an amount of Rs.500,000/- (Rupees five hundred thousand only) will be furnished by the developer as security at the time of signing of the lease agreement. xi. The execution of the lease agreement and the possession of the park will be completed within two weeks from the approval of the Board and execution of construction work will commence within 3 months of the possession. xii. Multiple ground level / bare minimum height rides and other similar sports / entertainment activities are allowed. xiii. The rent will be charged one year after the start of mini golf operations to sustain stability which is the launch/opening of commercial operations. xiv. The lease period for the project is 15 (fifteen) years and is renewable for another term on the satisfactory performance of the developer. The above conditions were subsequently incorporated in the lease agreement dated 5th June 2005. 13. From perusal of publications, appeared initially on 1st and 2nd February 2004 in “Daily Frontier Post” and “Daily Jang” respectively as well as the publication appeared on 14th August 2004 in “Daily Jang” and “Daily Dawn”, it is abundantly clear that no area was earmarked for the purpose of establishing/developing Mini Golf Course at the site of Jubilee Park in Sector F-7. It seems that this device was adopted to keep the interested parties out of competition, except the respondent No.2, who statedly had the experience of running identical project at Lahore. Thus, we are of the opinion that disclosure of the area, on which the Mini Gold Course was to be developed, was necessary in the publication and in this Const.P.36/2005 11 way the interested parties would have given much higher bids then the one, on which CDA had leased out land to respondent No.2 i.e Rs.2.55 million per annum. We were told that admittedly the plot of five acres, leased out to respondent No.2, is situated in most expensive location of Sector F-7 and is situated adjacent to the main road, therefore, it is a prime land being situated in the heart of the Capital. 14. There is yet another important aspect of the case which requires serious consideration namely as per the contents of the publication dated 14th August 2004 in “Daily Dawn” the interested parties were prohibited not to raise heavy civil structure, whereas according to the terms of the lease agreement, construction of the area equal to 950 sq. yards has been allowed to respondent No.2. In this behalf, reference be made to the conditions No.4 & 5, which have been reproduced herein above. So far as condition No.5 is concerned, as per its contents, the provision of an eating place on 1500 sq. yard has also been allowed, meaning thereby that a big space has been allocated for the purpose of selling and catering eatables. 15. What we have understood from above documents is that in the Capital territory, a master plan was prepared at the time of its inception and subsequently under different schemes, different sectors were set up. In this behalf, reference to the preamble and Sections 11 and 12 of the Ordinance, 1960 may be made. In the scheme of a sector, some of the areas have been earmarked as a Public Park to attract general public. According to Article 12(3) of the Regulation, the public parks, playing fields and graveyards are to be developed and maintained by the CDA. Thus the conclusion is that during the classification of the plots, under Article 3 of the Regulation, if a Const.P.36/2005 12 piece of land has been earmarked for the purpose of Public Park, same cannot be leased out and CDA itself is bound to develop the same. 16. There is yet another important provision of law, which prohibits CDA to amend the scheme i.e. Sections 19 and 21. Admittedly, in instant case, in terms of these Sections, neither the permission was sought to convert the Public Park into the Mini Golf Park nor before doing so objections were invited from the general public in terms of Section 21 of the Ordinance, 1960. This Court way back in 1969 in the case of Mian Fazal Din v. Lahore Development Trust, Lahore (PLD 1969 SC 223) has held that “the plots in a Housing Scheme for public use cannot be converted for other use”. Relevant para from this judgment has already been reproduced in the order dated 26th December 2005. Admittedly a Public Park, if is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the Park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It may be noted that liberty of a person, to have access or utilize a right available to him, cannot be taken away by converting such facility into commercial one, for the purpose of extending benefit to a third person, because in instant case considerably a big plot of land, measuring five acres, has been handed over to respondent No.2 at a throughway lease money, causing huge loss to the public exchequer, therefore, tax payers have a right to inquire from CDA as to how a right of life and liberty can be denied to them. As in instant case, above facts are admitted, therefore, no formal evidence is required to prove these facts. Reference in this behalf can be made to Government of Punjab v. Const.P.36/2005 13 Crescent Textile (PLD 2004 SC 108). Relevant para therefrom is reproduced herein below:-- “15. The argument that a number of questions of facts were involved in the case which were required to be decided, therefore, the respondent, writ petitioner should have been directed to seek alternate remedy of filing suit, for evidence to determine disputed questions of facts could not be recorded within the scope of Constitutional Jurisdiction under Article 199 of the Constitution has also no force though there can be no cavil with the general proposition of law as contained in this argument. The only question which was involved in this case was as to the date with reference to which the price of the land is to be determined and charged from the respondent writ petitioner, as such the same could legally be decided in the Constitutional jurisdiction……………….” 17. It has been noted that deal between respondent No.1 and 2 has not been made in a transparent manner, coupled with the fact that the lease of a Public Park has been given for 15 years at the rate of Rs.2.55 million per annum, which shall be paid after about 20 months as according to lease agreement the project is to be completed within eight months and the rent would be due after one year from the date of the functioning of the project with clear delegated authority to the lessee that it can issue licence to the local or international parties for the purpose of providing amusement/ commercial activities, etc. whereas the law, on the other hand, is, as discussed herein above, that such Parks are to be developed or to be maintained by the CDA itself. Essentially, when a party makes investment, may be meager one, it would make money by granting licences, franchise, etc. for which it will enter into agreements with local and international parties and the burden of the same ultimately is to be borne by the general public, in terms of tickets, amusement fee etc. Const.P.36/2005 14 18. It is to be observed that under Section 49 of the Ordinance, 1960 CDA retains powers for the purpose of leasing, selling, exchanging the land etc. vested in it. For the purpose of achieving the object of this Section, from time to time, Rules and Regulations are framed, as it is evident from the contents of Notification dated 18th December 1993 (No.CDAS- 30(2)(NOTI)-Coord 93.) Reference of some of the Regulations, framed thereunder, has already been made herein above. [The Islamabad Land Disposal Regulation 1993]. It is equally important to note that learned counsel for petitioner when called upon to satisfy as to whether in terms of Ordinance 1960, the master plan is available with the CDA, he produced the same but stated that according to its contents Sector wise division of the Capital has not been made. He also explained that in Sector F-7, one public park under discussion was created by means of preparing PC-1, therefore, it may be presumed that the plan submitted alongwith PC-1 must be having separate identification of the Jubilee Park, where the Mini Golf Course is being established. In this behalf he has referred to a copy of the site plan attached with the reply of the CDA to demonstrate that the Jubilee Park is situated in the area of Markaz F-7. He was called upon to produce the original file/documents, including PC-1 as we wanted to ascertain the status of the plot in question for the purpose of examining the proposition that in terms of Section 49 of the Ordinance, 1960, the lease has rightly been executed in favour of respondent No.2 by CDA or not? But despite of our demand, said file was not produced and ultimately Chairman CDA gave a Const.P.36/2005 15 statement in writing expressing disability of the authority to produce the file. The contents, whereof are reproduced herein below for reference :--- “The file of PC-1 of Sector F-7 is presently not available and being traced out. It will be produced before the learned Court as it is found out. Sd/- Chairman CDA.” Non-production of above file persuades us to draw adverse inference against the CDA, necessarily with all consequences. 19. It is quite surprising to note that the CDA though claimed that the transaction of leasing out the Jubilee Park Markaz F-7, is transparent but it had miserably failed to demonstrate the same for the reasons, one of them noted herein above, and the others are being discussed below. It is a matter of record that before inviting proposals for leasing out different open areas for the development of Mini Golf Course, etc. no decision was taken by the Board of CDA, constituted under Section 6 of the Ordinance, 1960. Thus publications, dated 1st and 2nd February 2004, appeared in Daily Frontier Post and Daily Jang, respectively, were without any legal sanctions. It seems that in pursuance of publications, interested parties submitted their proposals and out of them, after short listing, respondent No.2 and M/s Family Entertainment Center were selected. It may be noted that M/s Family Entertainment Center claims itself to be developers, promoters and project manager of Tourist Resorts, Amusement/Theme Parks, Miniature Golf, Water Play Amenities, Attractions Developments and is acting as a consultant/ collaborator in developing the required Golf Course on behalf of a company known as M/s LOMMA Enterprises Incorporation of Scranton, Pennsylvania, USA through its CEO Mr. Adnan Hameed, and respondent No.2 i.e. Al-Falah Mini Golf were pre-qualified to participate in Const.P.36/2005 16 the bid. Later on, in pursuance of the publication appeared in newspapers i.e. Daily Jang and Daily DAWN, on 14th August 2004 they were called upon to submit their tenders for acquiring the land on lease to develop the Mini Golf Course. 20. At this juncture, to unfold the mala fides on the part of respondent No.1 i.e. CDA, it is to be noted that in the publication, neither specification of the area of Jubilee Park Markaz F-7 was mentioned, on which Mini Golf Course was to be developed nor the period for which the lease was intended to be given. Inasmuch as, it was not disclosed in the publication that what is the reserved lease money fixed by the CDA because in absence of such information, the genuine bidder could not offer bid accurately except those bidders who have the blessings of the authority competent to accommodate any one of them out of way. It is also important to be kept in mind that volume of the lease money depends upon the area of the land, as we are of the opinion that if CDA had disclosed in publication that an area of 5.05 acres is available for the purpose of development of Mini Golf Course, there was every possibility of fetching much higher lease money, than one, on which it has been given to respondent No.2. We are told that the plot is situated in the commercial area of Markaz F-7, where the prices of the property are extremely on a high side but with ulterior intentions, this important information was concealed. 21. Be that as it may, out of both the pre-qualified interested parties, M/s Family Entertainment Center offered 2.5 million (Rs.25 lacs) per annum for the subject matter, whereas respondent No.2 offered Rs.6 lacs per annum rent for the subject matter for a period of at least 15 years, with 25% increase on every three years. It is stated that the CDA evaluated both the Const.P.36/2005 17 offers and rejected the one quoted by M/s Family Entertainment Center, as it has failed to secure requisite points as obtained by respondent No.2, as such respondent No.2 was called upon to increase/match the bid up to Rs.2.5 million. However, the report of evaluation committed is not available to ascertain as to whether it was carried out independently or otherwise. Thus it is held that in such like situation, CDA if at all was interested to lease out the Public Park, instead of developing the same, may have invited fresh proposals instead of calling upon respondent No.2 to enhance the lease money because in granting contracts for the purpose of fetching money to support the public exchequer, the competent authority had an obligation to adopt such devices on the basis of which more money could be procured as it has been held in Captain-PQ Chemical Industries (Pvt) Ltd. v. A.W. Brothers (2004 SCMR 1956). CDA seems to be interested to grant lease of Jubilee Park to respondent No.2, as it is evident from preceding narration of facts. The negotiation with respondent No.2 culminated in its success because of its agreeing to match the bid to the extent of Rs.2.5 million, which was however, subject to extending him extra ordinary benefit in formulating the conditions of agreement, two of them are most important, which may be referred to from the conditions reproduced herein above i.e. being No.4 & 5, which, later on, became part of the lease agreement dated 4th June 2005 as conditions No.14 and 15. These concessions were allowed to respondent No.2 contrary to the restriction imposed in the advertisement published on 14th August 2004 namely, no heavy civil structure will be allowed, open and soft landscaping will be done, whereas contrary to it, respondent No.2 has been allowed to construct area of 1000 sq. yards besides 1500 sq. yards for family and Const.P.36/2005 18 children activities and eating court, which is impossible unless a concrete flooring is made. It is also to be seen that nothing was mentioned in the publication in respect of concession expected to be available to successful bidders in terms of period of lease, the area, as it has been pointed out herein above, the period of completion of project and commencing date for the purpose of making payment of lease money i.e. after a period of about 20 months, etc. 22. It is an unfortunate aspect of the case that prime land situated in one of the most posh area of the capital city has been leased out in a most opaque manner, causing colossal loss to the public exchequer for which CDA had no authority, as discussed above. It is also to be noted that 2nd contesting party i.e. M/s LOMMA Enterprises Incorporation through its CEO Mr. Adnan Hameed i.e. M/s Family Entertainment Center, challenged the approval of the bid in favour of respondent No.2 before the High Court by way of filing Writ Petition. Written reply of the same was also submitted by respondent No.1. In that Writ Petition very serious allegations were leveled, which though were repudiated but subsequently, writ petition was got dismissed in absentia, reasons known to the writ petitioners as well as to respondent No.1 because on the date of dismissal of writ petition, CDA also opted not to appear in the Court, therefore, for such reason no favourable inference can be drawn in respect of conduct of respondent No.1 during the proceedings. 23. Thus, in view of above discussion, it is held that the mala fides of respondent No.1 in concluding the transaction with respondent No.2 are abundantly apparent on record. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorash Kashmiri Const.P.36/2005 19 (PLD 1969 SC 14) has held that mala fide is to be proved on record. This view has been reiterated by this Court in the case of Ahmad Hassan v. Government of Punjab (2005 SCMR 186). Therefore, applying the test laid down in these judgments on the facts of the present case, we are inclined to hold that in view of the admitted facts on record, mala fides on the part of respondent No.1 in granting lease to respondent No.2 are apparent, thus, the lease agreement dated 4th June 2005 is not transparent. 24. Learned counsel for respondent No.2 however, persuaded to convince us that as status of the Public Park has not been changed, therefore, provisions of Regulation No.12(3) of the Regulation would not be attracted. To substantiate his plea, he made reference from the books written by Architects with regard to explain the idea of planning and development of the Islamabad. One of the para from the said book compiled by CDA, Government of Pakistan i.e. Communities & Housing, composed by DOXIADIS Associates, Consulting Engineers is reproduced herein below for convenience :--- “305. The second and third categories of open spaces, that is the public playgrounds, playing-fields, parks and public gardens, have to be reckoned together as this stage, since it is as yet too early to define exactly how much will go for playing-fields and how much for green spaces. These spaces are usually planned together in broader areas, and only after detailed planning is a decision taken in each case as to exactly how much will go for playgrounds an dhow much for gardens and parks. It has to be borne in mind that all these are general averages, since the need for parks, gardens and playgrounds differs enormously from area to area, and from one social, professional or income group to another. For example, high income groups, which have their private gardens, do not need public gardens and parks as such as the low income groups, which are deprived of the Const.P.36/2005 20 benefit of having their own private garden. On the contrary, higher income groups may need playing-fields requiring more space, like tennis, playgrounds, etc. which the lower income groups may not need to the same extent.” A perusal of above para is sufficient to hold that the Jubilee Park of Public Park is meant for the use of general public, majority of which i.e. more than 90% is living in the vicinity. Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts. As per the socio-financial status of the citizens of Pakistan, majority of public is not in a position to afford luxury of joining Mini Golf Course alongwith children, subject to payment of tickets etc. 25. Learned counsel stated that the right of entertainment can only be made available subject to law as it is defined in Section 2(d) of the West Pakistan Entertainment Act, 1958. There is no cavil with his this argument but subject to the condition that if the arrangements of providing such entertainment to the citizens is made in transparent manner by an authority in exercise of lawful jurisdiction which lacks in instant case as discussed above. 26. Learned counsel emphasized that it` is the obligation of this Court to safeguard the acts of the Government. To support his arguments, he referred to Lahore Improvement Trust v. Custodian of Evacuee Property (PLD 1971 SC 811). In above judgment it has been held that “before an order passed by a public authority is struck down, it is the duty of the court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has Const.P.36/2005 21 been passed. We subscribe to the principle laid down in this judgment but it is to be seen whether the authority who has granted lease to respondent No.2 has acted fairly, transparently, judiciously and above any suspicion. Unfortunately, these elements are lacking in instant case, therefore, allowing respondent No.2 to avail the benefit out of the lease agreement, would tantamount to perpetuate the unlawful/illegal acts of both of them. 27. Learned counsel vehemently emphasized that respondent No.2 has acquired a right to enjoy the lease hold rights, as after taking over possession, he spent a considerable amount in the development of the Jubilee Park. In this behalf it may be noted that in the concise statement respondent No.2 has admitted that a foreign investment of telecommunication concern namely “WARID”, which is a multinational company, with funds to utilize for public service development and if petition is entertained and allowed, it would result in irreparable loss to respondent No.2 as well as many other future service projects under the patronage and support of this multinational company. With reference to this statement of fact, it is to be noted that respondent No.2 had taken over the possession of five acres prime land, after paying only security amount of Rs.5 lacs and had constructed a boundary fence temporarily, on which a logo of “WARID & CDA” was applied. This fact is available in Criminal Original Petition No. 1 of 2006, which is being dealt with separately. Essentially alongwith a commercial multinational company to get the publicity of its product by using even temporarily constructed boundary fence, means to attract business for the said company and such concession obviously cannot be allowed, without any consideration. Moreover, Const.P.36/2005 22 Investor of the multinational company has not entered into contract with the authority or the Government of Pakistan directly. Actually they wanted to run the business with respondent No.2 being a lessee, which he has obtained by means of illegal transaction, which has got no legal sanctity. For such reason, no concession can be extended to respondent No.2 or any other party who is not before the Court. If at all, the multinational company is interested in the business, it could have participated in open bid for obtaining development lease hold rights, subject to law from the CDA. Furthermore, if the company had not apparently provided any facility to the general public, how they can sacrifice their fundamental rights, solely for the reason that it has got permission to publicize its product, in collaboration with respondent No.2 for the purpose of earning profit at their cost. In addition to it, in future, if such multinational company alongwith others would be permitted to use the plot for other commercial purposes, its financial burden has to be borne by an ordinary person, in violation of the Article 26 of the Constitution, which is not permissible. 28. It may be noted that a vested right of an individual can be protected, if the order passed in his favour is lawful as it has been held in Engineer- in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and Abdul Haque Indhar v. Province of Sindh (2000 SCMR 907). Therefore, the arguments so put forward by the learned counsel has no force. 29. Now turning towards the maintainability of the petition under Article 184(3) of the Constitution, as according to learned counsel for respondent No.1, the petition is liable to be dismissed in view of the judgments reported in Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) and All Pakistan Newspapers Society v. Const.P.36/2005 23 Federation of Pakistan (PLD 2004 SC 600). In both these judgments it has been held that petition can be maintained subject to establishing by the petitioner that question of public importance with reference to enforcement of fundamental rights has been made out. According to learned counsel, as both these elements are missing, therefore, a person, who is outsider i.e. is not resident of Islamabad could not maintain such petition. 30. Learned counsel for petitioner when confronted with above arguments of learned counsel for respondent No.1, contended that the Court is not bound to examine the credential of an individual who has laid information before the Court but to see the nature of action under challenge. Reliance in this behalf has been placed by him Pakistan Tobacco Company Ltd. v. Federation of Pakistan (1999 SCMR 382). It would be appropriate to quote reference from the judgment for convenience, wherein this Court has highlighted very important principle to attract the provisions of Article 184(3) of the Constitution :--- “maintainability of a petition under Article 184(3) of the Constitution is to be examined not on the basis as to who has filed the same but if the controversy involves question of public importance with reference to enforcement of any of the fundamental right, petition will be sustainable” In addition to above principle, this Court in the case of Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 SC 482) has held that “a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word ‘pro bono publico’ as defined in Blacks Law Dictionary, Chambers Dictionary and Const.P.36/2005 24 Oxford Dictionary generally means ‘for the public good’ or ‘for welfare of the whole’ being or involving uncompensated legal services performed especially for the public good. ‘Public interest’ in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large, which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance as ‘pro bono publico’.” Thus, following the above principles, we are of the opinion that petition on behalf of petitioner is maintainable in view of above noted facts and circumstances of the case. 31. Now we will examine whether in view of the given facts and circumstances of the case, any of the fundamental rights guaranteed to the citizens of Pakistan have been denied. Islamabad, being a capital city, attracts representation from all over Pakistan in different capacities. Thus it is their right to enjoy access to the places of entertainment like the Jubilee Park, etc. under Article 26 of the Constitution. The same is the position of the inhabitants of the area where the Park is situated. As it has been stated herein above that necessary documents have been withheld by the CDA from the Court for which, observation have been made herein above. Thus, Const.P.36/2005 25 it is held that Jubilee Park was earmarked in the original scheme of Sector F-7, as it was meant for low income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such Parks for commercial activity with the collaboration of multinational companies, would deny the rights guaranteed to them. 32. Next question in this regard is whether the action violating the fundamental rights can be perpetuated merely for the reason that petitioner is outsider. In our considered opinion, for such reason alone, the person who approaches the Court for exercising the jurisdiction under Article 184(3) of the Constitution by this Court is not disqualified and the petition can be maintained accordingly. So far as the judgments relied upon by the learned counsel for respondent No.1 are concerned, those are not attracted in view of the fact that in both the case, rights of individuals were involved and the conditions laid down under Article 184(3) of the Constitution that the question of public importance with reference to enforcement of fundamental rights are not available, whereas in instant case on account of conversion of Jubilee Park into a commercial oriented amusement Park, fundamental rights of the public have been violated and due to non- enforcement of the public rights, enshrined in Article 26 of the Constitution, the question of public importance has been made out, therefore petition is maintainable, particularly when there is no disputed fact as it has been noted herein above. This Court and the High Courts in such like cases have encouraged invoking jurisdiction of Courts directly Const.P.36/2005 26 with a view to do complete justice. Reference in this behalf may be made to Muhammad Bashir v. Abdul Karim (PLD 2004 SC 271). Relevant para therefrom reads as under:-- “15. …………………We are not persuaded to agree with Sardar Muhammad Ghazi, learned Advocate Supreme Court for appellant that the scope of Article 199 is limited and such like controversy could not have been dilated upon and decided by the High Court while exercising Constitutional jurisdiction for the simple reason that record was crystal clear and accordingly the controversy being not ticklish and complicated could have been decided. It is well settled by now that “Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens ithin frame work of the Constitution against the infringement of law and constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted, which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress”. (Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538 (FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar. 599 (FB). It is to be noted that “paramount consideration in exercise of Constitutional jurisdiction is to foster justice Const.P.36/2005 27 and right a wrong”. (Rehmatullah v. Hameeda Begum 1986 SCMR 1561, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that “so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute, the judiciary cannot interfere with them. There is ample power vested in the High Court to issue direction to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party”. (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak) 41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive.…………………” 33. It is most important to note that functionaries, exercising statutory powers like CDA, are bound to discharge their functions strictly in accordance with law, otherwise the action contrary to law would not be sustainable and such authority shall expose itself for disciplinary action. This Court in the case Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), reference of which has already been herein above, has discouraged denial of valuable rights of the residents in respect of the plot, meant for specific purpose. This principle has also been reiterated in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883), wherein it has been held that without obtaining no objection from the general public, such plots cannot be used for any other purpose. As it has been noted herein above that in instant case, objections Const.P.36/2005 28 were not invited from the general public by the competent authority before converting the Jubilee Park into a commercial oriented amusement Park, with the collaboration of multinational companies, delegating powers to respondent No.2 to enter into joint venture or franchise for giving licences to local or international parties, food chains etc. In our opinion, such delegation to private person to watch his financial interests of the high degree tantamount to depriving the authority as well as the public from their valuable rights, for whose benefits such authority has been created, and apparently such action has got no legal sanctity, therefore, action against such responsible officer/official of the authority is called for in view of the judgment of this Court Pervaiz Oliver v. St. Gabriel School (PLD 1999 SC 26), wherein it has been held that “no public property big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest penalty under the law”. As a consequence of this observation, finally following directions were made to the authority:-- “While, in this background, upholding the order of the High Court, we dismiss the above listed three petitions with costs, the one filed by the Assistant Administrator also on the ground of limitation, we would also direct the Chairman of the Evacuee Trust Board to personally hold an enquiry about the conduct of the abovesaid several functionaries involved by departmentally proceeding with the matter and taking appropriate action(s). This would also include the examination of the question as to by whom and under what circumstances sanction was accorded firstly, for defending the petition in the High Court and secondly, for preferring the leave petition in this Court. The Chairman of the Board would be required to submit the final enquiry report(s) with details of action taken, within four months before the High Court of Balochistan, copies being endorsed to this Court. It will Const.P.36/2005 29 then be for the High Court to pass such orders in the matter as it deems fit, including due activation, if required, of the Federal Ombudsman and the Chief Ehtesab Commissioner. A copy of this order would be forwarded to the Chairman of the Board, the Chief Ehtesab Commissioner, the Federal Ombudsman and the Secretary, law and Justice Division, of the concerned Ministry, for action and for record.” 34. Thus for the foregoing reasons, petition is accepted in the following terms:--- a) The lease agreement dated 4th June 2005, executed by respondent No.1 with respondent No.2, for the development of Mini Golf Course on the site of Jubilee Park, Sector F-7, is not sustainable in the eye of law, being contrary to fundamental rights of the General Public, enshrined under Article 26 of the Constitution. b) Respondent No.2 is directed to handover vacant possession of the plot, lease of which has been obtained by him from respondent No.1 within a period of four weeks, in its original condition, subject to complying with the supra direction. Respondent No.1 will refund Rs.5 lacs to respondent No.2 deposited by it as security. Enquiry report shall be sent to Registrar within three months for our perusal in Chambers and passing further order, if need be. c) The Board of CDA shall examine the case thoroughly to explore possibility of initiating disciplinary/penal action before the competent forum against the delinquent Officers/ Officials, responsible for executing the lease with respondent No.2, in view of the law laid down Const.P.36/2005 30 by this Court in the case of Pervaiz Oliver (ibid). d) The Board of CDA will take steps to find out the record of Jubilee Park, F-7 i.e. PC-1, etc. and if record is not made available, then report shall be lodged before the competent law enforcing agency, according to law. e) CDA, however, shall be free to develop Jubilee Park itself for the purpose of providing entertainment to the public of Islamabad, in discharge of its duties under the law. No order as to costs. CJ. J. J. Islamabad, 07.02.2006. Irshad /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CONSTITUTION PETITION NO.36 OF 2016 (Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973) Muhammad Hanif Abbasi ... Petitioner VERSUS Jahangir Khan Tareen and others ... Respondents ... For the Petitioner : Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Azid Nafees, ASC (Assisted by Ms. Gulalay Zeb and Ms. Maham Ahmed, Advocates) Syed Rifaqat Hussain Shah, AOR For Respondent No.1 : Mr. Sikandar Bashir Mohmand, ASC (Assisted by Syed Zulqarnain Safdar, Advocate) Mr. Tariq Aziz, AOR For Respondent No.2 : Mr. Muhammad Waqar Rana, Additional Attorney General for Pakistan Mr. M. S. Khattak, AOR For Respondent No.3 : Mr. Hamid Ali Shah, ASC Mr. Mehr Khan Malik, AOR For Election Commission : Raja M. Ibrahim Satti, Sr. ASC of Pakistan Raja M. Rizwan Ibrahim Satti, ASC Mr. M. Arshad, D.G. (Law), ECP Malik Mujtaba Ahmed, Addl.D.G.(Law) ECP On Court’s notice : Mr. Ashtar Ausaf Ali, Attorney General for Pakistan Dates of Hearing : 3.5.2017, 4.5.2017, 8.5.2017, 9.5.2017, 10.5.2017, 11.5.2017, 23.5.2017, 24.5.2017, 25.5.2017, 30.5.2017, 31.5.2017, 1.6.2017, 13.6.2017, 14.6.2017, 11.7.2017, 13.7.2017, 25.7.2017, 26.7.2017, 27.7.2017, 31.7.2017, 1.8.2017, 2.8.2017, 3.8.2017, 12.9.2017, 26.9.2017, 28.9.2017, 3.10.2017, 4.10.2017, 5.10.2017, 10.10.2017, 11.10.2017, 12.10.2017, 17.10.2017, 18.10.2017, 19.10.2017, 23.10.2017, 24.10.2017, 25.10.2017, 7.11.2017, 8.11.2017, 9.11.2017 and 14.11.2017 Constitution Petition No.36 of 2016 - 2 - ... JUDGMENT MIAN SAQIB NISAR, CJ.- Honesty is one of the greatest virtues in a man. Where in an otherwise honest and upright society, the nation and the State, which are governed by the Constitution and the rule of law; if the affairs of the Government come to be entrusted to dishonest persons such a nation soon loses its way. Government does not mean the executive limb of the State alone, but it includes the Legislature and the Judiciary. The States which are not governed by honest and upright people are bound to suffer and lag behind the developed nations of the world, and, therefore, it is of utmost importance that the State structure must be built upon honesty of purpose by honest people. It is in this context that we have to judge and determine the people in power who are running the affairs of State, as to whether they are honest in general terms and specifically as the chosen representatives of the people, whether they qualify in terms of the true spirit and test of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). 2. The petitioner is a prominent member of Pakistan Muslim League (Nawaz) [PML(N)], the ruling party at the center. Respondent No.1 (the respondent) is the General Secretary of Pakistan Tehreek-e-Insaaf (PTI), the second majority party in opposition at the center. In the by-elections held on 23.12.2015, the Respondent was elected as a member of the National Assembly from NA-154 Lodhran on the PTI ticket. Vide instant petition under Article 184(3) of the Constitution the petitioner seeks the disqualification of the respondent from being a member of the National Assembly on the basis of the provisions of Article 62(1)(f) and 63(1)(n) of the Constitution on the grounds that he is not honest and further, has got his bank loans written off. It may be relevant to mention here that Constitution Petition No.36 of 2016 - 3 - the learned counsel for the petitioner at the start of his submissions, when questioned by the Court, unequivocally admitted that the instant petition is primarily in the nature of a quo-warranto. We may also like to point out that the learned counsel for the respondent raised a preliminary objection qua the maintainability of this petition on account of the fact that in view of the Panama leaks, Mr. Imran Khan Niazi, Chairman of PTI, filed a similar petition [Article 184(3)] against Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan [who belongs to PML(N)], seeking his disqualification as a member of the National Assembly on the touchstone of the Article ibid with the consequential relief that he should cease to be the Prime Minister of Pakistan. This petition has been allowed by this Court vide judgment dated 28.7.2017. It was during the pendency of the said petition that the present cause was initiated by the petitioner. The preliminary objection is dealt with as below. PRELIMINARY OBJECTION: 3. The objection in this behalf is not to the effect that this Court lacks jurisdiction under Article 184(3) of the Constitution to take cognizance and to issue a writ of quo-warranto in appropriate cases or such a petition in law is not maintainable against the members of the Parliament or Provincial Assembly(ies) when the question of their qualification or disqualification to hold the membership is involved or has been assailed. It is also not proposed that the respondent is not the holder of a public office. Instead the precise contention of the learned counsel for the respondent is that the relief in quo-warranto proceedings is purely discretionary in nature and should not be granted as a matter of right or course: rather the bona fides, the object, the motive of the relator should be examined and if it is found that the action arises from Constitution Petition No.36 of 2016 - 4 - ulterior motives, that it is for the benefit and advantage of someone else; then it is not initiated in the public interest and the relief should be refused for such reasons. In this context it is argued that the petition is a counterblast to the petition filed by Mr. Imran Khan, Chairman PTI against Mian Mohammad Nawaz Sharif etc. It is urged that though the name of the respondent does not appear in the Panama Leaks, yet in the memo of the petition it is falsely alleged to be so, which the respondent has clearly denounced not only through public statements, but also while responding to the notice of the income tax authorities. This misstatement of fact on the part of the petitioner has cast serious doubt upon his bona fides and by itself is sufficient to disallow this petition. Learned counsel for the respondent in support of his plea has relied upon the judgments reported as Dr. Kamal Hussain and 7 others Vs. Muhammad Sirajul Islamabad and others (PLD 1969 SC 42 at page 51), Azizur Rahman Chowdhury Vs. M. Nasiruddin etc. (PLD 1965 SC 236), Dr. Azim-ur-Rehman Khan Meo Vs. Government of Sindh and another (2004 SCMR 1299) and Makhdoom Ghulam Ali Shah Vs. Election Commission of Pakistan, Islamabad through Secretary and 4 others (2008 CLC 738). There can be no cavil with the principle that to grant the relief in the nature of quo-warranto is within the discretionary power of the superior Courts, it should not be allowed as a matter of course, rather the conduct and the bona fides of the relator, the cause and the object of filing such petition is of considerable importance and should be examined; it should be ascertained if the petition has been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else. We are of the considered view that quo-warranto remedy should not be allowed to be a tool in the hands of the relators, who approach the Court with mala fide intentions and either have their own personal grudges and scores to settle with the holder of Constitution Petition No.36 of 2016 - 5 - the public office or are a proxy for someone else who has a similar object or motive. This remedy surely cannot be allowed to serve as a sword hanging over the heads of the Parliamentarians (members of the Provincial Assemblies) who are the chosen representatives of the people under the mandate of the Constitution (Article 2A) “wherein the State shall exercise its power and authority through the chosen representatives of the people”. Thus, Parliament is the supreme law making organ of the State; it is the supreme body to lay down the State policies. And the executive body of the State is also derived from this organ. Although the validity of legislative enactments of the Parliament, and the executive actions of the Administration (Note: which has genesis in the Parliament) are subject to the power of judicial review of the superior courts, this power should be exercised within the limits provided by the Constitution, as interpreted by the courts and the various principles of law enunciated in this behalf. Yet the sanctity of the Parliament and the Parliamentarian should not be allowed to be impinged or compromised lightly. The remedy of quo-warranto should not be permitted to be resorted to for demeaning, intimidating and causing undue harassment to the Parliamentarians. It should not be allowed to be used as a pressure tactic for purposes of restraining them from performing their functions and discharging their duties in accordance with the Constitution and the law. This remedy of quo- warranto cannot be equated with the challenge to the holder of any other public office, which public office is statutory in nature or of an autonomous body; where the appointment is assailed as not having been made according to the law (regarding his qualifications etc.) or on account of the fact that the appointing authority lacked the authority to make such an appointment or the appointment is tainted with sheer mala fides, on the basis of political considerations, nepotism etc. and/or in utter absence and misuse of authority. The courts should not lose sight of the fact that Constitution Petition No.36 of 2016 - 6 - the Parliamentarians as mentioned above are the elected representatives of the people and have come to the Parliament through a democratic process. Democracy is one of the basic features of the Constitution and the courts being the guardians and custodians of the Constitution are obliged to protect and safeguard the same. This relief (remedy) should not be allowed as a matter of course, the more so when the candidature of a candidate is duly scrutinized at the time of the scrutiny of his/her nomination papers to ascertain whether he is qualified or disqualified in terms of the Constitution and the law. Furthermore, after the election, his election can be challenged inter alia on the grounds of lack of qualification or disqualification before the Election Tribunal in accordance with the procedure provided by law the Representation of People Act, 1976 (ROPA). The bar contained in Article 225 of the Constitution in this regard as well is another reason for using this remedy with care and circumspection. We would not like to go further into the details of the said bar. But we are clear in our mind and view that quo-warranto writ can only be issued by the Court against the Parliamentarians (members of the Provincial Assemblies) in exceptional cases. And the cases of the Parliamentarians cannot be considered to be at par with the holders of any other public office. In the cases of Parliamentarians, the lack of qualification and disqualification is inherent in nature and if he (an unqualified or disqualified Parliamentarian) is allowed to stay as a member of the Parliament, he cannot be said to be the true and real representative of the people of his constituency as he lacks those inherent qualities and he cannot be allowed to perform his functions and discharge his duties as a trustee for the people whom he represents. Besides, it would be against the mandate of the qualifications and disqualifications provided by the Constitution and the law, which command has to be followed and given due effect by the courts in letter Constitution Petition No.36 of 2016 - 7 - and spirit. Corruption, and anything done with dishonesty of purpose is the antithesis of honesty. And we have no doubt in our mind that the expression “honest” used in Article 62(1)(f) of the Constitution bears a close relation to preventing the scourge of corruption. Corruption can destroy the very fabric of the State. Thus the power of quo-warranto in relation to the Parliamentarians can be validly exercised by the courts if the disqualification attributed to them has direct and close nexus to corruption, because an act of dishonesty shall be covered by the Article supra. Thus for such reasons the bona fide and the conduct of the relator is quite significant. But at the same time the most important aspect is whether from the grounds set out in the petition a prima facie serious case, falling within the purview of quo-warranto jurisdiction, is made out. Therefore, if the grounds on the face of it are frivolous, baseless and vexatious and/or on the same grounds the election of the returned candidate was earlier challenged in appropriate proceedings before the Election Tribunal, but the plea(s) was rejected; then coupled with the conduct of the petitioner, the Court is not required to go into the merits of the case and should summarily dismiss the petition on the basis of lack of bona fides and extraneous motives of the petitioner and on account of the petition being frivolous. However, where on the consideration of the contents of the petition and the relevant record, the court forms an opinion that there is some substance to the matter, then, simply on account of the fact that some doubt can possibly be cast upon the conduct of the petitioner, the court shall not dismiss the petition summarily, rather it shall hear and decide the matter on merits, obviously not losing sight of the bona fides of the relator even then. We have examined the pleadings of the parties in this case; heard lengthy arguments of the counsel for the parties for weeks. We have considered serious points of law and facts which could reflect upon the Constitution Petition No.36 of 2016 - 8 - qualification/disqualification of the respondent. Therefore regardless of our final opinion on merit, we are unable to agree that only because the petitioner is a member of PML(N) and some petition against the leader of his party head has been filed by the party head of PTI and that this petition is subsequent in time, therefore, it lacks bona fide or is a counterblast or as it is inaccurately stated in the petition that the name of the respondent appears in the Panama Papers, whereas it is not so, it should be dismissed on that account. Especially when from the contents of the concise statement of the respondent it appears that there exists an off-shore company which has genesis in the respondent. And the ground in this behalf and the other grounds too are worthy of consideration at the very least. Therefore, the preliminary objection in the facts and circumstances has no force and is hereby rejected. ON MERITS: 4. Attending to the merits of the case, the learned counsel for the petitioner has provided to the Court his formulations in writing. These as agreed by both the sides are the propositions involved in the matter with some counter propositions submitted by the respondent’s counsel which are in the nature of a reply. And the learned counsels for the parties have made their submissions accordingly. However, in order to keep our opinion concise and to avoid repetition, we shall be making reference to the key submissions made by the learned counsel for the parties; whereas their elaborate contentions/arguments/counter arguments shall be adequately reflected in the reasons of this judgment. These formulations/propositions are reproduced as the headings of our opinion thereupon. INSIDER TRADING (Proposition No.1): (That Securities and Exchange Commission of Pakistan issued a show cause notice to Respondent No. 1 thereby accusing him of the offences of insider trading and acts and Constitution Petition No.36 of 2016 - 9 - omissions lacking fiduciary behavior, whereupon Respondent No. 1 admitted commission of such offences and deposited the gains accrued from insider trading to SECP and also paid the fine for the offences for lack of fiduciary duty along with reimbursing the legal costs of SECP thus making him not qualified to contest the election of, or being, a member of Parliament by virtue of the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan.) 5. The gist of the submissions of the learned counsel for the petitioner on the noted proposition are:- that the respondent being a Director of JDW Sugar Mills Ltd. was aware of the fact that the said company is going to (purchase majority shares) take over United Sugar Mills Ltd. (USML). In order to achieve undue advantage of this exclusive and sensitive information, the respondent admittedly was involved in insider trading and purchased the shares of USML during November, 2004 to November, 2005, through his front men Haji Khan and Allah Yar who were his Gardener and Cook respectively; hence besides the violation of other laws mentioned in the SECP’s letter dated 3.12.2007 he has violated the provisions of Sections 15-A, 15-B and 15-E of the Securities and Exchange Ordinance, 1969 (Ordinance, 1969). Through this insider trading, the respondent made a gain of Rs.70.811 million by selling USML shares after its takeover by JDW Sugar Mills Ltd. by (through) public offer. In this context proceedings against the respondent under Section 217 of the Companies Ordinance, 1984 (Ordinance, 1984) and Section 15-A etc. of the Ordinance, 1969 and some other laws were initiated by the SECP, he was served with a show cause notice/letter dated 3.12.2007 with respect to the afore-mentioned violation of the relevant laws which was also a criminal offence under Section 15-B. As the respondent was guilty of such violations and commission of offence by him, therefore, in his reply to the show cause notice dated 8.12.2007 he admitted to the commission of the violations/offences referred to above and in unequivocal terms offered to return the unlawful gain of Rs.70.811 million along with other penalties/fines. Besides, through the Constitution Petition No.36 of 2016 - 10 - SECP’s letter dated 11.1.2008 in addition to the amount gained, respondent was asked to pay the requisite penalties/fines imposed upon him under the law and the legal costs of the SECP of Rs.1 million. This direction was complied with by the respondent who while admitting his liability returned the aforesaid amount of Rs.72.067 million as demanded by the SECP vide bank draft dated 14.1.2008 (emphasis supplied by us). Thus he has committed the offence of insider trading as mandated by Section 15-E of the Ordinance, 1969 and violated other law(s), therefore, on account of the above act/offence the respondent is not honest and ameen in terms of Article 62(1)(f) of the Constitution and Section 99 of the ROPA. In response to the above, learned counsel for the respondent has taken the plea that neither any show cause notice was issued to the respondent nor any proceedings were initiated and concluded against him under the aforecited provision of law. The respondent though admits (admitted) the issuance of the letter dated 3.12.2007 by SECP, his reply thereto dated 8.12.2007; the final letter of the SECP dated 11.1.2008 and also the deposit of gained amount along with the penalties etc. and the legal cost as demanded by the SECP, yet it is argued that the respondent had not made any admission or confession in fact or law for having committed an offence or violation, rather as he wanted to settle the matter and get rid of this irritant, therefore, he decided to pay off the amount as demanded by the SECP. A bare perusal of respondent’s reply dated 8.12.2007 reveals that it was conspicuously marked as “without prejudice” and was concluded by underscoring that “this letter may not be used as evidence in any legal or quasi legal civil or criminal proceedings”. It is the respondent’s case that he had not committed any wrongful act, rather acted in good faith in purchasing the shares through his employees. No admission or confession, express or implied, can be attributed to the respondent on account of the contents of his reply or by virtue of paying Constitution Petition No.36 of 2016 - 11 - the demanded amount to the SECP. It is also submitted that the letter dated 8.12.2007 to the SECP, underscored that there are sound legal defenses of the alleged irregularities. Moreover, the SECP in its reply dated 11.1.2008 to the respondent concluded that the SECP had not made any determination of fact or law as regards the allegations and that the matter stood disposed of with no further action. It is submitted that the above is a past and closed transaction and in exercise of its jurisdiction under Article 184(3) of the Constitution, when the petitioner is seeking issuance of a quo-warranto, this Court will not reopen a matter which relates to 7 years prior to the filing of his nomination papers in 2015 on the basis of which he got elected. Besides, the counsel for the respondent has made reference to (respondent’s) supplementary concise statement CMA No.3675/2017 and in line thereof, in his oral submissions has also challenged the vires of the provisions of Sections 15-A and 15-B on the ground that such provisions were introduced and incorporated into the Ordinance, 1969 through Section 7(5) of the Finance Act, 1995 (Act No.1 of 1995) dated 2.7.1995. These provisions were subsequently substituted by entirely new Sections i.e. 15-A to 15-E through Section 6(2) of the Finance Act, 2008 dated 27.6.2008. Section 15-E has been additionally impugned on the ground that it was not in force at the time when the alleged violation/offence was committed by the respondent or even when the letter dated 3.12.2007 was issued to him or when he settled the matter with the SECP by making the payments, on the contrary as the section came into force later it would have no retrospective application, therefore, it is absolutely misconceived and baseless to allege in the petition that the respondent has committed an offence under the section (15-E ibid). The subject matter of the above provisions introduced through both the Finance Acts are ex-facie outside the parameter, scope and ambit of a Money Bill as provided for in Article Constitution Petition No.36 of 2016 - 12 - 73(2) of the Constitution as, inter alia, none of the aforementioned provisions relate to the imposition, abolition, remission, alteration or regulation of any tax or any matter incidental thereto or any of the matters expressly stipulated in Article 73(2) (ibid). It is thus argued that the aforesaid provisions are ultra vires to the constitutional provisions of Article 70(2) ab initio and no action against the respondent either earlier or even now in these proceedings can be founded and based thereupon. In the context of the above, learned counsel for the respondent has placed reliance upon the judgments of this Court passed in Sindh High Court Bar Association through its Secretary and another Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) and Workers’ Welfare Funds, M/o Human Resource Development, Islamabad through Secretary and others Vs. East Pakistan Chrome Tannery (Pvt.) Ltd. through G.M. (Finance), Lahore and others (PLD 2017 SC 28). He has also relied upon the provisions of Article 4 of the Constitution to argue, that it is the inalienable right of the respondent to be treated in accordance with law. And such law is the one which is validly made by the Legislature. In the context of the above submission and facts, three questions require the attention of and resolution by this Court under the captioned proposition: (1) whether the respondent being guilty of insider trading, the matter in this regards was investigated against him in terms of Section 15-A of the Ordinance, 1969 and he was proceeded and prosecuted under Section 15-B thereof and was duly convicted and punished by the competent authority; (2) whether the respondent by virtue of his letter dated 8.12.2007 and also by paying off the amount demanded by the SECP has admitted/confessed to the commission of offence of insider trading and violation of other laws mentioned in the letter of the SECP dated 3.12.2007 and irrespective of Constitution Petition No.36 of 2016 - 13 - the fact that no action was taken against him by the competent authority at the relevant point of time, he should in these quo-warranto proceedings under Article 184(3) of the Constitution be declared as dishonest within the purview of Article 62(1)(f) of the Constitution; (3) whether the provisions of Sections 15-A, 15-B and 15-E of Ordinance, 1969 are ultra vires of the Constitution and thus void ab initio and non- est and therefore no offence of insider trading could be based thereupon against the respondent. The last proposition raises an ancillary question; whether the vires of such law can be attacked in these collateral proceedings. Before proceeding to attend and answer the questions it is expedient to mention that admittedly the respondent at the relevant point of time was the Director of JDW Sugar Mills Ltd. and we have little doubt in our mind that in principle a decision had been taken by the management of the JDW Sugar Mills Ltd. to take over USML. This can be validly inferred from the circumstances mentioned below. It is spelt out from the record that the respondent was acting on behalf of JDW Sugar Mills Ltd. in negotiating for such takeover. The persons named in the notice of the SECP, namely, Haji Khan and Allah Yar are admittedly the employees of the respondent and when questioned, the learned counsel for the respondent states that they are in his employment since the last 24 years and looking after his household/farm affairs meaning thereby that they were the persons worthy of the respondent’s trust and confidence. The respondent intended to hide these transactions, therefore, the shares were not directly purchased by him or in the name of any of his close relative. It is also not denied that an amount of Rs.41.970 million was paid by the respondent for the purchase of USML shares and the said employees had no means of their own to pay such a substantial amount. It is further not disputed that these shares were finally sold by the respondent and it is he who made a gain of Rs.70.811 Constitution Petition No.36 of 2016 - 14 - million. Thus for all intents and purposes the above-named two employees (employees on nominal salaries) were simply the benamidars, rather front men of the respondent and the transaction(s) were decidedly dubious, and conducted in a clandestine manner. At that point of time the respondent was the Federal Minister in the Government of Pakistan i.e. from August, 2004 to November, 2007 and was a holder of a high public position and office at the Federal level. He should perhaps have exercised greater care and diligence in the exercise of his fiduciary duties as Director of JDW Sugar Mills Ltd. rather than engaging in the purchase of USML in breach of such fiduciary duty in a clandestine manner as stated above. However, it is the case of the respondent that full disclosure was made to all the Board Members of JDW Sugar Mills Ltd. who were either close family members or otherwise closely connected persons. But it is never avowed that the sellers of the shares were also informed of the fact of such takeover. Besides, this is only a verbal assertion of the respondent not supported by any minutes of the Board of Directors of JDW Sugar Mills Ltd. that such disclosure was duly made. It is not controverted that the increase of the respondent’s shareholding in USML on account of such purchases increased to 10.6% and that the requisite disclosure was not made in terms of Section 222 of the Ordinance, 1984 and Section 4 of the Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002. Thus from these admitted facts the probability cannot be ruled out that if the respondent had decided to contest the matter, besides the liability of paying back the gained amount and the penalties and the fines, the respondent would have faced prosecution under the relevant law which may well have resulted in his conviction and punishment. Therefore he was left with no choice except to save his position and avoid the predicament in which he was caught by paying back the gained amount Constitution Petition No.36 of 2016 - 15 - and the penalties/fines and to save himself from the criminal prosecution. The learned counsel for the respondent has not been able to satisfy us as to what could be a valid defence of his client in fact and law and that he was not guilty of insider trading and the violations of laws. Be that as it may, the question before us is whether the matter was investigated according to law and the action for insider trading was taken against the respondent by the competent authority and whether he was convicted and punished for the criminal offence or in other words whether the matter was taken to its logical legal conclusion. The ancillary and equally important aspect of the case is whether the respondent has admitted to having committed the offence and violation of law coupled with the admitted position that he has paid the entire amount gained from the sale of shares and also paid the penalties and fine and the legal fee as demanded by the SECP, though ultimately no action under the law was taken by it (the SECP) against him and thus on the basis of such an admission, should he be declared to be dishonest under Article 62(1)(f) of the Constitution in the instant proceedings? Because from the provisions of Sections 15-A and 15-B of the Ordinance, 1969 and the relevant provisions of other law(s), in view of certain admitted facts of the case as mentioned above, it is emphatically reiterated that the probability that if proceeded against and prosecuted the respondent might have been convicted and punished in the criminal action initiated against him cannot be ruled out. Besides, he has admitted/acknowledged his civil liability in unequivocal terms not only in the reply but also by making the payments to the SECP which is a further proof that the purchase of the USML shares was a clear case of insider trading by the respondent. Be that as it may, we cannot ignore the settled law that the criminal liability of a person is not determined on the rule of probability, but on the proof of the facts which constitute an Constitution Petition No.36 of 2016 - 16 - offence and that too by a court of competent jurisdiction, which in such a case was the court not inferior to the court of Sessions under Section 25 of the Ordinance, 1969 and such court could only take the cognizance on the report of an authorized officer of the SECP, or if the conviction was based upon a confession made by the respondent before such court having jurisdiction. But the admitted position on the record is that the respondent was never prosecuted under the said law nor was he ever convicted and punished by the court. In the circumstances we do not find ourselves conferred with any jurisdiction in these proceedings to prosecute the respondent and to convict and punish him now. The other part of respondent’s liability is civil in nature. The petitioner on the basis of certain facts which are not in dispute wants this Court to declare the respondent guilty of dishonesty. And in this behalf the petitioner has relied heavily upon the admissions made by the respondent in his reply dated 8.12.2007 coupled with the fact that he made the payment of the entire amount of gain and the fine and penalties as imposed by the SECP. Thus it is advantageous to reproduce the whole correspondence exchanged between the SECP and the respondent. The letter dated 3.12.2007 of the SECP reads as under:- “SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN PRIVATE AND CONFIDENTIAL No.CLD/EMD/32/2006/513 December 3, 2007 Mr. Jahangir Khan Tareen, Director, JDW Sugar Mills Ltd, 17-Abid Majeed Road, Lahore Cantt., Lahore. Sub: Investigation into the acquisition of United Sugar Mills (“USML”) by JDW Sugar Mills Ltd. (“JDW”) Dear Sir, Constitution Petition No.36 of 2016 - 17 - We refer to our various recent meetings and correspondence in the matter in the context of the captioned investigation initiated by the Commission under Section 29(1) of the Securities and Exchange Commission of Pakistan Act, 1997, in relation to the acquisition of USML by JDW. The investigation was initiated vide Commission’s Order dated December 12, 2006 pursuant to the unusual trading pattern and price movement in the share of USML from November, 2004 to November 2005. The investigation revealed that being a Director of JDW and having knowledge of JDW negotiating for the acquisition of a majority stake in USML, during the period January 17, 2005 to March 16, 2005 you acquired 316,780 share of USML (constituting 10.6% of the total issued capital of USML) through Messrs Haji Khan and Allah Yar. Subsequently by August 19, 2005, your shareholding in USML was increased to 336,680 shares (constituting 11.23% of the total issued capital of USML). Thereafter, when JDW acquired USML, you made a gain of Rs.70.811 million through sale of your shareholding in USML, under the public offer made by JDW pursuant to the provisions of law. (emphasis supplied by us) Prima facie, it appears that there are potential violations of certain applicable laws in relation to the purchase of the above shares in USML as stated hereunder: 1. Section 15A of the Securities & Exchange Ordinance, 1969 (“SEO 1969”) Under Section 15A of the SEO 1969 insider trading is prohibited. Being a Director of JDW, you had in your knowledge information regarding the possible acquisition of USML. Hence your purchase of shares of USML appears to have been made with a view to making a gain which you made in the sum of Rs.70.811 million (pursuant to the public offer made by JDW). 2. Section 4 of the Listed Companies (Substantial Acquisition of Voting Shares and Takeovers), Ordinance, 2002 (“Takeovers Ordinance”) Constitution Petition No.36 of 2016 - 18 - Section 4 of the Takeovers Ordinance requires that any person acquiring more than 10% share of a listed company must make disclosure to the said company and to the stock exchange. Accordingly on March 16, 2005, when your shareholding in USML reached 10.6% i.e. crossed the 10% reporting requirement, you were required to make disclosure. 3. Section 214 and 216 of the Companies Ordinance, 1984 (“Companies Ordinance”) Under Section 214 of the Companies Ordinance, any director concerned or interest in any contract or arrangement entered or to be entered into by the company shall disclose his interest and under Section 216, the said director should not take part in any discussion or vote on the issue. It appears that despite the above requirements of disclosure of your interest in USML to the Board of Directors of JDW as required under the aforementioned section of the Companies Ordinance, no such disclosure was made and you also participated and voted in favour of the acquisition of JDW in the relevant Board meetings. 4. Section 222 of the Companies Ordinance Section 222 of the Companies Ordinance provides that any person who is directly or indirectly the beneficial owner of more than 10% shares in the company shall submit a return in the prescribed form to the Registrar Companies and the Commission. On March 15, 2005, when your shareholding reached 10.6% i.e. had crossed the 10% threshold, you were required to file a statement of beneficial ownership with the Commission as envisaged under Section 222 of the Companies Ordinance. Constitution Petition No.36 of 2016 - 19 - In the above background, you are required to prove us with your clarifications/explanations as regards the above four issues within 10 days of receipt of this letter. _________________ TAHIR MAHMOOD Executive Director Enforcement” Respondent replied to this letter on 8.12.2007. The contents whereof read as under:- “PRIVATE AND CONFIDENTIAL WITHOUT PREJUDICE Date: 8 December 2007 Mr. Tahir Mahmood Executive Director Enforcement Securities and Exchange Commission of Pakistan NIC Building, Jinnah Avenue Islamabad. Dear Sir, I refer to the Securities and Exchange Commission of Pakistan’s (“SECP”) letter dated December 3, 2007, bearing reference no. CLD/EMD/32/20061513, in relation to SECP’s investigation with respect to various transactions undertaken during the course of the year 2005 regarding the purchase, sale and subsequent surrender of the share of United Sugar Mills Limited (“USML”) in response to the public offer of JDW Sugar Mills Limited (“JDW”). AS part of the investigation SECP had earlier issued various notices/letters to JDW of which I am a director, seeking information and clarifications, which we had provided. The matter related to alleged violations of Sections 214 and 216 of the Companies Ordinance, 1984 (“1984 Ordinance”) attracting Section 217 of the 1984 Ordinance and Section 15A of the Securities and Exchange Ordinance 1969 (“SE Ordinance”), attracting Section 15B of the SE Ordinance, non-disclosure attracting section 4 of the Listed Companies (Substantial Acquisition of Voting, Shares and Takeovers) Ordinance, 2002 (the “Takeover Ordinance 2002”) and non-filing of the return of Constitution Petition No.36 of 2016 - 20 - beneficial ownership in terms of Section 222 of the 1984 Ordinance. During the course of the investigation, certain meetings were also held between various officials of the SECP and myself, along with my representatives. I had the opportunity to examine the details of the various transactions undertaken on my behalf and would like to state that although there might have occurred certain inadvertent irregularities in relation to the same, it is my unequivocal assurance to the SECP that the irregularities occurred without any deliberate intent on my part or on the part of any of my representatives and were certainly not made with a view to making any gain or causing any loss or damage to any other person, including any of the companies that I dealt with or it was connected with, as regards the purchase and sale of USML shares. It has been suggested to me that the purchase made of USML shares on my behalf, without disclosure to the sellers of the possibility of take-over of USML by JDW in October/November, 2005 might attract the above provisions of the law pertaining to insider trading apart from provisions pertaining to non- disclosure of being an ‘interest’ director. As I have previously stated, in fact full disclosure was made to all board members, who are either family members or otherwise closely connected person, and the details of the various transactions that were entered into were in their full knowledge even though not taken up in a meeting of the Board of Directors of JDW. Also, at the time the shares were purchased by Messrs Haji Khan and Allah Yar, the acquisition of USML by JDW was still in very preliminary stages of consideration and there was no certainty of any deal being concluded at all. Hence, the acquisition of such shares was not intended to result in any gain or cause any loss to any person. However, in view of the alleged violations pointed out by SECP I admit it does seem possible that some provisions of law may have unwillingly been contravened. If that is the case, then let me assure you that such contraventions were inadvertent and unintentional and were without any knowledge. Constitution Petition No.36 of 2016 - 21 - Clearly, the investigation conducted by the SECP and the suggestion of certain irregularities, as alluded to be me in the foregoing paragraphs, is a matter that I, as a law-abiding citizen and a businessman committed to maintaining the highest standards of corporate governance, take very seriously. As a practical demonstration of my bona fides, I seek to put all matters to rest by the return of any resultant gain that may have accrued from the alleged irregularities. Accordingly, in consideration of your agreeing to treat all matters referred to in your letter dated December 3, 2007 as closed and agreeing not to initiate any further legal proceedings (civil or criminal) under the applicable provisions of the 1984 Ordinance, the SE Ordinance and/or the Takeover Ordinance, 2002, it is hereby offered to return the gain of Rs.70.811 million to SECP (in trust for the persons entitled thereto), being the maximum amount recoverable under Section 15B(3) of the SE Ordinance, and to make payment of the sum of Rs.1.256 million, being the maximum amount recoverable under the various other provisions mentioned in your letter. As you will no doubt appreciate, this offer is made in a spirit of cooperation and in good faith to avoid protracted proceedings and to fully and finally settle all matters highlighted in your letter dated December 3, 2007, despite my being advised that there are sound legal defences to the alleged violations. This letter may not be used as evidence in any legal or quasi legal (civil or criminal) proceedings. This letter and the offer stated herein are intended to be, and shall be treated as confidential, unless required to be disclosed by law or order of any court, authority or other competent body. (emphasis supplied by us) I look forward to receiving your response at the earliest. Very truly yours, Jahangir Khan Tareen” From the contents of the above reply it is conspicuously noticed that the respondent has not denied the initiation of investigation competently and validly under the law by the SECP into the purchase of shares of USML. Constitution Petition No.36 of 2016 - 22 - It is also not denied that M/s Haji Khan and Allah Yar are not his employees and that the purchase of shares in their name was on his behalf. It is also conceded that the disclosure of the purchase of shares was not made by him in the meeting of the Board of Directors of JDW Sugar Mills Ltd.. Above all, the gain of Rs.70.811 million is admitted. It is admitted that in the purchase of the shares some irregularities might have occurred. The amount of fine which the SECP has demanded through the letter dated 11.1.2008 was immediately paid within 2/3 days. However the plea of inadvertence and bona fide was raised. But this reply is “without prejudice” and it is clearly mentioned therein that “Accordingly, in consideration of your agreeing to treat all matters referred to in your letter dated December 3, 2007 as closed and agreeing not to initiate any further legal proceedings (civil or criminal) under the applicable provisions of the 1984 Ordinance, the SE Ordinance and/or the Takeover Ordinance, 2002, it is hereby offered to return the gain of Rs.70.811 million to SECP (in trust for the persons entitled thereto), being the maximum amount recoverable under Section 15B(3) of the SE Ordinance, and to make payment of the sum of Rs.1.256 million, being the maximum amount recoverable under the various other provisions mentioned in your letter”. It is specifically mentioned in the reply “this offer is made in a spirit of cooperation and in good faith to avoid protracted proceedings and to fully and finally settle all matters highlighted in your letter dated December 3, 2007, despite my being advised that there are sound legal defences to the alleged violations”. It is also mentioned in the reply “This letter may not be used as evidence in any legal or quasi legal (civil or criminal) proceedings”. This letter was followed by the final letter of the SECP dated 11.1.2008 which reads as below:- “SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN PRIVATE AND CONFIDENTIAL No.CLD/EMD/32/2006/520 January 11, 2008 Constitution Petition No.36 of 2016 - 23 - Mr. Jahangir Khan Tareen, Director, JDW Sugar Mills Ltd, 17-Abid Majeed Road, Lahore Cantt., Lahore. Sub: Investigation into the acquisition of United Sugar Mills Ltd. by JDW Sugar Mills Ltd. Dear Sir, This is with reference to your letter dated December 8, 2007 “Your Letter”) in response to the Commission’s Letter dated December 3, 2007 “Commission’s Letter”). In terms of your letter, we note that you have recognized that the violations mentioned in the Commission’s Letter may have occurred in the course of the purchase of the shares of USML and have offered to surrender the sum of Rs.70.811 million, being the resultant gain arising out of the transactions identified by the Commission. The Commission considered your Letter in its meeting held on January 3, 2007. After due deliberation and taking into account all circumstances, including your offer to repay the gain made by you, the Commission has accepted your offer to make payment of the said gain of Rs.70.811 million, in terms of Section 15B(3) of the Securities & Exchange Ordinance 1969, in admission of your obligation under the law, in addition to maximum applicable fines totaling Rs.1.256 million under the following relevant provisions of law as detailed below: (emphasis supplied by us) Section Amount 1. Securities & Exchange Ordinance 1969 15-B(3) 70,811,000 2. Companies Ordinance 1984 214 5,000 3. Companies Ordinance 1984 216 5,000 4. Companies Ordinance 1984 222 246,000 5. Listed Companies (Substantial Acquisition of Voting Shares & Takeovers) Ordinance, 2002 4 1,000,000 72,067,000 Additionally, and as agreed by you through your counsel, you shall also pay the Commission’s legal costs totaling Rupees one million, thereby aggregating to Rs.73.067 million. Constitution Petition No.36 of 2016 - 24 - You are accordingly directed to make immediate payment of the above-mentioned aggregate amount of Rs.73.067 million through bank draft failing which the Commission will be entitled to take appropriate action against you as prescribed by law. Upon receipt by the Commission of the bank draft the above- referred matters shall stand disposed off with no further action. It may be noted that this letter is being issued without any determination or acceptance by the Commission of any assertion as regards any issue of fact or law pertaining to the merits of the investigation into the various transactions to which you were party. (emphasis supplied by us) __________________ TAHIR MAHMOOD Executive Director Enforcement” It is evident from the record and is an admitted position that the entire amount as demanded by the SECP, including the fines and the penalties and legal charges of Rs.1 million, were paid by the respondent without any hesitation vide bank drafts dated 14.1.2008 i.e. within the period of 2/3 days (which was the immediate compliance sought by the SECP). Moreover in the said reply neither the vires of Sections 15-A and 15-B of the Ordinance, 1969 nor the authority of the SECP to investigate into the matter and proceed against and prosecute the respondent were questioned or challenged. We fail to understand why, and are indeed dismayed at the manner in which the SECP concluded the matter and decided in barely a month’s time to accept the offer of the respondent and not to take any further action. Obviously this was purposively done and was a deliberate attempt on the part of the SECP to save the respondent from the criminal action which would have cost him a fortune and an honourable future because if truth be told, as mentioned earlier, he had without any reservation met the entire demand of the SECP accepting his civil liability in toto. However, as has been stated above, the offer of the respondent Constitution Petition No.36 of 2016 - 25 - was accepted in the meeting of the SECP dated 3.1.2008 and after due deliberation it was conveyed to the respondent that “Upon receipt by the Commission of the bank draft the above-referred matters shall stand disposed off with no further action”. Furthermore the last para of the letter clearly states that it is being issued “without any determination or acceptance by the Commission of any assertion as regards any issue of fact or law pertaining to the merits of the investigation into the various transactions to which you were party”. As regards the case of the petitioner, it is basically founded upon the admission or confession made by the respondent in his letter dated 8.12.2007; suffice it to say that at the very top of the letter it is conspicuously stated to be “WITHOUT PREJUDICE”. Besides as mentioned at several occasions in the letter the respondent stated, that he was not admitting his liability and had agreed to pay the amount simply to settle the matter. This kind of an admission does not qualify the test of Article 36 of the Qanoon-e-Shahadat Order, 1984 (Order, 1984) which mandates that for the admission to be used against the person it should be unqualified. The question arises as to whether a qualified admission in the letter i.e. without prejudice and other reservations expressed therein can be used as an admission against the respondent in these proceedings. The law is founded upon public policy and the “without prejudice rule” and is clear. . The term “without prejudice” has been defined in Black’s Law Dictionary, Tenth Edition as follows:- “Without loss of any right; in a way that does not harm or cancel the legal rights or cancel the legal rights or privileges of a party.” “Without prejudice: A phrase that, when incorporated in contracts, stipulations, and other written instruments, imports that the parties have agreed that, as between themselves, the receipt of the money by one, and the enjoyment of the other, Constitution Petition No.36 of 2016 - 26 - shall not, because of the receipt and the payment, have any legal effect upon the rights of the parties; that such rights will be as open to settlement by negotiation or legal controversy as if the money had not been turned over by the one to the other. … … .” 40 Cyclopedia of law and Procedure 2130-30 (William Mack ed., 1912).” In Stroud’s Judicial Dictionary of Words and Phrases, Fifth Edition, Volume 5, the term has been defined as:- “A letter “without prejudice” cannot be treated “as an admission of right”. This, in effect, seems to establish the principle that a letter “without prejudice” cannot be read without the consent of both parties (see hereon 34 S.J. 56). It cannot be used as an acknowledgement of a debt, within the Limitation Act, 1623 (c. 16). “From those cases it seems to me that the principle which emerges is that the court will protect, and ought to protect so far as it can, in the public interest, ‘without prejudice’ negotiations because they are very helpful in the disposal of claims without the necessity for litigating in court” (per Ormrod J., in Tomlin v. Standard Telephones and Cables 1969 1W.L.R. 1378). In Wharton’s Law Lexicon following definition of the term ‘without prejudice’ has been given: - “The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter. The rule is that nothing written or said ‘without prejudice’ can be considered at the trial without the consent of both parties - not even by a judge in determining whether or not there is good cause for depriving a successful litigant of costs .... The word is also frequently used without the foregoing implications in statutes and inter parties to exclude or save transactions, acts and rights from the consequences of a stated proposition and so as to mean ‘not affecting’, ‘saving’ or ‘excepting’.” Constitution Petition No.36 of 2016 - 27 - The term “without prejudice” has recognition since 19th Century when in the case reported as Walker v. Wilsher [(1889) 23 QBD 335 at 337], the term was defined as under:- “What is the meaning of the words “without prejudice”? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.” In the case of Rush & Tompkins Ltd. Vs. Greater London Council and another [(1988) 1 All ER 549] it was held that:- “The rule which gives the protection of privilege to ‘without prejudice’ correspondence ‘depends partly on public policy’, namely the need to facilitate compromise, and partly on ‘implied agreement’ as Parker LJ stated in South Shropshire DC v Amos (1987) 1 All ER 340 at 343: (1986) 1 WLR 1271 at 1277. The nature of the implied agreement must depend on the meaning which is conventionally attached to the phrase ‘without prejudice’. … … In our judgment, it may be taken as an accurate statement of the meaning of ‘without prejudice’, if that phrase be used without more. It is open to the parties to the correspondence to give the phrase a somewhat different meaning, e.g. where they reserve the right to bring an offer made ‘without prejudice’ to the attention of the court on the question of costs if the offer be not accepted (See Cutts v. Head) but subject to any such modification as may be agreed between the parties, that is the meaning of the phrase. In particular, subject to any such modification, the parties must be taken to have intended and agreed that the privilege will cease if and when the negotiations ‘without prejudice’ come to fruition in a concluded agreement.” Constitution Petition No.36 of 2016 - 28 - Recently, a 6-Member Bench of the Supreme Court of UK, in the case reported as Oceanbulk Shipping and Trading SA Vs. TMT Asia Ltd. and others (2012 SCMR 1112) = ([2010] UKSC 44) = ([2010] 4 All ER 1011) has dilated upon the rule of “without prejudice” and its effect on the transactions. After considering the case-law starting from the case of Walker v. Wilsher (supra) the Court held as under:- “19. The approach to without prejudice negotiations and their effect has undergone significant development over the years……The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations. The underlying rationale of the rule was that the parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute…… 27. The without prejudice rule is thus now very much wider than it was historically. Moreover, its importance has been judicially stressed on many occasions, most recently perhaps in Ofulue’s case [2009] 3 All ER 93, [2009] AC 990, where the House of Lords identified the two bases of the rule and held that communications in the course of negotiations should not be admissible in evidence……” In the case of Madhavrao Ganeshpani v. Gulabbhai Lallubhai [(1899) 23 Bom. 177] it has been held that the use of the word “without prejudice” in a letter or document means that for the purpose of a discussion and the possibility for coming to a settlement, the writer would be frank but that what is said with that object in view shall not be used in evidence, if the object with which it was written fails and the dispute goes to a Court. In [(1869) 10 Cal. WN 1 (25)] it was held that an admission made in a letter written “without prejudice” is not a Constitution Petition No.36 of 2016 - 29 - binding admission. (see: The AIR Manual, Civil and Criminal, 6th Edition Vol.22). In the case of State Life Insurance Corporation of Pakistan Vs. Wali Muhammad Akbarji and others (1985 CLC 2870) it was observed as under:- “Any letter marked without prejudice during offers or propositions between litigating parties is excluded from consideration and cannot be treated as evidence.” In the judgment reported as Oceanbulk Shipping and Trading SA Vs. TMT Asia Ltd. (2012 SCMR 1112), it has been held as follows:- “In particular, in the Unilever case Robert Walker LJ (with whom Simon Brown LJ and Wilson J agreed) set out the general position with great clarity ([2001] 1 All ER 783 at 789-791 and 796-797, [2000] 1 WLR 2436 at 2441-2444 and 2448-2449]. He first quoted from Lord Griffiths’s speech in Rush and Tompkins Ltd. v. Greater London Council, with which the other members of the appellate committee agreed. Rush and Tompkins Ltd. v. Greater London Council is important because it shows that the without prejudice rule is not limited to two-party situations or to cases where the negotiations do not produce a settlement agreement. It was held that in general the rule makes inadmissible in any subsequent litigation connected with the same subject-matter proof of any admissions made with a genuine intention to reach a settlement and that admissions made to reach a settlement with a different party within the same litigation are also inadmissible, whether or not settlement is reached with that party.” The same principal has been reiterated and fortified in various dicta of foreign as well as Pakistani jurisdiction reported as Superintendent (Tech.I) Central Excise, I.D.D.Jabalpur and others Vs. Pratap Rai (AIR 1978 SC 1244), M/s Tarapore & Company Vs. Cochin Shipyard Ltd., Cochin and another (AIR 1984 SC 1072), Chairman & M.D., Constitution Petition No.36 of 2016 - 30 - N.T.P.C. Ltd vs MS. Reshmi Constructions, Builders & Contractors (AIR 2004 SC 1330), Pakistan Vs. Messrs Gulf Steamships Ltd. (PLD 1961 (W. P.) Karachi 502), Pakistan Refinery Ltd. Vs. Mst. Shahida Sultan (1988 MLD 1150) and Qaid Jauhar Vs. Mst. Hajiani Hajra Bai (2002 CLC 551). Therefore in view of the above referred law, the admission on which much stress has been laid by the petitioner being inadmissible in evidence, cannot be used against the respondent even in these proceedings. Leaving aside the “without prejudice” aspect of the respondent’s letter, even otherwise it cannot be said that the respondent has made an unqualified admission of the violation of any provision of the said laws or commission of any offence or that the contents of the SECP’s letter dated 3.12.2007 were unequivocally admitted. It is settled law, that an admission has to be considered in the context in which it is made and read as a whole. It should not be bifurcated into parts with the ‘admitting portions’ going against the party being taken into account whilst the parts qualifying the admission are ignored or disregarded. Reference in this regard may be made to the following passages from some renowned authors on the subject or the case law:- 1. The whole statement containing the admissions must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true, yet, unless the whole is received, the true meaning of the part, which is evidence against him, cannot be ascertained1. 2. It is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his 1 Taylor puts it in his Law of Evidence (11th edition) Art. 725 at page 502 Constitution Petition No.36 of 2016 - 31 - contemporaneous assertion of a fact favourable to him, not merely as evidence that had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge2. 3. The admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other3. 4. If an admission is in writing and if an opposite party wants to make use of that statement as an admission then the whole statement containing the admission must be taken together to ascertain what the party has conceded against himself. Unless the whole is received the true meaning of the part which is evidence against him cannot be ascertained. An admission unless it is separable has to be taken as a whole or not at all. If a statement is not capable of dissection because that particular part is inextricably connected with the other part then it must be read as a whole4. 5. The statement made by an accused must be read as a whole and it is not open to the Court to dissect the statement and pick up a part of the statement which is incriminating and reject the part which is exculpatory5. Moreover there is no determination by the SECP holding the respondent guilty of violating the said laws; the SECP never prosecuted the respondent under Section 25 of the Ordinance, 1969 which reads as “Cognizance of offence.- No court shall take cognizance of any offence punishable under this ordinance except on a report in writing of the facts constituting the offence by an officer authorized in this behalf by the Commission; and no court inferior to that of a court of Session shall try any such offence” and obviously he has not been tried or convicted or punished for the commission of an offence of insider 2 Archbold's Criminal Pleading, Evidence and Practice (Thirty-sixth Edition, page 423) 3 Dudh Nath Pandey (Dead) By Lrs vs Suresh Chandra Bhattasali (Dead) (AIR 1986 SC 1509) and Nishi Kant Jha vs State Of Blihar (AIR 1969 SC 422) 4 K.S. Venkatesh S/O K. Swamy Rao vs N.G. Lakshminarayana [ILR 2007 KAR 2894] = [2008 (2) KarLJ 342] 5 Koli Trikam Jivraj And Anr. vs The State Of Gujarat (AIR 1969 Guj 69) Constitution Petition No.36 of 2016 - 32 - trading by the court of competent jurisdiction. (Note:- Section 15-E to which reference has been made by the petitioner in his petition was introduced by way of an amendment through Finance Act, 2008 dated 27.6.2008 meaning thereby that this cannot be retrospectively applied and the action would have been restricted to the provisions of Section 15-A and 15-B of the Ordinance, 1969). (Note:- If we otherwise hold that law to be a valid law). On account of the above, we are of the candid view that as the respondent was never proceeded against under the relevant provisions, adjudged or determined to be guilty of insider trading; prosecuted, convicted or punished, rather it seems that a settlement between the respondent and the SECP was effected to save the respondent, whereby the matter was closed by the latter against the former; thus to attribute dishonesty to the respondent on account of insider trading, after the lapse of around a decade, cannot be made the ground for his disqualification under Article 62(1)(f) of the Constitution. In the above circumstances the rule of past and closed transactions would come into play. We would also like to mention here that if a person has violated any law, especially a fiscal law and has made a misdeclaration or concealment to evade his tax liability or has committed the violation of any other law for which conviction and penalty in the nature of imprisonment or fine has been provided, the action should be strictly taken against such person in accordance with the provisions of that law, by the forum created and having jurisdiction thereunder; because Article 4 of the Constitution mandates “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen”. It is also the foundational principle of jurisprudence that where a law requires an act to be done in a particular manner it has to be done accordingly. Therefore when a person is alleged (and not proven) to have violated some law in the past and is elected subsequently as a member of the Parliament, he cannot be held to be dishonest under Article 62(1)(f) (ibid) in quo-warranto proceeding. However if during the Constitution Petition No.36 of 2016 - 33 - term of his office a member of the Parliament is declared by a forum of competent jurisdiction of having incurred a disqualification envisaged by the Article (ibid) he can be removed from the office by the superior Courts in the exercise of their quo-warranto jurisdiction. 6. Coming to the question about the vires of Sections 15-A and 15-B of the Ordinance, 1969 as introduced by the Finance Act, 1995 and the argument of the learned counsel for the respondent that being violative of the provisions of Article 70(2) of the Constitution the said sections are void ab initio and non-est, it may be held that the respondent has never challenged the said provisions through any independent proceedings at any stage. No challenge was made when the SECP issued the letter to the respondent, instead he promptly made the payment as demanded by the SECP. Even in the first concise statement filed by the respondent in these proceedings there was no challenge to the sections. It was only in the second concise statement that the vires of the law were challenged and at the time of oral submissions, the same was reiterated. We are conscious of the principle that there is no estoppel against law and that the point of law can be allowed to be raised at any stage of the proceeding and no valid structure can be built upon a foundation of the law which is void ab initio. No rights and liabilities can be created on the basis of such law. Even accepting the argument of the respondent’s counsel that the vires of law as held in the Sindh High Court Bar Association’s case (supra) can be challenged in collateral proceedings, yet it cannot be accepted that a person can be allowed to challenge a law which stands repealed and no longer exists on the statute book. Such an eventuality shall be covered and protected by the rule of past and closed transactions. Therefore, we are not inclined to declare the repealed law as ultra vires particularly on the touchstone of Article 70(2) and falling outside the purview of Article 73(2) of the Constitution when the Constitution Petition No.36 of 2016 - 34 - provisions of Ordinance, 1969 and all the actions taken and the orders passed thereunder have been protected and validated and saved respectively by the Sections 177(13) and 178 of the Securities Act, 2015 (Act, 2015) which read as under:- “177(13). Anything done, actions taken, orders passed, instruments made, notifications issued, proceedings initiated and instituted, prosecutions filed, processes or communications issued and powers conferred, assumed or exercised by the Commission under the Securities and Exchange Ordinance, 1969 (XVII of 1969) and the Listed Companies (Substantial Acquisition of Voting Shares and Take-Overs) Ordinance, 2002 (CIII of 2002), shall, on the coming into operation of any provision of this Act, be deemed to have been validly done, made, issued, taken, initiated, conferred, assumed and exercised and every action, prosecution or proceeding instituted and every order, directive, notification, circular, code, guidelines etc. issued by the Commission shall be deemed to have been initiated, instituted or issued under this Act and shall be proceeded with to completion and be enforced and have effect accordingly. 178. Repeal and savings. --- (1) The enactments specified in the Schedule to this Act are hereby repealed to the extent mentioned in the fourth column thereof. (2) Notwithstanding the repeal of any enactments by this section, (a) any notifications, rules, regulations, bye-laws, orders or exemption issued, made or granted under any such enactment shall have effect as if had been issued, made or granted under the corresponding provision of this Act; (b) any official appointed and anybody elected or constituted under any such law shall continue and shall be deemed to have been appointed, elected or constituted, as the case may be, under the corresponding provision of this Act; (c) any document referring to any enactment hereby repealed shall be construed as referring, as far as may be, to this Act, or to the corresponding provision of this Act; Constitution Petition No.36 of 2016 - 35 - (d) mortgages recorded in any register book maintained at any office under any enactment hereby repealed shall be deemed to have been recorded in the register book maintained under the corresponding provision of this Act; (e) any licence, certificate or document issued made or granted under any enactment hereby repealed shall be deemed to have been issued, made or granted under this Act and shall, unless cancelled in pursuance of the provision of this Act, continue in force till the date specified in the certificate or document.” This is the Act of the Parliament on which no objection of invalidity has been raised for any reason whatsoever, thus to our clear understanding the Act, 2015 has not only saved the action(s) and order(s) passed under the Ordinance, 1969 but has also validated the defects of incorporation of Sections 15-A to 15-E of the Ordinance, 1969 through Finance Acts on the touchstone of Article 70(2) (ibid). If these provisions are declared to be void in these proceedings, it shall mean that all actions taken and orders passed against any person shall stand invalidated, with the consequence that the respondent shall also be able to wriggle out of his offer and demand back the money which he has paid to the SECP. But, as the insider trading is prohibited under the Act, 2015, constituting an offence, we can always direct the SECP to reopen the matter against the respondent and to proceed against him afresh. This is where the rule of past and closed transactions shall not come to his rescue. In light of the above the plea of the respondent with respect to the ultra vires of the assailed provisions is dismissed. However in view of the above discussion, we do not find that the respondent can be declared to be dishonest in terms of Article 62(1)(f) of the Constitution. OFF-SHORE COMPANY - TRUST (Proposition No.2): (That Respondent No. 1 has publically admitted that his children own off-shore company for conducting business and holding properties in United Kingdom coupled with fact that he receives huge sums of money from his children thus demonstratively making him the beneficial owner of the business and properties in United Kingdom Constitution Petition No.36 of 2016 - 36 - which he has failed to disclose in his tax returns or in the statements of assets and liabilities before Election Commission of Pakistan thus making him not qualified to contest the election of, or being a member of Parliament by virtue of the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan.) 7. In brief it is the case of the petitioner that the respondent has established an off-shore company(ies), which has assets. The company(ies) and the assets have not been disclosed/ declared by him in the statement of assets and liabilities filed with his nomination papers and/or in his tax returns (wealth statements). This is violative of Section 12(2) of ROPA and the provisions of the Income Tax Ordinance, 2001 (Ordinance, 2001); reference in this regard is made to Section 192 of the Ordinance ibid which provided for an offence, prosecution, conviction and punishment. The reason for not mentioning the name of such company or the asset(s)/property(ies) owned by it in the petition is that the petitioner was/is not aware of the particulars in this behalf; as these facts were exclusively in the knowledge of the respondent. It was not a publicly known fact and given the secretive manner and the object for which such companies are created it is almost impossible for a common man in Pakistan to attain knowledge of the same. However, from the contents of the petition and the documents attached thereto, it seems that the petitioner took up this plea on the basis of the media report titled “PTI’s Tareen finally admits owning off-shore company in children’s name” (see pages 11 to 14 of the petition). In his concise statement, the respondent did not specifically deny this allegation. Instead, he made an evasive reply in certain respects, which in law can always be considered as an admission of fact made in the written statement. Whereas the extent to which the respondent made an unequivocal and unqualified admission shall be highlighted below. The contents of the reply (concise statement) of the respondent are quite striking, thus it is advantageous to reproduce paragraph No.2(v) thereof “the Answering Respondent voluntarily and in good faith Constitution Petition No.36 of 2016 - 37 - disclosed to the public that: (a) his independent children are the beneficiaries under a trust arrangement in an off-shore company; (b) all of the funds, constituting statutory income tax paid income in Pakistan, for settlement and establishment of the said trust were duly remitted through official banking channels in accordance with applicable law; (c) the Answering Respondent himself has no beneficial interest therein and is simply the settlor of the trust in question; (d) there is no legal or mandatory requirement for a settlor to make any disclosure in any nomination form, or income tax return or wealth statement under applicable law since, inter alia, the same do not constitute any asset or liability of the Answering Respondent personally; and (e) the independent children of the Answering Respondent have at all material times been disclosing the beneficial interest in the trust in their statutory wealth statements submitted under Section 116 of the Income Tax Ordinance, 2001 (“2001 Ordinance”) regarding which the tax authorities have never raised any question or dispute whatsoever to date” (emphasis supplied by us). From the above, it is clear that the respondent admitted to the existence of an off-shore company; its disclosure to the public; but with the note of caution that it is his children who are the beneficiaries of the company through some trust arrangement, the funds to create and finance the company are acknowledged to have been provided by the respondent, on which according to him, income tax was paid and the same were sent through official banking channels. Most importantly it is categorically and unequivocally stated that “the Answering Respondent himself has no beneficial interest therein and is simply a settlor of the trust in question” (emphasis supplied by us). However, most significantly, certain information was withheld: the name of the company; how and when it was created, who established the same, where it was incorporated, who are the shareholders, what is the management setup thereof; what properties (assets) are owned by such company; and what is the nature of the trust arrangement. This vital information remained behind a fug of obscurity. However, as the proposition was crucial in nature and once the initial Constitution Petition No.36 of 2016 - 38 - information was laid before the Court by the petitioner and in view of the reply of the respondent (described above), this Court on its own, while exercising its inquisitorial authority, pressed the respondent to provide the particulars about the (off-shore) company with full details in all respects. As in the circumstances of this case, according to the provisions of Article 122 of the Order, 1984 which mandates that “Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person the burden of proving that fact is upon him”, the burden to prove the above fact was upon the shoulders of the respondent. In this context it is to be noted that in the judgment reported as Abdul Karim Nausherwani and another Vs. The State through Chief Ehtesab Commissioner (2015 SCMR 397) it was held that the burden of proving a circumstance/fact that is especially within the knowledge of a person is for him to establish and failing to do so the absence of the same is to be presumed (Articles 119, 121 and 122 of the Order, 1984). The ratio of the judgment Saeed Ahmed Vs. The State (2015 SCMR 710) is that Article 122 of the Order, 1984 stipulates that if a particular fact is especially within the knowledge of any person the burden of proving that fact is upon him. In the judgment reported as Mst. Kamina and another Vs. Al-Amin Goods Transport Agency through L.Rs and 2 others (1992 SCMR 1715) it was enunciated that Article 122 of the Order, 1984 envisages that when any fact is especially within the knowledge of any person the burden of proving that fact is upon that person. In State of Rajasthan vs. Kashi Ram [(2006) 12 SCC 254] it was held that the principle is well settled; the provisions of Section 106 of the Evidence Act, 1872 (pari materia with Article 122 of the Order, 1984) itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. This case was relied upon with approval in the case of Constitution Petition No.36 of 2016 - 39 - Sathya Narayanan vs State rep. by Inspector of Police [(2012) 12 SCC 627]. Consequently when required by the court to discharge that burden it is for the first time that the respondent filed CMA No.5574/2017 on 8.8.2017 (after 8/9 months of his filing the concise statement to the petition) through which he simply placed on the record certain documents (which shall be discussed later). Even at this stage he did not clarify his stance through a written version/statement, as required by the law, (Note:- except in the course of oral submissions and the written arguments submitted at the conclusion of the case where some explanations were tendered). Be that as it may, from these documents it transpired that the name of the off-shore company is Shiny View Limited (SVL) incorporated in British Virgin Islands (Jersey) on 27.4.2011. It is not clear again as to who created it, who is (are) the shareholder(s), what is the management structure of the company. However, along with this CMA a self-prepared statement of accounts has been filed showing that an amount of £2,295,000 was remitted by the respondent through eleven cheques from his foreign currency account No.1242-0000-1899-12 maintained with HBL (Pakistan) to his own Payee Account (HBL) in the UK. This was done during the period from 15.12.2010 to 5.5.2011. However no corresponding credit entry for such amounts has been proved through the bank statement of the respondent’s bank account abroad. And its further utilization and disbursement has not been established through any document by the respondent. One of such cheques dated 15.12.2010 is scanned as under:- Constitution Petition No.36 of 2016 - 40 - (Note:- All other cheques from pages 90 to 100 of CMA No.5574/2017 of a similar nature perhaps having different amounts have been placed on the record). Another cheque dated 25.5.2011 (at page 100 of the CMA) amounting to £250,000 is the remittance by the respondent to SVL. From the record it appears that the same was sent after the purchase price of £2,100,000 of the 12 acres of land (with old structure) named Hyde House situated at Hyde Lane, Ecchinswell, Hampshire RG20 4UN was made over to the owner on 10.5.2011. The sale was registered in HM Land Registry on 15.8.2011 in the name of SVL as proprietor. It has not been established till this point that SVL or its property is held under any trust arrangement. The cheque is scanned as below:- Another amount of £500,000 was remitted by the respondent to SVL and to prove this remittance reliance has been placed upon respondent’s bank statement and the cheque of the said amount dated 12.3.2012 which is scanned as under:- Furthermore, amounts of $400,000, $300,000 and $400,000 were remitted by the respondent to SVL vide cheques dated 8.11.2013, Constitution Petition No.36 of 2016 - 41 - 11.12.2013 and 26.3.2014 respectively from his US dollar account maintained with HBL (Pakistan). One of the cheques dated 8.11.2013 is scanned as under:- It is not clear as to who had opened or was operating the bank account of SVL abroad. As mentioned earlier SVL was incorporated on 27.4.2012 and the incorporation certificate (which appears on page 111 of CMA No.5574/2017), is scanned as under:- From this certificate of incorporation it is not possible to establish the identity of the shareholder(s) or the Director(s) of the SVL, but at page 112 of the noted CMA, an unattested copy of SVL Register of Members as on 26.7.2017 has been placed, showing the authorized capital of the Company as £50,000, issued share as 1 (one) with par value of 0 (zero) and the shareholder as EFG Nominees Limited. Statedly the share was issued on 17.11.2014. Though the par value of the share is shown to be Constitution Petition No.36 of 2016 - 42 - 0 (zero), but if it is considered to be for the full value of the authorized capital of the company and it was purchased by EFG Nominees Limited for the same value; the unanswered question remains, who originally paid this amount, when and how? The copy of the above document is reproduced below:- Before proceeding further it may be pointed out that the entire amount which has been remitted by the respondent from time to time to his own account abroad is £2,295,000; to SVL £750,000 and $1,100,000 as per the exchange rate prevalent at that time this was equivalent to a total of around Rs.532,354,000/- (fifty three crores, twenty three lacs and fifty four thousand only). According to the learned counsel this is the money (money trail) with which Hyde House (with old structure) was purchased and part of the construction cost and other ancillary charges were met. The price of the land was £2,100,000; stamp duty £105,000; registration fee £920 and £18,539.99 were paid as handling charges to Thomas Eggar (perhaps an estate agent), the total amount for the purposes of Hyde House (old structure) being £2,224,459.99. For the new construction and development of Hyde House by SVL c/o EFG Trust Company Limited (see page 121 of CMA No.5574/2017) £2,525,018.73 were spent in addition. In this regard a self- prepared statement has been placed on the record. According to this, a loan was arranged from EFG Private Bank Limited by creating a charge dated 23.7.2015 over the property, but the amount of loan has not been Constitution Petition No.36 of 2016 - 43 - disclosed. It is also not established when the loan was procured or granted. (Note:- It is also not clear if the loan was procured by the EFG Nominees Limited, SVL or the respondent). It is argued by the learned counsel for the respondent, that the current shareholder [one share of par value 0 (zero)] and Directors of the SVL are “EFG Nominees Limited” and according to HM Land Registry, the Hyde House is legally owned by SVL. (In this behalf reliance has been placed upon documents i.e. official copy of register of title at pages 115 to 119 of CMA No.5574/2017). It is also submitted that the above company (EFG Nominees Limited) is held/nominated by “EFG Trust Company Limited”. The entire amount for the purchase of the property was borne by the respondent in the manner stated above which amount was sent through proper banking channels either to his own account (subsequently transferred to the SVL or to the seller of the property or the alleged trust. This aspect remains absolutely unexplained and unclear) or the account of SVL. It may be relevant to mention here that in this CMA a copy of Register of Directors of SVL dated 26.7.2017 has been filed (Client Register of Directors EFG Offshore on page 113 of CMA No.5574/2017) which has three vertical columns; according to the first column the current Director of SVL is EFG Nominees Limited, the date of appointment being 17.11.2014. The former name of the above entity was “EFG Reads Nominees Limited” and prior thereto its name was “Pelican Limited”. In the second column the name of the Director of SVL is “EFG Trust Company Limited”, the date of appointment again being 17.11.2014, the former name/previous name was “EFG Reads Trust Limited”, the previous name whereof was “Reads Trustees Limited” and prior thereto the name was “Pelican Trustees Limited”. This document is scanned as follows:- Constitution Petition No.36 of 2016 - 44 - It may be expedient to mention here that the name of no trust or trustees particularly “HSBC GUYERZELLER TRUST COMPANY” finds mention in the above document. Despite the repeated verbal directions of the Court on many occasions the “arrangement of trust” as mentioned in the concise statement of the respondent was not filed (not with this CMA No.5574/2017). It was only on the clear command of this Court apprising the respondent’s counsel about the consequences of the failure to do so, that the needful was belatedly done; and through CMA No.8187/2017 dated 2.11.2017 a copy of the document (the settlement) attested by some Constitution Petition No.36 of 2016 - 45 - “Authorized Signatory” of EFG Wealth Solutions (Jersey) Limited was submitted. And on the basis thereof, which is purportedly executed on 5.5.2011 between the respondent (settlor) and HSBC GUYERZELLER TRUST COMPANY (the original trustee) (hereinafter referred to as HSBC) the counsel for the respondent has argued that this is the “Trust Arrangement” under which SVL and the Hyde House is held by the afore-named trustee i.e. “EFG Nominees Limited” which is the nominee of the “EFG Trust Company Limited” the present trustee of SVL and its property, and this is an irrevocable discretionary trust created by the respondent. The discretionary lifetime beneficiaries (i.e. the respondent and his spouse) or the beneficiaries (hereinafter discretionary beneficiaries) under the trust are the persons specified in Schedule III and IV thereof (the settlement), who have no legal or beneficial ownership or interest in the assets held by the trust through SVL (i.e. Hyde House). According to the English law and the law in force in Cayman Islands (which is the governing law of the Settlement as per clause 14) and the British Virgin Islands (where SVL was incorporated) in the matter of a discretionary trust, no person shall have any outright beneficial ownership so long as the trust property remains under the absolute discretionary control and powers of the trustee in such trust. And the individuals who are listed as discretionary beneficiaries, do not have any formal, legal or beneficial ownership of any assets in such trust. Instead, according to the trust of this nature, the discretionary beneficiaries have a mere hope of being considered for receiving benefits from the trustees in the exercise of their discretion whenever such benefit accrues. Even if a settlor is a discretionary beneficiary of such a trust, he cannot be said to have any defined beneficial interest or the ownership in the trust assets/property, for so long as he remains only one of a class of the discretionary beneficiaries. In this regard reliance has been placed upon a judgment from the House of Lords reported as Gartside Vs. Inland Constitution Petition No.36 of 2016 - 46 - Revenue Commissioners (1968 AC 553). The relevant part whereof is reproduced as under:- “No doubt in a certain sense a beneficiary under a discretionary trust has an “interest”: the nature of it may, sufficiently for the purpose, be spelt out by saying that he has a right to be considered as a potential recipient of benefit by the trustees and a right to have his interest protected by a Court of Equity. Certainly that is so, and when it is said that he has a right to have the trustees exercise their discretion “fairly” or “reasonably” or “properly” that indicates clearly enough that some objective consideration (not stated explicitly in declaring the discretionary trust, but latent in it) must be applied by the trustees and that the right is more than a mere spes. But that does not mean that he has an interest which is capable of being taxed by reference to its extent in the trust fund’s income: it may be a right, with some degree of concreteness or solidity, one which attracts the protection of a Court of Equity, yet it may still lack the necessary quality of definable extent which must exist before it can be taxed.” (per Lord Reid). As has been stated above, for the purposes of laying down the foundation of his stance/defence in relation to the trust and off-shore company SVL, no written version in the form of a reply (pleadings) was ever filed by the respondent which was expedient, however the learned counsel for the respondent made oral submissions explaining and attempting to connect the documents with respondent’s plea that SVL and its asset, Hyde House, is held in trust by EFG Nominees Limited, which is the nominee of EFG Trust Company Limited. In addition, he has given to the Court his written submissions and we find it expedient to reproduce the same, to better comprehend the stance of the respondent in this regard:- “1(a) Legal & Factual Background: (i) There is a residential property in England (Hyde House) which, in substance, is held under a trust arrangement Constitution Petition No.36 of 2016 - 47 - through an “Irrevocable Discretionary Trust”. (The deed of “Settlement” is at page2-38 of CMA 8187). (emphasis supplied by us) (ii) Legally, the residential property is owned by Shiny View Limited (SVL), a company incorporated in the British Virgin Islands on 27-4-2011 under the BVI Business Companies Act, 2004. Therefore, SVL is not an ‘asset’ of Respondent No.1. (emphasis supplied by us) (iii) The one and only issued share of SVL is held by and in the name of EFG Nominees Limited (of Jersey) which is the nominee of the Trustee for the Trust. (This is established by the Register of Members of SVL @ page 112 of CMA 5574). The Trustee is EFG Trust Company Limited which itself sits on the Board of Directors of the SVL as a Director along with its nominee EFG Nominees Limited. (This is established by the Register of Directors of SVL @ page 113 of CMA 5574/2017). Accordingly, the entire share capital of SVL is owned and controlled by or on behalf of the Trustee and the SVL (which is the registered proprietor of the Hyde House) is owned, managed and controlled by the Trustee as it occupies the Board of Directors and the issued share capital of SVL is held by the nominee of the Trustee. In the entire scheme of ownership and management of SVL as shown above the Respondent No. 1 is neither named nor has any other reportable ownership or nexus. The ownership and management of SVL vests in the Trustee and not Respondent No.1. ……………………… 1(b) Consequence and Legal Submission (i) Accordingly, applying the above to the Respondent No. 1, since he has no legal or defined beneficial interest in the asset in question (i.e. the residential property) nor the share of SVL (which is held by the nominee of the Trustee), there is no “asset” to be reported or disclosed in his nomination papers, tax returns or returns filed with the ECP. Hence, there has been no violation of Section Constitution Petition No.36 of 2016 - 48 - 12(2) or 42A of the 1976 Act nor any other concealment under Article 62(1)(f) or otherwise is warranted against the Respondent No. 1. (ii) On the contrary, even though strictly not required to, the “share in the trust” equivalent to the remittances sent to fund SVL/the Trust is being disclosed in Pakistan in the Wealth Statements of the four children of the Respondent No.1, the ultimate intended beneficiaries. (iii) Moreover, the entire money trail of the monies which funded the Trust (which is the legitimate and disclosed income and wealth of the Respondent No.1) has been furnished in CMA 5574. (iv) There is no issue or even pleaded allegation of ‘assets beyond disclosed or known means’ and the acquisition of the property is funded through monies remitted through official banking channels from Pakistan by the Respondent No. 1 as Settlor. (v) Discretionary Trusts are well recognized in English law and the conceptually the same is also consistent with the (Pakistan) Trusts Act, 1882.” 8. This is the sum total of the respondent’s case in relation to the off-shore company (SVL); that it is held by the trustee. Nowhere in the above written submissions has any reference been made to HSBC. Rather a clear impression has sought to be created that “EFG Trust Company Limited” is the trustee of SVL and the Hyde House despite the fact that the deed of settlement attached with CMA No.8187/2017 is between the respondent (settlor) and HSBC (the original trustee). But from the documents referred to above as also the arguments made by the respondent’s counsel it is absolutely unclear that amounts which were sent by the respondent through banking channels to his own account were ever transferred to the SVL or the trustees for the purchase of Hyde House. Nor was it clarified who opened and operated the account of SVL Constitution Petition No.36 of 2016 - 49 - and how the amounts sent to the account of SVL were utilized (Note:- as mentioned above this was the exclusive burden of the respondent) apart from a vague statement made by him stating that he assumes that the SVL account is with EFG Trust Company Limited, although he categorically added that he could not confirm such statement. However, it is the unequivocal case of the respondent that SVL and the said trust were created by him. No document was placed on the record to show that at the time of the creation and incorporation of SVL who were the shareholder(s) and Director(s) of the company. Again, it remains unproved that the purchase price of the Hyde House and construction costs thereof were borne by the respondent or SVL with the monies sent by him. Be that as it may, there is no dispute with respect to the fact that it was the respondent who selected and took the decision to purchase Hyde House; the respondent had the absolute and exclusive power and authority to take all decisions about the nature of construction; the approval of the design, besides the architect and the builder were of the respondent’s choice. All the decisions and the actions regarding SVL and Hyde House in all respects were the absolute and exclusive privilege and prerogative of the respondent. It is emphatically argued on respondent’s behalf that SVL is the legal owner of the Hyde House but when specifically asked who in this situation is the beneficial owner, the respondent’s counsel was unable to convince us that even in these peculiar circumstances the beneficial ownership vests in SVL. However he then went on to argue that as SVL is held by the trust i.e. EFG Nominees Limited which is the nominee of EFG Trust Company Limited, therefore, the respondent has lost his beneficial ownership and interest, rather despite the fact that the respondent is the beneficiary of the trust along with his status as a settlor he cannot be held to be the beneficial owner of Hyde House. In this regard the contents of the respondent’s written arguments are Constitution Petition No.36 of 2016 - 50 - reproduced “Legally, the residential property is owned by Shiny View Limited (SVL), a company incorporated in the British Virgin Islands on 27-4-2011 under the BVI Business Companies Act, 2004. Therefore, SVL is not an ‘asset’ of Respondent No.1.”. It is also mentioned therein “There is a residential property in England (Hyde House) which, in substance, is held under a trust arrangement through an “Irrevocable Discretionary Trust”. (The deed of “Settlement” is at page2-38 of CMA 8187)”. It is thus clear that from the respondent’s point of view that EFG Nominees Limited (who are the nominees of EFG Trust Company Limited) have exclusive shareholding of SVL and being the nominee of the latter, SVL and its property Hyde House, being a trust property for all intents and purposes, EFG Trust Company Limited is the ultimate trustee of the trust in which SVL and the Hyde House vests. The learned counsel for the respondent did not contend that EFG Nominees Limited or EFG Trust Company Limited had the power and the authority vested in the alleged shareholder and Directors of SVL to create a trust for SVL or its property; or that a trust of the SVL and of Hyde House had in fact has been created by the said company or the trustees or that this was legally permissible in the given facts and circumstances of the case. Instead he unequivocally avowed that the trust was created by the respondent and he is the exclusive settlor thereof. We have no reasons to discard this assertion; however the consequence of the above has to be taken into consideration. As mentioned above, if the respondent claims to be neither the legal nor the beneficial owner of SVL and its property, then by the same token, how come and under what authority, power and right, could the respondent be a settlor of that property and create a trust with regard to which he has no right or interest of any nature at all. In other words the question is, whether he could give SVL and its property to a trust, the answer is in the negative, because when the respondent as mentioned earlier according to the respondent’s own case was not the owner of the Constitution Petition No.36 of 2016 - 51 - property either legally or beneficially, therefore he could not transfer as settlor the property to the trust and, therefore, no valid trust of Hyde House was created by him. And if EFG Trust Company Limited is removed from this scenario, then obviously the SVL as per the record of HM Land Registry of the UK is the legal owner of the property. And in such circumstances the respondent for all intents and purposes was/is the actual, real, true and beneficial owner. It may be pertinent to mention here that when specifically questioned by the Court, the respondent’s counsel responded that the trustee is EFG, which is a private bank and a corporate entity which was nominated as trustee. But he never clarified exactly who nominated EFG. In his oral submissions at one point of time the respondent’s counsel made particular reference to “The Settlement” and stated that trust arrangement was held under HSBC Bank which was then transferred to the EFG. But this is all verbal jugglery. No foundation for this stance was laid down in the pleadings. No document was filed though repeatedly so required by the Court. Interestingly at one point during his arguments the respondent’s counsel asserted “the trust bought a plot with a house” which was demolished and a loan was obtained from EFG Private Bank Limited to fund the construction cost. He admitted that the mortgage payments were made by SVL but were funded by the respondent as he could send funds to SVL to pay off the said mortgage. Again no proof exists on the record of the following; of the mortgage, when it was made, with whom, what was the amount of the loan, when the loan amount was sent by the respondent for the redemption of mortgage, whether the mortgage was created before as is recorded in the land register and the amount was paid afterwards, because according to the record placed before us the last payment sent by the respondent was on 26.3.2014 whereas the charge over Hyde House was created on 23.7.2015. It may not be out of Constitution Petition No.36 of 2016 - 52 - place to mention here even at the cost of repetition that it is not denied that the respondent selected the Hyde House and took the decision to purchase the same. The physical possession of the Hyde House before and after its construction remains with the respondent. The usufruct also has been and remains with the respondent. It is not the respondent’s case that refurbishing and furnishing of the house has been undertaken by the trust. It is not controverted that the Hyde House was never rented out by the respondent or even by the so-called trustee. It is being maintained and all the utility charges and other charges and the taxes etc. are being borne by the respondent. It is also mentioned in clause 19 of “The Settlement” that the fee of the trustees shall be paid by the respondent (settlor) which means that the alleged trustees are not working free of cost, but for consideration perhaps as agents or in a status akin thereto at the behest and on behalf of the respondent. Therefore without going into the question of whether the trust arrangement made through “The Settlement” is discretionary or otherwise in nature and even if we accept that it has been executed between the persons named in “The Settlement” (it bears mention that this is not a registered document), yet the question still remains whether according to the settled principles of the trust law from the foreign jurisdiction and under Trust Act, 1882 of Pakistan (on which the learned counsel for the respondent has placed reliance in his written arguments) it is unequivocal that for the purposes of a valid trust, three conditions are essential and must co-exist and in the absence of any one condition, no valid trust would come into existence. These conditions are also known as THREE CERTAINTIES OF THE TRUST and are as follows (i) it is necessary that the settlor demonstrates that a trust was intended and its purpose; (ii) demarcates the property that is to be the subject of that trust and (iii) identifies who are the beneficiaries of the trust. Constitution Petition No.36 of 2016 - 53 - 9. As regards the first condition, we do not intend to go into the question of whether the respondent intended to create a trust by virtue of “The Settlement” as it is argued by his counsel that the intention behind the creation of the trust was to keep the “trust property” (Note:- whatever that property was) intact and for the future enjoyment of his progeny after the demise of the respondent. In other words, a clog on the disposal of the property was put during the period of trust i.e. 150 years in this case. Suffice it to say that it is not a charitable or a religious trust or a trust meant for the benefit of a class such as orphans; disabled persons; the old, sick or infirm; meant for any hospital or medical purposes; poor workers; affectees of any calamity such as a flood or earthquake. For all intents and purposes “The Settlement” relied upon by the respondent is a private trust of which the respondent and his spouse are the “discretionary lifetime beneficiaries” and after respondent’s lifetime (i.e. settlor’s), his spouse and progeny are the discretionary beneficiaries during the trust period. In such a situation it can always be considered by the court whether the intention is/was fictitious; although the express declaration of trust should be taken as conclusive. However, this rule gives way where the intention to create the trust is palpably false i.e. where a sham trust has been created. When it is regarded as a sham the trust must fail, and the property should revert to the settlor. This might occur, for example, where an individual attempts to siphon off and hide his money in an off-shore trust based in the Channel Islands while maintaining control and beneficial ownership of those funds6, for instance in Rahman v. Chase Bank Trust Co. Ltd.7 it was held that the settlor retained total control over the trust funds and, therefore, could never have genuinely intended to set up a trust. The court, in such 6 Michael Haley and Lara McMurtry, “Equity and Trusts” 2nd Edition 2009, Section 2.09 of Chapter 2 on page 37. 7 [1991] J.L.R. 103 (a Jersey case) Constitution Petition No.36 of 2016 - 54 - circumstances, will look at the reality and substance of the purported transaction and a trust that at face value appears perfectly valid may be set aside if it is a sham trust or an illusory trust, i.e. if the settlor in essence retained the full beneficial interest and did not pass any interest in the property to the proclaimed trustee, the “trust” is a mere fiction and a pretence. In this case, as this point was not agitated by the petitioner and we were unable to get adequate assistance, we would not express our opinion any further. 10. The second essential of the trust is the subject (subject matter) of the trust which in the present case could either be SVL which is the legal title holder of the Hyde House as claimed by the respondent’s counsel or the property itself (i.e. Hyde House). Learned counsel for the respondent in his written submissions has stated that the one and the only issued share of SVL is held by, and in the name of EFG Nominees Limited (of Jersey) which is the nominee of the “trustee of the trust”. This, according to the learned counsel is established from the Register of Members of SVL (at page 112 of CMA No.5574/2017). The trustee is EFG Trust Company Ltd. which itself sits on the Board of Directors of SVL as Director along with its nominee EFG Nominees Limited. This he urged is fortified by the Register of Directors of SVL (at page 113 of CMA No.5574/2017). Accordingly, the entire share capital of SVL is owned and controlled by or on behalf of the trustee and SVL which is the registered proprietor of Hyde House, which is in turn owned, managed and controlled by the trustee of SVL i.e. held by the nominees of the trustee. It is pertinent to mention here that the word “trustee” appearing in the written arguments has not been elaborated, rather from the syntax of these submissions the trustee is “EFG Trust Company Limited” and its nominee is “EFG Nominees Limited”. It may be mentioned that in his oral submissions in this regard and also in the written arguments the respondent’s counsel, Constitution Petition No.36 of 2016 - 55 - he made reference to “The Settlement” dated 5.5.2011. Therefore it is necessary to ascertain as to who is the trustee in this case and whether SVL or the Hyde House has been entrusted to that trust or trustee and by whom and when and through which mechanism this was done. “The settlement” for this purpose as mentioned above has been relied upon by the respondent. It is named “THE RANDOM TRUST”. Respondent is the settlor and HSBC GUYERZELLER TRUST COMPANY of West Bay Road, Grand Cayman, Cayman Islands is the trustee. The most important aspect in this regard is that the trust property or the trust fund is Pound Sterling 100. This is clearly mentioned in “The Settlement” that “(A) The Settlor covenants on the execution of this deed to pay the trustee the sum of Pound Sterling 100 to be held by the trustees upon the following trusts and with and subject to the following terms and conditions ……… (B) It is contemplated that further property may be transferred to be placed under the control of the trustees by way of additions to the trust funds”. 11. We have gone through “The Settlement” and failed to find when or how under this document SVL or “Hyde House” were ever transferred to HSBC GUYERZELLER TRUST COMPANY (Note:- the respondent was not the shareholder of the SVL so he could not be a settlor for such share which he does/did not own in order to create a trust:- He as a beneficial owner has not transferred the Hyde House to any trust. It is not the case of the respondent that the shareholder of SVL i.e. or the Director of the trust or for that matter the EFG Trust Private Limited has given the trust to itself). The respondent has also not provided/shown to us, as repeatedly mentioned above, in his written statements (in the manner of pleadings) if “Hyde House” was subsequently transferred or entrusted to the trustee named in “The Settlement” by any other document or mechanism. No date of transfer or the entrustment and particulars to prove the same have been brought on the record in this behalf or even mentioned by the respondent’s counsel. It is the case of the respondent that in fact EFG Trust Company Limited Constitution Petition No.36 of 2016 - 56 - is the trustee of the SVL, the proprietor of the Hyde House (emphasis supplied). It is not pleaded, shown, established or proved on the record that EFG Trust Company Limited was ever appointed by the respondent as the trustee under “The Settlement” or any other trust deed. In fact, it is not the stance of the respondent that EFG Trust Company Limited legally or factually took over the HSBC, the original trustee, under some deed, contract or legal arrangement and the EFG Trust Company Limited or EFG Private Bank Limited by operation of law became the trustee of SVL and thus the Hyde House. It is not even the case of the respondent that HSBC as its nominee or agent under clause 12 of “The Settlement” or clauses 19 or 20 or 21 of the document has conferred any power or authority on “EFG Private Bank Limited”, “EFG Trust Company Limited” or “EFG Nominees Limited”. Despite our repeated queries and probe no satisfactory answer was forthcoming from the respondent’s side in this behalf. Therefore we are of the firm opinion that neither the SVL nor Hyde House were a trust property under “The Settlement” or any other document so far on the record. Moreover from the money trail provided to us, it is the case of the respondent that the entire amount for the purchase and construction of Hyde House was sent by the respondent in a legal way through proper banking channels. If that were so, and even if SVL was created as a special vehicle for the purposes of holding a property for the respondent, it (SVL) was for the purposes of legal title and was at most a legal owner of the property as urged by the respondent’s counsel for the purposes of avoiding present or future tax liability/implication. However, once the veil of incorporation of SVL is lifted, the respondent’s face is clearly seen behind it as the true and actual owner of Hyde House. Perhaps SVL was created as a repository to hide his tax paid money, sent through banking channels and shown to have been spent on the creation of SVL and the purchase/construction Constitution Petition No.36 of 2016 - 57 - of the “Hyde House”; but this was done in a clandestine and dubious manner. The object behind this exercise was to hide and stash the said money, SVL and the property from the tax authorities and from the public eyes; by a person who has even in the past been a holder of a public office and presently occupies such an office. It may be pertinent to mention here that the respondent has not placed and proof on the record that the amounts he transferred to his personal bank account abroad were utilized for the purchase etc. of “Hyde House” and those were ever transferred to SVL for this purpose. In our view, SVL or Hyde House were never transferred, passed on and made a part of the trust property, by, under or pursuant to “The Settlement” and for all intents and purposes, regardless of the fact that the legal title of the property vested in SVL per the record i.e. HM Land Registry record. The respondent was, has been and remains to be the true, real and beneficial owner of the property enjoying full control and discharging all the obligations of the owner. As regards the third essential of a valid trust, the beneficiaries of the trust are mentioned in “The Settlement” so therefore we would not like to comment further about it. Except we shall discuss and consider the stance of the respondent taken in the concise statement that he has no beneficial interest in the trust and the consequences thereof in the succeeding part of this opinion. There is another interesting aspect of the matter which is that though it is the case of the respondent that he had sent all the money which was utilized for the purchase and for the construction of Hyde House, but he has never declared the said amounts in his own tax returns, rather he has shown these (amounts) as gifts to his four children, without there being any gift actually made to them, because no cross-cheques of the gifted amounts were brought on the record envisaging the gift of the said amount in favour of the children. Moreover, when such gifts were never made, how could the children in Constitution Petition No.36 of 2016 - 58 - their tax returns show such amount as their share in the trust (some unknown trust?) without mentioning the Hyde House or SVL as an off-shore company or mentioning EFG Nominees Limited or EFG Trust Company Limited? Because in their tax returns the children have in fact shown such amounts to be their share in some (unknown) trust. This all seems rather farcical. 12. Above all the most important and crucial aspect of the matter is: that in his concise statement it is the clear and unequivocal stance of the respondent “the Answering Respondent himself has no beneficial interest therein and is simply a settlor of the trust in question”. But this assertion made in the concise statement has been belied by “The Settlement” relied upon by the respondent where he and his spouse are shown to be the “discretionary lifetime beneficiaries”. Schedule III of “The Settlement” clearly mentions so, whereas spouse, his children and progeny shall only be “discretionary beneficiaries” after the demise of the respondent as per Schedule IV. Both the Schedules are reproduced as below:- SCHEDULE III (Discretionary Lifetime Beneficiaries) For the purposes of clause 6, the “Discretionary Lifetime Beneficiaries” means the following persons or class of persons living or in existence at any time before the end of the Trust period: Name Date of birth Relationship to Settlor The Settlor 04/07/1953 The Settlor’s wife 10/09/1956 SCHEDULE IV (Trusts after the Settlor’s lifetime) 1. (a) In this Schedule IV, the “Discretionary Beneficiaries” means, subject to the following provisions of this paragraph, the following persons or class of persons living or in existence at any time before the end of the Trust Period: Constitution Petition No.36 of 2016 - 59 - Name Date of birth Relationship to Settlor The Settlor’s wife 10/09/1956 The Settlor’s children The Settlor’s grandchildren and remoter issue. This is a blatant and shocking untrue statement on behalf of the respondent, which is not expected from an honest person. Perhaps the respondent at the time when the concise statement was filed never expected that such a deep probe would be conducted into the matter by this Court and thought to get away with the camouflage and variety of covers, layers and veils of his off-shore company. But at the end he was unable to avoid the truth. Thus on account of what has been said above, we hold that the respondent for all intents and purposes was the actual, real, true and beneficial owner of “Hyde House” and he was required under the law to declare such property and the asset in his nomination papers filed on 9.9.2015, to contest the by-elections. And on account of this concealment that respondent is held not be an “honest” person within the contemplation of Article 62(1)(f) of the Constitution and Section 99(1)(f) of ROPA, therefore he has incurred the disqualification to be the member of the Parliament and ceases to be the member thereof. Besides on account of his unequivocal stance in the concise statement that he has no beneficial interest in the trust or the property is also an untrue statement made by him before the highest judicial forum of the country as “The Settlement” relied upon by the respondent belie his stance. On this account also he not being “honest” stands disqualified under the provisions of the Constitution and the law mentioned above. AGRICULTURAL INCOME (Proposition No.3): (That Respondent No. 1 in relation to his income has committed following misrepresentations; a) For the year 2010 and 2011 disclosed yearly incomes in his tax returns different from the statements before Election Commission of Pakistan; b) Inflated his agriculture income for whitening his undisclosed income; Constitution Petition No.36 of 2016 - 60 - c) evaded agriculture income tax. Thus making him not qualified to contest the election of, or being a Member of Parliament by virtue of the provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan.) 13. In the context of this proposition the petitioner has set out a case based on the following four pillars: (A) That the respondent willfully misstated less agricultural income in his nomination papers dated 27.3.2013 filed with the ECP as against the agricultural income declared in his income tax returns with the FBR. These are vital and unexplained discrepancies, to highlight those, the petitioner has placed a chart in his petition which is reproduced as under:- Tax Year Agri income as declared before ECP Agri income as declared before FBR Discrepancy 2010 120,000,000 545,000,000 425,000,000 2011 160,000,000 700,282,263 540,282,263 (B) The respondent has overstated his agricultural income with the FBR with the intent to launder (whiten) his undeclared income from unknown sources and to justify income earned through black money. It is averred in the petition that the income tax charged on agricultural income is less than that charged on other sources. (Note: This seems to be a misconception on the part of the petitioner because agricultural income of the tax payer is altogether exempted under Section 41 of the Ordinance, 2001). It is alleged that the respondent by over-stating his income from agricultural sources attempted to unlawfully evade income tax payable under the Ordinance, 2001 in case he had disclosed the real source of such income. (C) As per the agricultural income declared at the entry at Sr. No.14 of the nomination papers submitted before the Election Commission of Pakistan for the General Election 2013, the respondent has failed to pay the agricultural income tax amount due for the years Constitution Petition No.36 of 2016 - 61 - 2010-11 as required under Section 3 read with the 2nd Schedule of the Punjab Agricultural Income Tax Act, 1997 (the Act of 1997). The leviable agricultural income tax is Rs.22500 + 15% of the income exceeding Rs.300,000/-, hence the respondent is guilty of evasion of more than Rs.31,00,852/- for these two years. The details of the agricultural income of the respondent for the said years and the tax evaded by him have been set out in the chart given in the petition as under:- Tax Year Agricultural Income Tax before ECP Agricultural Income Tax due under Punjab Agricultural Income Tax Act, 1997 Unpaid Tax (in Rupees) Agri Income (as declared) before ECP Agri Income Tax Paid (as declared) before ECP Leviable Income Tax Rs.22500+15% of income exceeding Rs.300,000/- 2010 120,000,000 3,171,024 17,977,500 14,806,976 2011 160,000,000 7,781,124 23,977,500 16,196,376 Total 31,002,852 (D) The total agricultural income of the respondent as declared by him with the FBR for the tax year 2010 was Rs.545,000,000/- and for the tax year 2011 it was Rs.700,282,263/-. The tax leviable on the said amounts under Section 3 read with Schedule of the Act of 1997 amounts to Rs.81,705,000/- and Rs.104,997,393/- respectively, which the respondent knowingly, willfully evaded causing a great loss to the national exchequer; at least to the tune of Rs.175,750,245/-. In this regard the petitioner has relied upon the following chart in the petition:- Tax Year Agricultural Income before FBR as declared Agricultural Income Tax due Unpaid Tax 2010 Rs.545,000,000/- Rs.81,705,000/- Rs.78,533,976/- 2011 Rs.700,282,263/- Rs.104,997,393/- Rs.97,216,269/- Total Rs.175,750,245/- 14. On the contrary, the respondent’s learned counsel has argued that the respondent was not elected on the basis of the Constitution Petition No.36 of 2016 - 62 - nomination papers dated 27.3.2013, thus the discrepancies and the alleged misdeclaration or misstatement etc. therein cannot be made the basis for rejecting his nomination papers filed on 9.9.2015 in the by- election, which he has won. And such material cannot be used to attribute any dishonesty to the respondent. Besides, the respondent had two sources of agriculture income (i) from his self-owned holding (ii) from his leasehold holding of 18566 acres; for the purposes of the tax paid under the Act of 1997 the respondent has correctly declared the income which he derived from his personal holding and accordingly paid the agriculture income tax thereupon, calculated as per the law. The same has never been questioned by competent authorities under the Act of 1997. Under the law he was not obliged to pay agricultural income tax on agricultural income derived from his lease holding. Whereas in the income tax returns filed under the Ordinance, 2001 the agricultural income derived by the respondent from the entire land cultivated (both owned and leasehold) has been mentioned. And this entire agricultural income was exempt under Section 41 of the Ordinance, 2001. It is stated that there was no concealment of the latter income (i.e. from the leasehold land) because along with the nomination papers dated 27.3.2013, the respondent has attached his income tax returns for the relevant years 2010-2011 which reveal the same amount of agricultural income which the respondent declared before the FBR; further, no misstatement and/or misdeclaration at the time of scrutiny of his nomination papers filed on 27.3.2013 was attributed to the respondent, which were duly accepted. Same is the position regarding the nomination papers filed to contest the by-election in 2015, where no objection was raised by anyone on the above account. It is also submitted that the respondent had won this election which was not challenged by anyone having locus standi to do so under ROPA, on the noted or any other ground. It is urged that Constitution Petition No.36 of 2016 - 63 - entry at Sr. No.14 of the nomination papers in fact and law requires the information regarding agricultural income paid by the candidate for a particular year(s) and for this purpose only column No.4 of the said entry was relevant and the former two columns were only ancillary and incidental thereto and in any case shall not govern or control the clear language of the main entry at Sr. No.14, which leaves no room for doubt that through the same, specific and particular information is being sought regarding the agricultural income tax paid by the candidate for the last three years. It is further argued that no action for any alleged misdeclaration or short payment of the agricultural income tax has been taken against the respondent by the concerned department under the provisions of the Act of 1997. And as per Section 4(4) of the Act of 1997 the limitation to do so has lapsed. Therefore, the alleged misdeclaration and the short payment cannot be made a ground for a petition under Article 184(3) and imputed as dishonesty to the respondent in terms of Article 62(1)(f) of the Constitution. [Any tax law if found not to have been strictly followed by a tax payer or any inaccuracy in the required declaration or any omission to make a declaration of something required shall not necessarily mean, that the omission etc. and consequently less or improper payment of tax is a dishonest act on the part of the tax payer to attract the disqualification clause under the Constitution and the law, until and unless it has been so held and declared by the forum of competent jurisdiction under that particular law. It is the case of the respondent that in his nomination paper(s) he has correctly declared the amount of the Punjab agricultural tax, which he has paid in the years 2010-11 on the agricultural land which was held by him (his owned holdings) whereas, besides, the above holdings, the respondent was also cultivating about 18566 acres of land on lease and for the income derived from the lease holding land he was not obliged to pay the agricultural income tax. And this has never been questioned by the concerned authorities under the Act of 1997. And the total income derived by the respondent from his owned holding and from the lease holding was accordingly declared Constitution Petition No.36 of 2016 - 64 - to the FBR and this was exempted under the Income Tax Ordinance, 2001 (see Section 41)]. It is lastly submitted that the same grounds which have been raised in the petition are the subject matter of the two show cause notices, both dated 27.5.2016 issued by the income tax department for the year 2010- 2011 and the matter is sub-judice either in the departmental hierarchy or the High Court and/or before this Court, therefore any view expressed or findings given in this behalf in these proceedings are bound to cause serious prejudice to the respondent which is not permissible under the law. The details of such pending matters and the orders passed therein have been placed on the record (see CMA No.4142/2017). 15. Heard. Much emphasis has been laid by both the learned counsel for the parties regarding the interpretation of Section 3 of the Act of 1997 with specific reference to sub-section (3) of the same which is the charging provision. In this context, reliance has also been placed on the agricultural income defined in Section 2(a) of the Act ibid. Furthermore, according to the petitioner’s counsel there is no distinction between the self-owned holding or the leasehold holding of a person and in this regard he has placed reliance upon the following dictionary meanings of the term “holding”:- Handbook of Legal Terms & Phrases, Judicially Defined “Holding signifies the nature of the right enjoyed by the tenant or occupier of the land. It means land held by an occupier under some agreement.” Black’s Law Dictionary, Eighth Edition “Holding: Legally owned property, esp. land or securities.” Excellent Legal Dictionary: Words and Phrases “Holding: General term for property, securities, etc. owned by person or corporation.” Concise Oxford English Dictionary “Holding: An area of land held by lease. Financial assets.” 21st Century Dictionary “Holding: Land held by lease. An amount of land, shares, etc. owned by a person or company.” Constitution Petition No.36 of 2016 - 65 - On account of the above it is argued that the respondent was obliged to pay the agricultural income tax on whole of his agricultural income as has been defined by the definition clause [Section 2(a)]. Suffice it to say that in the present proceedings which are under the provisions of Article 184(3) of the Constitution and admittedly in the nature of a quo- warranto petition, we are not expected and required to adjudge the honesty or dishonesty of a member of the Parliament on the basis of our determination and adjudication whether he has not declared (truthfully); misdeclared; or short declared his agricultural income and thus failed to discharge his tax liability in the past as has been prescribed by a particular tax/fiscal law. This cannot and should not be merely done on the basis of our own interpretation of the law for the first time and on the basis of our own findings and conclusions to hold that there is a misdeclaration or non-declaration etc. and consequently short payment of the tax; to thereby declare a Parliamentarian “dishonest”, within the purview of Article 62(1)(f) ibid. The mechanism for charging, declaration of the amounts/assets subject to the charge of tax etc., the process of assessment and the resulting/subsequent adjudication; the liability for the failure to comply with such law and the consequences of recoveries, fines, penalties have been provided by the law, which are to be undertaken by specified forums in a particular form and by adhering to a particular procedure. The law provides a person aggrieved of such actions/decisions with a complete hierarchy of further remedies before higher forums. We have seen that in the instant matter the declaration of agricultural income by the respondent and the tax paid thereupon has not been questioned by the concerned department. We are also not inclined to make such a declaration on the basis of the nomination papers of the respondent in the year 2013 which were never challenged Constitution Petition No.36 of 2016 - 66 - by anyone on that score and he was also not elected in that election. Besides, from the nomination papers it is clear that the respondent did attach his income tax/wealth tax returns and the agricultural income which was different from the nomination papers was clearly mentioned therein. Moreover, from the perusal of the record, which is not controverted by the petitioner, it stands revealed that two proceedings against the respondent have been initiated by the income tax department on the basis of the variation and the difference in the agricultural income as declared by him in his nomination papers of 2013 for the concerned years (2010-2011) and the agricultural income (declared) under the Ordinance, 2001. Regarding the income tax return of the respondent for the year 2010 (filed on 7.10.2010), Assistant Commissioner, Inland Revenue, issued a notice (No. Audit-01/2010/1068) dated 27.5.2016 to him under Section 122(9) read with Section 122(5) of the Ordinance, 2001 with respect to certain discrepancies inter alia in the said return submitted by him and the agricultural income given in the statement of assets and liabilities submitted with his nomination papers (dated 27.3.2013) with the ECP. The relevant portion of the notice is reproduced as below:- “2. DIFFERENCE OF AGRICULTURAL INCOME In the Election Commission of Pakistan (hereinafter referred as ‘ECP’) you filed a statement of Assets, Liabilities & Income which does not reconcile with those declared in his Tax Declaration in FBR. Cross-matching of Declarations in ECP & FBR for Agriculture Income is as follow: Tax Year ECP FBR Discrepancy Agriculture Income (as declared) Agri Income Tax Paid (as declared) Agriculture Income (as declared) (FBR-ECP) 2010 120,000,000 3,171,024 545,000,000 425,000,000 Constitution Petition No.36 of 2016 - 67 - Above matrix shows that in ECP you declared (under oath) your Agriculture Income of Rs. 120,000,000 for the Tax Year 2010 with the claim of Agriculture Income Tax (Provincial) Rs.3,171,024 paid under Punjab Agriculture Income Tax Act 1997. This declaration (in ECP) renders particulars of Income of the taxpayer, declared with FBR for the respective tax year, inaccurate warranting action under section 111(1) of the Income Tax Ordinance, 2001.” This notice was replied to by the respondent on 23.6.2016 through his authorized representative A.F. Ferguson & Co. (authorized representative) in which it was stated:- “10. It has been confronted that agricultural income of Rs. 545 million declared by taxpayer in FRTI for subject tax year is not in agreement with the amount of Rs. 120 million disclosed as agricultural income in ‘nomination form’ submitted by the taxpayer with ECP and in such background, taxpayer has been required to explain its position, failing which intentions have been shown to add the differential amount of Rs. 425 million towards taxable income under section 111(1) of the Ordinance. 11. In this connection, it would be appropriate that ‘nature’ of agricultural income derived by the taxpayer during the year is explained first. During the tax year under consideration, taxpayer derived agricultural income from agricultural land ‘owned’ as well as held by it under ‘lease arrangements’ and derived income therefrom in the following manner: (i) Agricultural income derived from ‘owned land’- Rs.120 million; and (ii) Agricultural income derived from ‘leasehold land’ – Rs.425 million. 12. In the above background, we now invite your attention towards the fact that the nomination form required to be furnished with the ECP required the provision of details of ‘landholding’, ‘agricultural income’ derived and ‘tax’ paid by the taxpayer on ‘owned’ lands, a fact readily verifiable from the Constitution Petition No.36 of 2016 - 68 - relevant form prescribed by ECP. Accordingly, the particulars relating to ‘owned lands’ were disclosed in Entry No.14 of subject nomination form. Moreover, under the relevant provincial legislation i.e. Punjab Agricultural Income Tax Act, 1997, agriculture Income Tax was only payable in respect of ‘owned lands’ and thus disclosure in ECP’s nomination form was clearly warranted only to the extent of ‘owned lands’. Nevertheless, in the income tax return and wealth statement, aggregate agricultural income of Rs.545 million was disclosed by the taxpayer. It may be appreciated that copies of relevant income tax return/wealth statements were also filed with ECP that duly evidences the taxpayer’s bona fide that there was no attempt, intentional or otherwise, to report lesser amount of agricultural income to ECP.” Pursuant to the above an Amended Assessment Order dated 30.6.2016 under Section 122(1)/122(5) of the Ordinance, 2001 by the Deputy Commissioner, holding therein that “Regarding the matter of difference in agricultural income declared in income tax return and that declared before Election Commission of Pakistan, the explanation of the taxpayer carries weight. In support, the taxpayer filed complete details of agricultural income and bifurcation of income earned from owned land and income from leasehold land comprising of 18566 Acres under the title of JK Farms. The taxpayer was requested to provide area wise detail of land acquired on lease which has also been filed and placed on record. Since, the prescribed format of declaration to be filed before the Election Commission of Pakistan does not include any column for declaring income earned from leasehold land therefore the same was not mentioned therein. Further, the taxpayer has declared correct particulars of income before Income Tax Department; therefore, there is no need to add the difference again to income already declared by the taxpayer. Regarding the matter of tax on agricultural income, the agricultural income enjoys exemption from income tax by virtue of Section 41 of the Income Tax Ordinance, 2001. Since, taxation of agricultural income is subject of Provincial Government; therefor, no action can be taken in this regard by this office being the issue out of jurisdiction. In view of the above, no adverse inference in Constitution Petition No.36 of 2016 - 69 - this regard is warranted”. Following this, the Additional Commissioner, Inland Revenue issued a Show Cause Notice dated 10.8.2016 to the Respondent under Section 122(9) read with Section 122(5A)/122(4) of the Ordinance, 2001 wherein he stated that the acceptance of explanations rendered with regard to discrepancies in agriculture income by the Deputy Commissioner, was an erroneous assessment inter alia on the basis that 26 lease agreements have proven to be fake on account of not being verifiable, and hence invoking the provisions of Section 125(5A) read with Section 122(4) of the Ordinance, 2001 he is amending the assessment order made by the Deputy Commissioner (ibid). The Respondent’s authorized representative responded to this Show Cause Notice by submitting preliminary objections to the same vide letter dated 26.08.2016; however the preliminary objections made by the authorized representative were rejected by the Additional Commissioner, Inland Revenue on 30.08.2016. A Writ Petition No. 27535/2016 was then filed by the Respondent against the said proceedings regarding his income tax returns for the year 2010 which was allowed by the learned High Court vide its judgment dated 30.12.2016 (see pages 123 to 133 of CMA No.3675/2017). The income tax department filed Review Petition No.19/2017 which was dismissed on 17.4.2017 (see pages 5 to 9 of CMA No.4142/2017). The department, however, has filed Civil Petition No.349-L/2017 against the said order which is pending adjudication before this Court. For the income tax return of the respondent of the year 2011 (filed on 17.11.2011), Assistant Commissioner, Inland Revenue, issued a notice (No. Audit-01/2010/1069) dated 27.5.2016 under Section 122(9) read with Section 122(5) of the Ordinance, 2001 to the respondent wherein similar discrepancies in the income tax returns of 2011 and agricultural income stated in the statement of assets and liabilities filed with his nomination papers warranting action under Section 111(1) of the Ordinance, 2001 were Constitution Petition No.36 of 2016 - 70 - brought to his attention. The respondent through his authorized representative sought some adjournment to file a reply; which (reply) was not filed and therefore the Deputy Commissioner Inland Revenue vide order dated 8.8.2016 issued a notice of demand to the respondent in respect of tax year of 2011, whereby after appraising him of the manner of the proceedings being carried on in the absence of the respondent’s reply or participation despite reminders and opportunities, it was decided that the respondent had evaded tax amount due by trying to disguise his taxable income as agricultural income. The respondent appealed against the said assessment order on 8.8.2016 which was decided by the Commissioner Inland Revenue (Appeals) on 2.9.2016 whereby the assessment order of 8.8.2016 was confirmed. The respondent brought an appeal before the Appellate Tribunal, Inland Revenue (ATIR), against this decision of the Commissioner Inland Revenue (ibid) which allowed the appeal on 24.10.2016. Against said decision of the Appellate Tribunal Inland Revenue an income tax reference bearing No. 349/2016 was filed by the revenue department before the Lahore High Court as per Section 133 of the Ordinance, 2001. This income tax reference was allowed by judgment dated 16.10.2017, and the most recent update concerning these proceedings is that the matter has been remanded to the ATIR on account of it being the final forum for undertaking factual inquiry, and in the meanwhile an injunctive order has been obtained with respect to the recovery of tax from the respondent. The Tribunal, on remand, has extended the earlier stay order granted to the respondent on 7.10.2016, when his previous appeal was pending before deciding in favour of the respondent. The operative part of the said order dated 23.10.2017 reads as “The stay granted is extended for a further period of 30 days or till the decision of the appeal whichever is earlier”. Such proceedings as are pending shall involve not only factual but also the legal issues, such as inter alia the Constitution Petition No.36 of 2016 - 71 - interpretation and application of the provisions of Section 3 of the Act of 1997; the question with regards to the jurisdiction of the income tax authorities under the Ordinance, 2001 and more importantly the factual aspect as to whether the respondent has obtained on lease the land measuring 18566 acres and thus has derived agricultural income from such land, which shall be exempt from the income tax under Section 41 of the Ordinance, 2001. Thus any view expressed by this Court in the proceedings in the nature of quo-warranto (which is a discretionary remedy and relief) is likely to cause prejudice to the respondent, and even the FBR; because the FBR in its concise statement in the instant matter has taken a stance against the respondent. As there exist disputed facts we shall not express any view in this regard nor make any interpretation of the provisions (Section 3) of Act of 1997 to determine the honesty or otherwise of the respondent for the purposes of Article 62(1)(f) of the Constitution. It may be reiterated that the authorities under the Act of 1997 have not so far initiated any action against the respondent for the alleged misdeclaration or the short payment of the “agricultural income tax” under the special law. And we are not sure if such action in the light of the provisions of Section 4(4) of the Act of 1997 can now be taken by the said department. We are also refraining from exercising our discretion in favour of the petitioner and against the respondent because of the clear mandate of Article 4 of the Constitution which enshrines “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen”. In the present situation when no action has thus far been taken against the respondent under the law i.e. Act of 1997 and the action taken against him by virtue of Ordinance, 2001, the other possibly applicable law is as yet pending before various fora and has not reached its conclusion: therefore in such circumstances to adjudge the honesty or Constitution Petition No.36 of 2016 - 72 - otherwise of the respondent would be against the mandate of Article 4 ibid. 16. It may also be mentioned here that despite the above legal position in order to satisfy ourselves if prima facie respondent has obtained 18566 acres of land on lease, we required the respondent to place on record the khasra girdawaris and the jamabandis for the relevant period. This has not been done and the explanation given by the counsel in this behalf is that as per the prevalent practice in the area the lessors are reluctant to show the possession of the lessee in the revenue record. But the respondent has placed on the record a number of unregistered lease agreements, in an attempt to establish the factum of leases; as also the payments of the lease amounts to the lessor which according to the respondent have been made through crossed cheques and according to the bank certificate required by us, and filed vide CMA No.8187/2017, the amounts have been transmitted to the accounts of the lessors or the head of the family or the person authorized on their behalf. It may further be added that the respondent has also placed on the record the documents, regarding the payment of abiana of such leased land or a part thereof and also the sale proceeds of the agricultural produce attained by the respondent from the land, along with certain documents pertaining to the expenses incurred by him for the crops sown (CMA No.7013/2017). As against the above no material in rebuttal has been placed on the record by the petitioner to establish that such lease agreements are fake or forged or the payment to lessors or the expenses incurred by the respondent in this regard are incorrect. In these circumstances the above controversy being factual in nature and despite our authority to hold inquisitorial proceeding which we have applied to the maximum, we do not find this to be a fit case for further Constitution Petition No.36 of 2016 - 73 - probe, when the matters as stated earlier are pending adjudication before different fora and this is one of the disputed issues. 17. As regards the scope and interpretation of entry No.14 of the nomination papers which reads as follows:- “14. The agricultural income tax paid by me during the last three years is given below: Tax Year Land holding Acres Agricultural income Total agricultural Income Tax paid 2012 295 165,000,000 8,654,929 2011 507.5 160,000,000 7,181,124 2010 507.5 120,000,000 3,171,024 Note II: Attach copies of agricultural tax returns of the last three years mentioned above.” On the plain reading of the entry which is the main provision, the primary question asked and the purpose behind it seems to be requiring the candidate to disclose the “agricultural income tax” he has paid during the last three years. The predominant requirement is about the amount of the “tax paid” and the relevant column in this context is 4 i.e. “Total agricultural income tax paid” whereas columns No.2 and 3 of the table are the enabling part of the 4th column when considered in the light of the language of the entry. Note II reproduced above then requires the attachment of the copies of the agricultural tax return. One is not required to specify, independent of the return, about the holding of the land. It is not the case of the petitioner that false and fake figure of the “tax paid” was mentioned in column No.4 or that the copies of the returns were either not filed or were bogus etc. Therefore, on the above account too we are not persuaded to declare the respondent “dishonest” within the purview of Article 62(1)(f) of the Constitution. WRITTEN OFF LOAN (Proposition No.4): Constitution Petition No.36 of 2016 - 74 - (That Respondent No. 1 was Director of the Company which remained under the management of his family members and a loan amounting to Rs. 49 Million was written off by the banks thus making him disqualified to contest the election of, or from being, a member of Parliament by virtue of the provisions of Representation of People Act 1976 read with Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan.) 18. It is the case of the petitioner that the respondent was a Director of the company [presumably Faruki Pulp Mills Ltd. (FPML)] which remained under the management and control of his family members and loans amounting to Rs.49.81 million were written off by the banks and therefore he was disqualified in terms of Article 63(1)(n) of the Constitution to contest and hold the membership of the National Assembly. It may be relevant to mention here that no details have been provided by the petitioner in the petition as to the period when the respondent was the Director of the said company; what was his shareholding; who were the family members of the respondent managing the affairs of the company; what was the period when such loans were written off. Be that as it may, in this regard, a letter of the State Bank of Pakistan dated 28.3.2013 has been relied upon, according to which, in response to the request by the ECP (SBP Portal) for the scrutiny of the nomination papers of Mr. Jehangir Khan Tareen who was contesting election from constituency NA-154 Lodhran in 2013, the information provided was as under:- “Please refer to your request received through ECP (SBP Portal) for scrutiny of nomination papers of captioned candidate, the detail of overdue/write off amounting to Rs. 2 million and above for last one year reported by the member financial institutions against the candidate/spouse/dependent as on February 28, 2013 is given below:- CNIC/Name Relation with Candidate FI Name Overdue Writeoff ------------- No Record Found ------------- Further, candidate/spouse/dependent is also director/owner of following companies having overdue/write off amounting to Rs. 2 million and above for last one year:- Constitution Petition No.36 of 2016 - 75 - (Rs. In Million) CNIC/Name Relation with Name of Company FI Name Overdue Writeoff 35202-2698829- 5/JHANGIR KHAN TAREEN SELF FARUKI PULP MILLS LTD. UNITED BANK LTD. 0 19.234 35202-2698829- 5/JHANGIR KHAN TAREEN SELF FARUKI PULP MILLS LTD. MCB BANK LTD. 0 9.015 35202-2698829- 5/JHANGIR KHAN TAREEN SELF FARUQUI PULP MILLS LTD. ROYAL BANK OF SCOTLAND 0 21.57 35202-2698829- 5/JAHANGIR KHAN TAREEN SELF STATE ENGG. A/C. HEAVY MECHANICAL COMPLEX INDUSTRIAL DEVLEOPMENT BANK LIMITED (FORMERLY IDBP) .932 0 35202-2698829- 5/JAHANGIR KHAN TAREEN SELF STATE ENGG. A/C. HEAVY MECHANICAL COMPLEX NATIONAL BANK OF PAKISTAN 406.818 0 35202-5803969- 1/ALI KHAN TAREEN SON FARUKI PULP MILLS LTD. UNITED BANK LTD. 0 19.234 35202-5803969- 1/ALI KHAN TAREEN SON FARUKI PULP MILLS LTD. MCB BANK LTD. 0 9.015 35202-5803969- 1/ALI KHAN TAREEN SON FARUKI PULP MILLS LTD. ROYAL BANK OF SCOTLAND 0 21.57 From the above document alone the necessary details to attract the disqualification of Article 63(1)(n) to the respondent are not established. It is also not proved that FPML was under the managing control of the respondent or his family members when the loans (though the period is not specified) were written off. Presumably it was in the year 2007. Whether the respondent or his spouse or dependents were the shareholders (or indeed the extent of such holding) or directors of the company does not transpire from this letter. However, in the letter dated 4.4.2013 placed by the respondent on the record addressed by the MCB Bank Ltd. to the Chief Election Commissioner and the Returning Officer of NA-154, it is stated “We would like to clarify that the loan write-off of Rs.9.015 million on account of Faruki Pulp Mills Limited, as reflected in the above letter of State Bank of Pakistan pertains to a loan that was availed by Faruki Pulp Mills Limited prior to Mr. Jahangir Khan becoming a Director of Faruki Pulp Mills Limited. We would further clarify that the settlement of loan, including write-off of Rs.9.015 million, also took place prior to his becoming Director of Faruki Pulp Mills Limited. As per our records, Mr. Jahangir Khan Tareen Constitution Petition No.36 of 2016 - 76 - became a Director of Faruki Pulp Mills Limited on 29-12-2010 and resigned as Director on 4-02-2013”. The other letter dated 5.4.2013 has been issued by United Bank Ltd. to the Chief Election Commissioner which states “We would like to clarify that the loan write-off of Rs.19.234 million on account of Faruki Pulp Mills Limited, as reflected in the above letter of State Bank of Pakistan, pertains to a loan that was availed by Faruki Pulp Mills Limited prior to Mr. Jahangir Khan Tareen becoming a Director of Faruki Pulp Mills Limited. We would further clarify that the settlement of loan, including write-off of Rs.19.234 million, also took place prior to his becoming Director of Faruki Pulp Mills Limited”. There is another letter of the State Bank of Pakistan dated 1.4.2013 in which it has been clarified that M/s Heavy Mechanical Complex is a government owned entrepreneur and Jahangir Khan Tareen was the ex-officio nominee Director of that company. We have been apprised by the learned counsel for the respondent, and the same was not controverted by the petitioner’s side, that the respondent only held 500 qualifying shares in FPML which he acquired in the year 2010 and became a Director of the company. With his resignation as a Director of the company on 4.2.2013, these shares were also disposed of. It is not the case of the petitioner before us that on account of the name of respondent’s son, Ali Khan Tareen, appearing in the noted letter of the SBP, the respondent in the context of written off loan is disqualified. No submissions in relation to Ali Tareen were made before us. Therefore, we are clear in our mind that the aforesaid written off loan does not pertain to the respondent or any of his companies or his spouse and dependents in which he had the requisite shareholding for the purposes of attracting disqualification envisaged under Article 63(1)(n) of the Constitution. Confronted with the aforesaid material, learned counsel for the petitioner also did not rebut the same in his rebuttal arguments and to our clear understanding, he virtually gave up this ground. Constitution Petition No.36 of 2016 - 77 - 19. In view of our reasons expressed above in this opinion upon the propositions involved in the matter, we have reached to the following conclusion:- a) The preliminary objection of the respondent that the present petition being primarily in the nature of quo- warranto is not maintainable in law, has no force. As we on the basis of the material on the record are not persuaded to hold that the petition is a counterblast to a similar kind of a petition filed by Mr. Imran Khan Niazi against Mian Mohammad Nawaz Sharif or this is a proxy petition filed for the benefit of someone else, and it is tainted with mala fide and has been filed with ulterior motives. We hold so especially when the maintainability of the petition has not been questioned on the ground that this Court lacks jurisdiction under Article 184(3) of the Constitution or that the respondent is not a holder of a public office. b) For the proposition that the respondent being the Director of JDW Sugar Mills Ltd., knowing fully well that the said company has decided to take-over the majority shares of USML, on the basis of such classified, insider and sensitive information purchased the shares of USML in a clandestine manner in the name of his Driver and Cook, namely, Haji Khan and Allah Yar and thus, violated the provisions of Section 15-A of the Ordinance, 1969, the Ordinance, 1984 and other laws on the subject. And also committed the offence of insider trading in terms of Section 15-B of the Ordinance (ibid). In this respect, investigation against the respondent was conducted by the SECP and in reply to the show cause notice/letter of the SECP dated 3.12.2007, the respondent through his response dated 8.12.2007 admitted to the commission of insider trading and, therefore, paid the gained amount of Rs.70.811 million along with fines and penalties and charges to the SECP as were finally demanded. The question, therefore, is whether this Constitution Petition No.36 of 2016 - 78 - reply of the respondent dated 8.12.2007 and his act of paying of the amount as claimed by the SECP constitutes an admission on his part and hence is disqualified in terms of Article 62(1)(f) of the Constitution. We conclude that the letter of the respondent dated 8.12.2007 is a qualified offer to the SECP and also subject to the “without prejudice” rule, therefore, it cannot be treated an admission admissible under Article 36 of the Order, 1984 on the basis of which the respondent can be adjudged to be dishonest in these quo-warranto proceedings, particularly in the situation when the SECP accepted the offer of the respondent and categorically held “Upon receipt by the Commission of the bank draft the above-referred matters shall stand disposed off with no further action”. Moreover the respondent was not criminally prosecuted by the SECP under the provisions of Section 15-B of the Ordinance, 1969 and thus, for all intents and purposes this is a past and closed transaction. We are also not persuaded to hold that the provisions of Section 15-A and 15-B of the Ordinance, 1969 in the facts and circumstances of the case and because of subsequent enactment of the Act, 2015 are ultra vires of the Constitution. c) The proposition that the respondent should be declared dishonest on account of some alleged misdeclaration and short payment of the agricultural income tax for the years 2010 and 2011 because there are vital discrepancies in the declaration of agricultural income in the tax returns filed with the FBR for these two years. We are not persuaded to make any declaration against the respondent in this context because the matter whether inaccurate declaration has been made by the respondent, either in respect of agricultural income tax before the concerned department under the Act of 1997 or before the FBR, is a matter which is sub-judice before different forums in the income tax hierarchy and even before this Court; besides, no action so far for the Constitution Petition No.36 of 2016 - 79 - alleged misdeclaration or short payment has been taken against the respondent by the authorities under the Act of 1997. d) We are not convinced and persuaded on the proposition that the respondent has got any loans written-off from various banks and thus, has incurred disqualification under Article 63(1)(n) of the Constitution because such loans have been written-off with regard to FPML and was prior to the year 2010, whereas the respondent at that time was not the shareholder or Director of the said company. He became the shareholder and Director with effect from 29.12.2010 to 4.2.2013 and during this period no loans were written-off; besides the respondent was ex- officio Director of the Heavy Mechanical Complex being the Federal Minister and resultantly any written-off loans with respect to this company cannot be attributed to the respondent. e) We hold that SVL, an off-shore company was established by the respondent which has legal title of the property measuring 12 acres known as “Hyde House” but the actual, true, real and beneficial owner of the said property is the respondent. Respondent has sent around more than fifty crores of rupees at the exchange rate prevalent at that time and claims that amount to have been utilized for the purposes of purchase and construction of “Hyde House”. SVL or Hyde House was never transferred to any trust by the respondent, thus, it is his asset which he has failed to declare in his nomination papers filed on 9.9.2015 according to the mandate of the law to contest the by- elections from NA-154 Lodhran and, therefore, he is not honest in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA. Besides, in his concise statement the respondent in unequivocal, clear and unambiguous terms stated that he has no beneficial interest in the trust arrangement which holds the SVL and the Hyde House, however Constitution Petition No.36 of 2016 - 80 - from the trust deed dated 5.5.2011, on which reliance has been placed by the respondent himself, he is the ‘discretionary lifetime beneficiary’ along with his spouse and, therefore, this is a blatant misstatement on the part of the respondent made before the highest judicial forum of the country which is not a trait of an honest person. Consequently, on both the counts mentioned above, the respondent is declared not to be an honest person in terms of the constitutional provisions and the provisions of ROPA, therefore, he ceases to be the member of the Parliament having incurred the disqualification. Therefore, on account of the above, we hold and declare that in view of our findings on the proposition about the off-shore company (in short) covered by clause (e) of the conclusion, the respondent is disqualified in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of ROPA for the non-declaration of his property/asset i.e. “Hyde House” in his nomination papers, and in making untrue statement before this Court, that he has no beneficial interest in SVL, therefore, he should cease to hold the office as the member of the National Assembly with immediate effect. This petition is accordingly allowed. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 15.12.2017 at Islamabad Approved for reporting CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED CONSTITUTION PETITION NO. 37 OF 2012 (Petition Regarding Miserable Condition of the Schools) For the Applicants Mr. Nazir Ahmed Bhutta, ASC (in CMA 1386/13) Nemo (in CMA 300/13) Mr. Saleem Tariq Lone (in CMA 11/13) Mr. Zulfiqar Hussain Noon (in CMA 14/13) ON COURT NOTICE: For ICT & Secy. CADD Mr. Babar Ali, DAG Mr. Muhammad Shahid Khan, Mr. Miraj Muhammad Khan, AEA, CADD Director Admn. FDE For Govt. of Balochistan Mr. Abdul Aziz Khan Khiljee, Addl. AG Syed Nazir Shah, Dy. Sec. Saleem Akhtar Ansari, Dir. Education For Govt. of KPK Mr. Naveed Akhtar, Addl. AG Mr. Hidayat Ullah, SO (Litigation) For Govt. of Sindh Mr. Muhammad Qasim Mirjat, Addl. AG Mr. Pervaiz Ahmad, Special Secretary Edu. For Govt. of Punjab Mr. Jawad Hassan, Addl. A.G. Mr. Abrar Ahmad Mirza, Addl. Secy. Rana Abdul Qayyum, Director Raja Ikram Abbasi Law Officer Date of hearing : 12.06.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, C.J. – Professor Dr. Gulzar A. Niazi from USA wrote a letter dated 20.04.2012 to one of us (Chief Justice of Pakistan) which reads as under: - CONST.P. 37/2012 2 “Attached is a picture from the front page of Daily Dawn dated April 20, 2012, that is not only shocking, horrible but full of shame. Billions of rupees were spent to distribute laptops to students which is a unique example and the VC of Punjab University sanctioned 30 million rupees to distribute JUST 30 laptops by Nawaz Sharif. But here is a heart breaking picture which shows that the government has totally failed in providing the basic education. Have you ever heard that students are being taught in a classroom in a graveyard? What can you do; I guess nothing. Respectfully, Sd/- Professor Dr. Gulzar Niazi” The news report contained a picture from Gujranwala with the following footnote: - “Gujranwala: Girls sit beside graves whilst taking a test during their daily classes in the graveyard here on Thursday. The government allocates less than four per cent of the budget … … … more than 180 million people.” The above letter was ordered to be treated as a Constitution Petition under Article 184(3) of the Constitution and to be fixed in Court on 16.05.2012 and notices were issued to Chief Secretary, Secretary Education and learned Advocate General Punjab. The latter was directed to visit the Girls School shown in the picture and submit report. 2. On 07.06.2012, the learned Advocate General Punjab appeared and filed a report stating therein that the Government of Punjab had taken an initiative to provide adequate building facilities to CONST.P. 37/2012 3 the schools, which were short of classrooms. He further stated that such school buildings had been identified throughout the Province and a considerable amount had been allocated for the purpose. Thereupon, he was directed to place on record district-wise complete details in that behalf. Furthermore, notices were ordered to be issued to the Chief Secretaries of the Provinces of Sindh, Khyber Pakhtunkhwa and Balochistan to submit comprehensive reports on the conditions of primary schools functioning in different parts of their respective Provinces as under: - (i) Whether sufficient accommodation is available in the constructed buildings? (ii) Whether adequate teaching staff and other facilities have been provided in schools? (iii) Whether the school buildings in remote areas are being used for other purposes i.e. as Hujra, baithak/authak and Mehmankhana of the local respectables? 3. On 08.08.2012, reports were submitted on behalf of the Provincial Governments and it was stated that the proposals for legislation of compulsory education in pursuance of Article 25A of the Constitution were under consideration of the Provincial Governments and the bills to the said effect were likely to be tabled before the Provincial Assemblies. However, the matter was adjourned to enable the Provincial Governments to reconsider the reports and put up a final report after attending to all aspects. 4. On 10.09.2012, another opportunity was granted to the Provincial Governments to file comprehensive reports after physical verification of schools by an officer not below the rank of Grade 20 posted in the Division. 5. On 05.10.2012, a report was submitted on behalf of the Province of Sindh, which showed that 165 schools were not being CONST.P. 37/2012 4 used for education purposes. On the said date, the learned law officers as well as the departmental representatives of the Provinces were required to clarify whether the periodical reports submitted to the Government were prepared after physical inspection/spot verification. 6. On 02.11.2012, this Court directed the concerned Secretaries of the Provinces as well as the Chief Commissioner, Islamabad Capital Territory (ICT) to submit report on the following points: - (i) The steps which have been taken so far to enforce Article 25A of the Constitution? (ii) As to whether any enrolment of children aged 5 to 16 years has been made for the purpose of providing them education free of cost in terms of Article 25A of the Constitution? (iii) How many ghost schools have been identified in all the Provinces and what steps have been taken in this behalf? (iv) What steps have been taken to take over the possession of the school buildings, which are being used by influential persons for purposes other than education? It was further directed that the reports must be based on a field survey duly authenticated by the competent authority considering that Article 25A of the Constitution has envisaged a Fundamental Right for the children of 5 to 16 years age to get free education. 7. On 13.12.2012, the requisite reports not having been submitted, the Chief Secretaries of all the Provinces, the Chief Commissioner, ICT and the Secretary, Capital Administration and Development Division (CADD), Government of Pakistan were again directed to submit comprehensive reports. 8. On 11.02.2013, the Court observed that all the reports filed by then, on the state of affairs of educational institutions were CONST.P. 37/2012 5 incorrect and baseless, and only some credible information was received through the Coordinator, Sindh Rural Development Society. It was observed that ghost schools admittedly existed in all the Provinces and the properties owned by the schools were under illegal occupation, but no effective steps were being taken to redeem this situation. In this view of the matter, the Provincial Governments through Chief Secretaries or the Secretaries Education were directed to implement the orders of the Court in letter and spirit. In view of importance of the matter, namely, receiving education is a Fundamental Right of every children particularly in view of article 25A of the Constitution, the District & Sessions Judges or the Additional District & Sessions Judges at the District/Tehsil/Taluqa Headquarters of all the Provinces including ICT were appointed as Commissions to carry out surveys of the schools functioning within their jurisdiction and determine: - (i) As to how many schools are functioning fully? (ii) As to how many ghost schools are in their districts? (iii) As to how much of the education funds are being spent for the purpose of imparting education to the children? (iv) As to what is the ratio of the children studying in their areas? (v) As to what are the reasons for encroachments of the said school buildings and why they are being used either as Baithak/Uthak or for the purpose of houses by occupying forcibly some portions of the same and why actions against encroachers have not been taken? and (vi) In case there exists litigation between education department(s) and private person(s), who had allegedly encroached upon the properties of schools, as to why the cases are not being expedited by the Courts, particularly, in view of the fact that if there is no stay order, why actions have not been taken and who are responsible for all these illegalities or irregularities? It was also directed that the President or the Secretary General of the respective District/Tehsil Bar Association shall also be associated, if need be, while carrying out the physical inspection and preparation of reports. Moreover, the Chief Secretaries/Secretaries Education and the CONST.P. 37/2012 6 District Education Officers were directed to extend full cooperation to the District & Sessions Judges in accomplishing the task assigned to them. 9. The Court, on receipt of voluminous reports from the judicial officers prepared after visiting all schools within their respective jurisdiction, vide order dated 10.06.2013, directed the concerned law officers to prepare summaries of the reports pertaining to their respective Province/Territory and answer, in positive or in the negative, the questions referred to the judicial officers, noted hereinabove. ISALAMABAD 10. Raja Jawad Abbas Hassan, District & Sessions Judge-West and Syed Kausar Abbas Zaidi, District & Sessions Judge-East, Islamabad submitted a combined report, wherein it was stated that a team comprising four Additional District & Sessions Judges along with President and Secretary, District Bar Association, Islamabad was constituted to carry out the requisite exercise. In response to question No. 1, the learned District & Sessions Judges reported as under: - (i) According to the survey conducted by above said team, it was found that a total number of 383 schools only (excluding colleges) are functioning under Federal Directorate of Education in urban as well as rural areas of Islamabad Capital Territory. All the Schools were physically visited and verified by the Team members. (ii) Most of the schools in Federal Capital are in working condition, but there are quite a few schools where all the facilities are available as per requirement in full capacity. However, in most of the schools due to paucity of funds or lack of interest by the Federal Directorate of Education, the required facilities are lacking. (iii) Almost all the schools are working without full facilities and teaching staff is also deficient. Most of the schools have been up-graded but in papers only. The Principals/Headmasters/Headmistresses are facing difficulties in managing and running the schools with old staff and in the old buildings. CONST.P. 37/2012 7 (iv) There are some common problems of the schools in rural areas, like shortage of staff, shortage/non-availability of drinking water and non-availability of boundary walls. It is pertinent to mention here that in city schools teaching staff is surplus and the teachers who are residents of city area or from other areas of the country do not like to be posted in the rural areas, therefore, they manage by hook or by crook to remain in city. That shortage of staff can be dealt with by appointing local teachers in the rural areas. (v) Islamabad Model School for Boys (1-5) Mal, Federal Area, Islamabad is not working and its building is vacant because the same has been surrounded by Bahria Enclave, thus stopping the approach from three sides and no education activities are being carried out in that school. (vi) IMSB, (1-5) Rajwal, Federal Area, Islamabad although is working presently, but it is surrounded by Bahria Town and from all the sides by bulldozing and digging the land, access of students to this school has been made difficult rather impossible and if the situation is not handled in future, there is every likelihood of suspension of educational activities in the said school. (vii) IMSB (1-5) Dhoke Maie Nawab, Federal Area, Islamabad is being run in a temporary building. Original building of the school is surrounded by Bahria Town and access of children and staff was made impossible, hence a temporary building is in use of this school. 11. In response to question No. 2, it was stated that after physical verification of the schools, no ghost schools were found in the ICT. 12. As regards question No. 3, it was stated that as per details furnished by the Federal Directorate of Education, an amount of Rs.287,451,363/- was allocated during the financial year 2012-13 for running 383 schools in ICT. However, the ratio of funds being spent on education of children has not been given. 13. As regards question No. 4, it was stated that ratio of children studying in the Government Schools in ICT is very low as compared to those who are studying in private institutions, probably due to poor standards/performance of the Government owned schools. However, they did not give the exact figures in this behalf. CONST.P. 37/2012 8 14. On question No. 5 pertaining to encroachments upon schools’ premises, or the schools’ buildings being used for purposes other than education, it was stated as under: - (i) There is no boundary wall and passage to Dhola Syedan School. (ii) The boundary wall of Phulgraan Girls School is deteriorated and passage is in such a miserable condition that in rainy days, children cannot go to school. (iii) Phulgran Boys School is also in a very poor condition and its passage is also not useable. (iv) There is no proper passage to approach IMCB, Bhimber Trar. This college is almost half a kilometer away from the road and during the rainy days it is not possible for children to reach the school. (v) IMCG, Pind Malkan is also half kilometer away from the road and its passage is yet to be made. It is situated away from the village near a Nallah and the young girls have to go to school by foot and they always remain in danger while approaching the school, particularly during the rainy days the temporary passage to school becomes slippery and it makes impossible for the girls and teachers to reach the school. 15. Regarding question No. 6 pertaining to litigation concerning lands/properties of schools, it was stated that a civil suit is pending in a court of law regarding land of IMSG (1-5), Pindor Syedan, Federal Area, Islamabad. It was further stated that after obtaining details from the Federal Directorate of Education, the matter would be dealt with on merits and in accordance with law. 16. Mr. Babar Ali, learned Deputy Attorney General for Pakistan, by means of CMA No. 3748/2013, filed a report which contains a summary regarding the position of schools in ICT. According to this report, there are 1073 (383 Govt. Schools & 690 Private Schools), which are fully functional and there is no ghost school in ICT, whereas, 53 schools (on papers) are shown as upgraded schools in the summary. As regards budgetary allocation for the financial year 2012-2013, a sum of Rs.2,404.267 million was allocated CONST.P. 37/2012 9 for schools in ICT. 2.5 million children of primary to secondary age group are out of schools. The learned law officer gave the following reasons for encroachments and lack of facilities in schools situated in ICT: - (i) Political & social power of land mafia as against the unprotected and weak local school administration. (ii) Absence of legal support in litigation. (iii) Lack of proper information and management system. 17. To overcome the aforesaid problems and to secure the rights of children, he made the following suggestions: - (i) Uniformity of Education Policy in ICT on the pattern of Model Schools. (ii) Allocation of funds at least equivalent to 10% of GDP with gradual increase for education. (iii) Competitive process for recruitment of teachers with special quotas of rural areas. (iv) Discouragement of ad-hoc and daily wages system of employment of teachers. (v) The developed and planned city of Islamabad contains sector-wise educational plots. The Model School System be introduced in each Sector to cater for the requirements of the Sector. Besides, the same facility be provided in the rural areas. (vi) Sector-wise admission policy be introduced to provide education at doorstep. (vii) Transfer policy be prepared, introduced and enforced by the Directorate of Education. (viii) Pre-school education system be introduced. (ix) The functioning of the PIRA (Private Institutions Regulating Authority) to deal with the affairs of the private educational institutional has become virtually ineffective, so as to control fee structure and educational facilities to meet requirements of fair income group of people and to address requirements of depressed classes of poor children. (x) Priority of the Govt. should be fixed for the basic education. (xi) Necessary legislation for compulsory education with incentives and punitive action is required to be enacted. (xii) Education management needs to be strengthened with more capacity to monitor and take prompt decisions. (xiii) A National Commission for Primary to Matric Education be formed. CONST.P. 37/2012 10 BALOCHISTAN 18. The information/data pertaining to all the districts in the Province of Balochistan provided by all the District & Sessions Judges in the Balochistan has been received from the Registrar, High Court of Balochistan is as under: - DERA ALLAH YAR 19. As per report of the District & Sessions Judge, Dera Allah Yar, 331 schools are fully functional, whereas 39 schools are non- functional and tentative ratio of the children studying in schools is 50% in the district. On question pertaining to encroachments upon schools’ properties, or the schools’ buildings being used for purposes other than education, it has been stated that some buildings have been encroached upon by unknown persons and police department due to inaction on the part of the Education Department. On the question pertaining to litigation concerning schools properties, it has been stated that no litigation is pending between the Education Department and private persons. GWADAR 20. As per report of the District & Sessions Judge, Gwadar, out of total of 258 schools, 10 schools are non-functional, but there are no ghost schools in the district. A sum of Rs.262,256,300/- was allocated for education during the financial year, whereas 95 % of children are studying in the schools in the district. On question pertaining to encroachments upon schools’ properties, or the schools’ buildings being used for purposes other than education and the question pertaining to litigation concerning schools properties, it has been CONST.P. 37/2012 11 stated that no encroachments have been made and no matter is pending before any court of law. KALAT DIVISION AT MASTUNG 21. As per report of the District & Sessions Judge, Kalat Division at Mastung, 333 schools are fully functional whereas 22 schools are non-functional due to non-availability of building, non- availability of teachers despite existence of sanctioned posts, and non- enrolment of students. The ratio of children studying in schools in the district is given as 1:8. On question pertaining to encroachments upon schools’ buildings, or the schools’ buildings being used for purposes other than education, it has been stated that no encroachments have been made upon the schools properties and no litigation is pending between the Education Department and private persons. Most of the schools were found lacking basic facilities, e.g., SST Science and SST General teachers, classrooms, furniture, computer labs, halls, drinking water, bathrooms and sweepers. It is stated that 84% schools are not provided electricity, 52% do not have water, 53% are without boundary walls and 80% are without gas connection. It is further stated that all purchases of various articles, such as books, furniture, reading/writing materials, chalk, duster, takhti, slates, ink, tat, etc., are made at the Directorate level, and only non-development funds, i.e. pay and allowances, etc., are released to the DEOs, and no direct funds are released to them. KHUZDAR 22. As per report of the District & Sessions Judge, Khuzdar, 609 schools are fully functional whereas 38 schools are non-functional and there are no ghost schools in the district. Only 22.5 % of children CONST.P. 37/2012 12 are studying in the schools in the district. No school is used as baithak/authak and no litigation concerning schools properties is pending anywhere in the district. It is further stated that in view of the vast and tribal area and due to insufficient budget and vehicles, it is difficult to visit the schools and control absence of teachers. KOHLU 23. The District & Sessions Judge, Kohlu, in his report forwarded to the Registrar, High Court of Balochistan, Quetta stated that the report prepared by the DEO Kohluhas is enclosed for necessary action. However, the report so received does not contain any Annexure. As regards physical inspection of the schools within the district, it was stated that it was practically impossible to physically inspect at a short notice all the 427 Government schools of Kohlu District, which are inaccessible on account of being situated in far- flung and mountainous areas. LASBELLA At HUB 24. The District & Sessions Judge, Lasbella at Hub, in his report, stated that physical inspection of all the 557 schools in Lasbella District was not practically feasible in a couple of days. However, he transmitted the information provided by the District Education Officer Lasbella at Uthal, according to which a sum of Rs.506,191,037/- was allocated for education in the financial year 2012-2013, whereas ratio of the male and female children studying in schools in the district is 53% and 26% respectively. No school building is being used as baithak/authak, no encroachments upon schools’ properties exist and no litigation concerning schools properties is pending before any forum. CONST.P. 37/2012 13 LORALAI 25. The District & Sessions Judge, Loralai, in his report, mentioned that he deputed the Judicial Magistrates, Loralai and Duki, Assistant Commissioners, Bori and Duki to visit the schools within their respective areas and submit reports. He further stated that the reports received from the Judicial Magistrates, Loralai and Duki are forwarded. However, only the report of Judicial Magistrate, Loralai is annexed with the letter of the District & Sessions Judge. According to this report, 37 schools are fully functional whereas 4 schools are non-functional in the district. The report highlights problems being faced in the schools, such as lack of drinking water, glasses of windows and ventilators, boundary walls, etc. The report is silent with regard to other questions. 26. The report of the Judicial Magistrate, Duki is not enclosed with the letter of the District & Sessions Judge, Loralai. The reports from the Assistant Commissioners, Bori and Duki were not mentioned in the aforesaid letter. MEKRAN AT TURBAT 27. The District & Sessions Judge, Mekran at Turbat, in his report, stated that he had surveyed the schools situated in District Kech and had enclosed the reports. However, only page 3 of the report is appended with the letter, according to which one case pertaining to Government Boys Primary School, Chahsar Turbat is pending in the Court of Qazi Turbat wherein no stay order has been passed. However, the Qazi Turbat has been directed to dispose of the case within one month positively. The report is silent with regard to other question. CONST.P. 37/2012 14 NASIRABAD AT DERA MURAD JAMALI 28. As per report of the District & Sessions Judge Nasirabad at Dera Murad Jamali, 408 schools are fully functional whereas 33 schools are in the nature of ghost schools in the district. A sum of Rs.60/- is being paid to the students of 6th to 8th classes and a sum of Rs.100/- is being paid to the students of 9th and 10th classes by way of monthly scholarship. The ratio of children studying in the schools situated in urban and rural areas in the district is 55 % & 30% respectively. On question pertaining to encroachments upon schools’ buildings, or the schools’ buildings being used for purposes other than education, it has been mentioned that encroachment exists upon the Primary School Jongal Khan Umrani, one school is occupied by FC Forces and yet another is occupied by Flood affectees. No litigation pertaining to schools properties is pending before any forum. It is further stated that teachers were absent in 33 schools whereas six schools were closed due to non-posting of teachers. NOSHKI 29. As per report of the District & Sessions Judge, Noshki, 14 out of 220 schools are non-functional, but there are no ghost schools in the district. A sum of Rs.341,373,000/- was allocated for education during the financial year. A total of 24828 children (14019 boys and 10808 girls) are studying in the schools. No encroachments exist upon schools properties and no school buildings are being used for purposes other than education. No litigation concerning schools properties is pending before any forum. PANJGUR CONST.P. 37/2012 15 30. As per report of the District & Sessions Judge Panjgur, 343 schools are fully functional and there are no ghost schools in the district. A sum of Rs.447,569,200/- was allocated for education during the financial year. The ratio of children studying in schools in the district is 89% boys and 80% girls. No encroachments exist upon schools properties and no school buildings are being used for purposes other than education. No litigation concerning schools properties is pending before any forum. PISHIN 31. As per report of the District & Sessions Judge, Pishin, 875 schools are fully functional whereas 27 schools are non-functional in the district for reasons, such as, encroachments, posts of teachers lying vacant, etc. A sum of Rs.644,970,200/- was allocated for education during the financial year. A total of 68000 children are studying in the schools in the district. Encroachments upon schools’ properties exist due to tribal dispute, the demand for a class-IV job in lieu of the school land provided by the private owners and inaction on the part of the Education Department. No litigation concerning schools properties is pending before any forum. QUETTA 32. As per report of the District & Sessions Judge, Quetta, 552 schools are fully functional and one Middle School at Killi Taj Muhammad Hanna is non-functional and there are no ghost schools in the district. A sum of Rs.1,661,461,100/- & Rs.275,030 (for non development budget & development budget respectively) was allocated in this regard. The ratio of children studying in schools is given as 38% boys and 40% girls in Primary Schools, 22% boys and CONST.P. 37/2012 16 23% girls in Middle Schools and 22% boys and 20% girls in High Schools. No encroachments exist upon schools properties and no school buildings are being used for purposes other than education. No litigation concerning schools properties is pending before any forum. SIBI 33. As per report of the District & Sessions Judge, Sibi, out of total of 263 schools, 8 schools are non-functional whereas there are no ghost schools in the district. The report highlights certain major problems being faced in the schools of the area, such as, closure of schools due to tribal disputes, migration of people due to non- availability of water in Sunni and Shooran areas, absence of teachers, insecurity, non-maintenance of school buildings, etc. The report is silent about the other issues. USTA MUHAMMAD 34. As per report of the District & Sessions Judge, Usta Muhammad, 274 out of 288 schools are fully functional whereas there are 7 ghost schools in the district. 75% children are studying in urban areas whereas 50% are studying in rural area. Four schools are forcibly occupied by the zamindars, but no action has been taken by the Education Department. No litigation concerning schools properties is pending before any forum. During survey of the schools, proxy teachers were found working in the schools. However, the report is silent with regard to the remaining issues. 35. It is pertinent to mention here that the District & Sessions Judges of 15 districts of Balochistan only submitted reports whereas no reports were received on behalf of the District & Sessions Judges of the remaining districts. However, the Secretary, Secondary Education CONST.P. 37/2012 17 on behalf of the Chief Secretary, Government of Balochistan, Quetta furnished report in respect of 30 districts. 36. In respect of districts Chagai, Killa Abdullah, Killa Saifullah, Sherani, Musa Khail, Barkhan, Zhob, Ziarat, Dera Bugti, Jhall Magsi, Kachhi, Jaffarabad, Mastung, Kharan, Washuk and Awaran, the concerned District Education Officers have furnished cyclostyled reports wherein it has been certified that there are no ghost or non- functional schools in the said districts nor the premises of any school are being used as Autak/Baithak or have been occupied by any influential person. It is further certified therein that all the schools are functioning under the supervision and control of the Education Department. The reports are silent about the other issues. In respect of district Musa Khail, it has been added that Government Boys Primary School, Mohsan Abad Kingari is partly occupied (two rooms) by one Suleman Shah and a complaint is pending before the Provincial Mohtasib regarding said occupation. The reports of the Secretary, Secondary Education in respect of the remaining 15 districts are somewhat identical to the reports of the above mentioned 15 districts. 37. Mr. Babar Ali, learned Deputy Attorney General for Pakistan, by means of CMA 3748/2013, filed a summary regarding the schools in the Province of Balochistan. According to the said summary, number of total schools is 12388, number of fully functional schools in the Province is 12082, number of ghost schools is 7, number of occupied schools is 25, number of non-functional schools is 274, budgetary allocation is Rs.24067.00 million, reasons for non- functioning of schools include law and order in districts, such as Dera Bugti, Kohlu, Khuzdar, waran, Kharan, Washok, Mastung, Kalta, Naseerabad, Jaffarabad, Panjgur, Turbat and Gwadar; lack of transport CONST.P. 37/2012 18 facilities for the female teachers, and non-availability of teachers, specially female teachers. To overcome the problems and issues confronting the schools in the Province of Balochistan, the learned law officer made the following suggestions/recommendations: - (i) The Department needs huge amount of funds for implementation of Article 25A of the Constitution. (ii) Decentralization of authority to the local and institutional level. (iii) Local administration to work with the Education Department to vacate occupied buildings. (iv) Funds to be allocated for shelterless schools. (v) Provision of transportation for female teachers. (vi) Upgradation of management facilities to monitor all schools effectively. KHYBER PAKHTUNKHWA 38. The information/data pertaining to all the districts in the Province of Khyber Pakhtunkhwa provided by all the District & Sessions Judges in the Province vis-à-vis the above questions was received through the Registrar, Peshawar High Court. A summary of the district-wise information so provided is given as under: - ABBOTTABAD 39. As per report of the District & Sessions Judge, Abbotabad, the District Education Officer (DEO) had mentioned in his report the number of schools, total enrolment of students and the expenditure incurred thereon, and that all the schools in the district are functional. It is further stated that as per information received from Earthquake Reconstruction & Rehabilitation Authority (ERRA), most of the schools were badly damaged in the earthquake of 2005 and have not yet been reconstructed, as such, students and teachers are facing great difficulties. No ghost school is found in the District except certain incomplete buildings. It is noteworthy that the report of the DEO upon CONST.P. 37/2012 19 which the report of the D&SJ is based, is not appended with the letter of the District & Sessions Judge. BANNU 40. As per report of the District & Sessions Judge, Bannu, out of 1518 schools, 57 are non-functional, however, there is no ghost school in the District. An amount of Rs.32,045,071/- was allocated for education in the budget. The students presently studying and enrolled in both the male and female schools are 129,662. The Government Girls Middle School, Kotka Inam Gul Wazir Basia Khel was found without any teacher. Though record/registers for the year 2010 were available, but the current record was not available and according to the ADEO (Female) as well as Chowkidar, the teacher is on maternity leave and the remaining record is in her possession, and the students are being taught therein, however, no students were present in the schools. Most of the schools are built upon lands donated by private land owners who, considering it as their ownership, use the same premises after the school hours as baithak and have occupied forcibly some portions of the schools. The Education Officers submitted that they had issued notices to them and also stopped salaries of the Chowkidars who are unwilling to cooperate and actions are being taken against them. There is no litigation pending between private persons and the Education Department. There is extreme interference of political leaders and landowners found in the affairs of schools. BATTAGRAM 41. As per report of the District & Sessions Judge, Battagram, due to the mountainous area of the district, with schools located at an altitude of 3000 feet to 15000 feet, physical examination of all the CONST.P. 37/2012 20 schools was an extremely arduous task. There is no Additional District & Sessions Judge posted in the district, and hence it was impossible to physically verify all the 788 schools of the district, in the allotted time. However, some of the schools were visited and an impression was gathered that since the news of the impending survey had already reached most of the schools, therefore, most of the teachers were trying to manage their presence on duty. Despite this, a number of schools did not have the full strength of teachers. Some of the far off schools were found locked and were not functional. In some of the schools, proxy teachers were working at Rs.3000/- to Rs.4000/- a month. As per reports received from an NGO, a number of schools are not functioning fully. Some of the schools would fall within the definition of ghost schools as no building exists since after the earthquake. However, some of these destroyed schools are running in makeshift arrangement and there is a keen desire of the people that education is imparted to their children. This is evident from the number of children in the remotest parts of the area in extreme weather without any building or the children being taught on makeshift basis. BUNER 42. As per report of the District & Sessions Judge, Buner, there are 791 Government schools in the district, out of which 777 are fully functional whereas remaining 14 are newly sanctioned and will be made functional in near future after fulfilment of the requirements. There is no ghost school, however, many schools buildings exist, the teacher are posted, but due to lack of devotion on the part of teachers, specially in the Girls Primary Schools, where female teachers remain absent from duty, the schools act merely as day-care centres. A sum CONST.P. 37/2012 21 of Rs.1,041,141,459/- including annual salary expenditure of Rs.998,499,247/- and non-salary expenditure of Rs.42,642,212/- was allocated for education in the budget during the financial year. A list/table spreading over 18 pages showing the names of Secondary Schools with the number of teachers and students enrolment has been provided; however, the real answer, i.e., the ratio of children studying in schools in the District has not been provided. Lands for school are donated in consideration of class-IV jobs but some of the schools are encroached upon due to non-posting. The reason of encroachment upon the school buildings is stated to be the non-serious attitude of the Education Department, in acquiring the land legally, and their tendency of serving the interests of the influential persons, rather than protecting the interests of the education department. The details of litigation between the Education Department and the private persons is stated to have been provided by the Department as Annexure C to the report. However, surprisingly, no annexure is attached with the report. 43. It was stated that the SDEO Buner is not serious in taking action against female teachers and also pays no heed to proper postings of the teachers for reasons best known to him, therefore, the female teachers were facing hardships in transit from house to schools and it creates hurdle in performance of their duty. The officer does not visit schools to check their conditions and some of the schools have been encroached upon by the concerned Chowkidars or others. Further, a Senior Science Teacher is posted as SDEO (Male), which is reflective of posting of non-qualified persons at higher levels with political interference. The buildings of the schools are deteriorating. CONST.P. 37/2012 22 Many teachers also complained about non-provision of proper infrastructure and dilapidated condition of the buildings. CHARSADDA 44. As per report of the District & Sessions Judge, Charsadda, District Education Officers (Male/Female), Charsadda provided the details regarding number of schools, enrolment of students and strength of teaching staff in the district, according to which most of the schools in the district are fully functional. However, the Additional District & Sessions Judges, Charsadda, Tangi and Shabqadar, in their respective reports, stated that some schools were found closed and non-functional for the reason that the land donors had closed the schools because their family members were not employed in lieu of free donation of the lands for those schools. It is further stated that cases were registered against the concerned persons and most of the schools were re-opened and made functional. It is also stated that some of the schools are still non-functional due to dilapidated condition of school buildings or non-existence of boundary walls, etc. The teaching staff along with students of the above mentioned schools have been adjusted in some other schools due to precarious condition of the schools of the locality. It is further stated that the department has been directed to arrange funds for construction of boundary walls, and repair and maintenance works of the schools premises and to make the schools functional. CHITRAL 45. As per report of the District & Sessions Judge, Chitral, there are 793 schools in the district with 73101 (39764 boys and 3336 girls) enrolled students and 2853 teachers in Government Schools. CONST.P. 37/2012 23 There is no ghost school in the district. Amount of Rs.1,277,726,000/- was allocated for the district during the financial year. No school building/property of the Education Department has been encroached upon by any private person or land owner, and no litigation is pending in the district. 46. It was further stated that some schools were found closed and non-functional as the land donors had encroached upon the schools buildings for the reason that their family members were not employed in lieu of free donation of lands for those schools. Some schools have been re-opened as a result of cases registered against the concerned donors; however, some of the schools are still non- functional due to dilapidated condition of the buildings or non- existence of the boundary walls, etc. and the teaching staff along with students of those schools have been adjusted in some other schools due to precarious condition. The concerned department has been directed to reconstruct the boundary wall etc. DERA ISMAIL KHAN 47. As per report of the District & Sessions Judge, DI Khan, the DEOs had mentioned in their reports that there are 1605 schools in the District out of which 11 schools were under encroachment, whereas during physical verification by the Additional District & Sessions Judge, 27 schools were found encroached upon by private persons or land owners, and in some of the cases, litigation is pending. Two schools were found closed by the land owners as mutations in favour of Education Department had not been attested, but the school buildings had been constructed thereupon. The cases regarding both these schools have been forwarded to the Anti-Corruption Department, D.I. Khan for probe and necessary legal action. In some of the areas, CONST.P. 37/2012 24 the lady teachers engaged proxy teachers on payment of money to perform duty in their place. The official of Education Department informed that many schools are non-functional due to non-availability of teachers and political pressure. Some of the schools are non- functional because the buildings had been badly damaged or collapsed in the flood of 2010. Another reason for the deteriorating situation of Government schools situated in the far flung areas is that the teachers remain absent without sanctioned leave, but the officers of Education Department would not bother to take any action against them. Although sufficient staff (DEO and others) are posted in the district, but they do not perform their duties and instead are in the habit of visiting offices and residences of the political figures for prize postings. Thus, the figures regarding functional and non-functional schools of various categories, both male and female, furnished by the Education Department, were not correct. Various aspects of the functioning of the schools and the Education Department have been dealt with in the report in quite some detail. Finally, it has been suggested that if the Education Department is allowed to be monitored by the District Judiciary for a period of six months only, all irregularities and illegalities will be rectified and the non-functional and ghost schools will become functional and start imparting proper education to the students. HANGU 48. As per report of the District & Sessions Judge, Hangu, there are 397 schools in the district, out of which 361 are functional, whereas 28 are non-functional. In addition to that, 34 schools were found closed. An amount of Rs.655,353,946/- was allocated for education in the budget during the financial year. The ratio of children CONST.P. 37/2012 25 admitted in schools is approximately 50% on male side and 30% on female side. There is no ghost school in the entire district. Similarly, no school has been occupied by any private person. Rather, in many places, due to non-availability of building or for security reasons, the schools are functioning in private buildings provided free of rent by the locals. Only 2 schools have been occupied by the police or other forces. The concerned DEOs are actively pursuing these cases, with the quarters concerned for vacation of buildings so as to make the schools functional. HARIPUR 49. As per report of the District & Sessions Judge, Haripur, out of 313 schools only three schools are non-functional, with no enrolment of students therein details whereof are given in the Annexure. Reportedly, the concerned ASDEO has taken steps to stop the monthly salary of the concerned staff and to functionalize the aforesaid schools. However, it is noteworthy that the Annexures referred to in the report of the District & Sessions Judge have not been attached with the report. KARAK 50. As per report of the District & Sessions Judge, Karak, in most of the basic teaching units of the district, the situation is extremely alarming. Most of these schools are teaching institutions only in name, but virtually no student is being admitted there to seek education and the teaching staff is taking salary at home. There is no record of their daily attendance and no yardstick to measure the level of their efficiency and performance. The teachers, with the collusion of the concerned supervisory officials, either manage to mark proxies or CONST.P. 37/2012 26 engage local substitutions, to whom they pay a portion of their salaries on monthly basis. The Head Teacher of each school, without any documentary proof and observance of codal formalities is paid Rs.7,000/- per annum per room as maintenance charges, but there is no solid proof and record either in office of the Head Teacher, the DEO concerned or the Head at district level to show as to how and under what criteria this public fund is being used. In the previous financial year, a sum of Rs.40 million was placed at the disposal of Parents Teacher Association (PTA), but surprisingly even the very PTA did not exist in the district nor is there any record of expenditure of the allocated public fund. 51. It is also submitted that if more time is given, the desired goal will be achieved in more effective and purposeful manner and authentic figures and statistics, which are now being just observed on analysis, will be provided. KOHAT 52. As per report of the District & Sessions Judge, Kohat, there are 338 female and 481 male schools in the Government sector in the District. After physical inspection, it transpired that 3 schools were not functioning fully, whereas there were problems with regard to 29 schools. In the schools, which are presently non-functional, teachers/staff are posted who are drawing salaries. The budgetary allocation for the financial year for all public schools in the District was Rs.1,683,810,060/-. At present, the total enrolment of both male and female students in primary and secondary public schools is 113221, while that of the private schools is 25684. Thus, the ratio comes to 3:1. In most of the school under encroachment, the premises have not been legally handed over to Education Department and were CONST.P. 37/2012 27 constructed on funds of the Senators disbursed during the 80’s, as such the premises were not on record of Education Department. In absence of proper handing over and taking over by the Education Department, question of existence of sanctioned staff does not arise. In two of the schools, on account of pending litigation and recently decided Court matters, the private persons are in occupation. KOHISTAN 53. As per report of the District & Sessions Judge, Kohistan, out of 1169 schools, 291 are functioning, whereas 407 in earthquake, 57 in floods and 139 in other incidents have been damaged, while 275 are non-functional due to non-availability of teachers. The conditions of female schools are more miserable inasmuch as out of 269 girls schools, only one school is fully functional, and all remaining schools are either completely or partly non-functional with the exception of 2/3 other schools. An amount of Rs.898,996,390/- was allocated for the district in the financial year 2012-13. The ratio of children studying in the District is the lowest in Pakistan. The buildings of the schools have not been encroached upon, but the teaching activities have been suffering due to non-availability of teaching staff despite their appointments and despite drawing salaries. As there is no encroachment, therefore, no litigation existed between the Education Department and private persons, and not a single case is pending in any Court. LAKKI MARWAT 54. As per report of the District & Sessions Judge, Lakki Marwat, the middle, high and higher secondary schools are functional, CONST.P. 37/2012 28 however, more than 50% of the primary schools are ghost schools/closed schools and the staff is getting salaries while sitting at their homes. The condition of the schools was found miserable. The students are made to sit on ground. The staff/teachers are not recruited on merits, rather on political and monetary considerations. Most of the primary schools are also built/sanctioned on political considerations and owners of the land are using the same as their houses/Baithaks and one of their relatives is getting salary as Chowkidar. A good number of school teachers are not performing their duties, rather doing their private businesses. The DEOs are appointed/posted under political influence or on monetary considerations who are reportedly involved in corrupt practices, causing loss of millions of rupees to the national exchequer. In town areas, the ratio of children studying in government and private schools is 50:50. In the rural area, the ratio of boys studying in the Government primary schools is about 30% while the ratio of girls studying in Government primary schools is less than 30%. In rural area, the ratio of girls studying in Government Middle and Government High schools is less than 10%. Just in the month of February about Rs.16,67,96,549/- were incurred on payment of salaries of the officials/staff of the education department. DIR LOWER 55. As per report of the District & Sessions Judge, Dir Lower, there are 1571 schools in the District with a total of 394443 enrolled students and 6890 teachers, out of which 6 schools are non- operational being newly established. There are also 171 Government Maktab Primary Schools with 6520 enrolled students. The budgetary allocation for the year 2012-2013 is Rs.1,829,639,951/-. Due to CONST.P. 37/2012 29 militancy, 100 schools (42 partially damaged and 58 fully damaged) were destroyed/damaged out of which 12 have been completely restored whereas 34 have been partially restored. The newly established schools will be functionalized at the beginning of new academic year. 56. It was also stated that the over all condition of education was found not so much bad and can be branded as satisfactory in the district. No school was found ghost and under unauthorized occupation or encroached upon by any agency or private individual. MALAKAND 57. As per report of the District & Sessions Judge, Malakand, no ghost school exists in the District. Although schools are functioning, but overall situation is far from being satisfactory. Many schools have only one room. Most of the schools do not have benches, chairs and desks, and children sit on the ground in the open. Academically the children are very poor. The ratio of teachers in the government schools is 5 to 7 times more than teachers in the private schools, but even then the performance and feedback of private schools are far better. As per list provided, there are 43 total number of school in the district and there is no ghost school. Details about the number of schools, students, funds, etc., have been provided in a table annexed with the report. It has been further stated that the Government schools are being treated like orphans, rather worse than that. 58. It has been suggested that it should be made mandatory for each MNA & MPA to visit and prepare a list of at least 10 schools on monthly basis, and provide the detailed information to the concerned Head of department. Similarly, the District & Sessions Judge or Additional District & Sessions Judge should also pay a surprise visit to CONST.P. 37/2012 30 ten schools and submit report in this behalf to the Registrar of the concerned High Court. It is further submitted that for the evaluation of teachers, there should be a strong system of check and balance, and also the conditional promotion. The Government should provide basic facilities i.e. benches, chairs, desks, fans, facility of drinking water, etc. MANSEHRA & TOR GHAR 59. As per report of the District & Sessions Judge, Mansehra, the DEOs (Male and Female), Mansehra have submitted reports showing number of schools, total enrolment of students, expenditure incurred thereon. It was stated that all the schools in District, Mansehra are functional. Most of the schools were badly damaged in the earthquake of 2005, but construction work has not yet been started in a number of schools, whereas many schools have not been completely reconstructed. Therefore, students and teachers are facing great difficulty, however, no ghost school was found. MARDAN 60. As per report of the District & Sessions Judge, Mardan, there is no ghost school in the entire District. There are 1737 schools out of which 24 schools are found as dysfunctional being illegally occupied by the locals. As per Annual Schools Census 2011-12, 341523 students are enrolled – 133410 female & 208113 male students. The information/data furnished by the courts revealed that court proceedings or litigation was no hurdle at all in the operation and functioning of the schools, for the reasons that no injunctive orders have been passed, which could prevent the utility and usage of the schools buildings. Funds are allocated @ Rs.7,000/- per room to each CONST.P. 37/2012 31 school for maintenance & repair coupled with contingency, but pathetic condition of the structure and lack of civic facilities, such as water, washroom, etc., as observed during physical verification showed that the funds have not been utilized properly, which is indicative of lack of proper financial management and checks and balances. NOWSHERA 61. As per report of the District & Sessions Judge, Nowshera, there are 9 Higher Secondary Schools, 63 High Schools, 48 Middle Schools and 431 Primary Schools for Boys; whereas, 7 Higher Secondary Schools, 29 High Schools, 44 Middle Schools, 326 Primary Schools, 3 JICA Model Schools and 18 Government Community Model Schools for Girls in the district, and all these schools are fully functional at present. There is no ghost school in the district. Total allocated funds for education are Rs.1,671,146,717/-. The ratio of children studying in Government Schools is 64.8% and that of the children studying in Private Schools is 35.2%. Only one case is pending in the Court of Civil Judge, Nowshera regarding Government Girls Middle School Khawrai for appointment against Class-IV vacancy. The concerned Civil Judge has been directed to decide the case expeditiously within one month. PESHAWAR 62. As per report of the District & Sessions Judge, Peshawar, 1181 Government schools are functioning in the District. As per report of the DEOs, no ghost school exists in the District. However, during physical inspection, it was found that 3 schools were non-functional ever since their construction and 4 schools were closed due to non- availability of teaching staff. Budgetary allocation for the year 2012-13 CONST.P. 37/2012 32 was Rs.17,769,957,000/- (provincial) and Rs.45,725,414,130/- (Districts). 331094 students are enrolled in Government schools whereas 234604 students are enrolled in private schools. Some of the schools are in the occupation of land owners and as many as 13 cases are pending in different courts. SHANGLA 63. The District & Sessions Judge, Shangla, instead of submitting a consolidated report, has forwarded the reports of Civil Judges Alpuri, Puran and Chakaisar. As per report of Civil Judge Puran, District Shangla, generally the schools in the area have shortage of rooms, furniture, clean drinking water, lightening and toilets. In Girls schools, the attendance of the teachers is very low and some of the schools are closed before the closing hours. Building of GMS, Kabalgram is completely occupied by Pak-Army; teachers and students have been shifted to GGPS, Kablagram, whereas, the students and teachers of GGPS, Kablagram were found absent. The GGPS, Kablagram and GGPS, Kohay can be termed as non-functional. 64. As per report of Civil Judge, Chakaisar, all the schools inspected are functional and detail of 32 schools has been provided. No ghost school is found during inspection. No school building is found to be used as home or Baithak. No litigation exists between the Education department and private persons. 65. As per report of Civil Judge, Alpuri, DEO submitted a certificate that there is no ghost, non-functional or encroached school in the whole District. However, during visit to accessible schools, it transpired that generally all the schools are either ghost, non- functional or encroached schools. Besides, a lot of schools were found CONST.P. 37/2012 33 temporarily closed during duty hours. Details of 3 ghost, 4 permanent non-functional, 6 temporary closed schools and the absent teachers have been provided in the report. SWABI 66. As per report of the District & Sessions Judge, Swabi, DEOs reported that all 1312 schools in the District are functioning and there is no ghost school in the District. However, during physical inspection, certain schools having proper buildings were found non- functional for want of any teachers, staff, students and furniture. As per Annual Schools Census 2011-12, 140990 students were found enrolled in the district, however, the number of non-enrolled students could not be ascertained due to lack of resources and non-cooperation of the executive agencies of the district. Total educational expenditure in the District is Rs.2,399,217,210/-. PTC/PTA funds including cash book, stock register, vouchers, etc., were checked in different schools, which showed receipt of funds by the schools and details of expenditure incurred. The teachers were found in regular practice of obtaining leave for no reason or absenting from duty; sometimes, even head of the school was found absent. The deteriorating conditions of the buildings of some schools, particularly Girls Schools were paid no attention by the respective DEOs. Despite availability of basic facilities in the schools, the same were not open to the students. However, no school was found being encroached upon or being used as Baithak/Authak or for residential purposes. No litigation is pending in the District before any court in Swabi. The DEOs openly complained about the political interference in the appointments and transfer of schools teachers through their high ups; pressure groups of teachers associated with their unions; shortage of teacher/staff of fresh CONST.P. 37/2012 34 recruitment; and attachment of school teachers with the health department for the purposes of polio campaign particularly female teachers who were engaged for the far flung areas without any proper security. It was further stated in the report that during inspection certain irregularities in different schools e.g., absence of teachers, deteriorating conditions of the buildings, embezzlement of PTC/PTA funds, etc were noticed. SWAT 67. As per report of District & Sessions Judge, Swat, no ghost school exists in the District, meaning thereby that all the schools mentioned in the reports of the DEOs (Male/Female) are in existence on the spot, however, 83 schools are found non-functional due to non- availability/absence of teachers, for want of proper handing and taking over procedure, illegal occupation, or having been damaged by storm or destroyed by militants, which needed immediate repair. The details regarding total number of schools, children enrolled, ratio of students, allocation of funds and expenditure made have not been provided. TANK 68. As per report of the District & Sessions Judge, Tank, there are 211 primary schools, 27 middle schools, 24 high schools and one higher secondary school for boys; 136 primary schools, 13 middle schools and 6 high schools for girls in the District. There is no ghost school; however, 4 male and 30 female schools are non-functional. Three schools are encroached upon by private individuals. No school was found under any litigation. The entire District, excluding some portion of Jatatar and Kundian Qanoongo Circles, is semi-tribal or tribal area and due to security problems not easily accessible, as such, CONST.P. 37/2012 35 teachers seldom dare to go to schools. Except for certain usual problems, there are no visible illegalities or irregularities in the schools, however, there are general complaint of substitution, i.e. the actual teachers, specially, females have arranged some locals for duty at their place. On female side, irregularities at primary level especially in posting, transfer/adjustment are common. In most of the cases, postings are made in the school beyond sanctioned strength on the pretext of adjustments whereas other schools are left vacant/without teachers. No vigilant interest and attention on the part of education authorities was found and they are responsible for irregularities. DIR UPPER 69. As per report of the District & Sessions Judge, Dir Upper, there are 942 schools in the District with a total of 190927 enrolled students and 5991 teachers. Most of the children go to schools. Total educational expenditure for the District is Rs.112,606,128/- per month. The Government Primary School, Jatkol situated in Sub- Division Sheringal is functional in a Masjid as the said school building has been occupied by the person whose father had donated the landed property for the school and he, as per decision of High Court, was appointed as Chowkidar in the office of SDEO(M), Sub-Division Wari Dir Upper, but he wants to be posted at the Jatkol Primary School. The building of the Government High School in Dir Town was given on lease to Fatima Model School and the said school is functional. The Government Middle School situated at Dobando Dera is occupied by the security forces for operational purposes against militancy. There is no litigation pending in the District between Education Department and any private person. CONST.P. 37/2012 36 70. The learned Additional Advocate General, Khyber Pakhtunkhwa prepared and filed a summary/comparative chart of the reports furnished by the learned Judicial Officers and the Government of Khyber Pakhtunkhwa as under: - S.No District Judicial Report Govt. Report Deference 1 Timergara No ghost school, all schools are functional Eight schools are non functional due to non availability of teachers -8 Schools 2 Mansehra All Schools are functional One school non functional due to court case -1 3 Chitral All Schools are functional All School are functional Nil 4 Nowshera All School are opened to interference by the judicial officers Eight Schools due to disputes with land owners -8 5 Karak All School are functional All Schools are functional Nil 6 Tank Thirty four Schools are closed due to different reasons One School +33 7 Kohistan Nine Schools have been specified to be non functional rest are not in good conditions Eighteen Schools are non functional due to non availability of staff -9 8 Mardan Twenty four Schools are closed due to land disputes One male School +23 9 Swabi Fourteen Schools are closed Two +12 10 Abbottabad Nil Nil Nil 11 D.I.Khan Twenty seven Schools are closed Two +25 12 Hangu Report is not clear 28 -28 13 Kohat Nil Nil Nil 14 Malakand Nil Nil Nil 15 Peshawar Seven Schools are closed Eight -1 16 Battagram Report is not clear Nil Nil 17 Banu Eight Schools are mentioned but when minutely read, four schools appear to be non functional Four Nil 18 Bunir Report ambiguous Four -4 19 Swat Lengthily list of non Fourteen -14 CONST.P. 37/2012 37 functional schools is given but stricto senso they are not non functional 20 Shangla Three ghost Schools and four non functional Nil +7 21 Dir Lower Nil Nil Nil 22 Lakki Marwat Report ambiguous 50% Schools have been reported as ghost/closed Schools but without furnishing details Nil Nil 23 Dir Upper Nil Nil Nil 24 Haripur Three Nil +3 25 Charsadda Thirteen Nine +4 Grand Total 142 108 34 71. The learned law officer stated that as per the report of Judicial Officers, the number of non-functional schools is on a higher scale as compared to the reports furnished on behalf of the Provincial Government. However, he stated that learned Judicial Officers in many cases reported as non-functional those schools which were temporarily found closed due to any trivial reason. In so stating, the learned law officer clarified that the Government is not defending the temporary closure of any school and that any lapse in the performance of duty by any functionary will be dealt with in accordance with law and smooth running of schools will be ensured. He stated that action in some of the cases is already under process. According to the learned law officer, the non-functioning of schools in the Province of Khyber Pakhtunkhwa, was mainly due to following reasons: - (i) Law and order situation due to militancy; (ii) Shortage of staff in some far flung districts; and (iii) Disputes with land owners. He also stated that the Government has already undertaken to meet the deficiency of teaching staff by proposing amendments in the Rules/Policy regarding backward districts and that the disputes with CONST.P. 37/2012 38 the land owners are being settled on priority basis. He further stated that there is a progressive increase in the budgetary allocation for education over the past few years. Furthermore, after insertion of Article 25A in the Constitution, the Provincial Government has already drafted a bill to meet the requirements of said Article, which will be passed by the Provincial Government in due course of time. THE PROVINCE OF THE PUNJAB 72. The information/data pertaining to all the districts in the Province of Punjab provided by all the District & Sessions Judges in the Punjab has been received from the Registrar, Lahore High Court is as under: - ATTOCK 73. As per report of the District & Sessions Judge, Attock, 1265 schools (837 Primary, 200 Elementary, 206 High and 22 Higher Secondary schools) are fully functional and there are no ghost school in the district. A sum of Rs.3,116.043 million was allocated during the financial year for the district, whereas 95% of children in the district are studying in schools. Two rooms of Government Girls High School, Pind Fateh, Tehsil Fatehjang are occupied by one Iqbal due to negligence of the local school administration and School Management Committee (SMC). The encroachment issue of 4 schools was settled by the Judicial Officers, whereas encroachment matters of 26 were directed to be fixed as court cases before the Addl. District & Sessions Judges with a direction for proper follow-up thereof. Six cases are pending – 2 before the Lahore High Court, Rawalpindi Bench and 4 before the Civil Courts. The latter have been directed to decide the same within a period of 2 months. CONST.P. 37/2012 39 BAHAWALNAGAR 74. As per report of the District & Sessions Judge, Bahawalnagar, 2231 schools are fully functional, whereas 43 schools are non-functional due to transfer of single teacher or the building after its construction not having been handed over to Education Department, however, there is no ghost school in the district. A sum of Rs.4,539.721 million was allocated during the financial year 2012-13 for the running of schools while the ratio of the children studying in the schools in the district is 87%. As regards encroachments, it has been stated that due to lack of interest of the school administration/Education Department, the authorities in many cases did not know the exact area of the schools. However, certain encroachments upon school premises were got removed through the Revenue Department. Two cases are pending in different courts without any stay order and directions have been issued to the concerned courts to expedite the proceedings of the cases. BAHAWALPUR 75. As per report of the District & Sessions Judge, Bahawalpur, 2122 schools (1961 Primary/Elementary and 116 High/Higher Secondary schools) are fully functional. The ratio of the children studying in the schools is 99.93%. Budgetary allocation is not mentioned in the report. Regarding encroachments, it has been stated that no school building is being used as a Baithak/Authak or for residential purposes, however, portions of three schools are illegally occupied and cases of property of four school buildings against the encroachers are being pursued whereas no action has been initiated by the Education Department against the encroachment of two schools. The education department authorities, in their reports, stated that no CONST.P. 37/2012 40 ghost schools exist in the district, however, the District & Sessions Judge in his remarks stated that there are two ghost schools, whereas there are four shelterless schools and eight schools are under encroachment. One case is pending before Civil Judge 1st Class, and another case is pending before the Additional District & Sessions Judge, Bahawalpur. BHAKKAR 76. As per report of the District & Sessions Judge, Bhakkar, 1337 schools are fully functional, whereas 3 schools are in the nature of ghost schools. A sum of Rs.41,892,018/- was allocated for the purpose during the financial year whereas 98.64% children are studying in the schools. 18 schools were found to be partly encroached upon by some private individuals out of which one was got vacated. One case is pending before the Lahore High Court, Lahore, namely, Writ Petitions No.2015 & 2016 of 2003, one is pending before the Assistant Commissioner, Bhakkar and two are pending with the Civil Courts. However, no stay order has been issued, but the Education Department has not got vacated the schools from the encroachers. CHAKWAL 77. As per report of the District & Sessions Judge, Chakwal, 802 schools are functional, 7 semi-functional and 6 schools are in the nature of ghost schools in the district. A sum of Rs.218,387,045/- was allocated during the financial year 2012-13. Encroachments exist in 23 schools. Three cases are pending before civil courts and one before the Assistant Commissioner, Talagang, District Chakwal. Reasons for delay in disposal of cases are non-appearance of the counsel for parties and lack of interest on the part of Education Department. CONST.P. 37/2012 41 CHINIOT 78. As per report of the District & Sessions Judge, Chiniot, 899 schools are fully functional and there is no ghost school in the area. A sum of Rs.1,27,25,64,843/- was allocated for the running of these schools. On the encroachments issue, it is stated that some of the schools were found partly encroached by some individuals, which were got removed and at present no encroachment exists in any school. No case is pending before any Court. D.G. KHAN 79. According to the report of the District & Sessions Judge, D.G. Khan, 2044 schools are fully functional and there are 2 ghost schools in the district, however, Inspection of schools situated in interior tribal area could not be carried out due to security problems. Budgetary allocation and ratio of children studying in the schools are not mentioned. It has been stated that encroachments exist in three schools. Two cases concerning schools properties are pending before the Lahore High Court, Multan Bench, Multan whereas one is pending in the civil court. FAISALABAD 80. As per report of the District & Sessions Judge, Faisalabad, 2135 schools are fully functional and there is no ghost school in the district. A sum of Rs.9,333,860,143/- was allocated for the purpose of imparting education during the financial year whereas 96.5% children are studying in the schools. Encroachments exist in some of the schools, inter alia, due to non-sanction of mutations of schools properties. One case is pending before the Supreme Court and two are CONST.P. 37/2012 42 cases pending before the District Judiciary, who have been directed to decide the case at the earliest. GUJRANWALA 81. As per report of the District & Sessions Judge, Gujranwala, 1671 schools are fully functional and 8 schools are in the nature of ghost schools. A sum of Rs.6,829,015,000/- was allocated for running of the schools in the district during the financial year. Ratio of children studying in schools has not been mentioned. Encroachments exist on 58 schools, however, the Education Department had not initiated any proceedings against the encroachers. Two civil suits regarding encroachment of schools properties are pending before the Civil Court, however, there is no mention of stay order issued by the court. GUJRAT 82. As per report of the District & Sessions Judge, Gujrat, 909 schools are fully functional in the district whereas there are no ghost schools as such. Funds allocated and ratio of children studying in the schools in the area have not been mentioned in the report. It has been stated that there were some encroachments made by private individuals on the property of schools for which Education Department had not initiated any legal proceedings. Five cases are stated to be pending, but the report does not contain the details thereof. HAFIZABAD 83. As per report of the District & Sessions Judge, Hafizabad, 900 schools are fully functional and 6 are non-functional in the district and there are not ghost schools in the area. A sum of Rs.1639.888 million was allocated in the budget for running of schools and 92% of children are studying in the schools. Students – teachers ratio is 34:1. CONST.P. 37/2012 43 No encroachment is found in the schools. Three cases are pending before the Civil Courts filed in the year 2010 and 2012 in which main buildings of the schools are not under dispute, and the schools are properly working. JHANG 84. As per report of the District & Sessions Judge, Jhang, 1665 schools are fully functional and there are no ghost schools as such in the district. An amount of Rs.61.158 million was allocated for the purpose of running of schools during the financial year and 87% of children are studying in the schools. Neither any encroachment exists on the schools properties nor is any litigation concerning schools found in the district. JHELUM 85. As per report of the District & Sessions Judge, Jhelum, 873 schools are fully functional whereas there are no ghost schools in the district. An amount of Rs.2,464,927,610/- was allocated in the budget of the schools and 85% children of the area are studying in the schools. The administration of 5 schools complained of encroachments made by different persons on the schools property, but no action was taken by the Education Department. Three civil suits filed by private persons against the Province of Punjab and District Collector are pending adjudication in the Civil Courts. In one case, the school administration is alleged to have encroached upon property of private persons. Direction for early disposal of the cases has already been issued. CONST.P. 37/2012 44 KASUR 86. As per report of the District & Sessions Judge, Kasur, 1620 schools are fully functional and there are no ghost schools as such in the district. An amount of Rs.3823.920 million was allocated in the budget for the schools whereas 93% children of the area are studying in the schools. Encroachments exist on schools properties for the reason, inter alia, that in one case the land donated for the school was not got mutated in favour of the Education Department, whereas in other cases, influential/criminal people have encroached upon the schools property completely or partly and the Education as well as the Revenue Department remained inactive to get the same removed. Only one case is pending before a Civil Court, which has been undertaken to be decided on the next date, i.e. 25.3.2013. KHANEWAL 87. As per report of the District & Sessions Judge, Khanewal, 1600 shcools are fully functional whereas no ghost school exists in the area. An amount of Rs.4630.010 million was allocated in the financial year 2012-13 for running of the schools while 96% children are studying in the schools in the this area. Encroachments exist on schools properties, either because of non-transfer of the property in question in favour of the Education Department due to inaction on the part of the Department. Ten civil suits were pending before the Civil Courts, out of which 2 have been finally decided and there is no stay order issued in the remaining cases. No concrete steps are being taken by the Education Department against the encroachers. CONST.P. 37/2012 45 KHUSHAB 88. As per report of the District & Sessions Judge, Khushab, 1037 schools are fully functional and three schools are in the nature of ghost schools. An amount of Rs.3,776,671,000/- was allocated in the budget for the schools and 96.54% children of the area are studying in the schools. Encroachments exist on 14 schools properties due to lack of interest of the Education Department, improper demarcation of school property and non-availability of boundary walls of the schools. However, during physical verification, encroachments upon 12 schools were got removed. Two civil suits are pending before the Civil Courts and the reason for delay is the continuous strike of the bar, however, the concerned courts have been directed to expedite the cases. LAHORE 89. As per report of the District & Sessions Judge, Lahore, 1205 schools are fully functional whereas 6 schools are in the nature of ghost schools. An amount of Rs.1200 million was allocated in the budget for education in this district and 76% children are studying in the schools in the district. Encroachments exist on schools properties mainly due to inaction on the part of the Department. Twelve cases are pending adjudication before the Civil Courts and Additional District & Sessions Judges who have been directed to decide the same expeditiously keeping in view the directions of the Supreme Court. It is further stated that four cases are pending before the Supreme Court and the Lahore High Court, Lahore. LAYYAH 90. As per report of the District & Sessions Judge, Layyah, 1668 schools are fully functional and there is no ghost school in the CONST.P. 37/2012 46 district. An amount of Rs.3,51,20,33,400/- was allocated in the budget for education and 95.37% children are studying in the schools in the area. Encroachments exist on 10 schools properties due to inaction on the part of the Education Department. However, during physical verification, encroachments were got removed from some of the schools by the judicial officers at the spot and in some matters the demarcation was required to be carried out. A case of encroachment by different persons upon the property of Govt. Elementary School, Chak No. 136/TDA was pending before DCO whereas a civil suit regarding Govt. Boys Primary school 293-TDA was pending in the Civil Court and no stay order has been passed in this case. However, direction has been issued to expedite disposal of these cases. LODHRAN 91. As per report of the District & Sessions Judge, Lodhran, 797 schools are fully functional whereas there are no ghost schools in the district. An amount of Rs.3.82 million was allocated in the budget for education and 83% children are studying in schools in the area. Partial encroachments exist upon the properties of schools due to inaction on the part of the Education Department. Eight cases were pending out of which three have been decided and the remaining 5 have been undertaken to be decided expeditiously. MANDI BAHAUDDIN 92. As per report of the District & Sessions Judge, Mandi Bahauddin, 987 schools are fully functional whereas there are no ghost schools as such in the district. An amount of Rs.12.010 million was allocated in the budget for education during the financial year 2012-13 and 90% children are studying in schools in the district. Partial CONST.P. 37/2012 47 encroachments exist upon 12 schools by private persons mainly because of political influence of the encroachers and the inaction on the part of the Education Department. Two out of five cases have been decided by the civil courts and direction for expeditious decision of remaining three cases has already been issued. MIANWALI 93. As per report of the District & Sessions Judge, Mianwali 1140 schools are fully functional, whereas there are no ghost schools in the district. An amount of Rs.2,601,975,523/- was allocated in the budget for education in the district during the financial year and ratio of children who are studying in the schools in the district is 93%. Encroachments exist upon the schools properties due to inaction on the part of the Education Department, however, no school was being used as Baithak/Authak or residence. Four civil suits, one civil appeal and one criminal case FIR No. 177/2012 u/s 447/427 PPC registered with Police Station Qamar Mushani against one Shafi Ullah are pending adjudication before different courts, however, there is no mention of any stay order having been issued by the courts in any matter. MULTAN 94. As per report of the District & Sessions Judge, Multan, 1434 schools are fully functional whereas there are no ghost schools as such in the district. An amount of Rs.5,120.448 million was allocated in the budget for education in the district during the financial year. As regards the ratio of children studying in the schools, it has been stated that 300,000 students are studying in Government schools and more than 120,000 are studying in private schools. Encroachments exist upon schools properties due to inaction of the CONST.P. 37/2012 48 Education and the Revenue Departments. One case is pending before the Settlement and Rehabilitation Commissioner, one before the Additional Commissioner (Revenue), two before the DCO and two before the Civil Courts. However, there is no mention of issuance of any injunctive order in any of the above cases. MUZAFFARGARH 95. As per report of the District & Sessions Judge, Muzaffargarh, 2089 schools are fully functional and 24 schools are in the nature of ghost schools in the district. An amount of Rs. 233.522 million was allocated in the budget for education in the district and 100 % children are studying in the schools in the area. Encroachments existed upon three schools’ buildings due to inaction on the part of Education Department, but the same were got cleared from the encroachers through the DCO, Muzaffargarh. Nine cases are pending pertaining to schools properties and the concerned courts have been directed to expedite the same. NANKANA SAHIB 96. As per report of the District & Sessions Judge, Nankana Sahib, 734 schools are fully functional and there are no ghost schools in the district. An mount of Rs.2308.953 million was allocated in the budget for education in the district during the financial year, and the ratio of children studying in the schools is 95.8 %. Portions of about 10 schools are reported to be under illegal occupation of different persons and are being used as cattleshed, but none of the schools is being used as Baithak/Authak. The Education Department did not initiate action to remove the encroachments. Two civil suits claimed by CONST.P. 37/2012 49 Education Department were not found to be pending before any court, thus, there is no litigation concerning the schools in the district. NAROWAL 97. As per report of the District & Sessions Judge, Narowal, 1280 schools are fully functional and 14 schools are in the nature of ghost schools. An amount of Rs.1,384,384,080/- was allocated in the budget for education in the district during the financial year and 97.72 % children are studying in the schools in the district. Encroachments by influential persons upon schools’ properties were found and the same were got cleared through the local administration except one Masjid Maktab School at Takkiya plot Jandarwal, Tehsil and District Narowal encroached by two individuals who had tied their cattle and placed dung cakes and the same happened due to inaction of the Education Department. The report is silent about litigation concerning properties of schools in the district. OKARA 98. As per report of the District & Sessions Judge, Okara, 1671 schools are fully functional and there are no ghost schools as such in the district. An amount of Rs.2,399.085 million was allocated in the budget for education in the district during the financial year. Ratio of children studying in the school has not been mentioned in the report. Encroachments upon some of the schools’ properties were found due to inaction of the Education Department, but the same were got vacated from the encroachers. Four civil suits without any stay order are pending adjudication between private persons and Education Department, but the schools were functioning in the said buildings. CONST.P. 37/2012 50 PAKPATTAN 99. As per report of the District & Sessions Judge, Pakpattan, 910 schools are fully functional and there are no ghost schools as such in the district. An amount of Rs.2,132.215 million was allocated in the budget for running of schools in the area and the ratio of children studying in schools is 63.07 %. Encroachments upon some of the schools’ properties by local people were found due to inaction of the Education Department, but no school building was being used as Baithak/Authak and the illegal possessions were got removed through the DCO Pakpattan Sharif. A civil suit pertaining to the property of Government Girls High School, 66/EB, Tehsil Arifwala is pending before the Civil Court in which stay was vacated whereas one matter is pending before the Board of Revenue, Punjab and the DCO Pakpattan Sharif has been required to pursue the said matter. RAHIM YAR KHAN 100. As per report of the District & Sessions Judge, Rahim Yar Khan, 37 shelterless/non-functional schools, 25 non-functional due to non-availability of teachers, 884 schools without electricity, 435 without boundary walls, 180 schools without toilets, 110 shelterless but functional, 13 schools shifted to other places or merged with other schools, 22 schools in rented buildings, 117 schools with dangerous buildings, 4 schools under part-encroachment, 2 fully encroached schools, 4 facing litigation exist in the district whereas land of 46 schools has not been mutated in favour of the Education Department. However, the report does not mention the budgetary allocation and the ratio of the school going children in the district. As regards the encroachments issue, it has been stated that a committee be formed to work out concrete proposals to remove illegal possessions and to CONST.P. 37/2012 51 provide missing facilities to all the schools. It was further stated that the ban imposed by the Election Commission of Pakistan on development activities ought not to be treated as a hurdle in the provision of missing facilities or addressing the miserable conditions of schools. Utilization of funds for these purposes cannot be taken as initiating new schemes within the contemplation of ECP directive considering the sanctity attached to the educational institutions and no political motive or agenda ought to be attributed to the execution of schools related works. RAJANPUR 101. As per report of the District & Sessions Judge, Rajanpur, 490 schools are fully functional in the district whereas there are no ghost schools as such. An amount of Rs.248,317,620/- was allocated in the budget for education in the district during the financial year whereas 32 % boys and 24% girls of the age of 4 to 13 years in the district are studying in the schools. Encroachments upon some of the schools’ buildings by private persons were found due to inaction of the Education Department, but the same were got removed at the spot. No case concerning schools properties is pending before any forum. RAWALPINDI 102. As per report of the District & Sessions Judge, Rawalpindi, 1993 schools are fully functional but 10 schools located in hard areas are not functional due to non-enrolment of students as people have migrated to urban areas of the district, however, there are no ghost schools as such. In all, 30 schools are lying vacant due to above reason or having been merged into other schools as per policy of the Government. An amount of Rs.5,790,942,000/- was allocated in the CONST.P. 37/2012 52 budget for education in the district during the financial year. 70.5% children are studying in Provincial Government schools whereas 29.5% are studying in private schools or in the Federal Government schools. Encroachments upon some of the schools buildings exist mainly due to disputes of demarcation, but none of the schools was being used for Baithak/Authak. 16 cases were pending in different courts including the Lahore High Court, Rawalpindi Bench, and the Revenue Courts. In 5 cases, status quo order has been issued against the Education Department while in 3 cases status quo order has been issued in favour of the Department. The learned District & Sessions Judge has issued direction to Civil/Revenue Courts to expedite the disposal of such cases. SAHIWAL 103. As per report of the District & Sessions Judge, Sahiwal, 1204 schools are fully functional and there are no ghost schools in the district. An amount of Rs.359,790,696/- was allocated for education in the district during the financial year and 98 % children in the district are studying in the schools. As regards encroachments upon schools’ buildings, it has been stated that some portions of property of four schools were occupied illegally by some individuals, which were got vacated. The property of two schools was in possession of the Govt. Departments (Janbaz Force and Food Department). Three civil suits are pending adjudication. SARGODHA 104. As per report of the District & Sessions Judge, Sargodha, 2042 schools are fully functional and there are no ghost schools as such. An amount of Rs.5,573.137 million was allocated for education in CONST.P. 37/2012 53 the district during the financial year and the ratio of children who are studying in the schools in the district is 43 %. Encroachments exist upon 87 schools made by influential and the people neighbouring the schools premises due to inaction on the part of the Education Department to take legal action against encroachers. Five cases were pending adjudication between Education Department and private persons involving encroachments upon the schools properties. The concerned Courts have been directed to decide the same as quickly as possible. SHEIKHUPURA 105. As per report of District & Sessions Judge, Sheikhupura, as a whole there are 1597 Government schools, out of which 1426 schools are fully functional while 130 schools were merged with other schools, and there are 41 non-functional schools in the district, but there are no ghost schools as such. An amount of Rs.3,412.515 million was allocated for education in the district during the financial year and 85 % children are studying in the schools. As regards encroachments upon schools’ buildings’, it has been stated that 11 schools were under illegal occupation and five of the encroachers were facing criminal cases side by side civil cases whereas in two matters, civil suits were pending in the Civil Courts. The Courts have been directed to be brought on the fast track cases. SIALKOT 106. As per report of the District & Sessions Judge, Sialkot, 1992 schools are fully functional whereas 6 schools which are in the nature of ghost schools. An amount of Rs. 5,650,173,009/- was allocated for education in the district during the financial year and 20% CONST.P. 37/2012 54 children are studying in the schools. All the schools in the rural areas are in dilapidated condition. 90% of the schools were without furniture and the remaining schools were having furniture of cheap quality, which was arranged by the teachers by collecting Rs.20/- from each student on account of Farogh-e-Taleem Fund. Students were sitting on the ground with fertilizer plastic bags underneath. 90% of the students had no books. The teachers did not give the appearance becoming of a teacher to be a role model for the students. Most of the officials of the Education Department were not visiting the schools. Furthermore, they had no control over the teachers/staff due to frequent political intervention, or blackmailing through anti-corruption department. From that point of view, none of the Government schools could be termed as properly functional. As regards encroachments upon schools’ buildings’, it has been stated that most of the encroachments were found due to negligence of Education Department. In response to question regarding litigation concerning properties of school, it has been stated that five civil suits are pending adjudication between the private individuals and the Education Department before civil courts, which will be decided within a shortest possible time. TOBA TEK SINGH 107. As per report of the District & Sessions Judge, Toba Tek Singh, 1199 schools are fully functional whereas there are no ghost schools in the district. An amount of Rs. 3,698,229,200/- was allocated for education in the district during the financial year and 99.64 % children are studying in the schools. As regards encroachments upon schools’ buildings’, it has been stated that 29 schools were found encroached. Two civil cases concerning properties of schools are pending before the Civil Courts. The Education CONST.P. 37/2012 55 Department was not pursuing the encroachment cases diligently. The DCO and the Education Department have been directed to remove the encroachments. VEHARI 108. As per report of the District & Sessions Judge, Vehari, 1562 schools are fully functional whereas there are no ghost schools in the district. An amount of Rs. 2,321,821,479/-was allocated for education in the district during the financial year. It is stated that the ratio of children studying in the schools is given in Annexure-C, however, no Annexure has been attached with the report. As regards encroachments upon schools’ lands/buildings, it has been stated that 45 schools were found under illegal occupation of different people due to inaction on the part of the Education Department. However, 37 schools were got vacated by the Assistant Commissioner on the request of the Education Department. Civil Revision No. 77-D of 2008 with status quo order is pending before Lahore High Court, Multan Bench and two cases are pending without issuance of status quo order with the Member, Board of Revenue, Lahore. 109. Mr. Babar Ali, learned Deputy Attorney General for Pakistan, by means of CMA 3748/2013, filed a summary on the conditions of schools in the Province of the Punjab. According to the said summary, there are 57814 fully functional schools whereas there is no ghost school as such in the Province, but some of the schools are non-functional due to shortage of teaching staff and lack of communication/infrastructure. As regards ratio of children studying in schools in the Province, it is stated that only 20% of the children of the age group of 5-16 years are studying in schools. It is further stated that to implement Article 25A, more funds are required for recruitment CONST.P. 37/2012 56 of teachers, however, the newly elected Government has shown commitment to focus on education. On the question pertaining to encroachments upon the schools properties, the learned law officer stated that encroachments are partially due to the following reasons: - (i) Commercial interests in the urban area. (ii) Social power and control of landlords in the rural area. (iii) Ambiguous ownership documents. (iv) Political and social power of land mafia versus unprotected weak local school administration. (v) Weak legal support in litigation wing. (vi) Lack of proper management information system. 110. To overcome the aforesaid problems and address the issues so pointed out, the learned law officer made the following suggestions/recommendations: - (i) The Government may be required to allocate huge amount of money for realization of Article 25A. (ii) The private sector has to be promoted to share the burden. (iii) Household based taxation for education needs to be introduced in the Local Government System to increase resources to be utilized. (iv) Necessary legislation for compulsory education with a regime of incentives and punitive actions requires to be enacted. (v) Education management needs to be strengthened with more capacity to monitor and take prompt decision/action. (vi) Management Information System should be IT based. (vii) Decentralization of authority at the local and institutional level. PROVINCE OF SINDH 111. The information/data pertaining to all the districts in the Province of Sindh provided by all the District & Sessions Judges in the Sindh received from the Registrar, High Court of Sindh is as under: - BADIN 112. As per report of the District & Sessions Judge, Badin, 2897 schools are fully functional, whereas 294 schools are in the nature of ghost schools. A sum of Rs.41,731,669/- was allocated for education CONST.P. 37/2012 57 during the financial year and 57.6% of children are studying in the schools in the district. The reason for encroachments on the schools properties is due to inaction on the part of higher authorities of the Education Department. The encroachers are either high Government officials or influential persons of the locality, as such, no action against them has been taken and no litigation is pending in this regard. BENAZIRABAD 113. As per report of the District & Sessions Judge, Benazirabad, out of 2720 schools, 2365 schools are fully functional, 202 schools were non-functional and 355 schools are in the nature of ghost schools. A sum of Rs.62,688,000/- against SMC funds and Rs.57,111,500/- against regular budget was allocated during the financial year, whereas 53 % of children are studying in the schools in the district. Encroachments exist on the properties of 112 School by influential persons and villagers. On the question pertaining to litigation concerning schools lands, it has been stated that 2 matters are pending in the courts in this regard. DADU 114. As per report of the District & Sessions Judge, Dadu, 1924 schools are fully functional, whereas 271 schools are ghost schools in the district. A sum of Rs.407,862,000/- was allocated for education during the financial year, whereas 46% of children are studying in schools in the district. The reasons for encroachments on the schools properties are that the schools were not functioning regularly and lack of interest on the part of the officials of the Education Department. Encroachers are influential persons of locality, as such no action was taken by the Department against them and no legal proceedings were CONST.P. 37/2012 58 initiated. No litigation is pending between the Education Department and private persons who had allegedly encroached upon the properties of schools. GHOTKI 115. As per report of the District & Sessions Judge, Ghotki, 1833 schools are fully functional, 189 schools are non-functional, 48 are ghost schools and 24 are in the nature of occupied schools in the district. An amount of Rs.1,213,170,370/-was allocated for education during the financial year. As regards ratio of children studying in schools, 70% students are shown present whereas 43% are shown absent. Some of the schools have been encroached upon by private persons, Police Department and NADRA, however, some of the schools were got vacated and possession thereof was handed over to the Education Department. No litigation exists in the district. HYDERABAD 116. The District & Sessions Judge, Hyderabad has stated in the report that as per Education Department, there are 983 Primary & Elementary Schools and 97 Secondary & Higher Secondary Schools. It has been stated that according to the report of the Education Department, there are no ghost schools in the district. The District & Sessions Judge has further stated that ghost schools have been noticed in the area by the judicial officers in their reports, however, the said reports are not enclosed with the report of the District & Sessions Judge. It has been stated that the schools are in miserable condition due to mismanagement, inasmuch as there was no water and no washrooms. Schools buildings are not maintained. Schools are established in the Ahatas (bounded premises) meant for visitors in the CONST.P. 37/2012 59 villages. Some were being used as cattle ponds. The Education Department made certain schools functional by temporarily bringing children and students from the villages or from other schools. Untrained and uneducated persons were working as teachers. JACOBABAD 117. As per report of the District & Sessions Judge, Jacobabad, 952 schools are fully functional whereas 328 schools are non- functional and 191 are in the nature of ghost schools in the district. 73 schools of Taluka Thul mentioned in the list provided by the Education Department were not traced out for survey. As regards the amount of funds being spent for imparting education to the children, it is stated that SMC funds of Rs.22,000/- for each Primary School, Rs.50,000/- for each Middle School and Rs.100,000/- for each Higher Secondary Schools have been allocated for the purpose. However, as per report of DEO, Jacobabad, no such fund has been released by Reform Support Unit during year 2012. The number of students is 176,149 and the ratio of school going children in the district is 78.63%. Encroachments exist on 52 schools, but no action has been initiated by the Education Department. A portion of school land measuring 2000 square feet was forcibly occupied by the then DEO, namely, Mr. Shan Muhammad Brohi who built a mini-bungalow therein, which was found to have been sealed by NAB authorities while probing into the alleged bogus appointments by said DEO as per letter No. DC/JB/296/2013 dated 6.3.2013. 118. The District & Sessions Judge Jacobabad further stated that a large number of schools were found to be without electricity, drinking water, washrooms, sweeper, peon and the buildings of most CONST.P. 37/2012 60 of the schools were found in dilapidated condition and not suitable for education. He further remarked that the supervisory staff of the Education Department never visit the schools and the feasibility reports for construction of schools are prepared according to the wishes of the local land lords/political figure. Five schools, namely, Government Boys Primary School, Government Boys Middle School, Government Boys High School, Dost Muhammad Sarki, Government Girls Primary School and Government Girls Middle School, Dost Muhammad Fazlani have been established in a village of about ten houses with an area of 20 Ghuntas. The District & Sessions Judge has further remarked as under:- (i) Out of above five schools only one school GBPS Dost Muhammad Sarki was functioning, while GGMS Dost Muhammad Fazlani and GBHS Dost Muhammad Sarki were said to be under construction. (ii) Another school namely, Govt. Girls middle School Special Force consisting of five rooms was constructed with estimated cots of Rs.15,00,000/- (Fifteen lacs) wherein the school functioned for few years but later on the school was shifted to the building of Govt. (b) primary school Rahim Bux Soomro were it is running in evening shift and the building constructed for the said school is lying vacant un- attended, for which, the education department is responsible for preparing feasibility report for the place where they are unable to educate female children and a probe is required, for taking necessary action against the responsible officers, as such in future the public money be utilized properly.” (iii) Another school, namely, Govt. Middle School Rahim Bux Soomro upgraded to Govt. High School Ahmed Mian Soomro in year-1995 and 08 rooms were constructed with estimated costs of Rs.19,87,950/-, which too remained un- attended and in damaged condition, for which, probe is also required. It is also main reason behind the above number of schools shown by the education department being non-functional.” (iv) During survey it was also found that the transfers and postings of the teaching staff are not proportionate to the number of students, but it appears that the transfers and postings are being made under the influence of teachers’ union or otherwise. CONST.P. 37/2012 61 The District & Sessions Judge has concluded that loss of public money as depicted from the above mentioned facts requires attention by the Education Department. JAMSHORO 119. As per report of the District & Sessions Judge, Jamshoro, out of a total of 918 schools, 698 schools are fully functional, 145 schools are non-functional and 71 ghost schools in the district. A sum of Rs.137,075,991/-was allocated for education during the financial year. 43.5% children are studying in the schools in the district. Encroachments exist upon four schools properties, whereas one case is pending. 120. As regards condition of schools as observed during physical survey conducted with the assistance of Additional District & Sessions Judges Kotri and Sehwin and President & General Secretary of the District Bar Association, the District & Sessions Judge Jamshoro at Kotri stated that 71 ghost schools were found while 145 schools were found closed. He further stated that a large number of school were found without electricity, drinking water, washrooms and proper furniture. Maintenance and repair work of the schools buildings was not done since long and most of the school buildings were found in dilapidated condition, which showed that funds allocated for the said purpose were not being utilized properly. Some of the schools were under-staffed whereas others were over-staffed. Some schools were found closed due to flood and consequential migration of the people of the locality. The transfers and postings of the officers of the Education Department appear to be made under political influence. He has concluded that if an honest audit of the accounts of the Education CONST.P. 37/2012 62 Department is conducted, it would reveal huge corruption and mismanagement. KARACHI CENTRAL 121. As per report of the District & Sessions Judge, Karachi Central, 706 schools are fully functional, whereas there is no ghost school in the district. A sum of Rs.4,480,884,922/-was allocated for education during the financial year. The number of children of the age group between 5 to 16 years is 269,279 whereas the number of children enrolled in the schools is 124,244; thus, ratio of children studying in schools is 47.73%. On encroachments issue, it has been stated that two schools are partly encroached upon, however, no action has been taken by the Education Department except reporting to high-ups. No school is being used as baithak/authak and no litigation concerning schools properties is pending before any forum. KARACHI MALIR 122. As per report of the District & Sessions Judge, Malir, (Karachi), 612 schools are fully functional, whereas there are three ghost schools in the district. A sum of Rs.1,204,359,561/- was allocated for education during the financial year. Ratio of children studying in schools is 20%. There are also 56 KMC schools and all of them are fully functional. A sum of Rs.8,490,979/- was allocated for education during the financial year. Ratio of children studying in KMC schools is 19%. Encroachments exist on one Government school and three KMC schools. The reasons for encroachments are inaction and lack of interest on the part of the officials of the Education Department and political influence. In one case, FIR No.40/2008 under section 448/511/427 PPC was registered at P.S. Sukhun, but no progress is CONST.P. 37/2012 63 known to the Education Department. Two schools, namely, GGPS Lala Abad and GBPS Future Colony were encroached upon by the local persons, however, the same were restored to the Education Department. KARACHI EAST 123. The Additional District & Sessions Judge, Karachi East, stated that as per information provided by the Secretary, Education Department, Government of Sindh, there are 574 schools, out of which three schools are temporarily closed. However, the details of schools provided by the Education Department did not match with the record of the Reforms Support Unit, which showed that the total number of schools is 739. Though the Education Department reported that there were no ghost schools in the district, but during physical verification, the Department failed to identify 12 schools whereas 20 schools were found to be non-functional. 124. As per initial information, a sum of Rs.28,172,000/- was allocated for education during the financial year. However, upon calling the details, it was found that a sum of Rs.2,170,110,072/- was allocated for the purpose, which showed a major discrepancy. 125. One Abdul Rehman Khan, General Secretary, Taleem Bachao Action Committee submitted application alleging therein that the Department has empowered non-gazetted staff to exercise the powers of Drawing & Disbursing Officer and besides, one DDO has been assigned several DDOs’ assignment against the rules and regulations without any checks and balance system in place. 126. The ratio of children studying in the schools in the district was not available with the Education Department, however, the relevant information was obtained from NADRA, according to which it CONST.P. 37/2012 64 is 33.13%. As regards encroachments issue, the Education Department stated that no encroachments exist upon any of the schools, however, during physical verification, 20 schools were found to be encroached. On the litigation issue, the Education Department stated that no case is pending before any forum, however, during physical verification, the Headmasters of seven schools informed that litigation is pending before different forums. KARACHI SOUTH 127. As per report of the District & Sessions Judge, Karachi South, out of 427 schools, 376 are fully functional whereas 49 schools seem to be ghost schools in the district. As regards the allocation of fund, it was stated that a sum of Rs. 22000/- per school was allocated as per information gathered from departmental authorities, however, the schools/department authorities failed to provide any official document showing the allocation of funds and did not show the details of expenditure. The ratio of children studying in the schools in the district is 40.6%. On encroachments issue, it has been stated that a portion of GBPS, Genu Bai G. Allana, U.C. 2, Lyari, was found to have been encroached upon by U.C. 1, Agra Taj Colony, however, no action was taken by the departmental authorities. On the litigation issue, it was stated that no case is pending before any forum. 128. During physical verification, it was observed that the department is suffering from mismanagement and maladministration, inasmuch as a number of teachers were on the pay rolls of the department, but no record pertaining to their appointment/posting was provided by the department. Similarly, no record pertaining to repair and renovation of the schools buildings was made available. CONST.P. 37/2012 65 Furthermore, the schools buildings were found in a worst condition, which is not suitable for imparting education to the children. KARACHI WEST 129. As per report of the District & Sessions Judge, Karachi West, 405 schools are fully functional whereas there are 12 ghost schools and a sum of Rs.1,455,907,241/- was allocated for education during the financial year. The ratio of children studying in schools is 31.15%. However, the above figures given by the District & Sessions Judge do not tally with the figures given by the judicial officers of the district through whom the exercise was got carried out. A perusal of the data attached with the report of the District & Sessions Judge showed that there are 464 schools in the district, out of which 14 schools are partially functional, 22 schools are non-functional and 6 are ghost schools in the district. Furthermore, a sum of Rs. 1,459,569,038/- was allocated for education during the financial year. The District & Sessions Judge further stated that as per NADRA, record, 195,870 children are enrolled in schools and ratio of children studying in schools is 31.15%. As regards the reasons for encroachments, it has been stated that due to lack of will of the Heads of the schools and political pressure, no action has been taken. As per report of the department, no case is pending. 130. The judicial officers noticed lack of electricity, drinking water, washrooms and proper furniture. Maintenance and repair work of the schools buildings was not done since long and most of the school buildings were found in dangerous condition, which showed that funds allocated for the said purpose were not being utilized properly. CONST.P. 37/2012 66 KASHMORE AT KANDHKOT 131. As per report of the District & Sessions Judge, Kashmore at Kandhkot, out of 1579 schools, 1294 are functional and 285 are non-functional schools and there are no ghost schools in the district. As regards the allocation of fund, it has been stated that SMC funds per year, (1) Rs.22000/- for Primary Schools, (2) Rs.50,000/- for Middle Schools, (3) Rs.100,000/- for High & Higher Secondary Schools (total funds of the district are Rs.30,152,000/-) were allocated, however, no record for utilizing the said funds was produced during the visit of schools. 67% children are studying in the schools in the district. 23 schools have been encroached and are being used for residential purposes, whereas 7 encroached schools are being used as baithak/authak. Schools are sanctioned unnecessarily in small villages and school buildings are encroached upon by Waderas. Due to political reasons, no action has been taken against them. No litigation concerning schools properties is pending before any forum. KHAIRPUR MIR’S 132. As per report of the District & Sessions Judge, Khairpur Mir’s, out of 3490 schools, 3381 schools are fully functional, 125 are non-functional schools having been closed for different reasons, many schools are without buildings, and are being run in other schools buildings, a large number of schools were short of furniture, fixtures, staff, however, there are no ghost schools in the district. Ratio of children studying in schools is 35% in the district. As regards allocation of funds for the purpose, it has been stated that SMC funds per year, (1) Rs.22000/- for Primary Schools, (2) Rs.50,000/- for Middle Schools, (3) Rs.100,000/- for High & Higher Secondary Schools (total funds of the district are Rs.2,681,272,860/-) were allocated. CONST.P. 37/2012 67 Survey of the schools revealed that 11 schools have been encroached upon, however, encroachments upon three schools were got removed through the Court orders. It was further stated that two schools have been occupied by the owners of the land donated by them for establishing schools, who were demanding jobs in lieu of the land provided by them. Three schools were being used by influential persons for baithak/personal use, which were got vacated by the department. The main reasons for encroachments are lack of will on the part of the departmental authorities and political pressure. On litigation concerning schools properties, it has been stated that 2 cases are pending in the court of law. LARKANA 133. As per report of the District & Sessions Judge, Larkana, 1356 schools are fully functional, 15 schools are non-functional, however, there are no ghost schools in the district. A sum of Rs.24,135,342/-was allocated for education during the financial year. The ratio of children studying in schools is 51.67% in the district. As regards the encroachments issue, it has been stated that 10 schools are encroached by landowners, 3 by influential persons, 3 by police, 1 by Rangers and 11 by others, thus in all 28 schools have been encroached. On litigation issue, it has been stated that no litigation exists between education department and private persons at the district level. However, the High Court of Sindh, Circuit Court, Larkana, through its combined order on petitions of plot donors has directed the plot donors to submit details of record and has also directed the Education Department to process their cases for their appointment in lieu of plots donated by them. CONST.P. 37/2012 68 MATIARI 134. As per report of the District & Sessions Judge, Matiari, out of 990 schools, 853 are fully functional whereas 137 closed/non- functional schools in whole District (92 in Taluka Miatiari, 11 in TalukaHala and 34 in Taluka Saeedabad). As regards allocation of funds for the purpose, it has been stated that for welfare of schools, Rs.22,000/- for each Primary Schools, Rs.50,000/- for each Middle Schools and Rs.100,000/- for each High & Higher Secondary Schools have been provided, whereas total funds have been provided under five heads, namely, (1) School Specific Budget amounting to Rs.84,000,000/-, (2) SMC Funds amounting to Rs.26,218,000/-, (3) Stipends to Girls from class 6 to 10 amounting to Rs.17,887,200/-, (4) Free Text Books amounting to Rs.26,376,300/- and (5) SERP(TOP) amounting to Rs.100,000,000/-, totalling Rs.254,481,500/- for the financial year. 35% of children are studying in the schools in the district. 135. During survey by the Judicial Officers no High School or Secondary School found encroached in the District Matiari; however, encroachments exist in 6 Primary Schools. The common reason over the encroachment of the said schools is that due to no availability of the teachers the Villagers occupied it. Some of the Schools found constructed in the area where there is no population and those Schools are also occupied by the adjoining Zamindars. No action taken by the local administration or by the Education Department in this regard. No litigation is pending in the Courts at District Matiari. However, the Education Department informed that a School namely Government Girls Community Primary School, Bakhar Jamali situated in Taluka Saeedabad is under litigation between the private person and the CONST.P. 37/2012 69 Education Department before the High Court of Sindh Hyderabad Circuit [Sujawal Jamali v. The Secretary Education and Literacy Government of Sindh Karachi (C.P NO. D-149 of 2010)]. MIRPURKHAS 136. As per report of the District & Sessions Judge, Mirpurkhas, 1774 schools are fully functional and 24 schools are those which are ghost schools in the district. As regards the allocation of funds, it has been stated that Rs. 2,251,770,459/- was allocated in this regard, whereas 15.5% boys and 8.6% girls are studying in the schools in the district. On question pertaining to encroachments upon schools’ buildings, or the schools’ buildings being used for purposes other than education, it has been stated that encroachments exist in 3 schools. On the question pertaining to litigation concerning schools lands, it has been stated that 2 cases are pending in the court of law. NAUSHARO FEROZE 137. As per report of the District & Sessions Judge Nausharo Feroze, out of 2473 schools, 2278 are fully functional and 195 are non-functional. However no ghost school exists in the District. A sum of Rs.3,231,842,760/- was allocated for education during the financial year. The ratio of children enrolled and getting education in Government schools has not been given. On the question pertaining to litigation concerning schools lands, it has been stated that 1 case is pending in the court of law. On question pertaining to encroachments upon schools’ buildings, or the schools’ buildings being used for purposes other than education, no answer has been given. CONST.P. 37/2012 70 SANGHAR 138. As per report of the District & Sessions Judge, Sanghar, out of 3188 schools, 2873 are fully functional whereas 315 are in the nature of ghost schools. A sum of Rs.2,881,266,770/- was allocated for education during the financial year, whereas 71.83% of children are studying in the schools in the district. Encroachments exist upon land/buildings of 17 schools. On the question pertaining to litigation concerning schools lands, it has been stated that 6 matters pertaining to litigation are pending in the courts. SUKKUR 139. As per report of the District & Sessions Judge, Sukkur, out of 1335 schools, 1193 are fully functional, 13 are partly functional and 108 are closed school, whereas there are no ghost school in the area. As regards allocation of funds for the purpose, it has been stated that SMC funds per year, (1) Rs.22,000/- for Primary Schools, (2) Rs.50,000/- for Middle Schools, (3) Rs.100,000/- for High & Higher Secondary Schools (total funds of the district are Rs.1,616,780,890/-) were allocated. The ratio of children studying in the schools in the district is 28.068%. The encroachments exist in 21 schools and the reasons for such encroachments are that some of the schools have been built on the land donated by persons of the locality and due to non-appointment of their person they have occupied the same, some of the schools buildings have been occupied by the powerful persons of the locality and used as baithak/authak, and some of the schools buildings have been using for other purpose due to lack of interest of education specially in rural areas. The Education department though got registered FIRs against the said persons but due to their political influence the concerned authorities are reluctant to get the same CONST.P. 37/2012 71 vacated. However, no civil litigation between the education department and the private persons before the courts. 140. During visit of Additional District & Sessions Judge, Sukkur two schools were got vacated peacefully. It was further stated that during physical verification, it was found that conditions of the schools were deplorable having least basic facilities. Some of the schools are shelter less and require proper building. Heavy budget is shown to have been allocated against non-salary expenditure, but it appears that same is not being used for providing basic facilities in the schools. The buildings require repair, furniture, drinking water and appointment of teachers against vacant posts. It was also suggested that if judicial officers are deputed to do surprise visit of the schools every month, the deplorable condition of education can be changed. TANDO ALLAHYAR 141. As per report of the District & Sessions Judge, Tando Allahyar, there are 843 schools in the district out of which 803 are fully functional whereas 40 are closed/ghost schools. A sum of Rs.49,339,420/- was allocated for education during the financial year. On litigation issue, it has been stated that no case is pending before any forum. TANDO MUHAMMAD KHAN 142. As per report of the District & Sessions Judge, Tando Muhammad Khan, out of 1191 schools, 1187 schools are fully functional and 4 schools are non-functional, whereas there are no ghost schools in the district. A sum of Rs.24,652,000/- was allocated for education during the financial year, whereas 30% children are studying in the schools in the district. Encroachments exist on ten CONST.P. 37/2012 72 schools land. On the question pertaining to litigation concerning schools lands, it has been stated that no litigation exists in this regard. 143. During inspection of the schools of Taluka Bulri Shah Kareem, it was observed that 27 Boys Primary Schools in the remote areas were closed temporarily due to political influence, however, the same were made functional. The teachers found absent without sanctioned leave were ordered to be proceeded under the disciplinary rules by the concerned DEOs. The SMC funds are being misused and in a vast majority of schools, no proper record is maintained at the school level and no such record was found with the Heads of schools. DEO informed that such funds are directly transferred to the concerned SMC bank accounts of each school are placed at the disposal of Chairmen who are private persons of concerned villages and are almost politically designated persons. The concerned Head of the school being Secretary of SMC has no decisive role as such the role of Chairman may be eliminated and/or instead the SMC funds may be allocated through Education Department at district level for utilization/monitoring and audit. THARPARKER At MITHI 144. As per report of the District & Sessions Judge, Tharparker at Mithi, 3307 schools are fully functional, 858 schools are non- functional and no ghost school in the district. A sum of Rs.139,327,702/- as salary and Rs.63,180,000/- as non-salary was allocated for education during the financial year, whereas ratio of children going schools is 70% in the district. However, it has been pointed out that the ratio determined by education department is not correct and as observed during physical verification, it may be 50%. Encroachments existed in 18 schools, however, in addition to these 18 CONST.P. 37/2012 73 schools, some of the schools were temporarily occupied which were got vacated by the Education Department. One old hostel of GHSS, Chachro is in the possession of Rangers and the Deputy Commissioner is required to vacate it. The play-ground of GHSS, Islamkot was in occupation of some individuals and task is assigned to Deputy Commissioner for demarcation and restoration, if any. On the question pertaining to litigation concerning schools lands, it has been stated that no litigation exists in this regard. 145. It is also mentioned that teachers used to come late, some of the teachers/Head masters were absent without sanctioned leave, there were excess postings in some of the schools, some of the schools buildings were in poor condition, there were deficiencies with regard to class-rooms, toilets, libraries, etc., 146. It has been stated that there is no shortage of male teachers in the district but due to mismanagement of Education Department, some of the teachers are posted in excess obliging the influential, therefore, the remote areas are not fed-up with teachers. The conduct of the officers of District Administration has made the education system barren. It has been suggested that if the children of all the officers of education department be bound down to get their education in Government schools it would improve the education system. The SMC funds are misused and mostly the concerned Heads of the school do not know the aims and objects of the scheme. The committees so constituted are also not vigilant, as there is great apprehension that the committees are constituted on the basis of favouritism in order to put cover upon ill working of the Education Department. The school buildings are constructed on the quotas of Parliamentarian, therefore in some areas there are too many schools CONST.P. 37/2012 74 in other areas there is no school building. The required furniture is also not provided to those schools. Thus, the DEOs, etc., seem to be quite negligence and instrumental in the hands of the influentials. In the female section, the teachers are mostly posted in town, cities and the villages, therefore, the rural side/katcha areas are suffering from education disaster. In order to create grounds for establishment of schools, excessive enrolment is shown, when in fact there was no need of construction of additional classes/building. As such, Government exchequer has been badly misused and the Education Works Department is also not discharging its duties properly. The attendance was very poor in the schools and the reason disclosed was that elder/nek-merd of the area had died which was flimsy. A complaint was also received from a social worker about mismanagement, corruption and fake results. It was also disclosed that Reform Support Unit is working under the World Bank which provides stipend to every female student from class VI to X through money order but no student was reportedly receiving the said stipend. THATHA 147. As per report of the District & Sessions Judge, Thatha, out of 3316 schools, 2383 schools are fully functional and 883 schools are closed whereas there are 14 ghosts schools in the district. As regards the allocation of fund, it has been stated that Rs.350,428,190/- (non- salary) was allocated in the budget for the financial year 2012-13, whereas ratio of children going to schools is 66.4% in the district. Encroachments exist in 36 schools out of which 6 have got vacated. The main reason for encroachments is the delinquency and ignorance on the part of Education Department. On the question pertaining to CONST.P. 37/2012 75 litigation concerning schools lands, it has been stated that no litigation exists in the district. 148. Reportedly 247 computers, 56 UPS and 47 Printers were supplied of the schools of the whole district but on physical verification except 6-8 computers at Government Girls High Schools Gharo, no computer was found by the judicial officers, however, in the meeting, the officials of Education Department took brazen faced statement that all computers/equipment are available at the schools. On specific query about the availability of the computers at Government Boys High School Sonda, the officials admitted that computers at the said school had been stolen but no action was made in that context. SMC funds were neither properly utilized nor any proper accounts have been maintained by the schools and no audit report has been furnished by the department. The budget under the heads stationary, class material and co-curricular activities does not seem to have been properly utilized and/or misappropriated. Some of the schools were found closed during physical inspection, but in the account books the schools were shown as functional and funds were shown to have been allocated. UMERKOT 149. As per report of the District & Sessions Judge, Umerkot, there are 2735 schools in the district, out of which 1980 schools are fully functional, 755 are non-functional, however there is no ghost school. An amount of Rs.986,346,988/- was allocated for education during the financial, whereas ratio of children studying in the schools is 34.92% in the district. The encroachments exist in 3 school, out of which GBPS, Mushtaque Ahmed Qaimkhani and GGPS Niaz Ali Kapri have been occupied by the influential persons due to political backing CONST.P. 37/2012 76 and without any solid reason, and education authorities have failed to initiate action against them apprehending reprisal. Whereas, GGMS, Chhor Old has been occupied by the ISI due to non-availability of their building. No case is pending in any court of law between Education authorities and encroachers because the authorities of education Department, due to political influence, are unable to file complaints against influential persons or get schools vacated. 150. Mr. Muhammad Kassim Mir Jat, Additional Advocate General Sindh, by means of CMA 3799/2013, filed a summary on the conditions of schools in the Province of Sindh. According to the said summary, 46288 schools are fully functional in the Province and there is no ghost school as such, though some of the schools are not fully functional. He has described the following reasons for non-functioning of schools and encroachments upon the premises of the schools in the Province of Sindh: - (i) Law and order situation and tribal disputes. (ii) Migration due to floods. (iii) Schools in katcha areas. (iv) Shortage of teaching staff. (v) Lack of facilities, i.e. building, light, furniture, bath/rooms, roads, etc. (vi) Ownership disputes. (vii) Social power and political influence. (viii) Reluctance of lady teachers to leave their home towns. 151. To address and resolve the above issues, the learned law officer has made the following suggestions:- (i) Education budget allocation is to be enhanced. (ii) Appointments be made strictly on merit. (iii) Separation of teaching staff and administration. (iv) Decentralization of powers of appointment, posting, transfer and disciplinary action in accordance with service rules. (v) Improve the private sector, in order to raise funds and provide facilities. (vi) Training of staff and physical supervision from Union Council level to divisional level by higher authorities. (vii) Monthly inspection reports of schools by concerned officers. CONST.P. 37/2012 77 (viii) The representatives of people MPAs and MNAs are to be advised to participate in improvement of educational system within their respective constituencies. 152. We have perused the reports of the DEOs and the District & Sessions Judges as well as the summaries prepared by the law officers. While the reports are deficient in many respects, yet as much of the conditions prevalent in schools all over the country has come on record by means of those reports is far from being termed as satisfactory. At any rate, the reports bring out following issues, challenges and problems confronting the schools throughout the length and breadth of the country: - (1) The staff/teachers are not recruited on merits, rather on political and monetary considerations. Untrained and uneducated persons were working as teachers. Similarly, transfers and postings of teachers as well as the officers of the Education Department are made under political considerations and under influence of pressure groups of teachers associated with the unions; (2) Some of the schools were under-staffed whereas others were over-staffed; (3) Due to absence of fresh recruitments, there is shortage of teachers. Besides, the school teachers are attached with the health department for the purposes of polio campaign, particularly female teachers and are also deployed on election duty; (4) There is no record of daily attendance of teachers and no yardstick is available to measure the level of efficiency and performance of teaching staff. The teachers, in collusion with the concerned supervisory staff, either manage to mark proxies or engage local substitutions on payment of money; (5) The teachers were found in regular practice of obtaining leave for no reason or absenting from duty; and in some cases, even head of the school was found absent; CONST.P. 37/2012 78 (6) The teachers did not give the appearance becoming of a teacher to be a role model for the students; (7) Most of the officials of the Education Department were not found visiting the schools. Furthermore, they had no control over the teachers/staff due to frequent political intervention, or blackmailing through anti-corruption department; (8) In some areas, the Head Teacher of the school, without any documentary proof and observance of codal formalities is paid Rs.7,000/- per annum per room as maintenance charges, but there is no solid proof and record either in office of the concerned Head Teacher, the DEO concerned or the Head at district level to show as to how and under what criteria this public fund is being used; (9) In one case, a sum of Rs.40 million was placed at the disposal of Parents Teacher Association (PTA) during the previous financial year, but surprisingly even the very PTA did not exist in the district nor is there any record of expenditure of the allocated public fund. Thus, funds are not being utilized properly, which is indicative of lack of proper financial management and absence of any checks and balances within the department. It was suggested that if a proper audit of the accounts of the Education Department is conducted, it would reveal huge corruption and mismanagement; (10) Encroachments exist upon a large number of schools buildings/properties, however, no concrete steps are being taken by the Education Department against the encroachers; (11) In some of the schools under encroachment, the premises had not been legally handed over to Education Department and the buildings of the schools had been constructed on funds of the Senators disbursed during the 80’s, as such the premises were not on record of Education Department. In absence of proper handing over and taking over by the Education Department, sanctioned strength of the staff could not be ascertained; CONST.P. 37/2012 79 (12) Most of the primary schools are sanctioned/built on political considerations and owners of the land are using the same as their houses/baithaks; (13) Some schools were found closed due to floods and consequential migration of the people of the locality; (14) The building of the Government High School in Dir Town was given on lease to Fatima Model School and the said school is functional. It calls for an inquiry whether such lease of a Government school is permissible; (15) Some of the DEOs submitted a report/certificate that no ghost, non-functional or encroached school exists in the entire district. However, during visits of the judicial officers, it was observed that many of the schools were either ghost/non-functional or encroached schools. Besides, a lot of schools were found temporarily closed during working hours. (16) The building of Government Middle School, Kabalgram was found in occupation of Pak-Army; (17) The Government Middle School situated at Dobando Dera was found occupied by the Security Forces for operational purposes against militancy; (18) One old hostel of GHSS, Chachro was in the possession of Rangers; (19) Two schools in Dera Ismail Khan were closed by the land owners as mutations in favour of Education Department had not been attested, but the school buildings have been constructed thereupon. The cases regarding both these schools have been forwarded to the Anti-Corruption Department, D.I. Khan for probe and necessary legal action; (20) A large number of schools were found without electricity, drinking water, washrooms and proper furniture. Maintenance and repair work of the schools buildings was not done since long and most of the school buildings were found in dilapidated condition, which showed that funds allocated for the said purpose were not being utilized properly; and CONST.P. 37/2012 80 (21) The number of non-enrolled students was not ascertained either due to lack of interest/resources or due to non- cooperation of the executive agencies of the district. 153. The above state of affairs shows that the most important aspect of human life, viz., imparting of education to the future generations is being ignored like anything. Recently, this Court, in the case of Fiaqat Hussain v. Federation of Pakistan (PLD 2012 SC 224), has had the occasion to deal with the issue of non-payment of salaries to the teaching staff of the community welfare schools. In the course of the judgment, the Court, having noticed apathy on the part of the Governmental authorities in the matter of payment of salaries to the concerned staff, highlighted the importance of imparting of education in the light of the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW) as well as the vision of Quaid- e-Azam Muhammad Ali Jinnah, the founder of Pakistan on the issue, with a view to calling upon the concerned stakeholders to come forward and pay attention to the issue by according due priority to the matter. In that behalf, the Court recapitulated the relevant material in the following terms: - Allah Almighty in first revelation ordained the Holy Prophet (Peace Be Upon Him) as follows: - Read in the name of your Lord, Who created, man from a clot. Read, for your Lord is most Generous, Who teaches by means of the pen, teaches man what he does not know. [96:1-5] Allah Almighty, in the divine Book, also declared the superiority of Adam over the angles because of knowledge and emphasized as under: - 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”. 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.” [2:31-32] CONST.P. 37/2012 81 In Surah Taha the Prophet (SAW) has been asked to pray in the following words: - O Lord, increase my knowledge. [20: 114] In Surah Baqra (Heifer), Allah ordained as under: - But the best of provisions is right conduct, so fear Me! O ye that are wise. (2:197). The Holy Prophet (SAW) emphasized upon acquisition of knowledge in the following words: - Seek knowledge from the cradle to grave. The Holy Prophet (SAW) compared an “Aalim” with a martyr in the cause of Islam in the following words: - A drop of sweat of the brow of thinker is better than the thousand blood drops of the martyr. On another occasion, it has been said: - Whoever seeks a way to acquire knowledge, Allah will make easy his way to Paradise. [Sahih Muslim] Stressing upon the need of knowledge, the Holy Prophet (SAW) also said: - Seeking knowledge is obligatory upon every Muslim. [Sunan Ibn Majah] Dr. Maurice Bucaille in the book titled, “The Bible, The Quran and Science” has argued that Islam is a scientific religion, which emphasizes upon the need of scientific inquiry. The role and importance of education in the development of society/nation did not escape the vision of Quaid-e- Azam Muhammad Ali Jinnah, the founder of Pakistan. In his Presidential Address delivered on March 23, 1940 at All India Muslim League, Lahore, he said: - Come forward as servants of Islam, organise the people economically, socially, educationally and politically, and I am sure that you will be a power that will be accepted by everybody. On another occasion, the Quaid-e-Azam said: - You must concentrate on gaining knowledge and education. It is your foremost responsibility. Political awareness of the era is also part of your education. You must be aware of international events and environment. Education is a matter of life and death for our country. CONST.P. 37/2012 82 154. This Court in the above referred judgment also observed that informal/free education system has been adopted in a number of countries like Greece, Britain and Ireland, thus, the system of free education is in vogue not only in the developed world, but also in the developing countries. In the above backdrop, by Article 25A inserted into the Constitution by means of the 18th Constitutional Amendment, a new fundamental right has been added in the Chapter on Fundamental Rights in the Constitution of Pakistan. This Article envisages that the State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. It was also noted in the said judgment that the provision of Article 25A had been introduced in the light of the teachings of Islam and the vision of the father of the nation. True, the mandate of the Constitution contained in the Directives Principles of State Policy is not enforceable in the courts of law, as is the case with the Fundamental Rights, but that factor does not relieve the executive authorities of the State from their obligation under Article 29(1) of the Constitution, which saddles each organ and authority of the State and each person performing functions on behalf of an organ or authority of the State with the responsibility to act in accordance with those Principles insofar as they relate to the functions of the organ or authority. Article 37(a) of the Constitution requires the State to promote with special care, the educational and economic interests of backward classes or areas whereas clause (b) of said Article makes it incumbent upon the State to remove illiteracy and provide free and compulsory secondary education within minimum possible period. However, with the introduction of Article 25A, the scenario has been changed and now the State of Pakistan is called upon to ensure free CONST.P. 37/2012 83 and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. The direction on imparting education contained in the Constitution by way of a Directive Principle has now been translated into a Fundamental Right, which is enforceable by the superior courts in exercise of the jurisdiction vested in them under Article 199 and Article 184(3) of the Constitution. 155. It needs to be reiterated that in the successful life of an individual, the education plays an important role. Absence of education impedes progress of the society. Education plays an important role to promote knowledge and understanding of rural communities. An educated person is in a better position to contribute in the development of the society. Education is a key to move forward and achieve success in life. In the process, the teachers play a most important role in educating children and developing their capabilities and skills to meet the challenges of their future life. It has also been highlighted in the aforesaid judgment that formal education is imparted through the medium of educational institutions, e.g. school, colleges, etc., set up in the public and the private sectors. On the other hand, informal education is a general term for education outside the standard school set up. It refers to various forms of alternative education, such as non-schooling or house-schooling, etc. In Athenian society, some countries had schools having teachers and pedagogues. Pedagogues shared some qualities with specialist informal educators. They were family attendants (often slaves) whose duties were to supervise, and be with young sons of their master. They used to take the boys to school and would sit with them in the classroom. The teacher would teach children only letters, while the pedagogue would teach them how to behave. In Britain, the first adult educators were CONST.P. 37/2012 84 the missionaries who came from Ireland or from continental Europe. For many centuries, the Church remained the greatest educational force in the country [Kelly 1970: 1]. The clergy, the formal religious leadership, had a duty to teach which they did through preaching, talking with people and through more specialized means such as schooling. From the late 1370s, preachers started to spread the gospel around Britain. By the middle of the fifteenth century, community libraries were established. In the seventeenth century, the academies and charity schools were also established. In the nineteenth century, there was great increase in informal educators, particularly associated with the emergence of philanthropic organizations, such as, YMCA founded in 1844. In the late 1960s and early 1970s, non-formal education became part of the international discourse on education policy. It was related to the concepts of recurrent and lifelong learning. Tight (1996: 68) suggested that the latter concepts had to do with the extension of education and learning throughout life. Non-formal education is about acknowledging the importance of education, learning and training, which takes place outside recognized educational institutions. Fordham (1993) suggested that in the 1970s, four characteristics were associated with non-formal education, namely, relevance to the needs of disadvantaged groups; concern with specific categories of persons; a focus on clearly defined purposes; and flexibility in organization and methods. 156. As is the case with many other countries, formal and informal ways of education are prevalent in Pakistan too. In the good old days, all attention of a teacher was focussed on how to educate children in every possible way. In the process, they would establish a personal contact and liaison not only with each and every child of their CONST.P. 37/2012 85 class, but also with the parents of every child. If any of the students would absent himself from school, they would reach out to his house and require the parents to ensure that the child attends the school regularly. That type of spirit of commitment and dedication on the part of the teachers is urgent need of the hour to advance the cause of education. 157. After the advent of the formal education system, inspection of schools/colleges was a regular feature of the functioning of the Education Department. The school administration, in anticipation of the inspection/surprise visits, would keep an eye on the proper management of the school affairs, including maintenance of the school buildings, cleanliness and gardening. This needs to be revived because system of checks and balances in some form is essential for good governance in any public institution. No doubt, the head of the educational institution is primarily responsible for the smooth conduct of the school affairs pertaining both to the teaching side as well as the management/administration of the institution, but the presence of checks and balances, in no way, can furnish a cause of prejudice to anyone or be taken as interference in the domain of the school administration. These perspectives in mind, it is imperative that all the state functionaries at the district level sit together and spend their time and energy in finding out ways and means whereby the mandate of the Constitution contained in Article 25A can be fulfilled in the best interests of the nation. 158. As per the statistical data of the overall educational system of the country presented before the Court during the hearing of the instant petition, 260,903 Government and private institutions up to the level of secondary school education exist in the country, which are CONST.P. 37/2012 86 providing education to approximately 41,018,384 students with the help of 1,535,461 teachers. The Government institutions are providing education facilities to 25.97 million students while private institutions are imparting education to 14.85 million students. 53% of the teachers are serving in the public institutions while 47% are employed in the private sector. They are responsible for imparting education at the pre-primary, primary, middle, high, higher secondary, intermediate/degree colleges, universities, technical and vocational institutions, teacher training institutions, non-formal basic education as well as Deeni Madaris (religious institutions). 159. As per the available data the major part of our education system i.e. 59.2 % is shared by the primary schools, 16.11% by middle schools, 11.01% by high schools, 1.72% by higher secondary/inter-colleges, 0.54% by degree colleges, 1.25% by T&V institutions, 5.03% by non-formal basic education, 5.02% by teacher training institution, 0.07% by Deeni Madaris whereas 139 universities have least share in education system to the extent of only 0.05%. 160. There are 48,634 educational institutions located in urban areas of the country out of which 62% are in the private sector. These institutions are catering to 7,232,574 male and 6,256,502 female students. The share of private sector in urban areas in term of enrolment is 53%. A total of 185,321 male and 410,797 female teachers are providing their services in urban schools, out of which 62% are working in the private sector. A total of 182,517 institutions are functioning in rural areas of the country. A total of 777,938 teachers are working in educational institutions of rural areas, including 47% female teachers whereas 263,226 teachers are performing their duties in the private sector, which is 33% of the total CONST.P. 37/2012 87 teachers working in rural areas. As per Educational Statistics 2011- 2012 compiled by the National Education Management Education System (NEMES) Team, 505 pre-primary schools, 154,145 primary schools, 41,945 middle schools, 28,655 high schools, 4,515 higher secondary schools/intermediate colleges, 1,384 degree colleges, 139 universities, 13,213 basic community schools, 3,257 vocational training institutions, 189 teacher training institutions, 13,075 Deeni Madaris are functioning in the country. 161. In the instant case, this Court has considered conditions of the Government educational institutions comprising primary, middle and high schools in terms of Article 25A of the Constitution, which envisages that State shall provide free and compulsory education to all the children of the age of 5 to 16 years. As regards the remaining categories of the educational institutions noted hereinabove, they did not form the subject matter of the petition. 162. Physical inspection of the Government run educational schools conducted under the supervision of the judicial officers being the survey which has been carried out for the first time in the history of the country has brought to limelight the miserable conditions and numerous problems both in urban and the rural areas that the schools are afflicted with throughout the length and breadth of the country. The inspection reports have provided authentic data and incontrovertible facts. This exercise has been undertaken from two points of view, namely, the Constitution guarantees basic right of life to all the citizens/subjects of the Constitution under Article 9 of the Constitution, and secondly, Article 25A has envisaged a Fundamental Right of compulsory and free education for the children of 5 to 16 years of age. As far as Article 9 is concerned, the word “life” occurring CONST.P. 37/2012 88 in said Article has received interpretation in different contexts in a large number of cases decided from time to time and now it is well- settled that the word ‘life’ cannot be assigned limited meaning and its scope has been enlarged enough to encompass almost each and every aspect of human life. In the year 1876, Field, J., in the case of Munn v. Illinois [(1876) 94 US 113], held as under: - “By the term ‘life’, as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The deprivation not only of life, but of whatever God has given to everyone with life for its growth and enjoyment, is prohibited by the provision in question if its efficacy be not frittered away by judicial decision.” The Indian Supreme Court in the case of Kharak Singh v. State of U. P. (AIR 1963 SC 1295) = [(1964) 1 SCR 332] relying upon the observations of Field, J. passed in Munn’s case (supra) held as under:- “By the term ‘life’ as here [Article 21] used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.” In the case of Board of Trustees, Port of Bombay v. Dilip Kumar (AIR 1983 SC 109) = [(1983) 1 SCR 828], it was held that the expression “life” does not merely connote animal existence or a continued drudgery through life, the expression life has a much wider meaning. The same view was reiterated in the case of Delhi Transport Corporation v. DTC Mazdoor Congress (AIR 1991 SC 101). In the case CONST.P. 37/2012 89 of Dr. Mehmood Nayyar Azam v. State of Chhattisgarh [(2012) 8 SCC 1] = (2013 SCMR 66), after relying upon the cases of Francis Coralie Mullin v. Administrator, Union Territory of Delhi (AIR 1981 SC 746) = [(1981) 1 SCC 608] and D.K. Basu v. State of W.B. (AIR 1997 SC 610), it was held that the right to life is enshrined in Article 21 of the Constitution and, a fortiori, it includes the right to life with human dignity and all that goes along with it. In our own jurisdiction, the word “life” used in Article 9 of the Constitution, has been interpreted by this Court in the case of Shehla Zia v. WAPDA (PLD 1994 SC 693) in the following words: - “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 facets 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 constitutionally. … … Therefore, Article 184 can be invoked … ….” The same view was reiterated in the case of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), In Re: Human Rights Case regarding fast food chain in F-9 Park (PLD 2010 SC 759), Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109), In Re: SMC No.13 of 2009, case regarding Multi-Professional Housing Schemes (PLD 2011 SC 619), and Fiaqat Hussain v. The Federation of Pakistan (PLD 2012 SC 224). In the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997) it was held that it is the duty of the State to protect and safeguard all the Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution. In CONST.P. 37/2012 90 Abdul Wahab v. Habib Bank Ltd. (2013 SCMR 1383) it was held that the right to life should be given an extended/broader meaning. 163. As regards the other aspect, viz., insertion of Article 25A in the Constitution by means of the 18th Constitutional Amendment, it may be noted that in Fiaqat Hussain’s case (supra) this Court has already made observations about the implications of Article 25A read with Article 29(1) and Article 37 of the Constitution which mandate the State to promote, with special care, the educational and economic interest of backward classes or areas. It was further observed that it is the obligation of the State to ensure enforcement of Fundamental Rights guaranteed under the Constitution. 164. Although the issues, challenges and the problems confronting the schools throughout the length and breath of the country as reflected in the reports received from each district of the country province-wise have been noted hereinabove, but in view of the great importance attached to the instant case, it is deemed appropriate to summarize the above information/data in a tabulated form as under:- Name of the District No of schools urban/ rural Non- functional No. of students / ratio No. of teachers Ghost schools Reasons of absence students/ teachers Under illegal occup ation Annual budget (Millions) Islamabad Islamabad 383 -- -- No -- -- 287.45 Balochistan Dera Allah Yar 331 39 50% -- No -- Some -- Gawadar 258 10 95% No No 262.25 Islamabad 383 -- -- No -- -- 287.45 Kalat 333 22 12.50% -- No -- -- -- Khuzdar 609 38 22.50% -- No -- No -- Kohlu 427 -- -- -- -- -- -- -- Lasbella 587 -- 39% -- -- -- -- 506.191 Loralai 37 4 -- -- -- -- -- -- CONST.P. 37/2012 91 Mekran -- -- -- -- -- -- -- -- Nasirabad 408 6 42.50% 33 Non posting of teachers 2 -- Noshki 220 14 24828 -- -- -- -- 341.373 Panjgur 343 -- 84.50% -- -- -- -- 447.569 Pishin 875 27 68000 -- -- Non posting of teachers Some 644.97 Quetta 552 1 55% -- -- -- -- 1661.736 Sibi 263 8 -- -- -- Tribal disputes, Insecurity, Non maintenan ce -- -- Usta Muhammad 288 7 62.50% -- 7 Proxy teachers 4 Khyber Pakhtunkhwa Abbottabad -- Most of the schools -- -- No -- -- -- Bannu 1518 57 129662 -- No -- Some 32.045 Battagram 788 Some -- -- Some Proxy teachers -- -- Buner 791 14 -- -- -- Lack of devotion, Hardships in transit Some 1041.141 Charsadda -- Some -- -- -- -- Some -- Chitral 793 Some 73101 2853 -- -- Some 1277.726 Dera Ismail Khan 1605 11 -- -- -- Proxy teachers 27 -- Dir Lower 1571 6 394443 6890 -- -- -- 1829.640 Dir Upper 942 190927 5991 -- -- 2 112.606 Hangu 397 62 40% -- -- -- 2 655.354 Haripur 313 3 -- -- -- -- -- -- Karak -- Most -- -- -- Proxy teachers -- -- Kohat 819 32 113221 -- -- -- Some 1683.810 Kohistan 1169 878 Lowest -- -- Non availabilit y of teachers -- 898.996 Lakki Marwat -- -- 50% -- 50% Private business -- 166.797 Malakand 43 -- 71.43% -- No -- -- -- Mansehra & Tor Ghar -- -- -- -- No -- -- -- Mardan 1737 -- 341523 -- -- -- 24 -- Nowshera 978 -- 64.8% -- -- -- -- 1671.147 Peshawar 1181 7 331094 -- -- -- 13 -- Shangla -- 10 -- -- 3 Absentee of teachers Many -- Swabi 1312 -- 140990 -- No Absentee of teachers No 2399.217 CONST.P. 37/2012 92 Swat -- 83 -- -- No Absentee of teachers Some -- Tank 418 34 -- Beyond sanction strength No -- 3 -- Punjab Attock 1265 -- 95% -- No -- 28 3116.043 Bahawalnagar 2231 43 87% -- -- -- 2 4539.721 Bahawalpur 2122 -- 99.93% -- 2 -- 5 -- Bhakkar 1337 98.64% 3 -- 20 41.892 Chakwal 802 7 -- -- 6 -- 23 218.387 Chiniot 899 -- -- -- No -- No 1272.565 D.G. Khan 2044 -- -- -- 2 -- 3 -- Faisalabad 2135 -- 96.5% -- -- -- Some 9333.860 Gujranwala 1671 -- -- -- 8 -- 58 6829.015 Gujrat 909 -- -- -- 9 -- Some -- Hafizabad 900 6 92% 34:1 No -- 9 1639.888 Jhang 1665 -- 87% -- No -- No 61.158 Jhelum 863 -- 85% -- No -- 5 2464.928 Kasur 1620 -- 93% -- No -- Some 3823.920 Khanewal 1600 -- 96% -- No -- Some 4630.010 Khushab 1037 -- 96.54% -- 3 -- 2 3776.671 Lahore 1205 -- 76% -- 6 -- 12 1200.000 Laayah 1668 -- 95.37% -- No -- 10 3512.033 Lodhran 797 -- 83% -- No -- Some 3.820 Mandi Bahauddin 987 -- 90% -- No -- 12 12.010 Mianwali 1140 -- 93% -- No -- Some 2601.976 Multan 1434 -- 300,000 -- No -- Some 5120.448 Muzaffargarh 2089 -- 100% -- 24 -- 3 233.522 Nankana Sahib 734 -- 95.8% -- No -- 10 2308.953 Narowal 1280 -- 97.72% -- 14 -- 1 1384.384 Okara 1671 -- -- -- No -- Some 2399.085 Pakpattan 910 -- 63.07% -- -- -- -- 2132.215 Rahim Yar Khan 1879 62 -- -- -- Non availability of teachers 56 -- Rajanpur 490 -- 28% -- -- -- -- 248.318 Rawalpindi 1993 10 70.5% -- No Migration of citizen 16 5790.942 Sahiwal 1204 -- 98% -- No -- 2 359.791 Sargodha 2042 -- 43% -- -- -- 87 5573.137 Sheikhupura 1597 41 85% -- No -- 11 3412.515 CONST.P. 37/2012 93 Sialkot 1992 -- 20% -- 6 90% without furniture Most 5650.173 Toba Tek Singh 1199 -- 99.64% -- No -- 29 3698.229 Vehari 1562 -- -- -- -- -- 8 2321.821 Sindh Badin 2897 -- 57.6% -- 294 -- Some 41.732 Benazirabad 2720 202 53% -- 355 -- 112 119.800 Dadu 1924 -- 46% -- 271 -- Some 407.862 Ghotki 1833 189 70% -- 48 -- 24 1213.170 Hyderabad 1080 -- -- -- No -- -- -- Jacobabad 952 328 78.63% -- 191 -- 52 -- Jamshoro 918 145 43.5% -- 71 -- 4 137.076 Kamber- Shahdadkot 1374 -- 62.85% -- 269 -- 35 28.943 Karachi Central 706 -- 47.73% -- No -- 2 (Partia l) 4480.885 Karachi East 739 20 33.13% -- 12 -- 20 2170.110 Karachi Malir 612 -- 20% -- 3 -- -- 1204.360 Karachi South 427 -- 40.6% Beyond sanctioned strength 49 Absentee of teachers -- -- Karachi West 464 36 31.15% -- 6 -- Some 1459.569 Kashmore 1579 285 67% -- No -- 23 30.152 Khairpur Mir’s 3490 125 35% -- -- No buildings 11 2681.272 Larkana 1356 15 51.67% -- No -- 28 24.135 Mastiari 990 137 35% -- -- Non availabilit y of teachers 6 254.482 Mirpurkhas 1774 -- 12.05% -- 24 -- 3 2251.770 Nausharo Feroze 2473 195 -- -- No -- -- 3231.843 Sanghar 3188 -- 71.83% -- 315 -- 17 2881.267 Sukkur 1335 108 28.068% -- No Non-appointment of the landowner’s persons 21 1616.781 Tando Allahyar 843 -- -- -- 40 -- -- 49.339 Tandoo Muhammad Khan 1191 4 30% -- No -- 10 24.652 Tharparker 3307 858 50% Beyond sanctioned strength No Regular absentees 18 202.508 Thatha 3316 883 66.4% -- 14 -- 30 350.428 (non- salary) Umerkot 2735 755 34.92 -- No -- 3 986.347 CONST.P. 37/2012 94 165. The above data adequately reflects the pathetic conditions prevalent in the Government owned educational institutions comprising primary, middle, high and higher secondary schools. The pictorial view of some of the schools situated in the urban areas of the Province of Sindh, as reflected in the above reports, shows that instead of using the school premises for imparting education to the children, influential persons have forcibly occupied the same and a number of them are being used as cattle sheds, which is very unfortunate. 166. A perusal of the material brought on record extracts thereof have been used for indentifying the miserable conditions prevalent in the educational system of the country shows that education is not being accorded priority it deserves. It is non- compliance with the Islamic injunctions highlighted hereinabove and non-enforcement of the Constitutional provisions referred to hereinabove, particularly Article 25A of the Constitution. Undoubtedly a number of Commissions were appointed by the Government from time to time to suggest reforms in the educational system of the country, but it seems that no serious effort has been made to implement the recommendations of those Commissions and achieve the object. A Commission on Students’ Problems and Welfare was set up under a notification of the Ministry of Education, Government of Pakistan as far back as on 15.12.1964. The Commission originally comprised Mr. Justice Hamoour Rahman, Judge, Supreme Court of Pakistan (Chairman), Mr. Justice S.A. Mahmood, Judge, High Court of West Pakistan (Member), Kazi Anwar-ul-Haque, Chairman Central Public Service Commission (Member) and Mr. Nasir Ahmad, Chairman CONST.P. 37/2012 95 West Pakistan Public Service Commission (Member). The terms of reference of the Commission as set out in the notification were as follows: - (1) To examine the provisions of the University Ordinances and suggest modifications wherever necessary; (2) To take stock of existing facilities for a sound programme of studies and to suggest remedial measures commensurate with available resources; (3) To determine the adequacy or otherwise of the recreational and welfare facilities of students and suggest ways and means of providing them within available resources; (4) To examine any other matter affecting student life. 167. The Commission on National Education, constituted earlier in the year 1959, in its report dated 06.04.1959 emphasized that compulsory education at the elementary stage is indispensable for skilled manpower and intelligent citizens, for this at least eight years schooling is required. It was recommended that education should be made compulsory upto primary level by the year 1969 and upto middle level by the year 1974. 168. It seems that the educational system has been facing two problems, namely, the existence of ghost schools and absenteeism of the teachers. The study conducted by Basic Education Community Schools (BECS) Project in the year 2012-2013 by a Third Party Validation Team hired by the Government revealed that ghost schools existed in all Provinces of Pakistan and their number was identified to be 1205 where teachers were getting salary but not imparting education at all. Statedly, this project is being run with a budget of Rs.7 billion. It was further pointed out that 57 ghost schools exist in Islamabad, 345 in KPK, 305 in FATA, 276 in Punjab, 69 in Balochistan, 64 in Sindh, 48 in Azad Kashmir and 41 in Gilgit Baltistan. If the CONST.P. 37/2012 96 contents of this report are correct, though a heavy budget is being spent, but the respective Governments are not getting any benefit from the project. 169. Second main reason pointed out by the Transparency International in its Global Corporation Report on Education released in January, 2013 is the teachers’ absenteeism, which is one of the most serious forms of corruption in the education sector. This Report has disclosed the percentage of teachers’ absenteeism in different countries, namely, Kenya, Uganda, India, Ghana, Senegal, Indonesia, Zambia, Pakistan, Bangladesh, etc. A common problem in most of these countries is that the teachers show up in the class room, stay for a while and then leave the institution for one or the other reason. The report also states that “as learning level improves as a result of dedicating teaching, more students are likely to continue with their schooling. The impact of teacher absenteeism is much stronger on girls than on boys because the demands for girls’ education are more responsive to whether any learning actually takes place (King, Orazem, and Paterno 1999).” 170. The Pakistan Rural Household Facilities Survey (2001) found that there were no classes being held in 34 out of 200 schools it surveyed. The school teachers remained absent at times authorisedly as well as on the pretext of performing other duties assigned to them, like participating in any campaign launched by the Government in other fields, e.g., invigilation during examination upto the level of universities, polio vaccination to the children, census preparation of electoral rolls, attending election duties, etc. 171. As far as unauthorised absenteeism is concerned, there could be number of reasons like non-availability of transport, lack of CONST.P. 37/2012 97 residential accommodation, absence of infrastructure like classrooms, etc., and that at times teachers impart education to the students in the open sky as has been noticed in the instant case where, upon a letter, reference of which in the background of the case has been given, the proceedings were initiated. Other causes for ever deteriorating educational standards include, inter alia, appointments/transfers on considerations other than merit, lack of public recognition of teachers in contrast to other professionals, e.g., doctors, engineers, lack of motivation, especially at primary school level, etc., which is evident from the material presented before the Court in the instant proceedings. 172. It may not be out of context to note that previously the subject of education was included in the Concurrent Legislative List whereas after the 18th Constitutional Amendment, it has been transferred to the Provinces whereas in the case of ICT, Parliament has to promulgate laws after obtaining a resolution from any of the Provinces under Article 144 of the Constitution because in absence of legislation in respect of education in ICT, legally and constitutionally it would not be possible to provide legal cover to the institutions being run in ICT. However, it is quite convenient to do so. 173. It may be pointed out that in the case of G.A. Miana etc. v. Federation of Pakistan (Constitution Petitions No. 33 & 34 of 2011), challenge was thrown to the ‘Devolution of Activities’ in pursuance of abolition of Concurrent Legislative List under the 18th Constitutional Amendment and transfer of the subject of education to the Provinces. It was stated in the petition that HEC is an autonomous organization by virtue of Higher Education Commission Ordinance, 2002, established to improve and promote higher education, research and CONST.P. 37/2012 98 development. It was further stated that HEC is not attached to the Ministry of Education rather it functions under the control of the Prime Minister. In that case, this Court considered the status of HEC in the light of HEC Ordinance, 2002 read with entries at Serial No. 16 & 17 of Part-I and Serial No. 7, 11 & 12 of Part-II of the Federal Legislative List and in response to notice, the learned Attorney General for Pakistan appeared before the Court and made a statement to the effect that status of HEC shall remain intact unless the same is changed by promulgation of some legislation in this behalf. It was further stated that HEC shall continue discharging its functions and duties as it had been doing in the past and that the notification dated 31.03.2001 shall have no effect on the functioning of HEC and in case of any conflict/inconsistency between the notification and the provisions of the Ordinance, the Ordinance shall prevail. Ultimately, the appointment of Acting Executive Director of HEC was declared to be contrary to HEC Ordinance and notification of said appointment was declared illegal and void. 174. Now after devolution of the subject of education to the Provinces, it is obligatory on the Provincial Governments to ensure that the children of respective areas receive education as a Fundamental Right at all tiers of the education system; and it will only be possible if all the Provincial Governments as well as the Federal Government to assign top most priority to the subject of education because by imparting good education to our children we can make progress and ensure prosperity of the country; but unfortunately, as so far it has been noticed during hearing and after getting conducted survey through judicial officers, there is no occasion to express satisfaction on the education system in all the Provinces as well as ICT. One can CONST.P. 37/2012 99 understand that at certain levels, measures have been or are being taken to improve educational system by ensuring regular functioning of the schools. However, in our view, to achieve the goal of compulsory and free education for the children of the age of 5 to 16 years in view of Article 25A of the Constitution, following measures are required to be taken: - (a) Accreditation Boards in all Provinces and ICT be established under law with an authority, inter alia, to improve current miserable conditions of the institutions and also to ensure removal of ghost schools immediately with penal action against responsible persons who had been receiving salaries and other perks without performing their duties; (b) The Accreditation Boards shall be responsible to continue to strive for achieving the objects and purposes for which they have been established. The recommendations of the Board shall be liable to be implemented forthwith by the competent authority so that the improvement in the conditions of the schools is made visible; (c) The Accreditation Boards may also consider to approach the respective Governments with the plea that the teachers be allowed to perform their task of imparting education, which is their basic assignment and respective institutions may make alternate arrangement of manpower from other departments to achieve the objects for which the teachers are always engaged and involved because on account of their authorised absenteeism the task of teaching the students has been suffering badly, which is an issue of national importance adversely affecting the future prosperity of Pakistan; (d) The Provincial Governments shall be bound to enforce Fundamental Rights enshrined in Articles 9 and 25A of the Constitution as in some of the Provinces legislation has already been made to CONST.P. 37/2012 100 enforce Article 25A, therefore, same may be acted upon strictly; (e) The Provincial Governments and ICT must enhance budgetary allocations for improvement of the education system and also provide mechanism to ensure presence of students at the primary, middle and high schools levels; (f) The Provincial Governments through the concerned authorities must ensure recovery of the possession of the schools buildings, which have been illegally occupied by influential persons and if there is any litigation pending, the Registrars of the respective High Courts shall ensure the decision of the cases expeditiously; and (g) Similarly, cases pending before the High Courts and Supreme Court concerning the schools properties shall also be disposed of expeditiously. 175. The petition is disposed of in the above terms. However, before parting with the judgment, we would like to place on record our deep appreciation of the role performed by the District & Sessions Judges and other judicial officers, who considering the task assigned to them as a national duty, fulfilled the same with full commitment, dedication and devotion, as a consequence whereof one may hope for improvement of educational system in the country. CHIEF JUSTICE JUDGE JUDGE ANNOUNCED IN OPEN COURT ON 22.11.2013 AT ISLAMABAD CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan Constitution Petitions No.37 to 45, 47 to 51 & 54 of 2017 And Civil Miscellaneous Appeal No.244 of 2017 UNDER ARTICLE 184(3) OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 Zulfiqar Ahmed Bhutta Petitioner (in CP#37/17) Sheikh Rasheed Ahmed Petitioner (in CP#38/17) All Pakistan Aam Admi Party through its Chairman, Ch. Nasir Mehmood Petitioner (in CP#39/17) Pakistan Justice Party through its Chairman Muhammad Munsif Malik. Petitioner (in CP#40/17) Muhammad Dawood Ghaznavi Petitioner (in CP#41/17) Abdul Wadood Qureshi Petitioner (in CP#42/17) Sheikh Ahsan ud Din Petitioner (in CP#43/17) Pakistan Peoples Party through its Secretary General Petitioner (in CP#44/17) Jamshed Ahmed Khan Dasti Petitioner (in CP#45/17) National Party Petitioner (in CP#47/17) Malik Shah Muhammad Wazir Petitioner (in CP#48/17) Imran Khan Petitioner (in CP#49/17) Ishtiaq Ahmad Ch Petitioner (in CP#50/17) Gohar Nawaz Sindhu Petitioner (in CP#51/17) Amna Malik Petitioner (in CP#54/17) Istiqlal Party through its Chairman & others. Appellant (in CMA#244/17) VERSUS Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs and others Respondents (in CP#38-44, 47-50&54/17) Federation of Pakistan through Secretary Cabinet Division and others Respondents (in CP#45 &37/17) Prime Minister of Pakistan through Principal Secretary Cabinet Division, Islamabad and others Respondents (in CP#51/17) Federation of Pakistan through its Secretary, Civil Secretariat, Islamabad. Respondents (in CMA#244/17) For the Petitioner(s): In person. (in CP#37, 39, 41, 43, 50&51/17) Dr. Farough Naseem, ASC Mr. Faisal Farid Chaudhry, ASC. Syed Rafaqat H. Shah, AOR (in CP#38/17) Mr. M. Ikram Chaudhry, Sr. ASC (in CP#40/17) Sardar M. Latif Khan Khosa, Sr.ASC Ch. Akhtar Ali, AOR Assisted by Sardar Shahbaz Ali Khosa, Barrister Afzal Hussain, Malik Javed Iqbal, Syed Naz Gul Shah, Sardar Imran Rafique, Mr. Arshad Binyamin, Advocates. (in CP#44/17) Mr. Saeed Khurshid Ahmed, ASC (in CP#45/17) Mr. Khalid Abbas Khan, ASC Mr. Mehmood A. Sheikh, AOR (in CP#47/17) Dr. Babar Awan, Sr. ASC (in CP#48 & 49/17) Mr. Azhar Siddique, ASC. Ch. Akhtar Ali, AOR (in CP#50 & 54/17) Malik Munsif Awan, ASC (in C.M.Appeal#244/17) For the Respondent(s): Mr. Salman Akram Raja, ASC. Raja Zafar-ul-Haq, Chairman PML(N) Assisted by Mr. Asad Ladha and Malik Ghulam Sabir, Advocates. [On behalf of PML(N)] Nemo. (On behalf of Respondent No.4 in CP#38 & 39/17, Respondent No.7 in CP#42/17, Respondent No.5 in CP#43/17, Respondent No.2 in CP#44/17 and Respondent No.3 in CP#50/17) Mr. Kamran Murtaza, Sr.ASC Muhammad Usman Ansari, Deputy Secretary (Litigation) National Assembly. On Court’s Notice: Mr. M. Waqar Rana, Additional Attorney General for Pakistan Muhammad Arshad, DG (Law), Election Commission of Pakistan. Date of Hearing: 21.02.2018 SHORT ORDER MIAN SAQIB NISAR, CJ-. The Preamble to the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) provides that, “sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust”; .… “wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed”; …. “wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”. 2. Article 17 of the Constitution grants to every citizen the fundamental right to form associations subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order and / or morality. 3. An elected Parliament, adorned with the chosen representatives of people on the one hand and the rule of law on the other hand are the foundations of democracy under the Constitution. Articles 62, 63 and 63-A of the Constitution create an integrated framework for ensuring that business of the Parliament is conducted by persons of probity, integrity and high moral character. These conditions are enforced by Articles 62 & 63 of the Constitution by prescribing qualifications and disqualifications for membership to the Parliament. 4. All laws pertaining to the election to Parliament and to participation in the proceedings thereof are to be read subject to such constitutional provisions in the exercise of the rights guaranteed by Article 17 of the Constitution. 5. Under Article 63-A of the Constitution, the position of a Party Head of a political party that has representation in, inter alia, the Parliament has a central role in the performance of duties by the Members of the Parliament. For rendering such a role, a Party Head must necessarily possess the qualifications and be free of the disqualifications contemplated in Articles 62 & 63 of the Constitution. 6. The Election Act, 2017 empowers a Party Head to perform multifarious functions that have direct nexus with the process of elections to the Parliament and to matters relating to the affairs of political parties having parliamentary presence. 7. Therefore for detailed reasons to be recorded later, these Constitutional Petitions are allowed. It is held and declared that provisions of Sections 203 and 232 of the Election Act, 2017 are liable to be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution. 8. As a consequence, it is declared that any person who suffers from lack of qualification under Article 62 or disqualification under Article 63 of the Constitution is debarred from holding the position of ‘Party Head’ by whatever name called and prohibited from exercising any of the powers provided in Article 63-A of the Constitution, as ‘Party Head’ or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party. Such bar and prohibition shall commence from the date of disqualification and continue till such time that the lack of qualification/disqualification of such person continues in terms of the provisions of Articles 62 and 63 of the Constitution. 9. As a result of the above declaration, all steps taken, orders passed, directions given and documents issued by Respondent No.4 as Party Head after his disqualification on 28.07.2017 are also declared to have never been taken, passed, given or issued in the eyes of the law. The Election Commission of Pakistan is accordingly directed to remove the name of Respondent No.4 (Mian Muhammad Nawaz Sharif) as President/Party Head of Respondent No.3 (Pakistan Muslim League (N) from all relevant record(s). Chief Justice Judge Judge ISLAMABAD, THE 21st of February 2018. ZR/* APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE GULZAR AHMED MR. JUSTICE MUHAMMAD ATHER SAEED Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 (Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973) Abdul Wahab and others (in Const.P.39/2007) Mst. Amna Baloch (in HRC 14127-S/2009) Amina Ahmed Baloch (in HRC 13486-S/2010) Employees & officers of Habib Bank Ltd (in HRC 14646/2009) Application by Syed Sohail Bashir (in HRC 47811-P/2010) … PETITIONERS/APPLICANTS VERSUS HBL and others (in Const.P.39/2007) … RESPONDENTS For the Petitioners: Mr. Muhammad Akram Sheikh, Sr. ASC (Assisted by: Mr. Hassan Murtaza, Advocate, Mr. Sajeel Shahryar Swati, Advocate and Syed Riaz Hussain, Advocate) Mr. Mehmood A. Sheikh, AOR For the Respondents: Ch. Aitzaz Ahsan, Sr. ASC (Assisted by Mr. Gohar Ali Khan, Advocate and Mr. Kashif Ali Malik, Advocate) Mr. M.S. Khattak, AOR For the applicants: Mr. Zulfiqar Khalid Maluka, ASC (in CMA No. 1899/2012) For the applicants: Mr. Sher Muhammad Baloch, in person (In HRC 14127-S/2009 & HRC 13486-S/2010) Dates of Hearing: 15th, 16th & 17th October, 2012. * * * * * * Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 2 JUDGMENT MIAN SAQIB NISAR, J.- Pursuant to the short order dated 17.10.2012 passed in the noted matter, whereby the said petition(s) was dismissed, the detail reasons are being hereby provided. 2. This petition, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), has been initiated by 310 ex-employees (the petitioners) of Habib Bank Limited (HBL), respondent No.1 (the Bank), out of whom 308 were early (compulsorily) retired, pursuant to a policy decision taken by the Board of Management of the bank; and by invoking the provisions of Rule 17 of the Habib Bank Limited (Staff) Service Rules, 1981 (the Rules 1981). Whereas the services of the two (petitioners) have been terminated under Rule 15 (supra), by paying them three months dues. Vide this petition, petitioners have challenged the aforesaid action of the Bank, with the prayer that “it is, therefore, prayed that this petition may be accepted, orders and decision passed by respondent No.1-bank for termination of services of the employees of the bank may be declared to be without lawful authority and of no legal effect and quashed. Respondent No.1 may be directed to lay down or prescribe for guidance of the officers parameters and criteria in the light of which such decision should be made in-discriminatory to prevent the employees from arbitrary and whimsical exercise of powers. Costs of the petition may also be awarded”. When the instant matter came up for hearing before this Court on 29.11.2010, the following order was passed:- “We have heard learned counsel for the parties at some length and have also considered the law laid down by this Court in cases where issue of a “person” in terms of Article 199 of the Constitution was one of the points in issue or the Banking Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 3 company or a corporate body was either a respondent or a petitioner i.e. Airport Support Services Vs. Airport Manager (1998 SCMR 2268), Aithison College Vs. Muhammad Zubair (PLD 2002 SC 326), Pakistan International Airline Corporation Vs. Tanweer-ur-Rehman (PLD 2010 SC 676) & Muhammad Mubeen-us-Salam Vs. Federation of Pakistan (PLD 2006 SC 602). We find that in those cases, the question of distinction between the relief sought by a “person” in terms of Article 199(a)(ii) and Article 199 (1)(c) was not raised which could have a strong bearing in the case we are seized of and similar matters. In these circumstances, we are persuaded to refer this matter to the Hon’ble Chief Justice for constitution of a larger Bench for rendering an authoritative judgment. Since this matter is pending since long, subject to the order of the Hon’ble Chief Justice this may be fixed for an early date. A notice shall also issue to learned Attorney General for Pakistan.” 3. Be that as it may, in the context of the instant matter; the facts of the case are:- that the petitioners were in the employment of the bank (most of the petitioners were either VP or AVP) and as per their own case, their services were regulated and governed by the terms and conditions envisaged by Rules 1981, which (services) have been dispensed with as stated above and the petitioners are aggrieved of this action of the Bank; it is not the case of the petitioners that such rules were/are statutory in nature; and/or they were civil servants. For the facility of reference, Rules 15 and 17 being the germane rules for the purposes of the present petition, the relevant part thereof is reproduced:- “15. Termination of Services:- (1) Services of an employee in Category I may be terminated by the competent authority on 3 months’ notice or on payment of a sum equal to his substantive pay for three months in lieu thereof:……………” Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 4 “17. Superannuation and retirement – (1) Every employee shall retire from service:- (a) on such date after he has completed twenty five years of service as the competent authority may, in the interest of the Bank, direct or (b) where no direction is given under clause (a) on the completion of the sixtieth year of his age ….………………………………………………….” Earlier HBL was a private bank and was nationalized under the Banks (Nationalization) Act 1974, however upon its denationalization, according to the petitioners, their performance was duly evaluated, and that being found to be satisfactory, all of them were retained by the Bank. Not only that, some of them were even rewarded. It is averred in the petition that most of the petitioners have excellent service record and in the ordinary course of employment, they were to retire on the completion of sixty years of age under clause (b) of Rule 17 (reproduced above), but the petitioners have been retired/terminated (in case of two) from service vide certain order(s)/letter(s) (note: different letters for different petitioner). In case of petitioner No.1, the order/letter is dated 13.1.2007, the relevant part whereof reads as under:- “Dear Mr. Wahab, The management would like to thank you for your services during the past years. Going forward in line with the Bank’s changed staffing needs, you are being retired from Bank service with effect from 13th January 2007, in accordance with the rule # 17 of HBL (Staff) Service Rules – 1981. In view of your sincere services to the Bank, the Management is pleased to grant you, in addition to all the benefits payable to you under the terms and conditions of employment, the following additional benefits.” Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 5 Almost similar orders/letters were issued with regard to the other petitioners as well (note: in case of those against whom action is taken under Rule 15, the orders simply are based on that Rule). It is the grievance of the petitioners, that the exercise of power under Rule 17(1)(a) ibid, for their retirement, is pursuant to the “changed staffing needs”, but without disclosing and justifying as to what those exigencies were; the petitioners had not been provided with any opportunity of hearing before the impugned action was taken, yet they have been deprived of their vested and fundamental right(s), which action is void being in breach of the rule of natural justice; the power(s) under Rules 15 and 17(1) ibid is (are) uncontrolled and unbridled and has been exercised not only in violation of the equality clause as enshrined by Article 25 of the Constitution, but in an arbitrary and whimsical manner which again is violative of the said Article; it is also their grouse that through the impugned action their fundamental right to life (Article 9) and the rights available to them as per Articles 3, 4, 8, 27, 29, 37 and 38 of the Constitution have been infringed; before taking the impugned decision, the Bank has not adverted to Rule 89 of the amended Habib Bank Limited (Staff) Service Rules, 1989, which reads below:- “Rule 89: Encashment of leave preparatory to retirement 1. An employee shall exercise his option either to avail the leave preparatory to retirement or for encashment of the leave preparatory to retirement, (on attaining the age of superannuation or on completion of 30 years qualifying service) inasmuch as no power is vested with the bank to retire the employee under this rule before the attainment of 30 years service.” 4. Furtherance to the petitioners case, Mr. Muhammad Akram Sheikh, their learned counsel, has submitted (1) that the Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 6 forced retirement of the petitioners is contrary to the Bank’s own rules, although such rules are non-statutory in nature, yet those do not empower the Bank to violate the same rules with impunity (2) that the petitioners have fundamental right to life and as they have been removed from service and deprived of their livelihood in a forced and coercive manner without following the rules in that regard, thus it tantamounts to depriving them of such right (to life), which action undoubtedly is against the provisions of Article 9 of the Constitution; in this context it is also submitted that the right to life should be given an extended/broader meaning, so as to include the right to livelihood; reliance in this behalf is placed on the judgments reported as Delhi Transport Corporation Vs. DTC Mazdoor Congress and others (AIR 1991 SC 101 paragraph 223 at pages 172 and 173), Arshad Mehmood and others Vs. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193 at page 232) (3)--; the Bank is a ‘person’ in terms of Article 199(1)(c) of the Constitution as it is distinct from an ‘ordinary private individual’, because it (the Bank) is owned and controlled by the State, therefore, for all intents and purposes, thus an appropriate writ petition against the Bank is maintainable not only under the Article supra, but independently under Article 184(3) as well. In this behalf emphasis has been laid on the “function test” and reference has also been made to Articles 97, 141 and 142 of the Constitution in order to substantiate that the executive authority of the Federation is extendable to such matters (note: see item No.28 of the Federal legislative list), in regard to which it has the empowerment to legislate; besides, the Bank statedly is the extended arm of the Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 7 State and thus it is claimed to be performing its functions in connection with the affairs of the State/Federation. It may be pertinent to mention here in the context of function test it is also argued that the Bank is, under the regulatory control of the State Bank of Pakistan (SBP) and therefore amenable to the writ jurisdiction (5) It is urged that the present is the era of substantial justice and, therefore, in order to alleviate the sufferings and miseries of the petitioners, this Court should act magnanimously while exercising its jurisdiction/power in order to grant relief to the petitioners in the interest of justice and on humanitarian grounds; (6) It is pleaded that the present matter is of immense public importance as it shall affect not only a large number of persons involved in the case, but shall also settle the principles of law in relation to the jurisdiction of this Court under Article 184(3) and the issues involved in the matter, which shall have vital impact on the public-at-large. (7) The provisions of Article 184(3) have no trappings and limitations of Article 199 of the Constitution and shall not deter this Court from exercising its jurisdiction under Article 184(3) (Constitution) which is an independent provision, and also because of the expression “without prejudice” appearing in the said Article should be construed as a non obstante clause to Article 199; (and) thus where the fundamental rights of a person(s)/citizen(s) have been violated and the matter is of public importance, appropriate orders can be issued by this Court, by ignoring any constraint of Article 199 ibid. In support of his various contentions, learned counsel for the petitioners has relied upon the judgments reported as Darshan Masih alias Rehmatay and others Vs. The State (PLD 1990 SC Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 8 513) (5), Muhammad Yasin Vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), (1993) 4 Law Reports of Common Wealth and (1995) 2 Law Reports of Common Wealth), Pakistan Telecommunication Company Limited through General Manager and another Vs. Muhammad Zahid and 29 others (2010 SCMR 253), Pakistan Telecommunication Company Limited through Chairman Vs. Iqbal Nasir and others (PLD 2011 SC 132), Pakistan International Airline Corporation and others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676), Wattan Party and others Vs. Federation of Pakistan and others (PLD 2012 SC 292 at pages 326 and 327, paragraph 35), Miss Benazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416 at page 488) and Mian Muhammad Nawaz Sharif Vs. Federation of Pakistan and others (PLD 1993 SC 473). 5. To controvert the above, Ch. Aitzaz Ahsan, learned counsel, has joined serious issue about the maintainability of this petition, it is argued by him that the Bank for all intents and purposes is a private institution. HBL was nationalized in 1974 and was privatized in 2004; the admitted position is, that more than sixty percent of the shares of the Bank are held by Agha Khan Foundation, which were acquired in 2005 and the said foundation has the absolute majority in (on) the Board of Management; it is submitted that, it shall be misconceived to argue that the Bank is being owned and controlled by the State/Federation either directly or indirectly, besides, the SBP is only a regulatory authority for all the banks in Pakistan, therefore by virtue of such a status of SBP, no private bank in the country can be said to be a State owned and Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 9 a controlled enterprise. It is also argued that the petitioners have no fundamental right(s) which could be said to have been violated by the Bank; they were simply contract employees of a (private) Bank, whose services have been dispensed with strictly as per the terms of the contract (i.e.) Rules 1981; the (noted) matter absolutely do not involve a question of public importance or of the enforcement of fundamental rights, therefore, the case does not fall within the purview of Article 184(3) of the Constitution. 6. Heard. In our view following are the broader (important) questions in the matter, which shall encompass the points in issue between the parties and the answers thereto: (i) What is the status of the Bank; the status and relationship of its employees (the petitioners) viz-a-viz the Bank; (ii) Whether the petition is maintainable in terms of Article 184(3) of the Constitution; (iii) Whether there is a violation of any of the fundamental rights of the petitioners, especially in relation to the right to life (Article 9), and right to equality (Article 25). And other Articles of the Constitution, such as, Articles 3, 4, 8, 27, 29, 37 and 38 etc.; (iv) Whether the Bank’s action against the petitioners is arbitrary, whimsical and discriminatory, thus Article 25 of the Constitution should be resorted to in allowing relief to the petitioners. However, before answering/resolving the aforesaid questions/ propositions, it seems expedient to mention here, that vide short order dated 17.10.2012, we had dismissed the noted petition, holding (a) “that the grievances voiced through this petition are Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 10 individual in nature” (b) “the nature of relationship between the petitioners/employees of the bank and the respondent was contractual” (c) “that the impugned order of compulsory retirements were in accord with the Habib Bank Limited (Staff) Service Rules, 1981 which are non-statutory” (d) “the bank is not performing any function in connection with the affairs of the Federation or a Province” (e) “no question of public importance with reference to enforcement of fundamental rights has been raised and the petition having no merits is accordingly dismissed”. As regards the question formulated by this Court vide order dated 29.11.2010, it was held that the same “shall be addressed in some other appropriate case” (emphasis supplied). 7. Question No.1: It is an admitted position that the Bank has been privatized and the majority shareholding thereof, has been acquired and is vested in Agha Khan Foundation, there also is no discord that the Board of Management of HBL is predominantly represented by the said foundation. However, in order to bring the Bank within the purview and the connotation(s) of a ‘person’ and ‘authority’ appearing in Articles 199, 199(5) and 199(1)(c) of the Constitution and also for the purposes of urging that appropriate order, in the nature of a writ can be issued independently by this Court under Article 184(3) (Constitution), to the Bank, the learned counsel for the petitioners has strenuously relied upon the ‘function test’; and in this respect it is submitted that the State/Federation has a considerable, shareholding in the Bank and representation in the managing affairs thereto therefore it shall qualify having the status of a person/authority within the meaning of the law; besides, the Bank is being regulated by and under the authority of Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 11 the SBP thus on this account as well it (Bank) has the status mentioned above, therefore this Court should exercise its jurisdiction in terms of the Article supra. In this context, it may be held that for the purposes of resorting to the ‘function test’, two important factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. But when queried, it is not shown if the State/Federation has the majority of shareholding, or majority representation in the Board of Management of the Bank. As regards the authority and the role of the SBP (in the above context), SBP is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance 1962 and suffice it to say that such regulatory role and control of SBP shall not clothe the Bank, with the status of a ‘person’ or the ‘authority’ performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity. In support of the above, reliance can be placed on two judgments of this Court reported as Salahuddin and 2 others Vs. Frontier Sugar Mills and Distillery Ltd, Takht Bhai and 10 others (PLD 1975 SC 244), which prescribes that “regulatory control does not make a person performing functions in relation to the federation or a province”; likewise in Pakistan Red Crescent Society and another Vs. Syed Nazir Gillani (PLD 2005 SC 806) it was held “such control must be particular to the body in question and must be persuasive ………….. on the other hand, when the control is merely regulatory whether under the statute or otherwise it would not serve to make the body a ‘State’ ”, therefore, we have no hesitation to hold that the Bank is a private institution for all intents and purposes. And we vide short order dated 17.10.2012 has deferred our Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 12 decision on the issue if such a private person is amenable to writ jurisdiction in the context of Article 199(1)(c) of the Constitution. Attending to the second part of the proposition, it is an admitted position that the petitioners were employed (promoted) by the Bank as a result of a prescribed internal process of the Bank and the letters of petitioners appointment (promotion) clearly indicate that they were taken into employment on their unequivocal acceptance of the terms and conditions of employment, because in the said letters (appended by the petitioners themselves with the petition), it is clearly mentioned that “you shall be bound by the rules and regulations of the bank for the time being in force”. Thus when such offer (of appointment) was duly accepted by the petitioners, it culminated into a valid and a binding service contract between the parties, which for all intents and purposes was meant to govern and regulate the relationship inter se the parties. It may not be irrelevant to mention here (which may also be reiterated in other parts of the judgment) that it is not the case of the petitioners that they are governed by any statutory rules of service. It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation Vs. Tanweer-ur- Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited Vs. Iqbal Nasir). (note: the question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent this Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 13 by the conditions of Article 184(3); and moreover by such rules which are laid by this Court for regulating its jurisdiction, keeping in view the principles of restraints. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts). 8. Question No.2: Fundamental rights enshrined in our Constitution have a very significant and pivotal position and are the most sacred of the rights conferred upon the citizens/persons of the country and thus the regard, security and the enforcement of these rights is one of the primary duties of the State and its institutions at all the levels. These are such a primordial rights, that the sanctity and the significance attached thereto can be gauged from the constitutional mandate as prescribed (envisaged by) by Article 8 of the Constitution, whereby it is ordained (specified) that any law etc. in so far as it is inconsistent with such rights shall to the extent of inconsistency be void. Not only that, under Article 8(2), a complete bar and a prohibition has been placed on the State, in that, “the State shall not make any law which takes away or abridge the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.” In view of the sanctity and the importance of these rights and for the safeness and the safeguard (saving those from a slightest impairment) thereof the Constitution itself in a noteworthy way, has provided a specific and a special mechanism, in terms of Article 199(1)(c) by virtue whereof notwithstanding the powers of the High Courts under Article Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 14 199(1) (a) and (b) an extraordinary power has been conferred on it “to make an order giving directions to any person etc…………as may be appropriate for the enforcement of the fundamental rights conferred by Chapter I of Part-II” and moreover a bar has placed on the State in terms of Article 199(2) that subject to the Constitution, the right to move to the High Court(s) for the enforcement of such rights shall not be abridged. And in addition thereto a wider power(s) as per Article 184(3) of the Constitution) to this Court has been conferred. Besides, the superior Court of the country has the power, of judicial review to examine and adjudge any legislative and/or administrative action of the State on the touchstone of the fundamental rights and, to pass appropriate orders for protecting such rights and enunciating the law in respect thereof. In relation to the jurisdiction of this Court under Article 184(3) though the constraints and limitations, if any of Article 199 may not be stricto sensu attracted, in view of the expression “without prejudice” appearing at the very opening of the Article, meaning thereby “without any detriment” (i.e. without being harmed or damaged or hurt). However, this Court has the power and the jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and to apply the rules of restraints as mentioned earlier. Besides, Article 184(3) itself has its own limitations and conditions, which are:- (i) The matter before the apex Court should be for the enforcement of any of the fundamental rights conferred by Chapter I of Part-II of the Constitution (emphasis supplied); AND (ii) With reference to the enforcement of such fundamental rights the question involved should be of public importance (emphasis supplied). Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 15 The above are the two primary, foundational and fundamental conditions for the exercise of the power vested in this Court under Article 184(3) and are sine qua non thereto; Both these (conditions) must first be established by the petitioners of the case and shown to co-exist before, enabling the Court to exercise its jurisdiction in terms of the said Article (obviously subject to its own principles for regulating its jurisdiction and the judicial restraints). In the context of the present matter, it is thus expedient to examine if these basic conditions are satisfied. And for this we shall first take up if the requirement regarding “question of public importance” is fulfilled, qua which some facts and the legal account, needs recapitulation:- (a) Petitioners are 310 in numbers (most of them are VP & AVP); they are the ex- employees of a Bank, a private organization/institution; they have a personal grievance against their employer of early/compulsory retirement. (note: in two cases the termination is under rule 15) in violation of the terms and conditions of their service, which undoubtedly is contractual in nature, and the rules of 1981 admittedly are non statutory. From catenated precedent law laid down by this Court in order to meet the said condition and for the purpose of qualifying the test of “question of public importance”, the issue involved in a matter before this Court under the said Article must belong and should concern the public at large, the State or the nation. But, if the proposition/matter involves the alleged violation of the rights (FR) of an individual or a group of individuals, how Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 16 so large it may be, but if it has no concern and affect on the public, then it cannot be termed as “question of public importance”. The petitioners are the contractual employees, of a private institution having no statutory rules to safeguard their service. In view of the stance taken by the Bank, all except six of the petitioners have received their dues and no issue has been joined by the petitioners to this fact, therefore virtually it seems to be the grievance of few individuals, which (grievance) hardly constitutes the requisite question of law. (note: especially when we have deferred to decide the point of law which was formulated in our order dated 29.11.2010, vide our short order dated 17.10.2012). For the purpose of the support of our above view that the instant matter does not qualify the test of the said condition reliance can be placed upon the cases reported as Pakistan Muslim League(N) through Khawaja Muhammad Asif, MNA and others Vs. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2007 SC 642), wherein a seven members bench of this Court ordained: “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 groups 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 adjudicative Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 17 ‘public’ necessarily implies the 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 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”. (note: in this context some more precedents from this Court, such as, PLD 2004 SC 600 (APNS Vs. Federation of Pakistan); PLD 1996 SC 632 (Shahida Zahid Abbasi Vs. President of Pakistan); 1995 PLC 1 (Human Right case); 1994 SCMR 2308 (Human Right case) and 1994 SCMR 445 (Ali Gul Khan Vs. Lahore High Court) can be helpful). In another case, 1998 SCMR 793 (Zulfiqar Mehdi Vs. Pakistan International Airlines), the petitioners (of that case) were employees of PIA who claimed discrimination on the ground of withholding of back benefits, this court held that the question of back benefits does not involve a question of public importance i.e. it was not a thing that belonged to the people at large, the nation, the State or a community. In PLD 2004 SC 583, where a political figure (ex-Chief Minister of Province Mr. Shahbaz Sharif) was not allowed to enter the country and a direct petition was brought before this Court under Article 184(3), it was held that the matter does not relate to the whole community; the grievance of a class or a group could not constitute, public at large; thus, the petition in that case was held not maintainable. In view of what has been discussed, we are of the opinion that on the basis of the facts and circumstances of the present matter, and the nature of grievance propounded herein, this petition does not Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 18 qualify the test and the condition of the “question of public importance” and the petition should fail on this score alone (emphasis supplied). (b) Now attending to the other condition of the Article 184(3) (supra) with reference to the violation of the fundamental rights (if any) of the petitioners; there seems no room to disagree with the plea/legal position that the right to life of a person/citizen shall include the right to livelihood and right to livelihood, therefore cannot hang on to the fancies of individuals in authority; the employment is not a bounty from them (individuals in authority) nor can its survival be at their mercy[1]. But at the same time it cannot be ignored and elided if a person, who is once taken into an employment by the State or any State Controlled institution, or even a private institution/individual has (such employee/person) a right in perpetuity (throughout his life time) to remain in service, and his services can never be dispensed with by his employer, even though it is so permissible in terms of the service rules (where statutory) by which he is governed, despite of his inefficiency, incapacity, misconduct etc. and compulsory retirement and more-so, where the employment is of contractual nature and with a private entity. Because such an action (termination etc.) shall be an infringement of right to life as envisaged by Article 9 of the Constitution. Upon analysis of the said Article, which stipulates “No person shall be deprived of life and liberty save in [1] AIR 1991 SC 101 Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 19 accordance with law” and when it is resorted to in respect of the issues having nexus to service matter it shall unmistakably be permissible that the employment of an employee can be brought (come) to an end, but obviously in accordance with the law (emphasis supplied), when there is some law regulating such an employment/service. Therefore, if the services of an employee are dispensed with by the employer, either by removal, dismissal, termination or compulsory retirement or any other adverse action is taken against him in connection with his service rights, other than in accordance with law, the employee shall have a right to take recourse to the remedies available to him and provided by or under the relevant law, before the forum of competent jurisdiction. (note: May it be the termination etc. of one employee of State/Government/institution or the group or bulk of such employees). However, in those cases where the employment/service(s) is not regulated by any law, as in the present case it is admitted position that Rules 1981 are non-statutory (emphasis supplied), and thus not a law, rather contractual stipulations, and no specific forum is designated for the resolution of such service issues, therefore an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of the contract and on account of wrongful action against him, before the court of plenary jurisdiction. In such a situation, it cannot be urged that the fundamental right of the employee has Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 20 been violated conferring upon him a right to enforce the same (in terms of Article 199 and/or) under Article 184(3) (supra). Despite the above, we hereby proceed to examine, whether any alleged fundamental right(s) of the petitioners has/have at all been violated or not; From Rules 15 and 17(a) (reproduced above), it is quite obvious that the bank has the due authority to bring to an end to the services of its employees by way of termination/early retirement, likewise, the employee also has the option to give up the employment of the Bank. In this behalf, the relevant rules 16 and 18 of Rules, 1981 are referred to as below:- “16. Resignation:-(1) An employee in Category I shall not resign from the service of the Bank without giving three months previous notice in writing of his intention to do so, failing which he shall be liable to pay the Bank a sum equal to his substantive pay for three months: ………….………………………………………………………………” “18. Option to retire:-- An employee may retire at his option after completing 25 years continuous service in the Bank.” It is clear from all the above four Rules, when those are read together, that the true intention and the spirit of the contractual understanding between the employer and the employees was (is) that the Bank has the right to finish the employment of its employees under rules 15 and 17, while the employees under rules 16 and 18 have an akin right. These indeed reflect absolute and un-circumvented privilege and prerogative, of the employer and the employee, in the above context. Rule 17(a) when invoked especially for large scale of Bank employees, and pursuant to the decision (as Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 21 in this case) of the Board it shall be deemed that the decision and the action is primarily founded upon commercial, business, administrative wisdom, the prudence and judgment of a private enterprise for the better interest of the institution, which may involve and be based upon financial constraints and considerations and/or for the restructuring and revamping of the staff (the ability, efficiency and skill wise). Such decisions in our view are not justiciable by this Court, while sitting as a court of appeal over it. Anyhow, coming back to the four rules, to our mind, a balance has been created by allowing both the employer and the employee to finish employment at their option. Be that as it may, considering the plea of right to life propounded by the petitioners from another angle, according to rule 17(b) an employee shall stand retired on attaining 60 years of age, now can an employee on the basis of right to life and the concept of livelihood attached thereto, plead that being fit for the job, he should not even retire at the age of 60 years; and rule 17 (b) ibid should be declared invalid. The answer certainly should be in the negative. Though in this petition to the contrary, the plea urged, is that the petitioners should have been allowed to complete their age of superannuation. While summing up, in the facts and circumstances of the case, we find that even no fundamental right to life of the petitioners has been violated by the Bank to satisfy the second condition of Article 184(3) warranting interference by this Court. Rather the petitioners have been allowed all the benefits of early retirements, which they were entitled and it seems from the record that the majority of them have even received such amounts, baring a few (may be six in numbers as avowed by the Bank). It may further be Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 22 mentioned that where a case is not made out in terms of the said Article, jurisdiction should not be exercised on the plea of pity, compassion and humanitarian reasons only (alone). 9. Question No.3: Though this question to an extent has been settled while answering question No.2, yet even considering the case of the petitioners independently on the touchstone of Article 25 of the Constitution, there are two main pleas on their part. One, that some of the employees similarly placed as the petitioners were, retained but their (petitioners) services have been dispensed with; and second, that the action against them is subjective, as no reasons have been assigned, even the changing needs of the Bank are neither specified nor shown, thus the action is arbitrary, whimsical, capricious and unfair. As far as the first plea is concerned, the petitioners have not provided for the comparison, any dates or material or the particulars of the persons, who were equally placed as them and have been retained. Even otherwise it is for the Bank management to decide about the usefulness of the employees or otherwise. Obviously, it has to be the evaluation of the management as to who is the employee(s) worthy of serving the best interest of the Bank, more suitable, so as to be retained and those who should retire. In regard to the second plea, it may be stated that the petitioners have not challenged the validity of rules 15 and 17 of Rules 1981; they also have not impugned the decision taken by the Board of Management, it is only the adverse action against them by the authority which has been attacked. But as held earlier the rules duly empower the Bank to take action; and the decision impugned in this case has been made pursuant to the Board resolution and seemingly on the basis of the considerations Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 23 of the Bank highlighted in the preceding para, therefore, the question of arbitrariness and lack of assigning reasons etc. shall have no relevance to the matter. Thus, we are of the candid view that the provisions of Article 25 of the Constitution does not help the cause of the petitioners and no case of discrimination in terms of said Article has been made out. 10. With regard to the plea that the rights of the petitioners conferred upon them by Articles 3, 4, 8, 27, 29, 37 and 38 be enforced in these proceedings. Without going into the question about the nature of such rights if any, it may be held that Article 184(3) has made a specific reference to the fundamental rights conferred by Chapter 1 of Part-II of the Constitution and nothing beyond; therefore the said Articles can at the most operate as enabling provisions where there is the violation of the rights (FR) mentioned in Article 184(3), but per se are not enforceable. 11. While dilating upon the plea of the petitioners based upon rule 89 of Rules 1981, we find that both these rules are independent. Rule 89 in no way controls or overrides rule 15 or rule 17(a) and/or obliterates or abridges or circumvents the power and authority of the Bank to take action independently under the said Rules. Therefore, the plea of the petitioners in this context, also has no force. 12. Before parting it may be pointed out that vide short order we have already held that the question formulated by this Court on 29.11.2010 shall be addressed in some other appropriate case, therefore, while giving these reasons, obviously no discussion is warranted on the said point. Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 24 13. In the light of the above, the noted petition as held in the short order dated 17.10.2012 stands dismissed. The Human Right Petitions and other miscellaneous petitions therefore are also dismissed. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE Islamabad, the 17th of October, 2012 Approved For Reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED CONSTITUTION PETITIONS NOS.39 & 90 OF 2011 Const.P.39/2011 Ch. Nasir Iqbal and others Vs. Federation of Pakistan through Secretary Law and others. Const.P.90/2011. Imran Khan, Chairman, P.T.I., etc. Vs. Federation of Pakistan. For the petitioner (s): Mr. Haroon-ur-Rasheed, ASC Mr. Mehmood A. Sheikh, AOR Mr. Hamid Khan, Sr. ASC Mian Abdur Rauf, ASC On Court notice: Mr. Irfan Qadir, Attorney General for Pakistan For the Federation: M. Dil Muhammad Alizai, DAG For the ECP: Mr. Muhammad Munir Paracha, Sr. ASC Mr. Adbur Rehman Khan, Addl. DG (L) For M/o Overseas: Mr. Nadeem Ashraf, Secy Mr. Mehboob Alam, Dy Chief Mr. Islam Din, Asstt. Chief Mr. Khurram Sherazi, LO (OPF) Date of hearing: 14.02.2013. ORDER These petitions have been filed inter alia by the Overseas Citizens of Pakistan and Imran Khan, Chairman, Pakistan Tehrik-e- Const. P No.39 & 90-2011 2 Insaf (In Constitution Petition No.90 of 2011), wherein relief has been claimed to the following effect:- “In view of the above circumstances and facts, it is humbly prayed that this Hon’ble Court may kindly be pleased to issue appropriate direction to the Respondents to make arrangements enabling the overseas Pakistanis as well to exercise their right of franchise as per mandate of the Constitution of Pakistan by preparing and updating electoral rolls and devising provisions for making it possible for Overseas Pakistanis to caste their votes in the forthcoming elections within the framework and scheme of the Constitution of Pakistan. It is further prayed that Respondents may kindly be directed to make appropriate measures for making it possible for the Overseas Pakistanis to cast their vote in Pakistan consulates and embassies like many other developed/developing countries do so. Any other relief deemed appropriate under the circumstances of the case may also be granted.” 2. A similar relief has also been claimed by Ch. Nasir Iqbal and others (In Constitution Petition No.39 of 2011), which is reproduced herein below. “It is therefore most humbly prayed that the instant petition may kindly be accepted and respondents be directed to take all those steps which are necessary for implementation of the fundamental right of vote to all overseas Pakistanis including arrangements in Consulate and Embassies of Pakistan all over the world before the next General Election for National and Provincial Assemblies and an opportunity be Const. P No.39 & 90-2011 3 provided to overseas Pakistanis of casting their votes.” 3. During hearing of the petitions from time to time in presence of the learned counsel for the parties except making different suggestions for making arrangements to evolve a mechanism so that the Overseas Citizens of Pakistan may exercise their right of franchise, no concrete progress was made. 4. In the circumstances, we had to issue notice to the learned Attorney General for Pakistan to assist the Court. Mr. Irfan Qadir, learned Attorney General has appeared and stated that his predecessor Molvi Anwar-ul-Haq, former Attorney General for Pakistan had made a statement during hearing of these petitions that an appropriate legislation would need to be adopted by the Parliament enabling the Overseas Citizens of Pakistan to exercise their right of vote during the general or by-elections in the country, therefore, now he would take up the matter with the high-ups to make progress before the forthcoming elections. 5. We may point out that during the previous hearings, an impression was also given to us that the Cabinet is taking necessary steps to promulgate the law on the subject. When the case was taken up, Mr. Nadeem Ashraf, Secretary, Government of Pakistan, Ministry of Overseas Pakistanis¸ who was present in the Court in connection with hearing of some other case, entered appearance and Const. P No.39 & 90-2011 4 stated that Ministry of Overseas Pakistanis has already proposed legislation on this subject but so far no further progress has been made. 6. Mr. Hamid Khan, learned counsel stated that in the neighbouring country by means of subordinate legislation i.e. The Registration of Electors Rules, 1960, the Electors, who are residing outside India had been registered as voters and according to him in different countries, different modes have been adopted to afford an opportunity to their Overseas Citizens to cast their votes in the election which includes arrangement for the polling, by extending such facilities at the Diplomatic Missions for Personal Voting, Postal Ballots, Proxy Voting, Electronic Voting or Fax Voting. 7. Mr. Muhammad Munir Paracha, learned counsel for the Election Commission of Pakistan stated that according to the database provided by the NADRA on the basis of NICOP Cards, Pakistan Origin Cards and Identity Cards, 4 million Overseas Pakistanis have been registered. The Secretary, M/o Overseas Pakistanis pointed out that according to the data available with the said Ministry, there are 7.5 million Overseas Pakistanis and according to the information of the said Ministry, 5.2 million Overseas Citizens of Pakistan have been registered by the NADRA and NICOP Cards have been issued to them. On having heard all the parties, we are of the opinion that:- Const. P No.39 & 90-2011 5 (1) The Election Commission of Pakistan must ensure that all the Overseas Citizens of Pakistan, who are qualified/eligible for the registration of their votes in accordance with the Electoral Rolls Act, 1974 and the Rules framed there under must be registered as early as possible before the forthcoming elections. (2) The NADRA and the Ministry of Overseas Pakistanis may cooperate with the Election Commission of Pakistan for registration of Overseas Citizens of Pakistan as voters and if need be NADRA may also issue to eligible Overseas Citizens of Pakistan, NICOP Cards, as completing this exercise would be helpful in registering their names as voters, if their names have not been entered in the Electoral Lists so far. The Ministries of Law and Overseas Pakistanis as well as the Election Commission of Pakistan may convene a meeting to adopt a mechanism either by adopting an Electronic Voting System for which perhaps no legislation may be required. The possibility should also be explored for declaring Pakistani Diplomatic Missions (Embassies and Consulates, etc) as Polling Stations by the Election Commission of Pakistan where requisite information and data regarding Electoral Lists and Constituency-wise candidates could be made available electronically by the Election Commission of Pakistan, NADRA and M/o Overseas Pakistanis and after due identification and authentication of Overseas Const. P No.39 & 90-2011 6 Citizens of Pakistan may be provided the facility to cast their votes either electronically or through a ballot paper issued at such Diplomatic Mission so that they can exercise their Constitutional right of franchise. The ballot papers cast at the Diplomatic Mission could be placed in a sealed envelope and thereafter sent to the Election Commission of Pakistan for the purpose of onward transmission to the respective Returning Officer/Presiding Officer of the relevant Constituency, which can be noted on the said envelope containing the ballot papers. (3) Similarly, the Election Commission of Pakistan, as per the directions of this Court in the case of Worker’s Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) can intimate all the Overseas Pakistanis, whose votes have already been registered, who are residing outside the Country about the details of their votes so they may make arrangements well before the time to report to any of the Diplomatic Mission for the purpose of casting the vote if the procedure tentatively discussed and noted hereinabove is adopted. (4) However, any other procedure or method which is acceptable under the law and requires no legislation can be adopted and if legislation is required, the concern authorities with the cooperation of the learned Attorney General for Pakistan may do the needful expeditiously before the forthcoming General Elections, so that all the Const. P No.39 & 90-2011 7 Overseas Citizens of Pakistan are given an opportunity to cast their votes. 8. The learned Attorney General for Pakistan stated that he needs some time to hold a meeting with all the concerned authorities i.e. Ministries of Law and Overseas Pakistanis as well as the Election Commission of Pakistan, therefore, the case is adjourned for 22nd February, 2013, enabling all concerned to consider the options noted hereinabove and in the meantime, the learned Attorney General for Pakistan shall contact all concerned quarters for the purpose noted hereinabove. Chief Justice Judge Judge Islamabad, the 14th February, 2013.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE JAWWAD S. KHWAJA MR. JUSTICE SH. AZMAT SAEED CONSTITUTION PETITION NO.39 OF 2013. Raja Muhammad Zafar-ul-Haq, Senator, Senate of Pakistan, Parliament House, Islamabad … Petitioner VERSUS Election Commission of Pakistan, Election House, Constitution Avenue, Islamabad through its Secretary and two others … Respondents For the petitioner: Ch. Muhammad Ashraf Gujjar, ASC Ch. Naseer Ahmad Bhutta, ASC Dr. Rana Shamim Ahmed, ASC with petitioner On Court Notice: Mr. Muneer A Malik, A.GP For respondents No.1 & 2: Syed Sher Afgan, Addl. Secretary, ECP For respondent No.3: N.R. Date of hearing: 24.07.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- This Petition has been instituted by Raja Muhammad Zafar-ul-Haq, Senator/one of the elector for the Election of the Office of the President of the Islamic Republic of Pakistan, Const.P.No.115/2012. 2 which has been scheduled following the mandate of Article 41(4) of the Constitution of the Islamic Republic of Pakistan, 1973, with the prayer that a direction be issued to the Election Commission of Pakistan (hereinafter referred to as “ECP”) to change its Schedule by holding Presidential Election, 2013 on 30th July, 2013 (20th Ramazan, 1434) instead of 6th August, 2013 (27th Ramazan, 1434). It is to be noted that, inter alia, the following grounds have been mentioned in the memo of petition to persuade this Court to grant the relief as noted herein below:- “(i) that the last 10 days of Ramadan are normally the days of extensive spiritual and religious activity/worship and quite a number of the legislators may either be in Aitekaf or proceed for Umrah to Saudi Arabia during this period. (ii) that 6th August, 2013 shall fall on one of the last three days of Ramadan, probably on 27th day of Ramadan. This would be too close to Eid-ul-Fitr and many Parliamentarians may like to proceed their home-towns by then. (iii) That the Constitution guarantees 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” (iv)……………………………………………. (v)……………………………………………. (vi) That if the Presidential elections are held on 6th August, 2013 (27th Ramadan), the fundamental rights of the Parliamentarians shall be infringed as they will not be able to participate in the Presidential elections in view of their engagements towards spiritual and religious plans in the last ten days of the Holy month of Ramadan. (vii) That the impugned schedule is also violative of the fundamental rights of the Petitioner as well as other Parliamentarians that if they opt to exercise their right of vote then they will have to give-up their spiritual and religious plans i.e. (1) Umrah, (2) Aitekaf in Pakistan or at Harman Sharifan, KSA” 2. In response to the notice, the learned Attorney General for Pakistan alongwith the Additional Secretary, ECP appeared. With their assistance, we Const.P.No.115/2012. 3 have gone through the Schedule announced by the ECP for the Election of the Office of the President of the Islamic Republic of Pakistan, the contents whereof are reproduced herein below:- Sl. No. Events Date 1 2 3 (a) Filling of nomination papers with the Presiding Officers at Islamabad and with each of the Presiding Officers at Lahore, Karachi, Peshawar and Quetta 24.07.2013 (Upto 12:00 noon) (b) Scrutiny of nomination papers by the Returning Officer at Islamabad 26.7.2013 (at 10:00 AM) (c) Withdrawal of candidature before the Returning Officer at Islamabad 29.7.2013 (Upto 12:00 noon) (d) Publication of the list of validly nominated candidates 29.07.2013 (at 1:00 p.m.) (e) Polling day and Polling time 06.08.2013 (from 10:00 AM to 3:00 PM) (f) Place of the Poll (1) The Parliament House, Islamabad. (2) The Provincial Assembly, Building Lahore (3) The Provincial Assembly, Building, Karachi (4) The Provincial Assembly, Building, Peshawar (5) The Provincial Assembly, Building, Quetta 3. It is pointed out by the Additional Secretary, ECP that the ECP has to complete the procedural formalities after publication of the list of the Validly Nominated Candidates, therefore, the polling day and time has been fixed 6th of August, 2013. When we pointed out to him the reasons on account of which, the Const.P.No.115/2012. 4 request has been made for ante-dating the polling, as incorporated in the petition, he sought time to seek instructions from the ECP. Accordingly, the following statement has been filed by him for consideration:- “The Election Commission has considered the matter regarding change of Presidential Election Schedule. The Commission feels that it shall require three clear days between withdrawal-day and poll-day to complete all necessary arrangements for conduct of poll. Whatever order is passed by this Hon’ble Court keeping this requirement in view will be complied with in letter and spirit.” 4. It may not be out of context to note that the holding of Election of the Office of the President of the Islamic Republic of Pakistan is one of the most important Constitutional Activity, which has to be undertaken by the ECP, therefore, we are of the opinion that at the same time, it is the duty of the ECP to facilitate all the voters and electors, enabling them to exercise their right of franchise for the Election of the Office of the President of the Islamic Republic of Pakistan. Therefore, keeping in view the reasons/grounds put forward and also to ensure that the ECP may discharge its functions. We accordingly direct the ECP to change its schedule in the following order:- Sl. No. Events Date 1 2 3 (a) Filling of nomination papers with the Presiding Officers at Islamabad and with each of the Presiding Officers at Lahore, Karachi, Peshawar and Quetta 24.07.2013 (b) Scrutiny of nomination papers by the Returning Officer at Islamabad 26.7.2013 (at 10:00 AM) (c) Withdrawal of candidature before the Returning Officer at Islamabad 27.7.2013 (Upto 12:00 noon) Const.P.No.115/2012. 5 (d) Publication of the list of validly nominated candidates 27.07.2013 (at 5:00 p.m.) (e) Polling day and Polling time 30.07.2013 (from 10:00 AM to 3:00 P.M.) (f) Place of the Poll 1. The Parliament House, Islamabad. 2. The Provincial Assembly, Building, Lahore 3. The Provincial Assembly, Building, Karachi 4. The Provincial Assembly, Building, Peshawar 5. The Provincial Assembly, Building, Quetta 5. The ECP may issue/revise Schedule, as it has been directed hereinabove, during the course of day. 6. This Constitution Petition stands disposed, accordingly. Chief Justice Judge Judge Islamabad, the 24th July, 2013 Not approved for reporting M. Safdar Mahmood/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CONSTITUTION PETITION NO.39 OF 2016 (Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, for setting aside the order of the Chief Justice of the Lahore High Court, dated 26.11.2016, passed on the administrative side) Mr. Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore … Petitioner (s) Versus The Federation of Pakistan through Secretary, Ministry of Law, Justice & Parliamentary Affairs Division, Government of Pakistan, Civil Secretariat, Islamabad and 4 others … Respondent (s) For the Petitioner (s) : Mr. Hamid Khan, Sr. ASC Mr. Muhammad Waqar Rana, ASC Mr. Hassan Irfan Khan, ASC assisted by Barrister Khadija Yasmin Bokhari, Advocate Mr. M.S. Khattak, AOR For the Federation : Ch. Aamir Rehman, Additional AGP Danish Aftab, Associate Lawyer Respondents No.3 and 5 : N.R. For Respondent No.4 : Mr. Mansoor Usman Awan, ASC Ch. Akhtar Ali, AOR Const.P.39 of 2016 2 On behalf of Govt. of the Punjab : Mr. Ahmed Awais, Advocate General, Punjab Mr. Shah Gul, Additional A.G., Punjab Mr. Zahoor Ahmed, Assistant Registrar, Lahore High Court Date of Hearing : 18.10.2018 JUDGMENT SH. AZMAT SAEED, J.- The instant Constitution Petition, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution of 1973), has been filed by a sitting Judge of the learned Lahore High Court, calling into question the Order dated 26.11.2016, passed by the then Chief Justice of the Lahore High Court, re-fixing inter se seniority of the Petitioner and some of the other Judges of the learned Lahore High Court, including Respondents No.3 to 5. 2. The brief facts necessary for adjudication of the lis at hand are that vide Notification dated 17.02.2010, 22 Additional Judges were appointed by the President, Islamic Republic of Pakistan, to the learned Lahore High Court, Lahore, including the Petitioner and Respondents No.3 to 5. On 19.02.2010, the then Chief Justice of the Lahore High Court administered the Oath to 21 out of the 22 of the aforesaid Additional Judges of the Lahore High Court. The Petitioner at that point of time was not in Const.P.39 of 2016 3 Pakistan and, in fact, was in United States of America. It is his case that he was contacted by the then Chief Justice of the Lahore High Court through his brother on 18.02.2010, informing the date of the Oath. The Petitioner could not reach Pakistan for the Oath scheduled for 19.02.2010 and as per his case the then Chief Justice of the Lahore High Court was informed accordingly. The Petitioner arrived in Pakistan on the night between 19th and 20th of February, 2010, and admittedly, he was administered the Oath of his Office on 20.02.2010. 3. Thereafter, a Seniority List of the Judges of the Lahore High Court, Lahore, was issued showing their inter se seniority. In the said List, the Petitioner was shown senior, inter alia, to Respondents No.3 to 5. It is the case of the Petitioner that for the next several years periodically such Lists were issued both by way of routine weekly rosters and as and when new Additional Judges were inducted and the Petitioner was shown as senior to Respondents No.3 to 5 who never took any exception thereto. However, in March, 2015, Respondents No.3 to 5, made a representation to the then Chief Justice of the Lahore High Court, claiming that they were senior to the Const.P.39 of 2016 4 Petitioner as their inter se seniority should be reckoned from the date when the Petitioner and the said Respondents No.3 to 5 made their respective Oaths. It was their case that since, Respondents No.3 to 5 had entered the Office upon taking Oath on 19th February, 2010, their seniority should be reckoned from such date and that of the Petitioner from 20th February, 2010 when the Petitioner took his Oath of Office. Vide Order dated 26.03.2015, the then Chief Justice of the Lahore High Court choose not to disturb the inter se seniority whilst simultaneously advising the parties to air their grievance, if they so desired, before an appropriate judicial forum. 4. That on 25.10.2016, Respondents No.3 to 5 once again made an application to the then Chief Justice of the Lahore High Court, regarding re-fixation of the seniority vis-à-vis the Petitioner by re-agitating their claim on the basis of the dates on which the Petitioner and the said Respondents had made their Oath of Office. In the meanwhile, the then Chief Justice, who had dealt with the earlier representation of Respondents No.3 to 5 and passed the above-mentioned Order dated 26.03.2015 referred to above, had since retired and the new incumbent had stepped into his shoes. Const.P.39 of 2016 5 5. That the then Chief Justice of the Lahore High Court vide Order dated 26.11.2016, accepted the representation of Respondents No.3 to 5 and re-fixed their inter se seniority by holding that Respondents No.3 to 5 were senior to the Petitioner. The primary basis of such an order was that the Petitioner had entered his Office by making his Oath on 20.02.2010, while Respondents No.3 to 5 had made their Oath of Office on 19.02.2010. It is the said Order dated 26.11.2016, which has been challenged through the instant Constitution Petition. 6. It is contended by the learned counsel for the Petitioner that before passing the impugned Order neither a formal or proper hearing was conducted nor was the Petitioner afforded a full opportunity to present his case. Thus, for all intents and purposes, the Petitioner has been condemned unheard, hence, the impugned Order, is liable to be set aside. 7. It is further contended that upon making of Oath by the 21 Additional Judges, including Respondents No.3 to 5 on 19.02.2010, it was agreed and understood by all that the seniority of the Petitioner, who, for reasons beyond his control, was not Const.P.39 of 2016 6 available to make the Oath on the above-said date, would not be effected and it was with their consent that the seniority of the Petitioner was fixed. In support of the aforesaid contentions, the learned counsel has drawn our attention to the Affidavits filed by two retired Judges of the learned Lahore High Court, who were part of the 22 Judges, notified vide Notification dated 17.02.2010, and had made Oath on 19.02.2010, hence, the said Respondents having waived off their right, if any, to seniority qua the Petitioner can no longer agitate the matter. It is added that this aspect of the matter has been totally ignored by the then Chief Justice of the Lahore High Court while passing the impugned Order dated 26.11.2016. 8. It is further contended that since the initial appointment as Additional Judges in numerous weekly rosters were issued evidencing the inter se seniority of the Judges of the Lahore High Court, whereby the Petitioner was shown as senior to Respondents No.3 to 5 who for years did not raise any issue, hence, had acquiesced to the seniority of the Petitioner and were estopped from agitating the matter before the then Const.P.39 of 2016 7 Chief Justice of the Lahore High Court, hence, the impugned Order, is liable to be set aside. 9. Without prejudice, it is added that Respondents No.3 to 5 raised an issue regarding their alleged claim of seniority by way of the representation dated 26.03.2015 before the then Chief Justice of the Lahore High Court who declined to disturb the inter se seniority of the Petitioner vis-à-vis Respondents No.3 to 5, leaving the said Respondents to seek their remedy in accordance with the law i.e. through an appropriate judicial forum. In the circumstances, the subsequent Chief Justice could not review the earlier Order of his predecessor that to without any legal or factual basis. Furthermore, even otherwise no right or review stood vested with the Chief Justice, hence, the impugned Order is illegal and is liable to be set aside. 10. Without prejudice to the above, it was further contended that the Petitioner on attaining the requisite seniority became a Member of the Administrative Committee of the Lahore High Court and during the proceedings whereof the Petitioner did not see eye to eye with the mode and manner of the decisions taken by the then Chief Justice of the Lahore High Court and Const.P.39 of 2016 8 it is only to remove him from the Administrative Committee that the representation on behalf of Respondents No.3 to 5 was engineered and the impugned Order passed, which on the face of it, suffers from malice and bias, hence, is without jurisdiction and is liable to be set aside. 11. The learned counsel further contended that it has now been conclusively settled by this Court in the case reported as Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan and others (2014 SCMR 1289) that inter se seniority of the Judges of the learned Lahore High Court would be reckoned from the date of their appointment as Additional Judges. Thus, both the Petitioner and Respondents No.3 to 5 having been appointed on the same day through the Notification dated 17.02.2010, and the seniority of the Petitioner and Respondents No.3 to 5 could not be determined on the basis of the date when they made their Oaths of Office. In this behalf, the learned counsel further contended that the provision for appointment of Additional Judges to the High Court is Article 193 of the Constitution of 1973, and the provisions for making of Oath is Article 194 of the Const.P.39 of 2016 9 Constitution of 1973. Each of said Articles is separate and distinct; the latter cannot be read so as to override the former, which aspect of the matter has also been ignored while passing the impugned Order. 12. The learned counsel next contended that not only in the Constitutional dispensation of Pakistan and the jurisprudence emanating therefrom the appointment to an office is distinct from making Oath thereof but the same is also true from the other jurisdictions. It is his case that at best where making an Oath is prescribed by the Constitution of a country, the failure or absence of such Oath could only have the effect as is mentioned in the Legislative Instruments e.g. Constitution, requiring such Oath. In pith and substance, it was the case of the learned counsel for the Petitioner that after appointment in the absence of an Oath the Additional Judge may not have entered upon his Office but does not imply that he was not a Judge for all other intents and purposes. In support of his contentions, the learned counsel for the Petitioner referred to the judgment of the Supreme Court of India, in the case titled Ram Pal Singh v. State of U.P. and Ors passed in Petition for Special Leave to Appeal Const.P.39 of 2016 10 (Civil) No.31990 of 2017. Whereby as per the learned counsel, this aspect of the matter has been identified, highlighted and implemented. In the circumstances, there was no occasion for determining the seniority of the Petitioner from the date of Oath rather than the date of appointment, hence, the impugned Order, is liable to be set aside. 13. The learned counsel, in the above context, drew the attention of this Court to Article 194 of the Constitution of 1973, which reads as follows: “194. Before entering upon office, the Chief Justice of a High Court shall make before the Governor, and any other Judge of the Court shall make before the Chief Justice, oath in the form set out in the Third Schedule” In the above context, the learned counsel further contended that it is a “Judge” who makes an Oath and the said individual upon his appointment under Article 193 of the Constitution of 1973, is a Judge for all intents and purposes other than for exercising the powers conferred upon a Judge. The learned counsel further contended that similar terminology was employed by Article 93 of the Constitution of Pakistan, Const.P.39 of 2016 11 1962. The aforesaid, it is contended, is a departure from the previous Constitutional dispensation as provided under Section 220(4) of the Government of India Act, 1935, wherein it is stated as follows: “220 (4) Every person appointed to be a judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor or some person appointed by him an oath according to the form set out in that behalf in the Fourth Schedule to this Act.” (emphasis supplied) Similarly, under Article 215 of the Constitution of Pakistan, 1956, again it is scribed as follows: “215. A person elected or appointed to any office mentioned in the Second Schedule shall before entering upon the office make and subscribe an oath or affirmation in accordance with that Schedule.” (emphasis supplied) By relying upon the aforesaid provisions, it was contended that previously an individual remained a “person” and did not become a Judge until he took his Oath. However, since in the Constitution of Pakistan, 1962, followed by the interim Constitution of Pakistan, 1972 and the Constitution of the Islamic Republic of Const.P.39 of 2016 12 Pakistan, 1973, a distinction has been drawn that a person who becomes a Judge on appointment and as Judge makes his oath to assume his office. 14. In the above backdrop, it is contended that it was now clear and obvious that the relevant provisions of the Constitution of 1973, there is no manner of doubt that a Judge is appointed by the President in terms of Article 193 of the Constitution of 1973, and therefore, he becomes a Judge or an Additional Judge, as the case may be, he is entitled to all privileges of a Judge, including his seniority. 15. In short, it was contended by the learned counsel that the existing Constitution deliberately made a departure from the prior procedure of appointment and entering into Office and the two were separated and as is obvious that upon appointment by the President in terms of Article 193 of the Constitution of 1973, an individual becomes a Judge and as a Judge, he makes an Oath in terms of Article 194 of the Constitution of 1973, hence, the Petitioner was a Judge with effect from the date of his appointment i.e. 17.02.2010, as were Respondents No.3 to 5 and in view of his age he was always senior to Respondents No.3 to Const.P.39 of 2016 13 5, hence, the impugned Order is contrary to the Constitution of 1973 and is liable to be set aside. 16. Mr. Shan Gul, learned Additional Advocate, Punjab, appearing on behalf of Respondent No.2, controverted the contentions of the learned counsel for the Petitioner by contending that an accumulative reading of Articles 193 and 194 of the Constitution of 1973, lead to an irresistible conclusion that an appointment of a person as a Judge of the learned High Court is completed only upon his making an Oath before the Chief Justice of the said High Court. Till such an Oath is made the person is not, in law, a Judge and as he or she has not yet entered his or her Office, is not entitled to any benefit or advantage, including renunciation or seniority on any date prior to having made his or her Oath in terms of Article 194 of the Constitution of 1973. 17. The learned Additional Advocate General, Punjab, further contended that there is no order of the then Chief Justice of the learned Lahore High Court contemporaneous with the appointment of the Petitioner and Respondents No.3 to 5, consciously fixing their inter se seniority either by operation of law or by consent, as claimed by the Petitioner. It is his case that neither such Const.P.39 of 2016 14 an order has been placed on the file nor is any such order available on the record of the learned Lahore High Court, as is also mentioned in the impugned Order. 18. It is further contended that the power to appoint a Judge is vested with the President subsequent to due compliance of the procedure as laid down in the Constitution of 1973, including Articles 175 and 175A thereof. It is his case that the period as to when such an appointment has to take effect is not specified leaving the option open to the President i.e. the appointing authority to fix any future date. In the instant case as is also the common practice, the date when such an appointment will take effect set forth in the Notification of appointment i.e. when the person so appointed makes an Oath. Thus, the appointment takes effect from the date of the Oath and not the date of the Notification, as is obvious from the contents of the Notification itself. Such a process and procedure is in consonance with Article 194 of the Constitution of 1973. Therefore, in law, the Petitioner became a Judge with effect from 20.02.2010 when he took Oath of his Office and his seniority is to be reckoned from such date, as has been correctly construed by way of the impugned Order. Const.P.39 of 2016 15 19. The learned Additional Advocate General, Punjab, next contended that the Petitioner has misconstrued the judgment of this Court in the case reported as Muhammad Aslam Awan, Advocate Supreme Court (supra). It is his case that nowhere in the said judgment it has been held that an appointment of a Judge is completed from the date of the order of appointment or the Notification thereof. The term “appointment” used therein when read in its proper context refers to the date when such an appointment is completed by making an Oath in accordance with Article 194 of the Constitution of 1973. It is added that the matter has been laid to rest in the concurring additional note by Asif Saeed Khan Khosa, J., wherein in no uncertain terms it was unequivocally stated that the seniority of an Additional Judge is to be reckoned from the date when he makes an Oath in accordance with the Constitution of 1973. 20. The learned Additional Advocate General, Punjab, further contended that his contentions also find support from the judgments reported as Supreme Court Bar Association through President and others v. Federation of Pakistan and others (PLD 2002 SC 939) Const.P.39 of 2016 16 and Sabir Ali Sajid v. Muhammad Maqsood (PLD 2006 Lahore 607). He also relied upon the judgment of the Supreme Court of Minnesota in Winters v. Kiffmeyer (No.C8-02-1180) decided on August 30, 2002) as well as an article titled The Appointment and Removal of William J. Marbury and When an Office Vests (89 Notre Dame L. Rev. 199). 21. The learned counsel appearing on behalf of private Respondents No.3 to 5, supported the contentions of the learned Additional Advocate General, Punjab, and reiterated that the seniority of the Petitioner and Respondents No.3 to 5 was not consciously fixed by the Chief Justice of the Lahore High Court upon their appointments. It was also categorically denied that the said Respondents No.3 to 5 had consented to the fixation of the seniority of the Petitioner as claimed. 22. The learned counsel further contended that the question of acquiescence and waiver does not arise. He further added that acquiescence and waiver are sub- species of estoppel and it is settled law that there can be no estoppel against the law much less the Constitution. 23. The learned counsel further contended that the then Chief Justice, Khawaja Imtiaz Ahmed, did not Const.P.39 of 2016 17 decide the representation of Respondents No.3 to 5, and left the matter open, hence, in the absence of the earlier decision, the question of review does not arise. It is further added that the issue of inter se seniority of the Additional Judges of the Lahore High Court as well as with reference to the permanent Judges was perhaps not clear and the matter firstly crystallized upon the pronouncement of the judgment of this Court in the case reported as Muhammad Aslam Awan, Advocate Supreme Court (supra), more particularly, the concurring additional note by Asif Saeed Khan Khosa, J. whereby it was categorically held that the seniority of the Additional Judges of the High Court would be determined from the day they make an Oath under Article 194 of the Constitution of 1973. Subsequently, after much hesitation, Respondents No.3 to 5, made an application for re-fixation of their seniority in terms of the said judgment. In the circumstances, it is contended, that the said Respondents cannot be said to have waived their right to seniority or acquiesced to the display of the name of the Petitioner in the roster, as purportedly senior to them. Const.P.39 of 2016 18 24. The learned counsel further contended that the reference by the learned counsel for the Petitioner to the historical background in the context of the Legislative and Constitutional Instruments for appointment of the Judges so as to highlight that in the Government of India Act, 1935, and the late Constitution of Pakistan, 1956, the word “person” was used in the context of making an Oath by a Judge, while in the subsequent Constitutional Instruments, including the Constitution of Pakistan, 1962, interim Constitution of Pakistan, 1972 and the present Constitution of 1973, the word “Judge” is used in the context of making an Oath (Article 194) is misconceived, as in the earlier two Legislative and Constitutional Instruments, i.e. the Government of India Act, 1935, and the late Constitution of Pakistan, 1956, the term “Judge” has not been defined therein, while in the subsequent Constitutional Instruments i.e. Constitution of Pakistan, 1962, interim Constitution of Pakistan, 1972 and the present Constitution of 1973, the term “Judge” has been defined to include a person acting as a Judge. Thus, the very premise of the contentions of the learned counsel for the Petitioner is misconceived and amounts to reading something into the Constitution, Const.P.39 of 2016 19 which is not there. The learned counsel rounded up his contentions by contending that the order of the President and the Notifications of appointment of the Judges and the Chief Justices perceived their making Oath of Office even by several weeks. If the argument of the learned counsel for the Petitioner is accepted and said Judges are deemed to have been appointed on the dates of their Notification, the total number of Judges would increase beyond the prescribed limit and there would also be a possibility of two Chief Justices holding the Office at the same point of time i.e. one who is appointed and notified in anticipation of a vacancy and the other Chief Justice already occupying his Office having not yet retired or having not been elevated yet to the Supreme Court. Thus, the entire premise of the contentions raised on behalf of the Petitioner are an over simplistic interpretation, which may result in absurdity which can never be the intention of the framers of the Constitution. 25. Having heard the learned counsel for the parties and the learned Law Officers, it has come to the forefront that the heart of the controversy requiring adjudication is as to when, under our Constitutional dispensation, a person, in fact and in law, stands Const.P.39 of 2016 20 appointed as an Additional Judge or a Judge for the purposes of determining his inter se seniority with respect to his colleagues. The instant matter must necessarily be settled not only generally but, more particularly, in the context of the facts and circumstances of the case at hand. The Chief Justice and the Judges of the Supreme Court and the High Courts are appointed by the President of Pakistan. Reference, in this behalf, may be made to Articles 175A to 182 of the Constitution of 1973 with regard to the Supreme Court of Pakistan; and Articles 192 to 197 of the Constitution of 1973 with regard to the appointment of Chief Justices and Judges of the High Courts. The Additional Judges are appointed by the President of Pakistan to the High Courts in terms of Article 197 of the Constitution of 1973. Such an order of appointment is notified through a Notification issued by the Secretary, Ministry of Law, Justice and Parliamentary Affairs Division, Government of Pakistan. In the instant case, the Appellant and the private Respondents were admittedly appointed as Additional Judges of the Lahore High Court by the President of Pakistan and in this behalf, the Notification dated Const.P.39 of 2016 21 17.02.2010, was issued by the aforesaid Secretary. The operative part of the aforesaid Notification is reproduced hereunder for ease of reference: “GOVERNMENT OF PAKISTAN LAW, JUSTICE AND PARLIAMENTARY AFFAIRS DIVISION ….. Islamabad, the 17th February, 2010 NOTIFICATION No.F.5(1)/2010-A.II.- In exercise of the powers conferred by Article 197 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to appoint the following persons as Additional Judges of the Lahore High Court for a period of one year with effect from the date they make oath of their office:- …” (emphasis supplied) It is nobody’s case that the aforesaid Notification does not accurately and faithfully reflect the Order of the President of Pakistan, appointing the Additional Judges as mentioned in the aforesaid Notification. 26. A perusal of the said Notification reveals that the same does not have the tone and tenor of an appointment in presenti. It does not state that the appointment is “with immediate effect” or that the President “hereby appoints” such persons as the Additional Judges of the Lahore High Court. On examination it becomes clear and obvious that the said appointments are to take effect when the said Additional Const.P.39 of 2016 22 Judges make their Oaths. Thus, it is the intention of the appointing authority that the appointment of the Petitioner as well as the private Respondents would take effect from the date when they make their Oaths before the Chief Justice of the Lahore High Court. Thus, for all intents and purposes, the Petitioner as well as the private Respondents became the Additional Judges on the said date when they, in fact, made their Oaths. Such an interpretation is not only logical but also in accordance with the plain meaning of the words employed in the said Notification dated 17.02.2010 reproduced above. A contrary conclusion is not possible without doing extreme violence to the words of the Notification and the provisions whereunder it was issued. 27. A Notification in advance for appointment of Judges of the Superior Courts was not made for the first time vide Notification dated 17.02.2010. An overview of such Notifications, in advance, have been recorded to in paragraph 30 of the judgment of this Court reported as Supreme Court Bar Association through President and others (supra). The said Notifications were held to be valid. Numerous other similar Notifications are also available. In fact, it has been found very difficult to locate Const.P.39 of 2016 23 a Notification to the contrary i.e. of appointment of a Judge of a Superior Court in presenti. No such Notification was produced by either side in Court. 28. Be that as it may, many of the questions which have floated to the surface in the instant lis stand answered directly or by necessary implication in paragraph 31 of the aforesaid judgment i.e. Supreme Court Bar Association through President and others (supra), which is reproduced hereunder for ease of reference: “31. Last but not the least the appointments in question had the blessings of the succeeding Chief Justice and judicial consultee Mr. Justice Muhammad Bashir Jehangiri who was consulted by the then Chief Justice of Pakistan at the initial stage and before whom all the four Judges made oath at the final stage i.e. on 10th January, 2002. The impugned notification was issued on 26th December, 2001 with an explicit recital that the appointments will take effect from 10th January, 2002, namely. the day when four vacancies were available Mr. Justice Muhammad Bashir Jehangiri had taken oath as Chief Justice of Pakistan on 7th January, 2002 but he did not make any move for withdrawal of Const.P.39 of 2016 24 the impugned notification. Had he not endorsed the recommendations and the appointments he would have certainly asked for a back reference or sent his own recommendations or refused to administer the oath of office to the appointees. Another noteworthy circumstance which points to ratification by Mr. Justice Muhammad Bashir Jehangiri of the appointments made in advance is that on 31st January, 2002 he had presided over the Bench which had heard one of the above-mentioned Constitution petitions but had not suspended the impugned notification.” (emphasis supplied) 29. It is not only the obvious intention as is apparent from the Notification itself that the appointment as Additional Judges was to take effect from the date when the Oath is made but the interpretation of the provisions of the Constitution of 1973 when examined in the light of the afore-quoted judgment of this Court reported as Supreme Court Bar Association through President and others (supra) lead to a similar conclusion. A plain reading of Article 194 of the Constitution of 1973 referred to above would suggests that a person can only enter the Office of a Judge when he makes Oath in the manner set out in the Constitution of 1973. In the Const.P.39 of 2016 25 absence of such an Oath, the person has not entered the Office of a Judge and his appointment thereto does not stand completed and concluded. In the afore-quoted judgment i.e. Supreme Court Bar Association through President and others (supra) making of an Oath has been referred to as the “final stage” of an appointment. The aforesaid comes into a sharper focus when examined in the context of the contentions raised by the learned counsel reproduced at page 970 of the judgment in the case reported as Supreme Court Bar Association through President and others (supra), where it was canvassed that the appointment of a Judge consists of five stages commencing with the recommendation with final stage the making by the Oath of Office. 30. There is also another aspect of the matter, which is highlighted by the choice of words used in Article 194 of the Constitution of 1973 that a person enters the Office of a Judge or an Additional Judge upon making the prescribed Oath. The said provision would imply that till such Oath is made the person has not entered the Office of a Judge, which Office, thus, remains vacant. Const.P.39 of 2016 26 31. The aforesaid becomes even more obvious when Article 194 of the Constitution of 1973 is examined in the context of the observations made in paragraph 31 of the judgment in the case reported as Supreme Court Bar Association through President and others (supra) reproduced herein above. It is apparent from the observations highlighted that there was a legal possibility of withdrawal of a Notification for appointing a Judge prior to his taking the Oath. Article 209 of the Constitution of 1973 protects the tenure of Office of a Judge, including an Additional Judge who could only be removed through the Supreme Judicial Council or by lapse of time. If after issuance of a Notification the person mentioned therein was in law a Judge, there could be no possibility of withdrawal of the said Notification in view of Article 209 of the Constitution of 1973, which leaves no manner of doubt that a person is not, in fact, or in law a Judge until and unless he makes his Oath in terms of Article 194 of the Constitution of 1973 i.e. the “final stage” of his appointment. In view of the above, the attempt of the learned counsel for the Petitioner to assert that by employing the word “Judge” in Article 194 of the Constitution of 1973 a Const.P.39 of 2016 27 person becomes a Judge prior to making an Oath looses its steam and stands bereft of any force. 32. The aforesaid judgment i.e. Supreme Court Bar Association through President and others (supra) was passed prior to the 18th Constitutional Amendment and incorporation of Article 175A in the Constitution of 1973 but such subsequent amendments do not detract from the essential interpretation that the appointment of Judges to a Superior Court is only completed and takes effect when such Judge makes his Oath in the manner prescribed in the Constitution of 1973. 33. At this juncture, it would be appropriate to advert the contentions of the learned counsel for the Petitioner that failure to take Oath may deprive a person of certain rights but not the Office itself. Incidentally, the judgment, in this behalf, to the Indian Supreme Court pertains to an elected Office i.e. of a punchiat. In our Constitution, similar jurisprudential concept is catered for in Article 65 of the Constitution of 1973, which is reproduced hereunder: “65. A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule.” (emphasis supplied) Const.P.39 of 2016 28 The intention of the framers of the Constitution of 1973 is rather obvious, a person elected to the House of the Parliament, in the absence of an Oath cannot sit or vote but it does not suggest that such an Oath is a sine qua non for being considered as an elected Member. 34. The choice of words employed and the context in which they occur are different and distinct from those of Article 194 of the Constitution of 1973 and cannot be transposed into the chapter pertaining to the judicator. 35. Various other Offices catered for in our Constitution of 1973 are for a fixed tenor and also require the making of an Oath. Thus, in addition to the Office of an Additional Judge of the High Court, other Offices are also held for a fixed period under the Constitution of 1973. In each and everyone of such situation, the period commences from the date when the Oath is made. Reference, in this behalf, may be made to the tenure of Office of the Auditor General of Pakistan (Article 168(2) and (3) and the Office of the Chief Election Commissioner and the Members of the Election Commission (See Article 215 of the Constitution). Thus, it is also the scheme of the Constitution of 1973 that where an Office for a fixed period envisages a Const.P.39 of 2016 29 pre-condition of making an Oath, such period would commence under our Constitutional dispensation from the date when the Oath is made. 36. An overview of the aforesaid leaves no manner of doubt that in terms of appointment by the President of Pakistan as admittedly reflected faithfully in the Notification dated 17.02.2010, the persons mentioned therein stood appointed as the Additional Judges of the Lahore High Court with effect from the date when they make their Oaths in accordance with the Oath prescribed. Such an interpretation not only flows from a plain reading of the Notification but also is in consonance with the provisions of the Constitution of 1973 and the judgment of this Court designating the making of Oath as the final stage of appointment. Furthermore, until such an Oath is made, the person does not enter into the Office of an Additional Judge, which remains vacant. Furthermore, an interpretation that the appointment of an Additional Judge commences from the date when he makes an Oath is also in accordance with the scheme of the Constitution of 1973, as is apparent from the various Articles of the Constitution of 1973 pertaining thereto, referred to above. Const.P.39 of 2016 30 37. In the case reported as Muhammad Aslam Awan and others (supra), it has been conclusively held by this Court that the commencement date for determination of the seniority of the Judges of the High Courts is the date on which he was appointed as Additional Judges of such High Court. In the concurring additional note my learned brother, Asif Saeed Khan Khosa, J., has also observed that inter se seniority of the Judges would be determined from the date on which they make Oath as the Additional Judges of the High Court. It is an admitted fact that the Petitioner made his Oath on the 20th of February, 2010, while the private contesting Respondents made their Oaths on 19th of February, 2010, hence, by Applying the aforesaid principles to the case at hand, the said Respondents are senior to the Petitioner having been appointed earlier as has been correctly held by way of the impugned judgment. 38. The learned counsel for the Petitioner also objected to the impugned judgment on the ground that the Chief Justice of the Lahore High Court had become functus officio and the private Respondents, even Const.P.39 of 2016 31 otherwise, lost their rights to agitate the matter on the ground of waiver and acquiescence. 39. The forum of final adjudication of disputes pertaining to inter se seniority the Judges of the Superior Courts has not been set forth in the Constitution of 1973 or any law promulgated thereunder. Such a forum was identified with clarity by this Court in the judgment reported as Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 (PLD 2013 SC 279) wherein it was held that such inter se seniority would first be decided by the Chief Justice concerned and thereafter by a competent judicial forum. In this context, the contentions raised on behalf of the learned counsel for the Respondents that upon such final crystallization they re-agitated the matter of their seniority before the Chief Justice of the Lahore High Court is not without force. 40. No doubt, the matter was earlier raised before the Chief Justice of the Lahore High Court. However, the then Chief Justice Khawaja Imtiaz Ahmed, (as he then was) declined to decide the matter. Thus, it cannot be said that the impugned judgment is a review of the said Order. Even otherwise, final adjudication of such Const.P.39 of 2016 32 disputes is through a judicial adjudication as is being finally decided by this Court through the instant proceedings. It is also a matter of record that the time of making of the Oath in February, 2010, no order was passed by the then Chief Justice fixing the inter se seniority with the consent of the parties. No such document has been placed before us or otherwise identified so as to bar or preclude the private Respondents from asserting their claim of seniority. Furthermore, it is settled law that acquiescence is a specie of estoppel. It is equally settled law that there can be no estoppel against law much less or the Constitution as is apparent from the judgments of this Court reported as Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486), Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another (PLD 1995 SC 66), Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161), Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) and Zarai Taraqiati Bank Const.P.39 of 2016 33 Limited and others v. Said Rehman and others (2013 SCMR 642). 41. The Petitioner is relying upon the Rosters and the Seniority Lists periodically issued in violation of the law as laid down by this Court. He is thus attempting to claim permanent rights on the basis of an illegality or illegal orders which too is not permissible in view of the law laid down by this Court in the judgments reported as The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907), Bashir Ahmed and others v. Deputy District Education Officer (M) and others (2005 SCMR 1040), Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others (2005 SCMR 1814), and Muhammad Nadeem Arif and others v. Inspector- General of Police, Punjab, Lahore and others (2011 SCMR 408). In view of the foregoing, there was no legal bar prohibiting the Respondents from agitating the matter before the Chief Justice of the High Court, which Const.P.39 of 2016 34 culminated in the judgment in their favour which is impugned before us. At this juncture, reference to Article 255 sub-article (2) of the Constitution of 1973 may be appropriate. The said provision caters for a situation where it is impracticable to make an Oath before a person specified, in this behalf, in the Constitution of 1973. In an eventuality the Oath can be made before another person duly authorized under the said sub-article. This course of action was not adopted in the instant case. However, we may add, in the past, Article 255(2) of the Constitution of 1973 has been pressed into service for making of Oaths by the Superior Court Judges. However, such occasions were not our finest hours. 42. Before parting, we may also add that every effort has to be made to ensure that all the persons appointed make their Oath together subject to unforeseen circumstances. However, no discussion, in this behalf, is vested with the Chief Justice to take Oaths in batches so as to artificial grant seniority to some Judge over other Judges. Such a course of action would be devoid of bona fide and hence, of jurisdiction and therefore justiceable. Const.P.39 of 2016 35 43. The aforesaid are the reasons of our short Order of even date, which is reproduced herein below: “For the reasons to be recorded later, this petition is dismissed.” Judge Judge Judge Islamabad, the Judge 18th October, 2018 Judge ‘APPROVED FOR REPORTING’ Mahtab & Safdar/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Syed Mansoor Ali Shah Constitution Petition No. 39 of 2019 (Against Extension of Tenure of Chief of Army Staff) The Jurists Foundation through its Chairman …Petitioner versus Federal Government through Secretary Ministry of Defence, etc. …Respondents For the petitioner: Nemo. For the respondents: Mr. Anwar Mansoor Khan, Attorney- General for Pakistan Mian Asghar Ali, Deputy Attorney- General for Pakistan Date of hearing: 26.11.2019 ORDER Asif Saeed Khan Khosa, CJ.: The Court-Associate has produced before us a handwritten application statedly submitted by the petitioner seeking permission to withdraw this petition. The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily. Be that as it may Constitution Petition No. 39 of 2019 2 the petition in hand invokes Article 184(3) of the Constitution and the subject matter of the petition involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition. The application attributed to the petitioner is, therefore, not entertained. 2. The learned Attorney-General for Pakistan is in attendance on his own and he has presented before us photocopies of many documents leading to an order passed by the President approving the summary sent to him by the Prime Minister along with his advice for extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff for a fresh term of three years in that office after expiry of his first term in that office. With the assistance of the learned Attorney-General for Pakistan we have gone through the said documents and have ex facie noticed the following things: i) A summary had initially been moved by the Ministry of Defence for extension of the term of office of the Chief of the Army Staff and subsequently he was appointed as Chief of the Army Staff for a second term of three years after completion of his first term in that office but the learned Attorney-General for Pakistan has not been able to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his re- appointment to that office after completion of his first term. ii) In the case in hand the Prime Minister had himself passed an order appointing the current Chief of the Army Staff for a second term in that office on 19.08.2019 whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office. Apparently that mistake came to notice straightaway and on the same day, i.e. 19.08.2019 a summary was moved from the Prime Minister’s office to the President for extension/re- appointment of the incumbent Chief of the Army Staff and on that very day, i.e. 19.08.2019 the President was pleased to approve the summary in that regard and, hence, the advice of the Prime Minister was apparently accepted and acted upon. It appears that even that process was found to be flawed and on that very day it was realized that the Prime Minister or the President could not take the above mentioned actions without the Constitution Petition No. 39 of 2019 3 approval of the Cabinet and, thus, on the next day, i.e. 20.08.2019 a summary was moved in the relevant regard for approval of the Cabinet and on 21.08.2019 the Cabinet was said to have approved the said proposal through circulation. The opinion of the Cabinet recorded in this regard, photocopies whereof have been produced before us, shows that there are 25 members of the Cabinet and out of those 25 members only 11 had agreed to the proposal which shows that the majority of the Cabinet had not approved the said proposal. Yet another peculiar aspect is that after the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President respectively. iii) After our repeated queries the learned Attorney-General for Pakistan has referred to Regulation No. 255 of the Army Regulations (Rules) according to which a retirement of an Army officer can temporarily be suspended or limited. By placing reliance upon the said Regulation the learned Attorney-General for Pakistan has maintained that the Federal Government has the requisite authority to re-appoint or extend the services of an incumbent Chief of the Army Staff prior to his retirement if the exigencies of the service so require or the public interest so demands. A bare perusal of Regulation No. 255, however, prima facie shows that the said provision can be invoked after an officer has already retired from service and that is why the said Regulation speaks of suspension of retirement or limiting of retirement. Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse. The learned Attorney-General for Pakistan has, however, very candidly submitted before us that in the entire body of laws pertaining to the Pakistan Army there is no express provision available regarding re-appointment or extension in the service of a Chief of the Army Staff. iv) The stated purpose for the proposed re- appointment/extension in the term of office of the incumbent Chief of the Army Staff is “regional security environment”. The said words are quite vague and if at all there is any regional security threat then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual’s role in that regard may be minimal. If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason. 3. The points noted above call for a detailed examination of the matter of extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff and, therefore, he is hereby made a respondent to this petition and the office is directed to carry out the necessary addition in the memorandum of this petition. Let notice of this petition be issued to all the respondents for Constitution Petition No. 39 of 2019 4 tomorrow, i.e. 27.11.2019, as requested by the learned Attorney- General for Pakistan. In the meanwhile the operation of the impugned order/Notification in respect of extension/re- appointment of General Qamar Javed Bajwa, Chief of the Army Staff for another term in the said office shall remain suspended. Chief Justice Judge Judge Islamabad 26.11.2019 Not approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, C.J. Mr. Justice Muhammad Sair Ali Mr. Justice Khalil-ur-Rehman Ramday CONSTITUTION PETITION NO.03 OF 2011 Independent Music Group SMC (PVT) Ltd. and another …Petitioners. Versus Federation of Pakistan and others …Respondents For the petitioner(s): Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Mehmood A. Sheikh, AOR For respondent(s) No.2: Mr. Salman Akram Raja, ASC For respondent No.4-5: Mr. Raza Kazim, Sr. ASC Mr. M. S. Khattak, AOR Respondents No.1 & 3: N.R. For applicant in CMA 222/11: Mr. Irfan Qadir, ASC Date of hearing 24.1.2011 ORDER This is a petition under Article 184(3) of the Constitution which is accompanied by a Civil Miscellaneous Application for grant of interim relief. 2. Mr. Muhammad Akram Sheikh, the learned senior ASC appearing for the petitioners submits that the first petitioner had entered into a Licence Agreement for Media Rights dated June 05, 2009 with ESPN (Mauritius) Limited (hereinafter called ‘the EML’) whereby the first petitioner had secured the Rights to broadcast ICC cricket events on cable and digital satellite broadcast platforms within the territory of Pakistan which included the ICC Cricket World Cup to be held in March, 2011. It was further submitted that through separate agreements executed between the first petitioner and the Const.P.3/2011 2 International Media Corporation FZLLC, a Free Zone Limited Liability Company incorporated in Dubai and with the second petitioner GEO SUPER was to air the said cricketing event. The first petitioner consequently approached the Sindh Regional Office of the PEMRA for issuing necessary directions to the Cable Operators/MMDS distributors. The request so made by the first petitioner was allowed through a communication dated December 22, 2010 which is reproduced hereunder: - “PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY SINDH REGION GOVERNMENT OF PAKISTAN No.1(01)PEMRA-KHI/REGM-MISC/2491 December 22,2010 ALL CABLE TV OPERATORS/MMDS DISTRIBUTORS CIRCULAR Subject: DISTRIBUTION OF “ICC CRICKET WORLD CUP 2011” This is to inform that ESPN (Mauritius) Limited has licensed the rights for the subject event to M/s Independent Music Group SMC (Pvt.) Limited (Geo TV Network) on an exclusive basis for cable and satellite transmission on a live basis within Pakistan. The event is scheduled to be telecast on ‘Geo Super’ from 19th February 2011 to 02nd April, 2011. All cable TV operators/MMDS distributors are therefore, intimated that unauthorized distribution of the event through any satellite TV channel other than “Geo Super” shall invoke strict legal action, under PEMRA Ordinance and rules/regulations made there under, for infringement of the legal rights acquired by M/s Independent Music Group SMC (Pvt.) Limited.” 3. All concerned appeared to have felt satisfied with the above-quoted communication as no one, including the respondent Pakistan Television Corporation and the two petitioners, never voiced Const.P.3/2011 3 any grievance nor agitated against the issuance of the above-quoted directions. 4. The two petitioners, however, claimed to have been shocked by the issuance of a letter by the respondent PEMRA dated 10.01.2011 whereby the above-quoted letter dated 22.12.2010 was withdrawn and it was to question the said subsequent letter dated 10.01.2011 that the petitioners felt compelled to approach this Court through this petition for redress of their grievance. It was submitted that the impugned action/conduct of the respondent PEMRA was a gross infringement of fundamental rights which stood guaranteed not only to the two petitioners but even to the public at large; that the same was an act calculated to cause, inter-alia, huge un-bearable financial losses to the two petitioners; that respondents No.3 to 5 were obliged not to infringe the copy rights of the two petitioners nor to allow infringement thereof by anyone else and further that the impugned action appeared to be rooted in malice. 5. Mr. Salman Akram Raja, the learned counsel for the PEMRA, who appeared on caveat, vehemently argued for the dismissal of this petition contending that the above-quoted communication dated December 22,2010 had been unauthorizedly issued by the Regional General Manager, PEMRA which was also violative of the relevant law regulating the subject and it was for the said reasons that the same had been withdrawn. On our query, the learned ASC submitted that a letter had been issued to the said General Manager on 11.01.2011 seeking his explanation about issuance of the said communication. A copy of the said letter was placed on our record which had commanded the said Manager to submit his explanation within seven days. Today, however, happens to be the 13th day but neither the explanation submitted by the said Regional Manager was Const.P.3/2011 4 placed before us nor could it be shown that any disciplinary action had been initiated against him for issuing the said communication which was being vociferously condemned by the learned counsel as a display of gross illegality and misconduct on the part of the said officer. 6. Mr. Raza Kazim, the learned senior ASC appearing for the respondent PTV submitted that the said letter dated 22.12.2010 had been issued by a regional office of the PEMRA and not by the PEMRA itself. He, however, conceded that petitioner No.1 had been granted the broadcasting rights for airing the ICC Cricket World Cup, 2011 but added that the respondent PTV had the terrestrial broadcasting rights of the said tournament. He added that once the PTV broadcasted the event exercising its said terrestrial rights then it had no control over the same which broadcast could then be caught up by any person including the Cable Operators which Operators could then air the same and that the said operators were under the control of PEMRA and not of the PTV.. He, however, further conceded on our query that the PTV had not raised any grievance against the above-mentioned letter dated 22.12.2010 nor had it approached any forum including the PEMRA to agitate against the same or for its recall. 7. Mr. Irfan Qadir, learned ASC has entered appearance and submits that he had filed an application on behalf of the Collective Bargaining Agent of the PTV to become a party to this lis. Let notice of the same be issued to all the parties to this petition. 8. Having heard the learned counsel for the petitioners, the PEMRA and for the PTV, we are, prima-facie, of the opinion that the first petitioner was possessed of the requisite Rights to air the cricketing event in question i.e. the ICC Cricket World Cup, 2011 which had been secured by it from the ESPN (Mauritius) Limited and was, through the Const.P.3/2011 5 second petitioner and others entitled to air the same through GEO SUPER. We further find, again least prima-facie, that the PEMRA having issued the communication dated December 22,2010 had no lawful authority to withdraw the same and more so without notice to the petitioners especially when the petitioners had already made preparations and had even incurred liabilities with respect to the broadcasting of the ICC Cricket World Cup, 2011. Therefore, pending decision of this petition, the operation of the letter dated 10.01.2011 issued by the PEMRA is suspended as a consequence whereof the operation of the letter dated 22.12.2010 is restored with direction to the PEMRA to implement the same in letter and spirit. 9. Let notice of this petition issue to the un-represented respondents. Chief Justice Judge Judge Islamabad, the 24th January, 2011 Nisar*/

                                                        2                                               69                                                    "     (Premble)                        "   (embodiment)         "                                  3                                                                                                                                              1          (PLD 2012 SC 466, Para 34)                                                             4                                                                                                                                                                                                  51                                                                                     5           (Executive)         2            190                              190                 "                                                              204                                                               63(1)(g)                                      63                   204  63,190                                                              6                               204                                                                             3                            7                                                                                          "                                                                          "                             25                                                                                                                                                                      8 4                                       "                                               (PLD 2011 SC 407)                             9                                                                                                                                                                                     2010  (g)    63(1)        10                                                                5                                       63(1)(g)                                                       11              (Dicey)                                                           )                     [(2005) UKHL 560]                                                     6 7 8 9 10

        28  251   1      "   "      5         2   "   "          "   "           "   "     2009  22                                   52                    20086    "   "  3   "   "                                            2009  22                       "   "                              3(4)        2002        competence   integrity                                         33              "   "                 4                                                               "   "                                     5                                         3(4)           184(3)                                          "   "           mala fide                 184(3)           199                        34       184(3)           6                     184(3)                                             2011   8ICA   2011   139                                                                                          184(3)     7                     184(3)                                8         "   "                                                     "   "       "   "     "   "   2002          Unaccounted For Gas     (SNGPL)        35   7.57   (SSGCL)   8.19  ('UFG') Losses 8.05            "   "     2007-08      11.21                   9.43   2010-11    6.63   150.9   2003                2008-09  MMBTU   221.72   2007-08    MMBTU     343.63   2010-11    289.96       297.40   2009-10  MMBTU   143.62   2003     tariff            336.82   2010-11            "   "   8  7             2009                  "   "    mala fide             9 "   "                             184(3)              2006 SC 394                          10     (Judicial Review)                11                   36       Executive                 "   "                                        12   1947                                                                                  1954                          13                                                                            14                                       2010 SCMR 1301)      SMC 24 of 2010                     15 37                                                                                                                                          "    "  16                            (good governance)      17                          "   "      18                     "   "                                            19                              "   "  20                     38                                           21                                                               22           objective                                                "   "                       (trichotomy of powers)     23                                                        5(2)              24        "   "      3(4)        "(4). The Chairman shall be an eminent professional of known integrity and competence with a minimum of twenty years of related experience in law, business, engineering, 39 finance, accounting, economics, petroleum, technology, public administration or management."         /                       20                3(4)                      3(4)   25                       "1. Highly qualified, preferably post-graduate, from an internationally recognized institution. Competent professional of known integrity, with a minimum of 20 years experience related to Law Business, Engineering, Finance, Accounting, Economics, Petroleum, Technolology, Public Administration or Management. 2. Knowledge of corporate restructuring, privatization and investment planning. 3. Track record of senior level policy and strategy formulation. 4. Professioal experience of public utility sector regulation."    15              88                                             (selection)                                73     40               26                            (expert in the relevent field)                                                            27                           92             28           23                      17      17      23                          2009   20                   17    CSS               4                 (summary)     29                  (fresh)                           41                 30                                  "   "       (LL.M)               "     "          31    AUL      ('AUL')     AUL           2003  "AUL Graduate School of Advanced Studies Ltd."        AUL    "   "    Trade Description     AUL                      Business Names Act  Act            AUL           "     (www.islington.gov.uk)                       "             CV                           CV             32        17          51                       AUL     33 42    AUL                  (ICBAE)                  2007     AUL      AUL              CV              CV                                                                                   3(4)   "   "                34      15             "   "                                                   52                                   35              "   "                                                                                43                                                                                                                     "   "       36                void ab initio              "   "     2009  22                                          2009  22                     NAB      44         i                    ii                   iii      NAB       45      NAB     45      45

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J. MR. JUSTICE GHULAM RABBANI CONSTITUTION PETITION NO. 43 OF 2009 (Petition under Article 184(3) of the Constitution against molestation and humiliation of Eunuch and Restoration their fundamental Rights) Dr. Mohammad Aslam Khaki & another …. Petitioners Versus Senior Superintendant of Police (Operation) Rawalpindi & others …. Respondents For the Petitioner Petitioner in person with Almas Bobi, President Shemale Rights of Pakistan For the Federation Mr. Mujtaba Haider Sherazi, D.A.G. Mr. M. S. Khattak, AOR Mr. Haroon Joyia, SP City Islamabad Mr. Azhar Hussain Shah, DSP Legal Mr. Sajid Abbas, Inspector Legal For Govt. of Balochistan Mr. Muhammad Azam Khattak, Addl.AG Mr. Abdullah Baloch, Director (S.W.) For Govt. of KPK Syed Arshad Hussain Shah, Addl. AG For Govt. of Punjab Ch. Khadim Hussain Qaiser, Addl. AG Qazi Zahoorul Haq, EDO (Edu.) Mr. Irshad Ahmad, S.O. (S&GAD) Mr. Muhammad Shahid Rana, D.O.(S.W) Mr. Israr Ahmad Khan, SP, (Pothohar) Raja Akhtar, D.S.P Taxila Mr. Muhammad Yar, SHO Taxila For Govt. of Sindh Mr. Miran Muhammad Shah, Addl. A.G. Raja Abdul Ghafoor, AOR Date of hearing 22.3.2011 O R D E R Const.P. 43/2009 2 IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- Petitioner in person states that Chairman and Deputy Chairman of NADRA in compliance with directions of this Court have shown significant progress to resolve the issue of recording parentage and sex of the eunuchs and deliberations in this behalf are under consideration. A report has also been received from NADRA. We do appreciate for making efforts to resolve the problems of eunuchs about their identity. Essentially it is an important issue and we are hopeful that the Chairman NADRA on account of his sincere commitments and efforts shall be in a position to ensure that eunuchs are provided National Identity Cards so their status in the society is recognized and on account of showing sincere efforts we hereby observe that all concerned functionaries should extend cooperation to them. 2. Needless to observe that eunuchs in their own rights are citizens of this country and subject to the Constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations including right to life and dignity are equally protected. Thus no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned. The Government functionaries both at Federal and Provincial levels are bound to provide them protection of life and property and secure their dignity as well, as is done in case of other citizens. 3. Similarly, Federal and Provincial Governments are equally responsible to recognize their rights. The efforts so far made in this behalf on the part of the Governments of KPK, Punjab and Sindh are, however, appreciated and we expect that Government of Const.P. 43/2009 3 Balochistan would also protect the life and property as well as the dignity of the eunuchs accordingly. 4. It is true that some progress has been made but the Provincial Governments through the Secretaries Social Works Department are required to make more efforts to implement the directions of this Court contained in the orders dated 17.8.2009 and 23.12.2009. Copies of these orders be dispatched to them as well as the Commissioner Islamabad and to the Ministry of Social Welfare & Special Education, Government of Pakistan for implementation and report on the next date of hearing. 5. It has been noticed that whatever the complaints are registered for and against the eunuchs the same with action taken thereon are not intimated by the police to the Registrar of this Court. Direction so contained in the order dated 17.08.2009 be repeated to all the PPOs and the I.G. Police, Islamabad for compliance in letter and spirit. 6. While hearing this case it has been noticed that there is some gap of communication between the administration and the eunuchs perhaps for the reason that they have no representation or they do not have a focal person, therefore, Secretaries Social Welfare and Special Education, Islamabad, may adopt a strategy to appoint one or more than one focal person amongst them who may interact with the administration. 7. In the orders noted above we have pointed out for initiating process to locate the ascendants (parentage) of the eunuchs with a view that if the latter have any right of inheritance in moveable and immoveable properties, they should get the same according to law Const.P. 43/2009 4 but it seems that no progress has been made in this behalf so far. Secretaries Social Welfare of all the provinces and Commissioner Islamabad who have already registered the eunuchs may seriously look into this aspect of the case and make efforts to ensure that their rights in the property as are devolved on them according to law, are fully protected. 8. Petitioner contends that after passing the orders a significant progress has begun to take place and social status of the eunuchs is being gradually recognized yet due to lack of awareness/knowledge/ideas and information about the rights and obligations concerning the eunuchs not conveyed in every nook and corner, they are not getting what is actually due to them, therefore, NGOs should come forward to disseminate the same appropriately. In this, it is however, observed that this is for the petitioner to interact with NGOs for the purpose because this Court is only interested, as it has been pointed out time and again, that in terms of Article 184(3) of the Constitution the fundamental rights of the eunuchs are to be fully protected. 9. Let the case be adjourned for a period of four weeks for further proceedings and the reports shall be submitted before the next date of hearing enabling the Court to go through the same to save the time. Chief Justice Judge Islamabad 22.03.2011 Zulfiqar

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Khalil-ur-Rehman Ramday CONSTITUTION PETITIONS NO.46 & 47 OF 2010 Dr. Shahid Masood. …in Const.P.46/2010 Muhammad Farhan etc. …in Const.P.47/2010 …PETITIONERS. VERSUS Federation of Pakistan and others. …RESPONDENTS. (in both petitions) … For the petitioners: Mr. Muhammad Akram Sheikh, Sr. ASC. a/w petitioner. On Court’s notice: Maulvi Anwar-ul-Haq, Attorney General. Mr. Agha Tariq Mehmood, DAG. Ch. Qamar Zaman, Secy. M/o Interior. Mansoor Sohail, Act. Secy. Information. Mushtaq Malik, Chairman, PEMRA. Nayyar Nasir Hayat, Legal Advisor & Irfan, D.G. (License). Date of hearing: 13.08.2010. … ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- These two petitions, one filed by the President of ARY Digital Network and the other by some members of the public who claim to be keen viewers of News Channels, especially GEO News, invoke the extra-ordinary jurisdiction of this Court under Article 184(3) of the Constitution; complain of a breach of the Fundamental Rights guaranteed not only to them but also to the public at large caused by the respondents Const. Petitions No.46 & 47/2010 -: 2 :- through closure and suspension of broadcasting and transmission of at least two T.V. Channels i.e. ARY and GEO.. It was further complained that it had been so done by the respondent licensed T.V. Cable Operators, at the instance of and in collusion with some of the other respondents for reasons which were motivated by personal malice and for extra-legal reasons. 2. Having heard Mr. Muhammad Akram Sheikh, the learned Sr. ASC appearing for the petitioners, we directed appearance of the Chairman of the Pakistan Electronic Media Regulatory Authority (hereinafter called the PEMRA), the Secretary of the Ministry of Information and the Interior Secretary of Pakistan. Notice was also issued to the learned Attorney General to be of assistance in the matter. 3. On entering appearance, the said Chairman denied any closure or blockade of the distribution of the said two T.V. channels and submitted that both the said channels were being aired without any obstruction or hindrance. The said claim of the Chairman was immediately repudiated; controverted and contradicted by Mr. Muhammad Akram Sheikh, Sr. ASC whereupon the Chairman changed his stance to say that no one had brought any denial of distribution service in question to his notice. He was then confronted with the fact that dis-continuance and blockade of transmission of the broadcast of these two channels had hit the media headlines not only nationally but had even evoked reaction of the international community and how was it that being the Regulator of the electronic media, he was ignorant of such an act on the part of the T.V. cable operators. At the said stage, the Chairman Const. Petitions No.46 & 47/2010 -: 3 :- submitted that he was aware of the matter and had in fact issued show cause notices to four T.V. cable operators, namely, M/s City Communications, M/s Worldcall Telecom Limited Broadband, M/s Karachi Cable Service and M/s Media Plus Communications on August 9, 2010 and which exercise had then been repeated on August 10, 2010. Copies of these alleged show cause notices were placed before us which were almost identical in content and, therefore, the contents of only one of them issued to M/s City Communication are being reproduced hereunder:- “It has come to the notice of the Authority that M/s City Communication have suspended/stopped the distribution of PEMRA Licensed channels namely “GEO News” and ARY News” on its network in sheer contravention to the PEMRA laws and your license terms and conditions which were duly agreed and signed by you. 2. M/s City Communication are therefore, DIRECTED TO RESUME THE DISTRIBUTION OF “GEO NEWS” AND “ARY NEWS” ON ITS NETWORK, immediately. Failing which appropriate legal action shall be taken against you.” 4. When the Chairman was confronted with the contents of the said notice which hardly qualified as show cause notices, his submission was that according to the practice in his office, this is how a show cause notice was worded. 5. It was on being repeatedly questioned as to why he had not invoked the powers vesting in him, inter-alia, under section 30 read with section 28 or why criminal proceedings could not be initiated under section 33 of the PEMRA Ordinance of 2002, that the Const. Petitions No.46 & 47/2010 -: 4 :- Chairman of PEMRA reluctantly submitted that the T.V. cable operators in question had dis-continued the distribution service of ARY and GEO channels to the viewers because of the law and order situation obtaining in Karachi and which was continuing in the said area wherein loss/damage had been caused to the equipment and to the property etc. of the T.V. cable operators in question and wherein not only the said property but even the safety of the employees and workers of the said Operators had come under serious threat. He was then joined by the Information Secretary who added that on account of a news-item aired by the said two T.V. channels, some hooligans in Karachi had caused a law and order situation which had made it un-safe and impossible for the cable operators in question to continue airing the service of the said two T.V. channels. 6. At this stage, the written replies submitted before us by the Secretary Information of the Government of Pakistan and by the Chairman of PEMRA may also be noticed. The reply by the Information Secretary reads as under:- ? “The Government strongly believes in freedom of the press. ? No instructions explicit or implicit have been issued to any organization or individual to block the transmission of GEO and ARY. ? At the advice of the Government, PEMRA issued notices to four concerned cable operators who have blocked the transmission of GEO and ARY in Karachi. It must be pointed out that there are 235 cable operators in Karachi and overall there are more than 2500 cable operators in Pakistan who have not done so. Const. Petitions No.46 & 47/2010 -: 5 :- ? After notices by PEMRA these cable operators have reportedly restored the transmission of ARY. ? The Government will take all steps as permissible under the law in this regard. ? The compliance of the orders of the Honourable Court shall be carried out faithfully.” The relevant parts of the reply filed by the said Chairman read as under:- “That in compliance of the Hon’ble Court’s directions, PEMRA has issued show cause notices to all the concerned four cable operators i.e. M/s World Call, M/s Media Plus Communication, M/s Karachi Cable Service and M/s City Communication (copies enclosed). It has been clearly mentioned in the show cause notice if the transmission of Geo News and ARY News (although as per PEMRA’s information ARY News is already on air) is not restored immediately their licences shall be suspended/revoked. That one of the above four cable operators (M/s World Call) replied vide letter dated 11.08.10 and claimed that the transmission of Geo News was suspended on account of law and order situation in order to continue the airing of remaining TV Channels. M/s World Call also requested law protection in this regard.” 7. The Chairman PEMRA then also placed before us a copy of a letter dated August 11, 2010 addressed by the Chief Executive Officer of M/s Worldcall Telecom Ltd. to the General Manager (Legal) Const. Petitions No.46 & 47/2010 -: 6 :- of the PEMRA.. The relevant part of the said letter is re-produced hereunder:- “Foremost, we confirm that all PEMRA licensed channels, including ‘Geo News’ and ‘ARY News’ , are being distributed by Worldcall on its cable network throughout the country. However, the distribution of these two channels is suspended in Karachi temporarily in the larger interest of our company and to keep the remaining service running. WE BELIEVE THAT PEMRA IS WELL AWARE OF THE CIRCUMSTANCES WHICH ARE PREVAILING AT KARACHI VIZ. THE CABLE OPERATORS SHOWING THESE TWO CHANNELS.” (emphasis has been supplied) And it was to substantiate the said alleged fears of the Cable Operators and the PEMRA’s response thereto that Regional Manager of PEMRA addressed a letter to the Capital City Police Officer, Karachi which was purportedly written yesterday i.e. on August 12, 2010 and faxed to the said Officer at 11:17 a.m. today i.e. on 13th August, 2010 which was after the hearing of this case had commenced this morning and after the Chairman of PEMRA and others had been asked to appear before this Court. Be that as it may, the Regional General Manager of PEMRA in Karachi had requested the Chief of Karachi Police to provide appropriate police security to four Cable T.V. Networks in Karachi so that the distribution of ARY News and GEO News was not interrupted or off- aired. The four Cable T.V. Network Operators mentioned in the said communication were M/s City Communication, M/s Karachi Cable Services, M/s Media Plus Communications and M/s Worldcall Telecom Limited Broadband. Const. Petitions No.46 & 47/2010 -: 7 :- 8. It is noticeable that the above said letter of M/s Worldcall dated August 11, 2010 did not mention even a single incident or any time, date or place where such an incident involving the alleged vandalism had taken place in Karachi or elsewhere wherein any loss or damage to any equipment belonging to the said operator had got caused. This letter, however, does talk of some secret confidentialities between the PEMRA and the said Operator because the above-quoted portion of the said letter talked about PEMRA being aware of the circumstances vis-à-vis the airing of the said two channels by the cable operators. The Chairman PEMRA, for reasons known to him chose not to share the said ‘circumstances’ with this Court. We also noticed that what had been placed before us was only one letter from M/s Worldcall and no other Operator had addressed any such communication to the PEMRA or to anyone else nor had expressed any apprehensions of the kind. Even in the above-mentioned letter of August 12, 2010 sent to the Chief of Karachi Police by PEMRA, a mention had been made only of one letter of M/s Worldcall and of no other. This then established that no such apprehension had ever been shared or expressed by any other cable operator. The obvious question then was, that why those Cable Operators were denying distribution service to the said channels. The above-noticed circumstances cast doubts about the veracity of the reason being reluctantly offered by the Chairman PEMRA and the Information Secretary for the closure of transmission of the channels in question i.e. hooliganism and vandalism. Therefore, while we were hearing this case, we directed the Registrar of this Court to establish contact with the Provincial Const. Petitions No.46 & 47/2010 -: 8 :- Police Officers of Punjab and Sindh and to check up with them about any incident involving a law and order situation on account of any broadcast of any of the two channels in question which may have been reported to the Police or which may have come to their notice; any theft or loss of or damage to any property of any T.V. Cable Operator on the said account or the lodging of any F.I.R. or even a report about any such incident or apprehensions vis-à-vis the airing of the transmission of ARY News and Geo News. The Registrar established immediate contact with the said two Police Officers and submitted his report, in writing, which was read out in Court and which is reproduced hereunder:- “As per Court order, I spoke to Mr. Tariq Saleem, PPO, Punjab and Mr. Babar Khattak, PPO, Sindh to enquire as to whether any complaint has been filed and FIR registered by any Cable Operator pertaining to threats given to them or the law & order situation. The PPO, Punjab wanted time to seek information from the RPOs. After seeking such information, he reported that no complaint has been filed and as such, no FIR registered in the matter. The PPO Sindh also wanted time to get necessary information from Mr. Waseem Ahmed, CCPO, Karachi. After a short while, both the PPO and CCPO reported that no complaint has been filed and as such, no FIR registered in the matter.” 9. A bare perusal of the said report indicates that the excuse being offered for blocking the transmission of the said two channels appears to be a mere fabrication only to justify an illegal and an un-lawful act as it is not believable that if any act of Const. Petitions No.46 & 47/2010 -: 9 :- vandalism causing loss or damage to the valuable property of M/s Worldcall had occurred or any threat to the security of the allegedly invaluable equipment or to the personnel of the said organization existed then the concerned victims including the Worldcall itself would not have lodged even a simple report with the Police or would not have sought Police protection or would not have reported the matter to the PEMRA informing them of their inability to continue to provide the requisite service to the Channels in question and also to the hundreds and thousands of their subscribing viewers. 10. Before proceeding with the matter any further, it would be of advantage to notice some of the relevant provisions of the Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance of 2002. This Ordinance was enacted, inter-alia, to enlarge the choice available to the people of Pakistan in the media vis-à-vis news, current affairs and other informative, educational and entertainment programmes; to facilitate the devolution of responsibilities and powers to the gross-roots by improving the access of the people to mass media at the local level and to ensure ACCOUNTABILITY, TRANSPARENCY and GOOD GOVERNANCE by optimizing the free flow of information. An Authority (PEMRA) comprising 12 Members, to be appointed by the President, with the Chairman as its head was set up to REGULATE the establishment and operation of all broadcast media and distribution services in Pakistan. According to section 19 of the said Ordinance, no person could engage in any broadcast media or distribution service except after obtaining a license issued under the said Ordinance and the PEMRA was given the exclusive right to issue licenses for the Const. Petitions No.46 & 47/2010 -: 10 :- establishment and operation of all broadcast media and distribution services. As per the provisions of section 27 thereof it is only the PEMRA and that also through an order in writing, giving reasons therefor, which could prohibit any broadcast or distribution of any programme or news-item etc. if it was of the opinion that such a programme was likely, inter-alia, to create hatred amongst the people or was pre-judicial to the maintenance of law and order or was likely to disturb public peace and tranquility. Section 28 of the said Ordinance commanded a broadcast media or a distribution service operator not to cease or suspend broadcasting except on account of force-majeure or with the prior approval of the Authority. Section 30 empowered the PEMRA to suspend or even to revoke any license granted by it if the licensee contravened any of the provisions of the said Ordinance of 2002; any rules or regulations or the conditions of the license. The violation or the abetment of any violation of the provisions of the said Ordinance of 2002 was made punishable under section 33 of the said Ordinance which punishment could extend to imprisonment upto three years or a fine extending upto 10 million rupees or with both. Section 34 and 34-A of the said Ordinance, declare the said offences to be cognizable. 11. Such was then the importance attached to the obligations, inter-alia, cast on the Cable T.V. Network Operators offering the distribution services and the importance attached to the un-disturbed distribution of the said services by such operators. It would also be noticed from the said provisions that:- i) it was the Authority and Authority alone which could prohibit any broadcast Const. Petitions No.46 & 47/2010 -: 11 :- or any distribution thereof and that also not without an order in writing giving reasons therefor; ii) no T.V. cable operator had the authority to cease or suspend the distribution of any broadcast except for force-majeure or with the prior approval of the Authority; iii) the license of any such operator causing any interference/obstruction in the distribution of any broadcast could result in suspension or even revocation of the license granted to such an operator; and iv) such an act of interference and obstruction was also a penal offence carrying a sentence of imprisonment upto three years or a fine of rupees ten million or both and such an offence was a cognizable offence authorizing the police to arrest the accused persons without any warrant. The reason for such weight being attached to the said business is not far to find as the same stems out of the fundamental rights of freedom of speech, expression and of press as guaranteed by Article 19 of the constitution and equally importantly, if not more, the right of every citizen to have access to information in all matters of public importance as guaranteed by the recently inserted provisions of Article 19-A of the constitution. 12. Referring now to the facts and circumstances of the present case, what, prima-facie, stands established before us is that:- Const. Petitions No.46 & 47/2010 -: 12 :- i) the transmission and distribution of service of the broadcast of at least two T.V. channels i.e. GEO and ARY was ceased and blocked; ii) there was an admission on the part of M/s Worldcall Telecom Limited that the said suspension or blockade of transmission had been caused by them; iii) no such admission on the part of any other T.V. cable operator had, however, been placed before us; iv) that the Provincial Police Officers of Sindh and Punjab had certified that no report of any incident of vandalism or of theft, loss or damage to any property or to any person relating to any of the cable operators had been reported to any police officer throughout the said two Provinces nor was any assistance ever sought by anyone in the said connection; v) no cable operator including M/s Worldcall which had allegedly addressed the above-noticed communication dated 11.8.2010 to the PEMRA and that also after blocking the transmission of the channels in question, had brought any incident to the notice of the PEMRA before suspending and blocking the said transmission in question nor had any such cable operator ever sought prior approval of the PEMRA as required by section 28 of the said Ordinance before taking any such steps; vi) as has been noticed above, no incident of any vandalism, loss, damage or intimidation had ever been reported by any cable operator either to the police or even to the PEMRA before shutting down Const. Petitions No.46 & 47/2010 -: 13 :- the distribution service which they were obliged to continue to offer un- interruptedly to the channels in question and to the public which had paid therefor; and finally that vii) no order had ever been passed by the Authority in terms of section 27 of the Ordinance declaring any broadcast to be likely to create hatred amongst the people or pre-judicial to the maintenance of law and order or which was likely to disturb peace and tranquility. 13. In this view of the matter, we find that the act of the respondent Operators of the Cable T.V. Networks blocking/obstructing the transmission of ARY News and GEO News and the consequent denial of distribution service to the said Channels and to the viewers who were paying the said operators for the said service, prima-facie, was a gross violation of the terms and conditions of the licenses granted to them under sections 20 and 24 read with the provisions of sections 27 and 28 of the said Ordinance of 2002 and thus attracted penal provisions of sections 30 and 33 of the said Ordinance in respect of not only the ones committing the said violations but also those abetting the same. 14. The PEMRA must realise that the license issued by it to a T.V. Cable operator is a certification by it for all concerned that such an operator had committed and consequently stood obliged to offer un-disturbed distribution service to the broadcasters as also the viewers. And it is on the basis of the said certification by the PEMRA that on the one hand, the said broadcasters entrust the transmission of their broadcasts to these operators and on other, the Const. Petitions No.46 & 47/2010 -: 14 :- hundreds and thousands of viewers/subscribers pay their hard- earned money to the said operators to receive the said service. Therefore, besides being a legal, it is also a moral obligation of the PEMRA, through its Chairman, to ensure that the promised and the legally obligated services are provided by the operators not only to the broadcasters but also to the hundreds and thousands of the public who are paying money to the operators for the said service. Needless to add that any dereliction of duty on the part of the officials of the PEMRA including its Chairman, which appears lacking in good faith, could fall within the purview of abetment of the penal offences and the consequent punishment in terms of section 33 of the said Ordinance. 15. The role of the Chairman PEMRA in this entire episode, to say the least, does not appear to be above board. It was alleged in his face that whatever was being done, was being done at his instance. He retorted by saying that if he had so desired then the broadcasts of the channels in question would not be viewable anywhere in the world. Realising that his reaction was a display of the height of arrogance and utter disregard for law, the Chairman withdrew his said words. Be that as it may, it was admitted even before us and admitted even by the Information Secretary that the blockade and closure of the two channels in question had evoked reaction not only nationally but even internationally which had caused embarrassment to us all even as a nation. The said blockade, prima-facie, was not only a denial of duty towards the law, towards PEMRA and towards the two broadcasters, but was also a serious breach of the constitutional, legal, moral and financial obligations of Const. Petitions No.46 & 47/2010 -: 15 :- the cable operators in question to the hundreds and thousands of subscribers who had the right to information and who had paid for their right to viewership. The only reaction of PEMRA/its Chairman who are the custodians of the rights of the broadcasters and of the millions of viewers, to such a gross breach of constitutional and legal obligations on the part of the T.V. Cable operators was the above- quoted innocuous kind of a letter of August 9, 2010 allegedly issued by the Regional General Manager of PEMRA at Karachi which was allegedly followed by a reminder of August 10. 16. The said letter of August 9 is a strange, though a rather revealing communication. The distribution of the broadcast stood blocked. It is astonishing that the REGULATOR of the service, who is also the custodian of the rights of the subscribers, did not even ask the non-doer the REASON for not doing what he was obliged to do. Does it mean that the REGULATOR, as was mentioned by M/s Worldcall in their letter of August 11, knew what was going on and neither the REGULATOR nor the licensee were prepared to take any one else into confidence about this alleged conspiracy of silence. No explanation could be offered that if all what was happening, was happening, in due course without any malafides being involved, then why shouldn’t the cable operator have informed the PEMRA, in writing, of the alleged circumstances which were compelling it to discontinue distribution service to some channels and to have sought the PEMRA’s prior approval in writing to suspend service. But, conspicuously enough, not that the ‘REASONS’ for closure of service were not considered good enough to be recorded anywhere Const. Petitions No.46 & 47/2010 -: 16 :- before taking the impugned action but were not being disclosed even after the said action. 17. Having thus examined the factual, the legal and even the constitutional aspects of the matter; the factually incorrect claims being made before us and the consequent legal violations, it is ordered, for the present, as under:- i) Mushtaq Malik, the Chairman PEMRA shall ensure immediate distribution of broadcast services of PEMRA licensed channels, namely, ARY News and GEO News even if the same involves strict legal action against the delinquent cable T.V. operators, if any; ii) the Chairman of PEMRA shall personally monitor and ensure that the transmission of the broadcast of the said two channels i.e. ARY News and GEO News is continued to be aired without any hindrance or obstruction of whatever kind and shall submit a report in the said behalf on the next date of hearing under his own signatures; iii) the Provincial Police Officers of all the Provinces including Sindh and Punjab are directed to ensure that if at all any law and order situation is created which could hinder the transmission of the said two channels then they shall take immediate correctional steps including strict action, in accordance with law against any person found causing such a hindrance; iv) the Chief Secretaries of the Governments of the four Provinces shall file their written replies to these petitions Const. Petitions No.46 & 47/2010 -: 17 :- before the next date of hearing. Copies of which shall be handed over to the learned counsel for the petitioners as also to the learned Attorney General; and v) the Chairman PEMRA as also the CEOs/license holders of the four T.V. cable operators identified by the Chairman as M/s City Communications, M/s World Call Telecom Limited Broadband, M/s Karachi Cable Service and M/s Media Plus Communications who caused blockade and obstruction in distribution of the transmission of the said two channels shall appear before this Court in person on the next date of hearing and show cause why action should not be ordered to be taken against them in accordance with law. 18. To come up on August 17, 2010 for further proceedings. Chief Justice Judge ISLAMABAD, the 13th August, 2010. *Waqas Naseer*

IN THE SUPREME COURT OF PAKISTAN (Original jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Mr. Justice Gulzar Ahmed Constitution Petition No: 46 of 2013. (Application by Mr. Abdul Hakeem Khoso Advocate) And Civil Misc. Application No: 278-Q of 2013. (Application by Sardar Abdullah Jan against Mari Petroleum Company Ltd.) And Human Rights Case No: 36052-S of 2013. (Application by Abdul Ghafoor for redressal of his grievance against ENI Gas Field Jamshoro). In attendance: For the Petitioner (s): Mian Abdul Rauf, ASC (Not Present) For the Applicant (s): Mr. Anwar Mehmood Nizamani, Adv. (Not Present) Syed Iftikhar Hussain Gillani, Sr. ASC (Not Present) For the Federation: Mr. Shah Khawar, Addl. AGP (Not Present) For Govt. of Sindh: Mr. Adnan Karim Memon, Addl. Advocate General For Govt. of Balochistan: Mr. Naseer Ahmed Bangalzai, AAG (Not Present) For Govt. of Punjab: Mr. Hanif Khatana, Addl. A.G (Not Present) For Govt. of KPK: Mr. Abdul Latif Yousafzai, A.G (Not Present) Amicus Curiae: Mr. Khalid Javed Khan, AG Sindh. For M/o P & NR: Mr. Nazir Ahmad Malik, Dir (L) For M/o Finance: Mr. Muhammad Furqan Khan, Dy. Secretary Finance For SSGC: Mr. Asim Iqbal, ASC For Mari Petroleum Co.: Mr. Khaleeq Ahmed, ASC For OGDCL: Mr. Irfan Babar Khan, GM (CSR) For UEPL : Nemo Date of Hearing: 28.10.2013 (at Karachi). Const. P. 46 of 2013 2 J U D G M E N T. Jawwad S. Khawaja, J. Pakistan has been blessed with a diverse array of natural resources including mineral oil and natural gas. The people of Pakistan are the ultimate owners of such resources through their Governments and State controlled entities. The Oil and Gas Development Corporation Limited (OGDCL) which is a State enterprise and more than 25 other Companies, domestic and international, are engaged in exploration and mining of oil and gas in various districts covering in excess of 30% of the land area of Pakistan. The activities of these Companies inevitably have a disruptive effect on the populations residing in the areas where they operate. 2. The world of today is no longer one of unbridled capitalism and laissez-faire. Corporate enterprises doing business the world over are being forced to consider the impact of their activities on the immediate social and environmental surroundings, habitat and infrastructure and on the people of the areas where such enterprises operate. While Corporate Social Responsibility (CSR) may be voluntary, the Government, recognizing the importance of activities of companies in the oil and gas sector, has incorporated provisions in contracts and official policies, setting out obligations of oil Exploration and Production (E&P) Companies operating in Pakistan. The present case deals with these contractual and legally mandated obligations of E&P Companies towards the environment and the societies living in areas where these Companies are engaged in the exploration and extraction of mineral oil and gas. 3. The present case also emphasises the importance and utility of Article 184(3) of the Constitution as will be evident from the circumstances considered below. This is highlighted by the manner in which this matter has arisen and has been taken up by this Court in exercise of jurisdiction under Article 184(3) of the Constitution. 4. While it is necessary for the economic well being of the country that the natural resources and mineral wealth of the country be exploited for the public weal, it is, at the same time, necessary that the welfare of the people residing in areas where E&P Companies operate, is not adversely impacted and also that the inhabitants benefit from the economic activity resulting from such operations and from the natural/mineral resources extracted from their local areas. This Court has had an expansive approach Const. P. 46 of 2013 3 when setting the boundaries of the right to life in the celebrated judgement of Shehla Zia v. Federation of Pakistan (PLD 1994 SC 693), with later precedents highlighting the continuing expansion of this approach for which reference can be made to the cases titled General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061) and Abdul Wahab v. HBL (2013 SCMR 1383). 5. This matter has its genesis in a simple event organised by the Tando Adam Bar Association (District Sanghar). The oath taking ceremony of the elected Office bearers of the Association took place on 10.4.2013. The Chief Justice of Pakistan was invited as Chief Guest to administer the Oath of Office to such office bearers. Mr. Abdul Hakeem Khoso Advocate, President of the Tando Adam Bar Association, in his speech on the occasion said inter alia, that “our district [Sanghar] has a number of oil and gas fields and the oil exploring companies are acting in violation of law and the terms and conditions of the [petroleum concession] agreements which they executed with the Government of Pakistan whereby they are bound to control environmental pollution, provide jobs and gas facility to the local people … [and] spend specified amount[s] on the [local] infrastructure such as roads, schools, hospitals and the betterment of local people”. A copy of the speech was marked by the Chief Justice to the Human Rights Cell (HRC) of the Court, for a report which was numbered as HRC No.13371-S/2013. Comments were sought by the HRC from the Secretary, Ministry of Petroleum and Natural Resources (MPNR) and OGDCL. The comments were not found satisfactory and it was, therefore, directed that the matter be put up in Court as a petition under Article 184(3) of the Constitution. Thus the first hearing of the case took place on 19.8.2013. Thereafter, the matter was listed by the Court on various dates of hearing at Islamabad and at Karachi on 19.9.2013 and lastly on 28.10.2013 when judgment in this matter was reserved. 6. It is important to note that the Ministry of Petroleum and Natural Resources through the Director General Petroleum Concessions (DG PC) regulates and oversees the grant of permits, licenses and leases for exploration, development and production, to E&P Companies. Such licenses and leases are in respect of blocks covering specific geographical areas located in various districts. At times exploration blocks straddle the Const. P. 46 of 2013 4 boundaries of administrative districts. The MD OGDCL and DG PC first appeared in Court on 19.8.2013 and 9.9.2013 respectively in response to notices issued to them. Thereafter, a number of persons who became aware of the proceedings filed applications for being impleaded as intervenors in the case. Amongst these applicants were Sardar Abdullah Khan belonging to District Harnai (Balochistan) who sought action against Mari Gas Company, Roshan Ali of Ghotki (Sindh) and Nasir Khan Khattak, Member National Assembly from Karak (KPK). They filed applications against E&P Companies operating within their respective local areas. The primary thrust of these applications was that E&P Companies that were operating within the home districts of the applicants were failing to fulfil their contractually mandated obligations in respect of the welfare and uplift of their areas of operation. The hearings in this case have shown that these complaints are not without substance and that the Federal, Provincial and Local Governments have failed to ensure performance of the obligations of E&P Companies. 7. From the manner in which this case has arisen it is encouraging to note that public-spirited people such as Mr. Abdul Hakeem Khoso Advocate and Mr. Anwer Mehmood Nizamani Ex-President District Bar Association Sanghar had not only taken note of the adverse impact of E&P Companies active within District Sanghar but had taken the important step of bringing the matter to the attention of the Chief Justice at the oath taking in Tando Adam. The significance of Article 184(3) of the Constitution in enforcing the fundamental rights of the people all over Pakistan without the necessity of having a petitioner from each district is evident from the present case. In the ordinary course it would have been extremely difficult logistically and financially for a public- spirited resident of District Sanghar to file and pursue legal recourse in the Civil Courts or in the constitutional Courts. Even if such recourse had been taken it would have remained confined to issues relating to District Sanghar. It is only on account of Article 184(3) of the Constitution and the willingness and ability of the Court to take notice suo motu that the entire country spread over more than 105 Districts has been brought within the compass of one initiative taken by a Taluka Bar Association and then proactively dealt with by the Human Rights Cell of the Court and then in Court hearings. It should be obvious from the facts of this case that conventional methods of seeking legal redress can be grossly Const. P. 46 of 2013 5 inadequate for people without sufficient means, particularly when they may be pitted against more resourceful individuals and corporate entities. This case sums up the rationale behind Article 184(3) of the Constitution, and the wisdom and foresight of the framers who sought an egalitarian polity by equalising the ordinary citizen with those of greater resources and means, in matters of "public importance with reference to the enforcement of the Fundamental Rights" guaranteed by the Constitution. 8. Before delving into the submissions made before us during these proceedings, it is necessary to lay out the legal regime of the social welfare obligations of E&P Companies. There is a simple calculus underpinning this case which has been the reason why the Court has taken proceedings under Article 184(3) of the Constitution. Simply put, the E&P Companies operating in Pakistan are contractually obliged to make specified payments in lieu of exploration rights and privileges, as will be discussed shortly. According to a report submitted by the DG PC (CMA 6508/2013), over the years these contractual commitments of E&P Companies have amounted to many millions of US Dollars. Furthermore, as per presentation on Welfare Obligations of E&P Companies submitted by the MPNR, the total sum of royalty payable by these Companies in rupees was more than Rs.160 billion in respect of crude oil and more than Rs.293 billion in respect of gas extracted from the various districts in Pakistan in which the E&P Companies are active. These are very substantial amounts considering particularly the inadequacy of funds available to ensure even the very basic needs of the people of Pakistan such as clean drinking water and quality education. These sums, it may be reiterated, are vested beneficially in the People. It is all the more important in this context that enforcement of the contractual commitments of E&P Companies in relation to social welfare obligations etc. are properly monitored and rigorously enforced. Those responsible for ensuring fulfillment of these payment obligations including the DG PC, the Provincial and Local Governments are fiduciaries of the people in this respect and it is their duty to recover the agreed social welfare obligations and to ensure spending of the same in the most efficient and optimal manner for the benefit of the people. 9. Some of these obligations are expressed in monetary terms while others such as employment and training opportunities are specified differently. At this point, a brief Const. P. 46 of 2013 6 overview of the contractual commitment of E&P Companies can be made. As a standard practice, a Petroleum Concession Agreement (PCA) is entered into between an E&P Company and the Government, through the President of Pakistan. A PCA grants an E&P Company the licence to explore and extract oil, gas and hydrocarbons from a specified area for a specified period of time. A typical PCA contains clauses which ensure the development, capacity building and environmental protection of the area from which the E&P Company extracts oil and gas. It is clear, therefore, that E&P Companies must fulfil the social welfare obligations which they agree to in the PCA they sign with the President of Pakistan. In this respect, it is helpful to reproduce the following clauses of the Exploration Licence for a Petroleum Concession Area, which was placed on record by the learned Additional Attorney-General for Pakistan: " . . . 5) The Licencees shall simultaneously with the grant of the Licence but no later than thirty (30) days thereafter enter into a Concession Agreement with the President (of Pakistan) for the Licence Area... 6) . . . (e) The unskilled persons to be engaged as labour should be taken from the inhabitants of the area particularly where the work has to be carried out with preference to displaced landowners. Rest of the manpower will also be taken from the area if available. Locals of the area will be considered for grant of subcontracts provided their terms are competitive. (u) The forest property will not be damaged and in case damage occurs during any survey, the Licencees shall be responsible for it as per provisions of the Forest Act. (v) The Licencees will not use forest roads without permission. However, where the use of these roads is permitted, the Licencees will be responsible for proper maintenance of such roads. zb. Investment in social welfare schemes and training will be made in accordance with the provisions of the Petroleum Policy, 1997 [now 2012]. The Licencees provide the manpower requirements (Category-wise) during different phases of operation to DG PC for approval. zd. The Licencees will strictly follow the environmental protection and pollution control laws and guidelines as notified by the Government from time to time. 10. The PCA for the aforesaid area reads as under in relation to social welfare obligations: Const. P. 46 of 2013 7 29.10 The Working Interest Owners, other than the GOVERNMENT HOLDINGS, shall be required, in consultation with local administration/Provincial Governments and the Ministry, to undertake schemes of Social Welfare such as fight against narcotics, promotion of sports, rehabilitation of the mentally retarded and handicapped children, improvement of educational facilities, drinking water, health, roads, and grant of scholarships for local students and shall spend during the period prior to Commercial Production period not less than twenty thousand US Dollars (US $20000) per year. After the commencement of Commercial Production in the Area, the following minimum amounts will be spent during each year: Production Rate (BOE/day) Amount/Year (US Dollars) For all Zones Less than 2000 2000 – 5000 5000 – 10000 10000 – 50000 More than 50000 20000 40000 75000 150000 250000 These amounts will be increased from time to time by mutual agreement of the Working Interest Owner mentioned above and THE PRESIDENT. Subsequent changes in the Petroleum Policy have enhanced these financial obligations. The current policy is that announced in 2012. 11. As noted above, E&P Companies are actively exploring nearly one-third of the land area of Pakistan. In view of the vast numbers of people affected by the issues arsing herein, the case was deemed to raise matters of public importance relating directly to their fundamental rights; especially those guaranteed in Articles 9 and 14 of the Constitution. The Court sought replies and a number of reports from the MPNR, OGDCL and the DG PC. The Court also considered the applications submitted by the various parties from Harnai, Ghotki and Karak, to join the proceedings as detailed above. The conclusion arrived at by the Court was that the social welfare obligations imposed on E&P Const. P. 46 of 2013 8 Companies were not being met. To this extent the DG PC acknowledged that the concerned agencies and E&P Companies had taken these obligations casually and also that there was inadequate monitoring and enforcement to ensure that such obligations are fulfilled. 12. The stipulation of social welfare obligations is not limited to the PCAs. The learned Advocate-General Sindh, Mr. Khalid Javed Khan was requested to assist the Court as amicus curiae. He graciously accepted this responsibility and fulfilled it admirably. He also submitted his report wherein it was noted that binding social welfare obligations under the heads of social welfare, employment, training, production bonuses, marine research and royalty arose under successive petroleum policies, with the Petroleum Policy 2012 currently in the field. Furthermore, he submitted that the MPNR has issued separate guidelines for use of social welfare funds, production bonuses and marine research; and that the governments of Sindh and KPK have adopted these guidelines. The two provinces have also issued separate guidelines on production bonuses under the Petroleum Policy 2012. (These financial obligations are, for ease of reference, collectively referred to as the social welfare obligations.) 13. The Petroleum Policy 2012 prescribes different percentages for each use. Ten percent of onshore royalty is to be used “in the district where oil and gas is produced for infrastructure development”. Onshore production bonuses are to be used for “social welfare projects in and around the respective contract areas”. Social welfare funds are to be used “to give lasting benefit to the [local] communities”. Seventy five percent of the marine research and coastal area development fee is to be utilised for “coastal area development”. Employment is for Pakistani nationals and training includes “internships/scholarships and training of local inhabitants”. It may be mentioned that unlike onshore production bonuses, production bonuses from offshore areas are not specifically required to be spent on the social welfare of local inhabitants. In any event, most of the social welfare obligations contained in successive Petroleum Policies have been reflected in the PCAs. 14. Under the revised Social Welfare Guidelines issued by the DG PC dated 20.04.2009, social welfare schemes involve only the relevant MNA, DCO and the concerned E&P Company. The schemes are prepared by the E&P Company in Const. P. 46 of 2013 9 consultation with the local administration (in the context, just the District Coordination Officer), endorsed by the concerned MNA, executed by the E&P Company in coordination with the DCO, and monitored by the DCO who issues a completion certificate to the E&P company in respect of each social welfare scheme. The E&P Companies are also required to submit annual certificates from their statutory auditors showing that they have complied with social welfare obligations under the PCA and the Guidelines. During the course of hearings in this case it has become evident that either these processes are non-existent on ground or are undertaken without due care and diligence. Certification through auditors is currently not required to ensure proper utilization of funds appropriated towards a scheme. It is relevant that paragraph 6.3 of the Petroleum Policy 2012 authorises the DG PC to take “enforcement action” against any company “non-compliant with the terms of a permit, licence, lease, agreement and/or the Rules”. Enforcement, it appears, is almost non-existent. It is also quite apparent that the Social Welfare Guidelines dated 20.04.2009 are more in the nature of a suggested arrangement and do not create any institution or body within which the MNA, DCO and the E&P Company are formally supposed to perform their responsibilities. Nor do the Guidelines set out procedures for ensuring financial and implementation discipline. From the hearings in this matter, it is our view that enforcement actions need to be taken actively by the DG PC so that social welfare obligations are met in a timely manner. 15. The guidelines for utilization of marine research fee dated 14.04.2009 create a committee called the Petroleum Marine Development Committee (PMDC). The Committee consists of MNAs and MPAs of the area, the DCO, two representatives of the E&P companies, and one representative each of the DG PC, National Institute of Oceanography and Centre of Excellence in Marine Biology (CEMB) of the Karachi University. The Committee is mandated to “approve the projects” and periodically review the implementation of such projects. The DCO is exclusively responsible for collecting and managing due production bonuses directly from E&P companies and execution of the schemes approved by the PSDC. The projects are required to be executed through third parties who are in turn required to provide completion certificates endorsed by the DCO to the DG PC and E&P Company. Completed schemes are supposed to be handed over to Const. P. 46 of 2013 10 the local government. There are, in our view, certain aspects of these guidelines which may be inadequate for the purpose of ensuring optimum utilization of available funds for the maximum public good. 16. The guidelines for utilization of production bonuses dated 29.10.2009 are similar to the marine research fee guidelines. These guidelines create a Petroleum Social Development Committee (PSDC) consisting of MNAs and MPAs having their constituencies in the District, District and Tehsil/Taluka Nazims, DCO and an E&P Company representative. The PSDC is mandated to “identify, prepare and approve sustainable schemes for the benefit of the Community” and periodically review the implementation of such schemes. The DCO is exclusively responsible for collecting and managing production bonuses directly from E&P companies and for execution of the schemes approved by the PSDC. Furthermore, completed schemes are supposed to be handed over, funded, and managed by the local government. However, there is no obligation under these Guidelines on anyone to evaluate a scheme or to produce any completion certificates as to the implementation (successful or otherwise) of a welfare scheme. 17. The KPK government has issued regulations under the Petroleum Policy 2012 for utilization of onshore production bonuses. The KPK regulations are very similar to the Federal guidelines on the subject, except that the Committee to approve and review the projects replaces district and tehsil nazims with a representative of the concerned [DCO] at the District, Assistant Commissioner of concerned Tehsil and Divisional Monitoring Office (DMO) of Monitoring and Evaluation Directorate, P&D Department. The Government of KPK has also, by way of good governance, issued guidelines dated 24-3-2012 for utilisation of royalties from oil and gas in the source districts. Under these guidelines, specified schemes are meant to be executed, supervised and monitored by a committee consisting of the DCO and MPAs from the district. The schemes also require clearance from all competent forums on the pattern of ADP schemes. 18. It is also worth mentioning that Mr. Hakeem Khoso brought to light a directive issued by the Prime Minister dated 15-9-2003 which stipulated that “[t]he Prime Minister has been pleased to direct that gas be provided to villages falling in the radius of 5-KM from the gas Const. P. 46 of 2013 11 source (Zamzama Gas Field, Tehsil Johi, District Dadu, Sindh). Prime Minister was further pleased to announce that this principle would apply to all gas fields and that gas may be provided to all the surrounding localities/villages falling in the radius of 5 km of all Gas Field, on priority basis.” (emphasis added). The reply filed by the MPNR on 29.06.2013 stated that the “Prime Minister’s directives [were] pertaining to the villages in the gas producing field Zamzama District Dadu and not for those Blocks which are situated in District Sanghar”. The Ministry’s stance is a clear deviation from the express words of the Prime Minister’s directive as highlighted above. 19. From the foregoing discussion, it is apparent that the district is the basic administrative unit used for determining the entitlement to and the disbursement of social welfare obligations. There seems to be a proliferation of committees with varying memberships under different guidelines. For example, in the case of KPK, different committees and varying administrative regulations have been specified for utilization of royalty, production bonuses, and social welfare obligations, despite the fact that all three of these committees are meant to be District level and are charged with ensuring proper utilization of the funds accruing to the District on account of its petroleum resources. The geographical source and intended use of these various funds require that the same should be administered by the same body, even if these are under separate guidelines issued by separate authorities and through separate bank accounts as per the policy and contractual obligations of the Federal and Provincial governments. 20. We also note that at present there is no central database or map showing which exploration blocks fall within which revenue district and tehsil/taluka and to what extent. The DG PC however, during the hearing informed the Court that the concession blocks had been mapped onto the administrative districts where the blocks straddled district boundaries. This would enable the DG PC and concerned functionaries to determine the area falling within a District and to then ascertain the proportionate amount available for a district from one concession or block. Efficient and smooth allocation and utilization of various welfare funds payable by E&P Companies to the relevant districts require that amounts due to such districts be pre-determined (just as they are in the relevant Petroleum Policy) and are independently verifiable and centrally available. This cannot be Const. P. 46 of 2013 12 done by leaving the E&P Companies and the local inhabitants at the discretion of the DCO alone. The same consideration also applies to utilization of royalties in source districts as per the Petroleum Policy 2012. Moreover, the local inhabitants of relevant districts – the intended beneficiaries of welfare funds – have been allowed no direct participation in proposing new schemes or to object to ongoing or completed schemes. It seems all the more unreasonable that completion certificates of the welfare spending should be issued without inviting their comments. It is therefore necessary that public participation is ensured to receive and address the views of intended beneficiaries of each ongoing and completed welfare scheme. After all it is these beneficiaries who are the real owners and recipients of the benefits resulting from welfare schemes. 21. Throughout the proceedings, it became clear to us that the current framework for the administration and disbursement of social welfare obligations is inadequate. Therefore, the Court has considered aspects of the utilization of these available funds, where such utilization can be streamlined and optimized, thereby ensuring that transparency and public access to these funds is duly translated into enforcement of the fundamental rights of the People, guaranteed to them, inter alia, by Articles 9 and 14 of the Constitution and the Principles of Policy enunciated in Chapter 2 of Part II of the Constitution. Here it is appropriate to refer to a submission made by Mr. Khalid Javed Khan learned amicus curiae. He, in his capacity as Advocate General Sindh has assisted the Court in the case of toxic effluent entering Manchhar Lake and the hazards connected therewith, resulting in death of marine life, degradation of an ecosystem and harm to the life and health of the local community. The learned amicus curiae pointed out that for efforts to cleanse and detoxify Manchhar Lake, funds are required but are presently unavailable. He submitted that funds generated by social welfare obligations under PCAs could be used for such projects, considering particularly that E&P Companies are active in and around District Dadu where Manchhar Lake is located. This is just one example of the possibilities and potential for utilization of such funds for the uplift of the living standards of the population of a source district and for reducing the environmental depredation in the concerned district. Const. P. 46 of 2013 13 22. Although the preparation of appropriate guidelines is a policy matter falling within the executive domain, our examination of the present status of collection, expenditure, administration etc. of social welfare funds and the preparation of guidelines shows that this aspect of the matter has not received the requisite attention. The rights of the people in the funds generated on account of social welfare obligations have a direct nexus with the fundamental rights mentioned above. These funds have either remained unutilized or have been under-utilized or the use of these funds has not been adequately monitored to ensure evaluation of spending. As an initial measure, therefore, we direct as under:- a) The DG PC and the relevant Provincial Government shall ensure diligent collection and monitoring of social welfare obligations of E&P Companies. b) The DG PC, the relevant Provincial Government and the Local Government within the area of activities of an E&P Company shall ensure optimum utilization of social welfare funds, production bonuses and other sums such as marine research fee, as are generated on account of the contractual obligations of E&P Companies. This shall be done in an open and transparent manner by ensuring that consistent with Article 19A of the Constitution [Right to Information], the local population has available to it, all relevant information relating to such funds. c) The Provincial and Local Governments shall review the existing policy guidelines and, where necessary, make suitable amendments to ensure that as far as may be, one Committee be constituted for each district or tehsil/taluka to ensure coordinated and effective use of the aforesaid funds. Keeping in view the provisions of Article 140A, the Local Governments established in each tehsil/taluka be given due representation or a voice on such Committee in line with the said constitutional provision which requires "each Province … [to] devolve Const. P. 46 of 2013 14 political, administrative and financial responsibility and authority to the elected representatives of the Local Government". d) Guidelines may be framed by the Federal and Provincial Governments in reasonable detail so that social welfare obligations can be monitored and the expenditure of funds can be examined in an open and transparent manner. The Committee for utilization of funds should; i) ensure that the social welfare obligations of E&P Companies are fulfilled; ii) proposed schemes receive due publicity and inputs from the final recipients and beneficiaries or their representatives; iii) evaluate progress and completion of welfare schemes; iv) have public hearings for receiving local level inputs in respect of selection, completion etc. of welfare schemes. e) Once every sixth months, the DCO shall effect the publication of a notice online and in the most widely-read newspaper in the district, announcing a public hearing to solicit any comments or reservations that the inhabitants of the district in general, and the purported direct beneficiaries of the scheme in particular, may have with regard to the schemes completed, initiated, or ongoing during the preceding six months. A list of all such schemes shall be included in the public notice along with their location, budget and current status. f) Such notices for public hearings shall be sent to all district level trade organisations, chambers of commerce, Bar Associations and other prominent organisations and social welfare organisations. Notices shall also be sent to the provincial ombudsmen. Such public notices of the public hearings shall also be promptly placed on the website of the district government, if it has one. g) A report in respect of completed schemes shall be sent to the Federal and Provincial Ombudsmen and to the Human Rights Cell of this Court. Const. P. 46 of 2013 15 h) The DG PC shall prepare a comprehensive account of the amounts due to each district from the various E&P Companies operating therein under the heads of social welfare obligations, production bonuses, and, if applicable, marine research fee. The estimated figures for royalties due to each district may also be included in this account. A statement of this account shall be made within 45 days and shall be submitted in Court. The account shall be displayed in Urdu, English and regional languages on the website of the MPNR. i) The DG PC shall solicit half-yearly reports from all licence/lease holders in respect of their social welfare obligations towards the local community, including among other things, the locations, budgets and status of schemes completed, ongoing, or initiated during those six months. j) The DG PC shall use his enforcement powers under PCAs actively and diligently to seek compliance with the terms of the PCAs. k) The Ministry of Petroleum and Natural Resources shall, ensure implementation of the Prime Minister's directive of 15.09.2003 and provide gas to “all the surrounding localities/villages falling within the radius of 5km of all Gas Fields, on priority basis” as directed, in accordance with law. 23. The DG PC shall coordinate with the Provincial Chief Secretaries and/or concerned Secretaries with the object of preparing a report in line with the aforesaid directives. The report preferably should contain suggestions/recommendations which are practical and workable keeping in view the objective that the social welfare funds are duly collected and properly spent for the benefit of beneficiaries i.e. the local people in concerned districts. For the purpose of collating information/data in a readily usable form and for analysis of the same, the help of Professor Anjum Nasim, Senior Research Fellow, Institute of Development and Economic Alternatives, an experienced academic, may be sought by the DG PC. Const. P. 46 of 2013 16 24. The case shall be listed for hearing after 45 days to consider the report of the DG PC and steps taken pursuant to the aforesaid directions and for further orders if appropriate. Judge Judge Judge Announced on 27.12.2013 at LAHORE. Approved for reporting. A. Rehman. Const. P.46/2013                                            (OGDCL)                 (25)                                         2                                                                                            184(3)     3               4                                                   (PLD1998SL 693)                       (1994SCMR2061)              (2013SCMR1383)             2013   10    5                                                      Petroleum Concession Agreement/PCA                                                      13371-S/2013         (OGDCL)               184(3)       28      201219                2013   2    (DG PC)       6                                                        2013   19        (OGDCL)              20139                                                                                                                                    7                                                                                  184(3)   3                    184(3)                         105                                                            184(3)                                                   8                                                184(3)               (CMA6508/2013)     DG PC                60   (Royalty)                    93  2                                    4                                 DG PC                                 9                      (PCA)                                                                                            (30)        5         6       (c)                                 5           (u)                    (v)                         2010   1997       zb                             (zd)                (PCA)     (10     /       29.10                                            (20)     6 BOE              2,000 5,0002,000 10,0005,000 50,00010,000  50,000 20,000 40,000 75,000 150,000 250,000                             2012                 (11                               14   9        ( O G D C L )                              (DG PC)                                            (DG PC)                                   7          (PCA)   12                                                  2012                                                                                 2012   13          (10)   (Onshore Royalty)                                                                                 (PCA)                    2009   20 14            (DCO)      8      DCO         DCO            DCO            DG PC                        (PCA)                                                  (DG PC)   2012                           2009   20          DCO                              DG PC                            2009   24        15      DCO            (National Institute of Oceanography)    DG PC (Centre of Excellence in                    Marine Biology) 9                    DCO              DG PC     DCO             =                2009   29         16                  DCO                                                   DCO                                                    2012     17                       DCO                                       (DMO)             10            DCO       2012   24    ADP                  15                   18               2013       (5)                                           ( 5 )          2013   29                                            19                                                                                                            20 11                         DG PC           DG PC                                                                      2012       DCO                                                                                21                               14  9                                          12                            (PCA)                                             (policy matter)          22                                                                                   DG PC                   DG PC                             19A                                   13                  140A                                                                           i               ii             iii       iv                  DCO                                                                              14                                                              DG PC                                 (45)                                     DG PC    (6)                           DG PC   (PCA)        200315                                             (5)      15          DG PC 23                             DGPC                                                   DG PC 24  (45)     16

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CONSTITUTION PETITION NO.48 OF 2019 (Asad Ali Khan and others v. Province of Punjab through Secretary Government of Punjab and others) AND CONSTITUTION PETITION NO.7 OF 2020 (Daniyal Aziz v. Province of Punjab through Chief Secretary, Civil Secretariat, Lahore and others) AND CMA NO.6762 OF 2020 IN CIVIL APPEAL NO.20 OF 2014. (Administrator Municipal Corporation, Peshawar v. Taimur Hussain Amin and others) For the Petitioner(s): Mr. M. Nawazish Ali Pirzada, ASC Syed Rifaqat H. Shah, AOR (in Const.P.48/19) For the Respondent(s): Barrister Qasim Ali Chohan, Addl. A. G. Punjab. Ch. Abrar Ahmed, Director Law, Local Government, Punjab. (in Const.P.48/19) On Court’s Notice: Mr. Khalid Jawed Khan, Attorney General for Pakistan Mr. Sohail Mehmood, Addl. AGP. For ECP: Mr. Afnan Karim Kundi, ASC. Mr. Sajeel Sheryar Swati, ASC. Dr. Akhter Nazir, Secretary ECP. Mr. M. Arshad, D.G. Law ECP. Ms. Saima Tariq Janjua, Deputy Director, ECP. Mr. Zahid Sultan Khan Minhas, ASC. (in Const. P.07/2020) Date of Hearing: 25.03.2021. CONSTITUTION PETITION NO.48 OF 2019 etc. 2 JUDGMENT GULZAR AHMED, CJ.- Elections under the Punjab Local Government Act, 2013 (the Act of 2013) were held in phases in the year 2015-2016. Under Section 30(1) of the Act of 2013, the term of office of the local governments were provided to be five years commencing from the date on which it holds its first meeting. It is stated that first meeting under the Act of 2013 was held in January, 2017 and the local governments were to complete their term of office in January, 2022. On 30.04.2019, the Punjab Local Government Act, 2019 (the Act of 2019) was promulgated by the Provincial Assembly of Punjab. By Section 312 of the Act of 2019, the Act of 2013 was repealed. Section 3(1) of the Act of 2019 dissolved all local governments constituted or continued under the Act of 2013. Sub-Section (2) thereof provided that as soon as may be but not later than one year of the commencement of the Act of 2019, the Government shall constitute succeeding local governments in accordance with the provisions of Section 15 of the Act of 2019. Section 3(2) of the Act of 2019 was amended by the Punjab Local Government (Amendment) Act, 2020, published on 02.07.2020, by inserting the words “twenty one months” in place of “one year”. 2. The petitioners have filed these constitution petitions under Article 184(3) of the Constitution, inter alia, challenging the vires of Section 3 of the Act of 2019 on the ground that in terms of Articles 140A, 7, 17 and 32 of the CONSTITUTION PETITION NO.48 OF 2019 etc. 3 Constitution, the Provincial Government had no power to dissolve the elected local governments, whose term of office has not expired. 3. Learned counsel for the petitioners in Constitution Petition No.48 of 2019 has contended that the local governments in Punjab were elected under the Act of 2013 and they were to remain in office for five years but such period of the local governments’ was abruptly brought to an end by the promulgation of the Act of 2019. Section 3 thereof prematurely dissolved all local governments in the province of Punjab. He has contended that Section 3 of the Act of 2019 is ultra vires the Articles 140A, 7, 17 and 32 of the Constitution and relied upon the case of Mian Muhammad Nawaz Sharif vs. President of Pakistan and others (PLD 1993 SC 473). He has further contended that the term “the State” is defined in Article 7 of the Constitution and has been given meaning of the Federal Government, Majlis-e-Shoora (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. He has contended that the local government is a third tier of Government after Federal and Provincial Governments. This third tier of government was elected under the Act of 2013. The Provincial Assembly was not competent to dissolve this third tier of elected Government. In this regard learned counsel has relied upon the cases of Government of Sindh through Secretary Health Department and others vs. Dr. Nadeem Rizvi and other (2020 CONSTITUTION PETITION NO.48 OF 2019 etc. 4 SCMR 1) and Lahore Development Authority through its DG vs. Imrana Tiwana and others (2015 SCMR 1739). He has further contended that the act of the Provincial Government of dissolving local governments is demonstratively not fair as is apparent from the fact that Section 3(2) of the Act of 2019 initially provided one year for constituting of succeeding local governments but it was not done, rather the period of one year was extended to twenty one months by amending sub- Section (2) ibid but during this extended period also local governments were not constituted and even after expiry of twenty one months, there is no sign of constitution of local governments in Punjab. 4. Learned counsel for the petitioner in Constitution Petition No.7 of 2020 adopted the arguments advanced by the learned counsel for the petitioners in Constitution Petition No.48 of 2019. 5. On the other hand, learned Additional Advocate General, Punjab (AAG) has supported the Act of 2019. He has contended that the Act of 2013 was a defective law containing separate multi-tiered local governments for urban and rural areas at District level and the Act of 2019 was promulgated by the Provincial Assembly of Punjab, in order to refine the local government structure and introduce the City Government Model, where directly elected Mayor will be responsible to deliver on all interrelated Urban City Model. Learned AAG has further contended that the Provincial Assembly of Punjab is a competent legislative body in terms of CONSTITUTION PETITION NO.48 OF 2019 etc. 5 Article 140A of the Constitution in enacting the Act of 2019, repealing the Act of 2013 and dissolving the local governments. He in support of his submission has relied upon Imrana Tiwana’s case (supra). 6. Learned Attorney General for Pakistan (AGP), who has appeared on Court’s Notice, has argued that the very constitution petitions of the petitioners before this Court were not maintainable, for that, the petitioners had remedy of challenging the same under Article 199 of the Constitution before the High Court and it is not shown as to why such remedy in the first instance was not availed by the petitioners. He has referred to Article 243U of the Indian Constitution and contended that had similar Article been provided in our Constitution, Section 3 of the Act of 2019 would have been adjudged ultra vires the Constitution. He has contended that as provision similar to the Indian Constitution is not available in our Constitution, thus, Section 3 of the Act of 2019 could not be adjudged ultra vires. He has further contended that the Act of 2019 is made by the competent legislation, i.e. the Provincial Assembly of Punjab, which could not be struck down on the ground of unreasonableness. He has contended that even if Section 3 of the Act of 2019 is struck down, the only recourse available is that of holding of fresh elections of local governments in Punjab. In support of his submissions the learned AGP has relied upon the case of Federation of Pakistan and others vs. CONSTITUTION PETITION NO.48 OF 2019 etc. 6 Haji Muhammad Saifullah Khan and others (PLD 1989 Supreme Court 166). 7. As the learned AGP has raised the question of maintainability of the instant constitution petitions under Article 184(3) of the Constitution, we would decide such issue in the first place. For reference, Article 184(3) of the Constitution is as follows: - “184. Original jurisdiction of Supreme Court.- (1) … … … (2) … … … (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 I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.” 8. The Question of maintainability of the constitution petition before this Court under Article 184(3) of the Constitution has elaborately been dealt with by a 11-Member Bench of this Court in Miss Benazir Bhutto’s case (supra). In this reported case, the amendment made in the Political Parties Act 1962 being violative of Articles 17 and 25 of the Constitution besides, vires of the Freedom of Association Order, 1978 and also the constitutionality of Article 270A of the Constitution, were challenged. This Court observed as follows:- “Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of[ Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive CONSTITUTION PETITION NO.48 OF 2019 etc. 7 under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter" shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make law which take away or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention, be void. Article 199(1)(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself. Article 184(3) of the Constitution empowers the 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 a declaration as to the validity or invalidity of law in the abstract. Reference in this connection may be made to K.K. Kochunni v. State of Madras, A I R 1959 S C 725,” 9. In the case in hand also, the petitioners have raised the question of very constitutionality of Section 3 of the Act of 2019, being violative of Articles 17, 140A, 7 and 32 of the Constitution. Combined reading of these Articles shows that they have weaved the very fabric of the local government system and Article 17 ibid has provided the bedrock on which CONSTITUTION PETITION NO.48 OF 2019 etc. 8 the local government system stands or rests. Infraction of Article 17 ibid fragments and tears apart the whole local government system and the local governments established by it. Thus, the very relevance of Article 17 of the Constitution, which guarantees to the citizen fundamental right, inter alia, to form and be a member of a political party, surely raises the question of public importance with reference to the enforcement of the fundamental rights. Thus, the petitions before this Court under Article 184(3) of the Constitution will be maintainable. 10. The petitioners in Constitution Petition No.48 of the 2019 were all elected and chosen representatives of the people of Punjab in their respective local governments under the Act of 2013 and their term of office was for the period of five years. Their term of office was abruptly brought to an end by promulgation of the Act of 2019, in that, Section 3 thereof has dissolved all local governments in the province of Punjab without allowing them to run their period provided in law. The petitioner in Constitution Petition No.7 of 2020 is also a public spirited person and voter for electing local government in the province of Punjab and striving for establishment of rule of law and good governance in the Country. 11. The grievance of the petitioners is that the elected local governments, which were elected under the Act of 2013, could not have been dissolved before the expiry of their term of five years as provided by law by making provision of Section 3 in the Act of 2019. It was asserted before this Court CONSTITUTION PETITION NO.48 OF 2019 etc. 9 that such manner of dissolution of local governments is not permissible under the mandate of the Constitution, more particularly, the provisions of Articles 17, 7, 32 and 140A of the Constitution. Article 140A of the Constitution is as follows: - “140A. Local Government. Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. (2) Elections to the local governments shall be held by the Election Commission of Pakistan.” 12. The reading of the above provision of the Constitution demonstratively envisages the establishment of local government system by law to be made by the provinces. It also require devolving of political, administrative and financial responsibility and authority to the elected representatives of the local governments. Under this very provision of the Constitution, the province of Punjab has promulgated the Act of 2013 for the establishment of a local government system in province of Punjab and devolving of political, administrative and financial responsibility and authority to the elected representatives of the local governments. Election Commission of Pakistan is mandated to hold elections of local governments. Under the Act of 2013, elections of the local governments were held in the province of Punjab in phases in the years -2015-2016, as a result of which local governments in the province of Punjab were elected and by Section 30 of the Act of 2013, a local government was to remain in office for a period of five years CONSTITUTION PETITION NO.48 OF 2019 etc. 10 from the date it holds its first meeting. There is no dispute that the first meeting of the local governments in Punjab was held in January, 2017 and thus, the local governments were to remain in office until January, 2022. Section 3 of the Act of 2019 is as follows: - “3. Dissolution of existing local governments.– (1) All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIII of 2013) are hereby dissolved. (2) As soon as may be but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments in accordance with the provisions of section 15 of this Act.” Sub-Section (2) ibid provided that as soon as may be but not later than ‘one year’ of the commencement of the Act of 2019, the Government shall constitute succeeding local governments in accordance with the provisions of Section 15 of the Act of 2019. The said Sub-Section was amended by the Punjab Local Government (Amendment) Act, 2020, by inserting the words “twenty one months” in place of “one year”. It is not necessary for us to go into the implication of Section 15 of the Act of 2019, for it deals with the constitution of the local governments. 13. There is no dispute that the local government’s elections, held under the Act of 2013 in the years 2015-2016, were on political party basis. Thus, the question arises whether local governments elected under the Act of 2013 could at all be dissolved and whether the provision of Section CONSTITUTION PETITION NO.48 OF 2019 etc. 11 3 of the Act of 2019, which has dissolved the local governments, is at all ultra vires the Constitution. 14. As noted above, Article 140A of the Constitution has mandated on each province by law to establish local government system. This is a mandatory provision, which every province has to implement. In Article 7 of the Constitution, the term ‘State’ has been defined as Federal Government, Majlis-e-Shoora (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. By this very definition of the term State, the local government has been given status of a State and apparently, it is a third tier of government in the Federation of Pakistan. Article 17 of the Constitution provides for Freedom of Association and gives rights to every citizen to form associations, unions, or form or be a member of a political party. Further, Article 32 of the Constitution is part of a Principles of Policy of the State and it provides that the State shall encourage local government institutions composed of elected representatives of the area concerned and in such institutions, special representation will be given to peasants, workers and women, in the establishment of the local government system by law. Thus, Article 140A read with Articles 7, 17 and 32 are complementary to each other and work as a syntheses for the establishment and functioning of the local governments. CONSTITUTION PETITION NO.48 OF 2019 etc. 12 15. Article 32 of the Constitution, as part of Principles of Policy, although is not enforceable by Court nor it can be made basis alone for adjudging any law to be void but in making law, the State is required to be guided by the directives of the Principles of Policy and has to ensure that these directives of Principles of Policy are duly reflected in making of law, for these Principles of Policy are the pronounced objectives of the State for the socio-economic development of the citizens for the ultimate establishment of an egalitarian society. These directives Principles of Policy of the State have a place in overall working of the State, and all acts of the State organs and the functionaries of the State have to be in consonance with these directives of the Principles of Policy. No inconsistency in this regard can be made by the State or State Organs in performance of its functions. 16. Article 17 enjoins upon the citizens right to form associations, unions, or form or be a member of a political party. This is a fundamental right given to the citizen by the Constitution. The right to form or be a member of a political party, nurtures in itself principles of democracy and liberties, which inheres in itself establishment of a popular government at the level of the State. Thus, the right to form or be a member of a political party inherently implies in it right to form or be a member of a political party and to contest elections and in succeeding such elections, to hold elected office for a duration provided by law. Therefore, the local CONSTITUTION PETITION NO.48 OF 2019 etc. 13 government system established under Article 140A of the Constitution through Provincial Legislation, when translates into an elected local government for a specified period of time by law, cannot be dissolved before the period of its expiry, as such action will directly come in conflict with Article 17 of the Constitution read with Articles 140A, 7 and 32 of the Constitution. 17. There is no cavil to the proposition that Provincial Legislation is competent to make law and the Act of 2019 has been made by competent legislation. The difficulty is only with regard to Section 3 of the Act of 2019, where it brings about total dissolution of the local governments in Punjab and all elected representatives are sent home packing without allowing them to complete their term of office, which otherwise was allowed to them under the Act of 2013. 18. As noted above, the trampling of elected local governments, which has come with its mandate and with promise to the people of their constituencies, cannot be dissolved by Section 3 of the Act of 2019, for it is in direct conflict with Articles 17 read with Articles 140A, 7 and 32 of the Constitution. The dissolution of the local government has also disenfranchised the people, who have voted for their representatives in the local governments. 19. So far the Act of 2013 is concerned, though it provides for law for removal of elected representatives from the office of local government and reasons and procedure for it is also provided but the provision for very dissolution of the CONSTITUTION PETITION NO.48 OF 2019 etc. 14 local government as contained in Section 126 was omitted by the Punjab Local Government (Amendment) Act, 2017. So the power of very dissolving the local governments was not possessed by the Province in the Act of 2013. Section 233 of the Act of 2019 makes provision for suspension or dissolution of a local government and it provides for giving of reasons by the government, and manner and procedure to be adopted for this purpose. This very Section itself admits and recognizes that the local governments cannot be suspended or dissolved on mere desire of the Province. 20. Article 137 of the Constitution provides that subject to the Constitution, the Executive Authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws. At the same time, Article 8 of the Constitution, contained in Chapter 1 of Part II thereof, under the heading of Fundamental Rights, provides that any law, custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by the said Chapter, shall to the extent of such inconsistency be void and the State shall not make any law, which takes away or abridges the rights so conferred, and any law made in contravention of the said clause to the extent of such contravention be void. 21. In Mian Muhammad Nawaz Sharif’s case (supra) this Court while dealing with Article 17 of the Constitution, observed as follows: - “Accordingly, the basic right “to form or be a member of a political party” conferred by Article CONSTITUTION PETITION NO.48 OF 2019 etc. 15 17(2) comprises the right of that political party not only to form' a political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the Government if its members, elected to that body, are in possession of the requisite majority. The Government of the political party so formed must implement the programme of the political party which the electorate has mandated it to carry into effect. Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its normal tenure would, therefore, constitute an infringement of this Fundamental Right. In this connection, the interpretation of the word “operating” in Article 17(2) given by my learned brother Shafiur Rahman, J. further clarifies this aspect of the matter. He has rightly pointed out that the term “operating” includes both healthy and unhealthy operation of a political party. While Article 17 contains limitations and checks against unhealthy operation of the political party; no provision exists therein in relation to its healthy operation. However, the mere omission to make any specific provision in regard to this aspect does not imply that Fundamental Right 17 does not also comprise this aspect of the matter. Indeed, a positive right implies, as part of the same right, a negative right and vice a verse (see the views of Jeckson, J. for the majority and Murphy, J. concurring in West Virginia State Board of Education v. Barnette (1942) 319 U.S. 624. Hence, if the lawful functioning of a Government of political party is frustrated (by its dismissal) by an unlawful order, such an order is an impediment in the healthy functioning of the political party and would, therefore, constitute an infringement of the fundamental right conferred by Article 17(2).” 22. Further, in Imrana Tiwana’s case (supra), this Court while dealing with Articles 137 and 140A of the Constitution observed as follows: “36. Articles 137 and 140A have to be read in harmony. Neither overrides the other. These provisions provide a scheme for a representative government and participatory democracy in the country. These provide a scheme to establish Local Government and articulate a framework within which the Provincial Government must function. The authority conferred on the Province and the responsibilities devolved on the Local Government CONSTITUTION PETITION NO.48 OF 2019 etc. 16 form part of a common scheme. These are not to be used as trumps. One cannot cancel the other. These are co-equal norms. They weave the constitutional fabric.” 23. Admittedly, the local governments’ offices in Punjab were political Governments and had fundamental right as provided in the Constitution to run for their duration as provided by law. As held in Imrana Tiwana’s case (supra), the Province has no power to cancel local government created under Article 140A of the Constitution. The local governments as per law were entitled to function for the duration of five (05) years as provided in the Act of 2013 and implement the schemes, which they have promised to the voters from their constituencies. Such could not have been eroded by making provision of Section 3 of the Act of 2019, as it not only tramples the elected local governments but also tramples upon the fundamental rights of the citizenry, who have voted to elect the local governments. This could only be considered as an act for which the provision in Clauses (1) and (2) of Article 8, in Chapter 1 of Part II, of the Constitution, has been made. 24. For what has been stated above, the submissions made by the learned AAG, does not hold ground. So far the submission of the learned AGP with reference to Indian Constitution is concerned, the same is not relevant and is also distinguishable from the facts and circumstances of the present case. Further, the submission of the learned AGP on the basis of judgment in Haji Muhammad Saifullah Khan’s case (supra), we note that in the said judgment, the very CONSTITUTION PETITION NO.48 OF 2019 etc. 17 action of the President under Article 58(2)(b) of the Constitution was found to have not been exercised in accordance with law but as the elections had been called and date for the same had been announced, the Court did not consider it fit to restore the Assembly. However, in the instant case neither the elections have been called nor the date of elections has been announced, therefore, the ratio of the said case is not applicable to the instant case. 25. For what has been discussed above, Section 3 of the Act of 2019 is declared to be ultra vires the Constitution. Consequently, the Local Governments as were existing in the Province of Punjab prior to promulgation of the said section stands restored and shall complete their term in accordance with law. 26. The above are the reasons of our short order of even date, which reads as under: - “We have heard the learned ASC for the petitioners, the learned Additional Advocate General, Punjab so also the learned Attorney General for Pakistan on Court’s notice and have also gone through the record of the case. 2. For reasons to be recorded separately, Constitution Petition No.48 of 2019 is allowed and Section 3 of the Punjab Local Government Act, 2019 is declared to be ultra vires the Constitution and the Local Governments as were existing in the Province of Punjab prior to promulgation of the said section stands restored and it shall complete its term in accordance with law. 3. As Constitution Petition No.7 of 2020 is also for the same relief as in the Constitution Petition No.48 of 2019, the same is also disposed of in terms as noted in para-2 above. CONSTITUTION PETITION NO.48 OF 2019 etc. 18 C.M.A.No.6762 of 2020 4. In view of the disposal of Constitution Petitions No.48 of 2019 and 7 of 2020, this application has become infructuous and is disposed of.” Chief Justice Judge Judge ISLAMABAD. 25.03.2021. Rabbani/* ‘Approved For Reporting’

IN THE SUPREME COURT OF PAKISTAN (CONSTITUTIONAL JURISDICTION) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez Const. Petition No.50 and 69 of 2011 Fiaqat Hussain and others (Const. P.50/2011) Iqbal-ur-Rehman Sharif and others (Const. P.69/2011) ...Petitioners Versus The Federation of Pakistan thr. Secretary Planning and Development Division, Islamabad and others …Respondents For the petitioners: Agha Muhammad Ali Khan, ASC Mr. Ejaz Muhammad Khan, AOR(absent) (in Const. P.50/2011) Syed Ali Zafar, ASC Raja Abdul Ghafoor, AOR (in Const. P.69/2011) Amicus Curiae Mr. Makhdoom Ali Khan, Sr. ASC On Court Notice: Maulvi Anwar-ul-Haq, Attorney General for Pakistan Mr. Dil Muhammad Alizai, Dy. A.G Mr. Sulman Siddique, Chairman, FBR Mr. Waqar Masood, Secy. Finance For respondent No.1: Ch. Muhammad Azam, Secy. P & D Mr. Muhammad Asif Sheikh (Advisor) Mr. Saif-ur-Rehman (Asstt. Chief) Mr. Manzoor Ahmad Lucky, SO Respondent No.2: Nemo Respondents No.3-4: Mr. Khalid Mehmood SO Respondent No.5: Nemo Respondent No.6: Mr. Jawad Hassan, Addl. A.G. Pb. Respondent No.7: Mr. Muhammad Qasim Jat, ASC a/w Muhammad Sajan, Director, Non-Formal, Education (On behalf of A.G. Sindh) Respondent No.8: Mr. Amanullah Kanrani, A.G. Balochistan Respondent No.9: Mr. Naveed Akhtar, Addl. A.G. KPK Const.P.50 & 69/11 2 Mr. Hadayatullah Khan, Dy. Secy. Mr. Amanatullah, SO Ms. Saadia Atta Ghuman, Director, NEF Respondent No.10: Mr. Kamal Azfar, Sr. ASC Mr. Mehmood A. Sheikh, AOR Dates of hearing: 20 & 21.10.2011 JUDGMENT Iftikhar Muhammad Chaudhry, CJ.— In the Devine Holy Book, the Quran, Allah Almighty has declared the superiority of Adam over the angles because of knowledge and emphasized as under: “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”. 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. [2:31-32]” Thus, in Surah Taha the Prophet (P.B.U.H) has been asked to pray in the following words: “Lord increase my knowledge. [20: 114] ” The Quran says that We send the Prophets to teach people wisdom. In Surah Baqra (Heifer) it is ordained: “But the best of provisions is right conduct so fear me, O ye that are wise”. (2:197). 2. Similarly, the Holy Prophet (Peace be upon him) has emphasized on acquiring knowledge in the following words: “Seek knowledge from the cradle to grave.” In another Hadith, it has been said:- “Seek knowledge even as far as China.” While comparing an “Alam” with a martyr, the Holy Prophet (P.B.U.H.) has said: “A drop of sweat of the brow of thinker is better than the thousand blood drops of the martyr” Const.P.50 & 69/11 3 On another occasion it has been said: “Whoever seeks a way to acquire knowledge Allah will make easy his way to Paradise” [Sahih Muslim] Stressing on the need of knowledge, the Holy Prophet (P.B.U.H.) has said: “Seeking knowledge is obligatory upon every Muslim”.[Sunan Ibn Majah] Dr. Maurice Bucaille in a book titled, “The Bible, The Quran and Science” has proved that Islam is a scientific religion emphasizing on the need of scientific inquiry. 3. The education for the development of society/nation had also not escaped from the vision of Quaid-e-Azam, the founder of Pakistan. In the Presidential Address at All India Muslim League, Lahore on March 23, 1940, he said: “Come forward as servants of Islam, organise the people economically, socially, educationally and politically and I am sure that you will be a power that will be accepted by everybody.” He also said:- “You must concentrate on gaining knowledge and education. It is your foremost responsibility. Political awareness of the era is also part of your education. You must be aware of international events and environment. Education is a matter of life and death for our country”. 4. In the successful life of an individual, the education plays an important role. Generally, it is considered to be the foundation of society which brings economic wealth, social prosperity, political stability and maintaining healthy population. In case of deficit of educated people, the further progress of the society is stopped. Educated individuals enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries. 5. Main purpose of education is to educate individuals so that they get prepared to form the next generation of leaders. It will yield Const.P.50 & 69/11 4 strong families and strong communities. Education plays an important role to promote knowledge and understanding of rural communities. In almost all societies, receiving education and attending school is necessary to achieve success. It is the key to move forward and ultimately succeed in life. For preparing the children and young people to effectively participate in the development of the society, the schools play a vital role. The knowledge and wisdom can only be gained through the experience of learning. It is important to note that the teachers are the most important factors for an innovative society because teachers' knowledge and skills not only enhance the quality and efficiency of education, but also improve the prerequisites of research and innovation. 6. In the Constitution of Islamic Republic of Pakistan, through the 18th Constitutional Amendment Article 25A has been added which identifies the education as one of the fundamental rights of the people. The said Article reads as under: “The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.” 7. Generally, the education is either formal or informal. Formal education is imparted through the medium of educational institutions, e.g. school, colleges, etc., set up in the public and the private sectors. Informal education is a general term for education outside of standard school set up. It refers to various forms of alternative education, such as non-schooling or house-schooling, etc. In Athenian society, some countries had schools having teachers and pedagogues. Pedagogues shared some qualities with specialist informal educators. They were family attendants (often slaves) whose duties were to supervise, and be with young sons of master. They used to take the boys to school and sat with them in the classroom. The teacher only taught boys their letters, the pedagogue taught them how to behave. It is argued that in Britain, the first adult educators were the missionaries who came from Ireland or from continental Europe. For many centuries, the church remained the greatest educational force in the country [Kelly 1970: 1]. The Clergy, the formal religious leadership, had a duty to teach which they did through Const.P.50 & 69/11 5 preaching, talking with people and through more specialized means such as schooling. From the late 1370s, Preachers started to spread the gospel around Britain. By the middle of the fifteenth century parish libraries were established. In the seventeenth century, the academies and charity schools were also established. In the nineteenth century, there was great increase in informal educators, particularly associated with the emergence of philanthropic organizations, such as, YMCA (founded in 1844). 8. In the late 1960s and early 1970s, non-formal education became part of the international discourse on education policy. It was related to the concepts of recurrent and lifelong learning. Tight (1996: 68) suggested that the latter concepts had to do with the extension of education and learning throughout life. Non-formal education is about acknowledging the importance of education, learning and training which takes place outside recognized educational institutions. Fordham (1993) suggested that in the 1970s, four characteristics were associated with non-formal education, namely, relevance to the needs of disadvantaged groups; concern with specific categories of persons; a focus on clearly defined purposes; and flexibility in organization and methods. In Pakistan, like so many other countries, there are formal and informal types of education. 9. In most of the countries, the education is free of cost from primary to post graduate level. In the Nordic countries, education is mostly free. In Norway and Finland no fee is charged even from foreign students enrolled at a university. Greece and Argentina provide free education at all levels including college and university. In Brazil, free education is offered by the Ministry of Education. In Sri Lanka free education is provided at different levels, where government funded schools, such as national schools, provincial schools and priven provide free education at primary and secondary level, while assisted schools and semi governmental schools provide the same at subsidized rates. 10. It is interesting to note that free education has long been identified with ‘sponsored education’. During Renaissance, it was common practice among rich dignitaries to sponsor for a young man as his patron. In the late 18th Century, Thomas Paine was amongst the earlier proponents of universal free public education, which was Const.P.50 & 69/11 6 considered to be radical idea at that time. In United States the idea of responsibility of government to provide compulsory education as free of cost, was adopted during the late 19th Century. 11. It is an established fact that Human Resources Development is a key to all successes. Unfortunately, Pakistan even at present is amongst the countries which have the lowest literacy rate. In order to keep pace with the developed nations of the world increase in literacy rate is one of the essential requirement. Even otherwise Pakistan was committed to increase its literacy rate to 70% by the year 2000. An overview of efforts in this regard is given below: i. Village Aid Programme: This programme was launched in collaboration with UNESCO in 1953. It was basically a community development programme and basic education was its one component. Under this programme about 800 Village Literacy Centres were established. It, however, was discontinued. ii. Adult Functioal Literacy Project (AFL) – (Television Literacy Programme 1975-1981): The First literacy programme through distance learning jointly run by the Allama Iqbal Open University and Pakistan Television Corporation was launched at national level in 1975. Beneficiaries of the project were 109100 persons at the cost of Rs.11.914 million and cost per literate was Rs.11.3. iii. Literacy Programme of LAMEC/NETCOM (1981-1991): The most effective literacy programme launched in 1981 was the Programme of “Literacy and Mass Education Commission (LAMEC) known as NETCOM afterward. The Commission was establishment in 1981 with the following objectives:- - Identification of needs and specific areas of education and training to raise. - To evolve strategies for launching formal and non- formal programmes. - For the promotion of skills of the masses for self- employability. - Resource mobilization. 12. The Commission planned and implemented following very useful projects:- Const.P.50 & 69/11 7 (A) 100% Literacy Islamabad Project 1983-84: Through this Programme 2060 persons were made literate on experimental basis. (B) The National Literacy Plan (1983-88): The Plan aimed to make 15.0 million persons, aged 10 plus, literate in a period of five years (1983-88) at a cost of Rs.750.0 million. Only two components of the Plan could be implemented i.e. (i) Community viewing Centres (Television Literacy Centres) and (ii) Adult Literacy Centres (face to face teaching). The project was modified and re-designed in 1984 as National Literacy Project (NLP). Under the Project 4712 Literacy Centres with enrolment of 99,955 students were established by June 1986 when the Project was stopped abruptly. Under this programme about 96,115 illiterates were made literate at a cost of Rs.67.526 million. (C) Television Literacy Centres: Under this programme nine literacy lessons were telecasted from November, 1983 till May, 1984 and about 20480 learners were made literate. (D) President’s Ten Points Programme for the Promotion of literacy: A nation wide literacy campaign was launched in Summer 1984 and under this programme total 1,63,233 persons were made literate. (E) Iqra Pilot Project (IPP) 1987: Under this programme 60,095 adults were registered out of which 18,842 persons qualified the examination. Total cost incurred on the Project was Rs.21.677 million (Rs.1000 per literate). (F) Nai Roshni Schools Project (1987-89): The NRSP was launched in 1987 at a cost of Rs.3153.215 million and against 44000 Nai Roshni Schools Planned, only 13,688 Schools could be established up to 30th April, 1988 having 3,49,767 learners. The project was stopped w.e.f. 30.06.1989 due to change in the Government. Apart from the above mentioned facts, some NGOs have played very positive role in the promotion of literacy rate. (G) 10,000 Non-Formal Basic Education Centres & School: Const.P.50 & 69/11 8 Under this Plan the literacy level was targeted to rise from 35% to 70% by the Year 2003. It was estimated that under the project, 25 million illiterate persons would be made literate within a period of 4 to 5 years. The project was approved at a cost of Rs.12.6337 billion with FEC Rs.3.1 million. Under this Plan 7,117 Non-formal Basic Education Schools/Centres have already been established against the target of establishing 10,000 such schools. It was to cover school age population of 5- 9 years and schools drop outs of age 10-14 years. It was envisaged under the programme that about 8,75,000 learner would complete primary level courses and 3,25,000 would acquire basic literacy skills in a period of 4 to 5 years. NGOs were also involved in this effort to improve literacy rate. 13. The Ministry of Education, Government of Pakistan in order to raise literacy level in Pakistan launched a Nationwide Project for establishment of 10000 Non-formal Basic Education Schools (NFBE) in April 1996. The project was approved by Executive Committee of the National Economic Council (ECNEC) at a cost of Rs.1263 million for a period of 5 years. In July 1998, the project was revised and renamed as ‘Establishment of 82000 Basic Education community Schools’ and was approved by ECNEC at a cost of Rs.11214.896 million for a period of five years i.e. 1998 to 2003, which was later extended up to 2007- 08 or till the whole cost was utilized, whichever was earlier. In 2006 the Federal Government decided to merge the schools and staff of this project into another project and renamed it as ‘Establishment and Operation of Basic Education Community Schools’ (the Project) in the Country (Punjab, Sindh, Balochistan, Khyber Pukhtoonkhwa, Gilgit- Baltistan, FATA, AJK and Islamabad Capital Territory. PC-1 was approved with a total cost of Rs.7000 million for a period of four years. The Project was running all over Pakistan and its implementation was handed over to National Education Foundation by Ministry of Education vide notification No.F.1-1/2006-Acctts(BECS) dated 14th June, 2007. The Project was to achieve its targets by the year 2010, however, the life of the project was extended up to 30th June, 2012 by the Ministry of Education vide letter No.F.1-118/06-EFA dated 12th December, 2009. The major objectives of the project are: Const.P.50 & 69/11 9 1. Establishment and operation of 20.000 Basic Education Community (BEC) Schools in the country. 2. Establishment of 25000 Literacy and Skill Development Centres. 3. Schools will be established on need basis while focusing on disadvantaged segments of society. 4. Conversation of 400 efficient BECS into formal 5 room primary schools. By the year 2010 the project has established schools all over the country as per details given below: Schools Under NGOs Direct Teachers Male Teachers Female enrolment Punjab 6465 3498 2967 209 6256 262744 Sindh 2195 1072 1003 757 1438 78522 NWFP+ FATA 1764 1166 1305 833 459 333 61 945 1703 221 72441 48572 Balochistan 1389 424 860 543 846 41109 Gilgit- Baltistan 1576 77 1499 409 864 55741 AJ&K 223 223 34 189 10214 ICT 323 161 162 6 317 12129 TOTAL 15101 7370 6233 2964 12137 581442 The prescribed curriculum for the Basic Education Community Schools, which reads as follows:- “Students of 02 age groups are admitted in Basic Education Community Schools: (A) 5-9 years (B) 9-15 years Group A students complete 05 years Cycle of Primary Education whereas those belonging to Group B complete their Primary Level Education (Courses of classes 1 – 5) in 40 months. 2. Upon completion of Primary Education cycle, all such students appear in the Annual Primary Standard examination conducted by the Provincial/Area Government Education Department. Consequent upon passing of Primary Standard Examination these students can get admission in Formal Educational institutions. Const.P.50 & 69/11 10 3. In Basic Education Community Schools (BECS), the National Curriculum/Textbooks of formal schools are adopted for teaching purposes.” 14. Through 18th Constitutional Amendment, by virtue of Article 270AA(8) and (9) of the Constitution, the Concurrent Legislative List was omitted in pursuance whereof some projects being run by the Federal Government in the Provinces, including the Basic Education Community Schools, were decided to be closed down by the 30th June, 2011. Being aggrieved of the said decision, the petitioners invoked the jurisdiction of this court under Article 184(3) of the Constitution. 15. In Constitution Petition No.50/2011, the petitioner No.1 is father of three students who have been benefitted from Basic Education Community Schools Project, now renamed as ‘Establishment and Operation of Basic Education Community Schools’, whereas the other petitioners are employees of the projects. Similarly, all the petitioners in Constitution Petition No.69/2011 are the employees of the projects. In these matters, we have been called upon to dispose of the petitions in terms of prayers in respect of the nature of informal system of education prevailing in the country, wherein, inter-alia, it has been prayed that the proposed action on part of respondents No.1 to 4 of closing down ‘Establishment and Operation of Basic Education Community Schools’ may kindly be declared to be without lawful authority and of no legal effect and be also declared to be in violation of article 25-A of the Constitution of Islamic Republic of Pakistan, 1973; the proposed act of winding up of the Commission may be held to be entirely unconstitutional and of no legal effect so as to allow the Commission to continue to perform the positive duty of providing basic human rights to the citizens of Pakistan. 16. It is to be noted that the National Education Foundation Ordinance, (Ordinance XX), 2002, as per section 3(1), provides for establishment of a Foundation to be known as the National Education Foundation. Section 3(2) of the Ordinance provides that the Foundation shall be a body corporate having perpetual succession and Const.P.50 & 69/11 11 a common seal with power to acquire, hold and dispose of property, both movable and immovable, and shall by the said name sue and be sued. The terms beneficiaries and educationist have been defined in Section 2(b) and (h) as, “beneficiaries” means teachers, educationists and students; “educationist” means a person engaged in educational research, planning, management or promotion in the Federal Ministry of Education or an organization set up or established by the Federal Government or in any organization as may be recognized by the Committee for the purposes of this scheme, and shall include a person who has so retired. As per section 4(1) of the Ordinance the objectives of the Foundation are to promote quality and gender sensitive education in the territories of Federal Administered Areas. Section 4(2) ibid provides that the three major categories of objectives are the promotion of education; capacity building; and research and development. The functions of the Foundation are enumerated in section 5 ibid. 17. It is the case of the petitioners that despite devolution of the subject of education to the provinces after 18th Constitutional Amendment, the Federal Government is not absolved of its duty to ensure improvement/development of the formal and informal education in the country. It is to be noted that before passing of 18th Constitutional Amendment there was Entry 38 in the Concurrent Legislative List, which provided for curriculum, syllabus, planning and standards of educations. Similarly, there was Entry 39, which conferred the jurisdiction upon the Federal and Provincial Legislation regarding the Islamic Education. As in the 18th Constitutional Amendment all the subjects noted in the Concurrent Legislative List have been devolved upon the Provinces, therefore, it is now left for the Federation to legislate only in respect of the items mentioned in Part-I and Part-II of the Federal Legislative List. 18. It is pertinent to mention here that the government after passing of 18th Constitutional Amendment, in order to regularize the functions of some of the subjects, which have been devolved upon the Federal Government created a new Division vide notification No. 4-10/2011-Min-I dated 29th July, 2011. For convenience relevant para from the notification is reproduced hereinbelow:- Const.P.50 & 69/11 12 “In terms of Rule 3(2) of the rules of the Business, 1973, the Prime Minister has been pleased to constitute with immediate effect, the following new Ministries with the Divisions as shown against these Ministries:- … … … … 2. the distribution of functions among the new divisions shall be as under:- … … … … Professional and Technical Training Division 1. National Vocational and Technical Education Commission (NAVTEC) 2. Academy of Education Planning and Management (AEPAM), Islamabad 3. Federal Board of Intermediate and Secondary Education (FBISE), Islamabad 4. National Education Assessment Centre, Islamabad. 5. National Training Bureau, Islamabad. 6. Pakistan Manpower Institution. 7. National Internship Programme (NIP). 8. Akhtar Hameed Khan National Centre for Rural Development, Islamabad. 9. National Talent Pool, Islamabad. 10. Youth Centres and Hostels. 11. All matters relating to National Commission for Human Development (NCHD) and National Education Foundation (NEF). 3. Amendments in the Rules of Business, 1973, wherever necessary will be issued in due course.” 19. At this juncture it is to be kept in mind that the National Education Foundation and National Commission of Human Resources have been established in terms of the National Education Fund Ordinance, (Ordinance No.XX) 2002 and the National Commission for Human Development Ordinance, (Ordinance No.XXIX) 2002. Later on, these Ordinances have been protected by the Parliament by means of 17th Constitutional Amendment and since then these forums have continuously been discharging their functions. 20. It is important to note that in the 18th Constitutional Amendment both these Ordinances along with other legal instruments, issued between the period starting from 12th October, 1999 to 31st December, 2003, have been protected under Article 270AA of Const.P.50 & 69/11 13 Constitution. Thus, despite of 18th Constitutional Amendment both these laws, under the protection of Article 270AA, are fully operational and functional. 21. Learned counsel for the petitioner in Constitution Petition No.50 of 2011 has submitted that official respondents/government authorities are not interpreting constitutional provisions properly, without realizing that in the garb of devolution of powers the control of Basic Education Community Schools in the country has been handed over to the provinces which are not ready and willing to accept the same, therefore, consequently it would be tantamount to denial of Fundamental Rights regarding education of about 550,000 students belonging to the poorest families of the country by closing down about 15000 schools all over Pakistan as a result whereof 15000 teachers and 10000 staff members have been left without protection of Article 9 of the Constitution. He has made reference to the impugned letter dated 10th May, 2011 issued by the Government of Pakistan, Planning Commission under the subject. Along with it a list of the projects, likely to be closed down, has been appended, which includes the project known as “Establishment and Operation of Basic Education Community Schools in the Country.” 22. It is to be seen that vide letter No.F.1-18/06- EFA/Government of Pakistan, Ministry of Education (P&P Wing) dated 9th June, 2008, addressed to the Accountant General of Pakistan on the subject “Establishment and Operation of Basic Education Community Schools in the Country”, administrative approval of was granted by the Government of Pakistan, to execute the subject scheme at a capital costs of Rs.7000 million with nil FEC. The Execution period of the scheme was fixed to be 48 months and break up of the costs was also stated therein. Therefore, without prejudice to the case of either of the parties, the project of the Basic Education Community Schools suppose to continue functioning up to June, 2012. 23. Mr. Ali Zafar, learned ASC appearing in petition No.69/2011, in his arguments has raised following constitutional issues:- i. Whether there is a positive duty upon the State (which includes the Federal and the Provincial Governments as Const.P.50 & 69/11 14 well as the Parliament and the Provincial Assemblies) to fulfill this “minimum core obligations’ to the citizens of Pakistan and provide them the minimum standards of basic amenities of life like fulfillment of the requirements of minimum access to education and health and to at least give the opportunity of human development to its citizens. In this case the Commission, which is an instrument of the State involved in fulfilling the role of providing some of the ‘minimum core obligations’ to the citizens of Pakistan is being wound up, Neither the Centre nor the Provinces are willing to continue with the Commission. It is submitted that since the ‘State’ is duty bound under the Constitution to provide these basic fundamental rights to its citizens, the ‘State’ is liable to be issues directions by this Hon’ble Court in exercise of its jurisdiction for enforcement of fundamental rights under Article 184 (3) to continue to provide such services to the people of Pakistan and on the same basis the action of the State in winding up the Commission, which is in negation of the fundamental rights of the citizens of Pakistan, is liable to be declared as void. ii. That the process of devolution as a result of the 18th Amendment does not mean that the Federal Government is absolved from is obligation to provide fundamental rights and to that extend the reasons for winding up the Commission is unlawful and; iii. That the Commission was incorporated under an Act of Parliament and is being wound up under an Executive Order. It is submitted that an Executive Order cannot overrule an Act of Parliament. He has also highlighted the importance of the education while making reference to the judgments in the cases of Jamia Karachi v. Registrar of Trade Union, Sindh (1981 PLC 403), Ghulam Mustaf v. Province of Sindh (2010 CLC 1383), Brown v. Board of Education [873 US 483 (1954)] and University of Delhi v. Ram Nath (AIR 1963 SC 1873). 24. Learned Attorney General for Pakistan, however, contended that 18th Constitutional Amendment has abolished the Concurrent Legislative List as a result whereof the subject of education Const.P.50 & 69/11 15 has been transferred to the Provinces, therefore, in view of the decision of implementation committee, the Council of the Common Interest vide its decision dated 4th June, 2011 has decided that the Commission, meant to promote Human Development by providing support to the government organizations, etc., either be adopted by the Provinces or these projects be wound up after 30th June, 2011. Thus, the Basic Education Community Schools and the Commission now have become the subjects of the Provinces, after 30th June, 2011. He further submitted that the Federal Government has already released the salaries for the teachers of the schools as well as staff of the Commission up to 30th June, 2011 and now the Provinces are responsible to allow them to continue into the service. 25. The representatives of governments of Balochistan, KPK and Sindh adopted the arguments of learned Attorney General, however, Mr. Jawwad Hassan, Addl. Advocate General, Punjab contended that the Government of Punjab had adopted a policy and decided to accommodate the students of Basic Education Community Schools in regular schooling set up. 26. Mr. Makhdoom Ali Khan, Sr. ASC (Amicus Curiae) has submitted that there appears to be a presumption that after the 18th Constitutional Amendment these institutions, which were initially within the domain of the Federation, have now been transferred to the Provinces. It has been presumed that there were some entries in the Concurrent Legislative List which no longer are their, therefore, this has become a residuary subject all together. The Concurrent Legislative List had three entries which could be said to be related to education. There was Entry 38 which provided for curriculum, syllabus, planning and standards of educations; next was Entry 39 which provided for Islamic Education; and Entry 47 which though was not a direct entry but it provided for incidental matters. With the abolition of the Current Legislative List, only these two Entries i.e. 38 and 39 have ceased to remain within the domain of the Federation; there is no other entry with respect to education which has been impacted by the 18th Amendment at all. The Federal Legislative List, on the other hand, has a number of entries which can be said to relate to Education and those entries remain. The entry 38 is no longer there but with some changes it has found a place in Entry 12 of Part-II of the Federal Const.P.50 & 69/11 16 Legislative List. It provides for standards in institutions for higher education and research, scientific and technical institutions. So it is a composite entry and entire issue relating to standard has also not gone to Provinces. Entry 15 of Part-I provides that libraries, museum and similar Institutional controlled or financed by the Federation. Entry 16 provides that Federal agencies and institutes for the purposes of research, professional or technical training, or the promotion of special studies; that entry still exists. There is another interesting entry, which is Entry No. 31, which ostensibly deals with corporations but it has very interesting exception at the end of it. It says cooperation, that is to say the incorporation regulation and winding of trading corporations including Banking Insurance and finance corporations but not including corporations owned and controlled by a Province and carrying on business only within that Province or cooperative societies and of corporations whether trading or not trading with objects not confined to a Province but not including Universities; so corporations generally are within the Federal domain; Provincial corporations are out; and with regard to Universities, there is a specific exclusion. Therefore, generally a corporate body, unless it falls within one of the exceptions over here, like Universities, would fall within the domain of Federation. Justification of the above would have to be found from another Entry 16 whereby the Federation has the power to set up Federal agencies and institutes for the purposes of research, professional and technical training for the promotion of special studies. Both the Commission and the Foundation, under the respective statutes, have been created as a corporate body. They are juristic persons with the right to sue and be sued and they are creation of statues. Entry 32 that has been removed from the Federal Legislative List, is now in Part-II of Federal Legislative List in Entry 7 i.e. National Planning and National Economic Coordination including Planning and Coordination of Scientific and Technological research. So all the legislation, which has been made in the year 2002 and has continued till 2011, after the 18th Constitutional Amendment, could be validated. 27. As it is evident from the above noted paras that importance of the formal or informal system of education has always been considered to educate the nation following the teachings of Islam, embodied in the divine book “The Quran” and Sunnah of Holy Const.P.50 & 69/11 17 Prophet Muhammad (Peach Be Upon Him). Allah Almighty in different verses of Holy Quran has emphasized for education amongst the mankind. Thus no further reference in this behalf is required to be made, in presence of Ordains of Allah Almighty and the sayings of Holy Prophet (Peace Be Upon Him), references of few of them have been made hereinabove. A careful study of the Holy Quran with reference to significance of acquiring knowledge by the mankind, one can well imagine the importance of the education. 28. It may not be out of place to note that Allah Almighty in first revelation has ordained to the Holy Prophet (Peace Be Upon Him) as follows:- “Read in the name of your Lord, Who created, man from a clot. Read, for your Lord is most Generous, Who teaches by means of the pen, teaches man what he does not know. [96:1-5] The Intellectuals, may be Muslims or non-Muslims, have always considered, and rightly so, the Holy Quran as guide for them. Similarly, the Prophet (Peace Be Upon Him) has been admitted, even by the Non-Muslims, to be a great jurist. Not only this but in a good number of books, while discussing the Serah of Hazrat Muhammad (Peace Be Upon Him), he has been found to be the embodiment of knowledge and wisdom. Thus, it is an accepted norm that education plays an important role in the successful life of individuals and for development of the nation and the country. Therefore, if regular system of parting education to the children for want of infrastructure, is not possible then by adopting informal system of education the States had been fulfilling their duties. 29. Not only in Pakistan, from 1951 onward under different programs the system of informal education had been introduced as it has been pointed hereinabove but in so many other countries like Greece, Britain and Ireland informal education system has been adopted. Besides, the system of free education has been invoked not only in the developed but also in developing countries. In view of such background, our State, by means of 18th Constitutional Amendment has incorporated Article 25A, which has been reproduced hereinabove, whereby Fundamental Right have been conferred upon all the children Const.P.50 & 69/11 18 of the age of 5 to 16 years to receive free and compulsory education. Wisdom behind incorporating the said Article could be nothing except teaching of Islam, the vision of the father of nation as well as the importance of education discussed hereinabove. Under Article 7 of the Constitution, the State includes the Federal and the Provincial Governments, therefore, while inserting Article 25A in the Constitution the Parliament, in view of the definition of the State had not absolved the Federal Government from conferring the Fundamental Rights upon the children. It has been emphasized before us on behalf of learned Attorney General that after 18th Constitutional Amendment as concurrent list has been abolished, therefore, except Provincial Governments, the Federal Government has no responsibility for enforcing the Fundamental Rights of the education to its subjects, particularly to the citizens who were receiving education in informal system of education. In this context, it is to be noted that in terms of Article 37(a) of the Constitution, the State shall form such policies on the basis of which it shall promote, with special care, the educational and economic interest of backward classes or areas. We are conscious of our jurisdiction regarding the Principles of Policy of the State but at the same time we are not oblivious of our duties to enforce Fundamental Rights with regard to free education to the children as now has been guaranteed under Article 25A of the Constitution. This Court has already seized with the matter with regard to imparting higher education, which is to be regularized by the Higher Education Commission and order has been passed in this regard in the case of Prof. G.A. Miana and others Vs. Federation of Pakistan (Constitution Petition No.33 and 34 of 20011). However, in the instant case we would confine ourselves to the extent of controversy, which has been brought before us. But we are also conscious of the principle pronounced in the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), namely, the Directive Principles of State Policy have to conform to and to operate as subsidiary to the Fundamental Rights guaranteed in Chapter 1, otherwise the protective provisions of the Chapter will be a mere rope of sand; and the Law, in the achievement of this ideal, has to play a major role, i.e., it has to serve as a vehicle of social and economic justice, which this Court is required to interpret. Similarly, the Indian Supreme Court in the case of Mohini Jain v. State of Karnatka (AIR 1992 SC 1858) has held that the Const.P.50 & 69/11 19 Fundamental Rights and the Directive Principles, which are found in the governance of the country cannot be isolated from the Fundamental Rights guaranteed under Part III. These principles have to be read into the Fundamental Rights. Both are supplementary to each other. The State is under the Constitutional mandate to create conditions in which the Fundamental Rights guaranteed to the individuals under Part-III could be enjoyed by all. Without making ‘right to education’ under Article 41 of the Constitution a reality the Fundamental Rights under Chapter-III shall remain beyond the reach of large majority, which is illiterate. The fundamental rights guaranteed under Part-III of the Constitution of India including the rights to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. The "right to education", therefore, is concomitant to the Fundamental Rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. In the case of Unni Krishnan J.P. v. State of A.P. (AIR 1993 SC 2178), it has been held that the Fundamental Rights and Directive Principles are supplementary and complementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the Directive Principles of the State policy. The initial hesitation to recognise the profound significance of Part IV has been given up long ago. 30. Following the principles highlighted hereinabove showing status of Directive Principles of the State Policy and the Fundamental Rights and also in view of the dictum laid down by the superior Courts in the cases of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Shehla Zia v. WAPDA (PLD 1994 SC 693), Ahmad Abdullah v. Government of the Punjab (PLD 2003 Lahore 752), Imdad Hussain v. Province of Sindh (PLD 2007 Karachi 116) and Suo Motu Case No.13 of 2009 (PLD 2011 SC 619), it is concluded that under Article 9 read with Article 25A of the Constitution of Islamic Republic of Pakistan the Fundamental Rights are required to be enforced by the Const.P.50 & 69/11 20 State. Especially, in view of newly added Article 25A of the Constitution, it has been made mandatory upon the State to provide the education to the children of the age of 5 to 16 years. 31. Having declared so, now next question for consideration would be as to whether or not after abolishing the Concurrent Legislative List, the Federation is empowered to make legislation relating to the matters directly, indirectly or ancillary to the subject of education, particularly by introducing informal education, as presently being imparted through Basic Education Community Schools in the country established under the Ordinances XX and XXIX of 2002. First of all it is to be noted that both these Ordinances were promulgated much prior to the introduction of 18th Constitutional Amendment. Initially, 17th Constitutional Amendment was introduced whereby Article 270AA was added in the Constitution which provided protection to the said Ordinances for the reason that these Ordinances were issued during the era when there was no constitutional dispensation and the country was being run under the Provisional Constitutional Order, 1999. As it has been noted hereinabove, the Basic Education Community Schools have been established from time to time and as per the details, reference of which has already been made, about 581442 children, through out the country, are getting education and about 6233 schools are established by the government agencies whereas about 7370 schools are being run by the NGOs. 32. The Parliament introduced 18th Constitutional Amendment in pursuance whereof the Concurrent Legislative List containing Entries No.38 and 39 relating to education was abolished but despite that both the Ordinances were protected as is evident from the above paras. We may mention here that according to section 5(8) of the Ordinance, XX of 2002 it is one of the functions of the National Education Foundation to ensure that equal opportunities for education are provided to boys and girls of whatever social, class, colour, race or creed to promote equality, development, human rights and peace for all, and under such provision the schools are functioning and imparting education to the children. Similarly, under the Ordinance XXIX of 2002, National Commission for Human Development was established, with the objective to promote human development by supporting government- line departments, non-governmental organizations and elected official Const.P.50 & 69/11 21 at the district level in primary education, literacy, income generating activities and basic health care services, etc. 33. As it has been held in the judgments of this Court as well as judgment of the foreign countries, highlighted hereinabove, that the education is Fundamental Right of an individual, therefore, the Directive Principles of State Policy being subsidiary to the Fundamental Rights guaranteed under the Constitution are required to be protected under the law, which are holding the field. In presence of these two laws, and for the reasons that the Basic Education Community Schools are functioning under the control of government agencies and by the NGOs, detail of which has already been given hereinabove, despite of repealing of Concurrent Legislative List, the government of Pakistan through Prime Minister has created a Division known as Professional and Technical Training Division, which has been authorized to deal with all the matters relating to NCHD and NEF. The provision, which has brought protection to both the Ordinances, can only be repealed by the repealing Statute and merely by issuing any letter or the order, as in the instant case vide letter dated 10.5.2011, to close down the project of Establishment and Operation of Basic Education Community Schools, is contrary to law. 34. Now we revert towards the question, which we have posed hereinabove, namely, competency of the Legislature to promulgate such laws. Mr. Makhdoom Ali Khan, learned Amicus Curiae has referred to Entry 12 of Part II of the Federal Legislative List, which empowers the Federal Government to legislate with regard to the standards in institutions for Higher Education and research, scientific and technical institutions. Similarly, Entry 15 of Part I is relating to libraries, museum and similar Institutional controlled or financed by the Federation. He has also made reference to Entry 16, according to which, with regard to the Federal agencies and institutes for the purposes of research, professional or technical training, or the promotion of special studies, the Federal Government is empowered to legislate. Undoubtedly, the education, may be informal, falls within this Entry as it deals with the professional and technical training and the promotion of special studies. The word “special studies” is capable as per its meanings to cover the informal education as well. We have explained hereinabove that informal education is nothing but a mode Const.P.50 & 69/11 22 of imparting education in the less developed areas where facilities to provide education by opening regular schools are not possible, therefore, by means of adopting informal system a special study is imparted to the children of the areas, who as a matter of right, under Article 25A of the Constitution as well as in terms of the Injunction of Islam, are entitled to get the education. As discussed above, although presently there is no necessity for the legislature to cover the system of informal education but if need be, such case can be covered under Entry 16 of Part I of the Concurrent Legislative List. At the cost of repetition, it is mentioned that Legislature was fully aware of the necessity of Ordinances XX and XXIX of 2002, therefore, instead of repealing the same, by means of 18th Constitutional Amendment, the same were protected for the reasons discussed hereinabove as well in discharge of their functions to provide a law which can promote Directive Principles of State Policy relating to education and economic interests of backward class or areas. 35. Thus, we are of the considered opinion that under Article 70 read with Entry 16 of Part I of the Federal Legislative List and the Constitutional Amendments, both the Ordinances are fully protected and shall remain operative unless repealed in accordance with the Constitution and so long both the Ordinances are holding the field, the Basic Education Community Schools providing informal education to the backward classes or the areas shall continue to function. It may also to be noted that the competent authority vide letter dated 9th June, 2008 has approved PC-I with a total cost of Rs.7000 million for a period of four years and due to slow releases of fund the project could have not be completed, thus it has been extended up to 30th June, 2012, therefore, without prejudice to the discussion made hereinabove the project of Basic Education Community Schools cannot be closed down. 36. Learned counsel for the petitioners have also raised arguments that the government is bound to allow functioning of the Community Schools on account of its commitments, for the reason that the Planning Commission in its report pertaining to Pakistan Millennium Development Goals Report, 2005 has appraised that without community participation in education, the literacy level could not be achieved. It was further stated that the major reason for Const.P.50 & 69/11 23 children either not attending schools or dropping out of primary schools are high cost of education, inadequacies in the quality and relevance of education particularly at primary level, parental attitude especially in the case of girls and distance from schools. Undoubtedly it is the duty of the State to provide sufficient resources for education and health by allocating considerable amount in annual budget. Although in past, the government had imposed a tax in the name of Iqra Surcharge on import of goods. Reference may be made to the case of Suhail Jute Mills v. Federation of Pakistan (PLD 1991 SC 329). On our query, Chairman FBR placed on record a statement, perusal whereof shows that Rs.65.796 billions was received under this Head. Thus, the State, i.e. both Federal and Provincial Governments in view of Quranic Injunction and sayings of Holy Prophet (Peace Be Upon Him) and in pursuance of constitutional provisions, is duty bound to provide social justice and education in the country. 37. Thus, for the foregoing reasons, petitions No.50 and 69 of 2011 are accepted holding that: (A) the proposed action on part of respondents No.1 to 4 of closing down ‘Establishment and Operation of Basic Education Community Schools’ is without lawful authority and of no legal effect and is in violation of article 25-A of the Constitution of Islamic Republic of Pakistan, 1973; (B) the proposed act of winding up of the Commission is unconstitutional and of no legal effect and the Commission is allowed to continue to perform the positive duty of providing basic human rights to the citizens of Pakistan. Parties are left to bear their own costs. 38. Before parting with the judgment, it is important to observe that vide order dated 21st October, 2011, respondent government was directed to pay the salaries of the teachers/staff but compliance report so far has not been received. The Secretary Finance is directed to comply with the direction in letter and spirit and submit Const.P.50 & 69/11 24 report not later than a period of seven days, to the Registrar for our perusal in chambers. Chief Justice Jude Judge Announced in Open Court on at Islamabad Chief Justice Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE MUNIB AKHTAR CONST. PETITIONS NO.50/2018, 51/2018 & 63/2011, CIVIL MISC. APPLICATIONS NO.4922, 5382/2011, 695/2012 & 724/2017 IN CONST. PETITION NO.63/2011, CONST. PETITIONS NO.6/2012, 16/2015 & 20/2015, CIVIL MISC. APPLICATION NO.6966/2017 IN CONST. PETITION NO. 20/2015, CONST. PETITION NO.3/2016, CIVIL MISC. APPLICATION NO.6800/2017 IN CONST. PETITION NO.3/2016, CONST. PETITION NO.13/2016, 32/2016, 34/2016, CIVIL MISC. APPEAL NO.184/2016 IN CONST. PETITION NO.NIL/2016, CIVIL MISC. APPLICATION 7367/2016 IN CONST. PETITION NO.2/2017, 30/2017, 41/2018, CIVIL MISC. APPEAL NO.202/2016 IN CONST. PETITION NO.NIL/2016, CONST. PETITION NO.49/2018, 55/2018, 30/2015, 31/2015 32/2015, 36/2015, 64/2015, 6/2017 IN CIVIL MISC. APPEAL NO.31/2017, CONST. PETITION NO.61/2017 IN CIVIL MISC. APPEAL NO.243/2017, CONST. PETITION NO.18/2018 AND CIVIL MISC. APPLICATION NO.10872/2018 IN CONST. PETITION NO.16/2015 Const.P.50/2018: Civil Aviation Authority Vs. Supreme Appellate Court Gilgit Baltistan etc. Const.P.51/2018: Prince Saleem Khan Vs. Registrar Supreme Appellate Court Gilgit Baltistan etc. Const.P.63/2011: Dr. Ghulam Abbas Vs. Federation of Pakistan etc. C.M.A.4922/2011: in Const.P.63/2011 C.M.A.5382/2011: in Const.P.63/2011 C.M.A.695/2012: in Const.P.63/2011 C.M.A.724/2017: in Const.P.63/2011 Const.P.6/2012: Application for impleadment by Supreme Appellate Court Bar Association Gilgit-Baltistan Application for Impleadment Dolat Jan Application for Impleadment by Wazir Farman Ali Application for Impleadment by Taqdir Ali Khan v. Federation of Pakistan and others Gilgit Baltistan Chief Court Bar Association through its Vice President Vs. Federation of Pakistan etc. Const.P.16/2015: Gilgit Baltistan, Bar Council through its Vice Chairman Vs. Federation of Pakistan etc. Const.P.20/2015: C.M.A.6966/2017: Gilgit Baltistan, Supreme Appellate Court Bar Association Vs. Federation of Pakistan etc. Gilgit Baltistan, Supreme Appellate Court Bar Const.P. No.50/2018 etc. -: 2 :- in Const.P.20/2015 Association v. Federation of Pakistan & others Const.P.3/2016: C.M.A.6800/2017: in Const.P.3/2016 Shaheen Air International Ltd., Karachi Vs. The Registrar, Supreme Appellate Court, Gilgit- Baltistan etc. Shaheen Air International Ltd. Karachi v. The Registrar, Supreme Appellate Court, Gilgit- Baltistan & others Const.P.13/2016: Zafar Ali Khan Maqpoon Vs. Government of Pakistan etc. Const.P.32/2016: Muhammad Ibrahim Vs. Fed. of Pakistan etc. Const.P.34/2016: C.M.Appeal.184/2016: in Const.P.Nil/2016 C.M.A.7367/2016: in Const.P.34/2016 Pak Agricultural Research Council Vs. Govt. of GB through Chief Secretary, Gilgit Baltistan etc. Pak Agricultural Research Council v. Govt. of GB through Chief Secretary, Gilgit Baltistan & others Pak Agricultural Research Council v. Govt. of GB through Chief Secretary, Gilgit Baltistan & others Const.P.2/2017: Federal Board of Intermediate & Secondary Educations through its Chairman & another Vs. Federations of Pakistan through M/o Kashmir Affair & Northern Areas etc. Const.P.30/2017: Chairman F.B.R., Islamabad Vs. Registrar Supreme Appellate Court, Gilgit Baltistan Const.P.41/2018: C.M.Appeal.202/2016: in Const.P.Nil/2016 Federation of Pakistan through Secretary Ministry of Kashmir Affairs and Gilgit Baltistan, Islamabad Vs. Registrar Supreme Appellate Court, Gilgit- Baltistan & another Air Blue Company Ltd. v. The Registrar S.C. Appellate Court Gilgit-Baltistan Const.P.49/2018: Federation of Pakistan through Secretary Ministry of Kashmir Affairs and Gilgit Baltistan, Islamabad & another Vs. The Registrar Supreme Appellate Court, Gilgit-Baltistan etc. Const.P.55/2018: Gilgit Baltistan Bar Council & another Vs. Federation of Pakistan etc. Const.P.30/2015: Amna Ansari & another Vs. Chairman Gilgit- Baltistan Council etc. Const.P.31/2015: Amna Ansari & another Vs. Chairman Gilgit- Baltistan Council etc. Const.P.32/2015: Amna Ansari & another Vs. Chairman Gilgit- Baltistan Council etc. Const.P.36/2015: Ameer Khan Vs. Federation of Pakistan etc. Const.P. No.50/2018 etc. -: 3 :- Const.P.64/2015: Prof. Abdul Rasheed Mian etc. Vs. Federation of Pakistan through Secretary M/o Health Services Regulations and Coordination, Islamabad etc. Const.P.6/2017: Pakistan Tourism Development Corporation Vs. Registrar Supreme Appellate Court & another Const.P.61/2017: Hotels and Restaurants Association of Gilgit- Baltistan & another Vs. Federation of Pakistan through Secy. Cabinet Division, Islamabad etc. Const.P.18/2018: Abdul Qayyum Khan Vs. Ministry of Kashmir Affairs & Gilgit-Baltistan through its Secretary, Islamabad etc. C.M.Appeal.10872/2018 in Const.P.16/2015: Impleadment application by Lt. Co. (R) Syed Iqbal Hashmi For the petitioner(s): Mr. Salam Akram Raja, ASC Syed Rifaqat Hussain Shah, AOR (In Const.P.6/2012, 20/2015 & 55 of 2018 & 64/2015) Mian Shafaqat Jan, ASC Syed Rafaqat Hussain Shah, AOR (In Const.P.50/2016 & Const.P.18 of 2018) Barrister Masroor Shah, ASC (In Const.P.51/2011) Mr. Ikram Chaudhry, ASC (In Const.P.63/2011) Rai M. Nawaz Kharal, ASC Syed Rifaqat Hussain Shah, AOR (In Const.Ps.16/2015 & 61/2017 & C.M.A.6966/2017) Mr. Bhajandas Tejwani, ASC Ch. Akhtar Ali, AOR (In Const.P.3/2016) Syed Qalb-i-Hassan, ASC (In Const.P.13/2016) Mian Shafaqat Jan, ASC (In Const.P.32/2016) Nemo (In Const.P.34/2016) Mr. Mir Afzal Malik, ASC Mr. Tariq Aziz, AOR (In Const.P.2/2017) Mr. Ghulam Shoaib Jally, ASC (In Const.P.30/2017) Mr. Sajid Ilyas Bhatti, Addl. A.G.P. (In Const.Ps.41 & 49/2018) Mr. Asif Fasih ud Din Vardag, ASC Ch. Akhtar Ali, AOR (In Const.Ps.30 & 32/2015) Const.P. No.50/2018 etc. -: 4 :- Mr. M. Munir Peracha, ASC Mr. Mehmood A. Sheikh, AOR (In Const.P.6/2017) Nemo (In Const.P.36/2015) Mr. M. Ikhlaque Awan, ASC (In C.M.A.5382/2011 & C.M.Appeal 202/2018) On Court’s notice: Mr. Anwar Mansoor Khan, A.G.P. Amicus Curiae: Ch. Aitzaz Ahsan, Sr. ASC For the respondent(s): Mr. Saeed Iqbal, Dy. A.G. Gilgit-Baltistan Mr. Aurangzeb Khan, Minister of Law & Parliamentary Affairs, Gilgit Baltistan Mr. Dil Muhammad Khan Alizai, ASC Ch. Afrasiab Khan, ASC (For respondent No.2 in Const.P.49/2018) Mr. M. Iqbal Hashmi, Advocate in person (in C.M.A.10872/2018) Mr. Waseem Sajjad, Sr. ASC (For respondent in Const.P.63/11) Raja Abdul Ghafoor, AOR (For the Federation) Mr. Abdullah Baig (Respondent in person) Date of hearing: 7.01.2019 ORDER MIAN SAQIB NISAR, CJ.- Succinctly, the instant matters pertain to a very important historical and constitutional issue involving the status, authority and powers of Gilgit-Baltistan (GB) including the judiciary and the rights available to its people. Although similar issues emanate from the various constitution petitions filed before this Court, it would be pertinent to briefly discuss the factual background of each case before proceeding further:- i. In Constitution Petition No.63/2011, the petitioner who is a political and social activist, seeks the enforcement of the independence of the judiciary in GB and thus challenges the vires of the Gilgit-Baltistan Empowerment and Self-Governance Order 2009 (2009 Order) (and the Gilgit Baltistan Order, 2018 (2018 Order) by amendment of the petition through a C.M.A.) in light of Article 175 and Const.P. No.50/2018 etc. -: 5 :- 203 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution); ii. In Constitution Petition No.6/2012, the GB Chief Court Bar Association claims that the 2009 Order did not make sufficient provisions for the appointment of judges to the GB Supreme Appellate Court and this oversight threatens the establishment of an independent judiciary in GB and thus the vires of the relevant provisions [Articles 60(5), (6) and (8) of the 2009 Order] have been challenged. iii. In Constitution Petition No.16 and 20/2015, the petitioner, GB Bar Council (in both the petitions) seeks appropriate directions to the respondents to arrange for issuance of an order contemplated by Article 258 of the Constitution read with Article 1(2)(d) thereof, to provide for good governance for GB in compliance with the direction already issued by this Court in paragraph No.28 of the judgment reported as Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others Vs. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379) to enforce fundamental rights; iv. In Constitution Petitions No.30, 31, 32 and 36/2015 the petitioner challenged the appointments of the Chief Election Commissioner GB, Governor of GB and the Chief Minister of GB made under the 2009 Order and sought a declaration to the effect that the said Order was ultra vires and the fundamental rights extended to the people of GB be enforced; v. Petitioners No.1 and 2 in Constitutional Petition No.64/2015 are faculty members of various medical colleges and petitioners No.1, 3 and 4 are also members of the Pakistan Medical and Dental Council (PMDC). Through the instant petition they claim that Section 2 of the PMDC (Amendment) Ordinance, 2015 on account of being discriminatory to the people of Azad Jammu and Kashmir and GB be declared ultra vires of Article 25 of the Constitution, fresh elections be announced for members of council of PMDC and Regulation No.9(2) of the PMDC Regulations 2015 be declared unreasonable, arbitrary and of no legal effect; Const.P. No.50/2018 etc. -: 6 :- vi. In Constitutional Petition No.2/2016 the judgments against the Federal Board of Intermediate & Secondary Education by the lower fora were upheld by the GB Supreme Appellate Court. Through the instant petition, the impugned judgment was sought to be declared as beyond the jurisdiction of the said Court and the declaration that no civil proceedings may be initiated against it in the territory of GB and any such proceedings should have no legal effect; vii. In Constitutional Petition No.3/2016, the petitioner Shaheen Airline Limited was issued directions in Suo Moto Case No.2/2009 by the Supreme Appellate Court to operate flights to Gilgit Baltistan despite it not being commercially feasible for the petitioner. Through this petition, the petitioner seeks that the said suo moto proceedings and all the orders issued therein be declared unconstitutional, ultra vires of the Constitution and void ab initio; viii. In Constitutional Petition No.13/2016, the petitioner, inter alia, seeks the implementation of the judgment passed in Al-Jehad Trust’s case (supra) as well as the declaration that the 2009 Order is ultra vires of the Constitution and has no legal value unless the Constitution is amended; ix. In Constitutional Petition No.34/2016, the Pakistan Agriculture Research Council seeks reversal of the transfer of 24 kanals and 3 marlas to Pakistan State Oil under the mistaken belief that the said land was owned by the Government of GB whereas according to the petitioner the said land was owned by the Government of Pakistan and could not be unilaterally so transferred. The said matter was sub judice when it was taken up in suo moto proceedings by the GB Supreme Appellate Court in S.M.C. No.8 of 2016 and directions have been issued to facilitate said transfer. The petitioner seeks, inter alia, that the jurisdiction of the said Court be outlined in light of the Constitution of Pakistan and the said transfer of land be declared void and without lawful authority. x. In Constitutional Petition No.3/2016, the petitioner, inter alia, seeks implementation of the Al-Jehad Trust’s case (supra) as Const.P. No.50/2018 etc. -: 7 :- well as the declaration that Order 2009 is ultra vires of the Constitution and has no legal value unless the Constitution is amended and therefore should be declared ultra vires; xi. In Constitutional Petition No.6/2017, there was a dispute regarding shamlat land measuring 30 kanals in Satpara Lake which the Pakistan Tourism and Development Corporation (PTDC) wanted to acquire. Vide impugned order dated 19.11.2015 in S.M.C. No.3/2009, this Court issued directions to PTDC to bring its work at the Satpara Lake in conformity with the environmental standards it laid out which directions the PTDC states that it has complied with. Subsequently, through suo moto case No. 2/2016, the GB Supreme Appellate Court passed a series of adverse orders against PTDC. The petitioner seeks, inter alia, that the proceedings be declared illegal, unconstitutional and coram non judice and be quashed. xii. In Constitutional Petition No.30/2017, the Federal Board of Revenue, Islamabad, Pakistan (petitioner) seeks a declaration by this Court that the GB Supreme Appellate Court exceeded its jurisdiction when in suo moto case No.11/2010 it passed orders issuing notices and orders to and against the petitioner, declaring the same to be unconstitutional, coram non judice and consequently quash the same; xiii. In Constitutional Petition No.61/2017, the petitioner is a representative body of Hotels and Restaurants in GB which seeks the implementation of the Al-Jehad Trust case (supra) which, inter alia, provides for the right of access to justice and independence of judiciary to the people of GB. Thus directions are sought from this Court to implement the same in letter and spirit; xiv. In Constitutional Petition No.49/2018, the Supreme Appellate Court of GB after taking cognizance of the matter vide judgment dated 13.7.2018 set aside the 2018 Order. The Federation of Pakistan through the instant petition seeks that the said judgment be set aside and such action of the said Court be declared unconstitutional and beyond its jurisdiction; Const.P. No.50/2018 etc. -: 8 :- xv. In Constitutional Petition No.51/2018, the petitioner seeks the quashment of the impugned judgment wherein the GB Supreme Appellate Court declared the by-election held in petitioner’s constituency to be void, illegal and without any legal authority, thus it was set aside seeking inter alia that: (1) the GB Supreme Appellate Court exceeded its jurisdiction by taking suo motu notice under Article 61 read with Article 95 of the 2009 Order; (2) suo motu notice was taken of a fact not pleaded in the lis; (3) the impugned judgement is per incuriam for having been rendered in derogation of the express words used in Article 61 of the 2009 Order; xvi. In Constitutional Petition No.55/2018, the petitioner, GB Bar Council, inter alia, seek that the 2018 Order be declared illegal, void ab initio and without legal authority; xvii. In Constitutional Petition No.50/2018, the Petitioners, Civil Aviation Authority seek that the declaration that the jurisdiction of the Chief Court in terms of article 71 of the 2009 Order is only to the extent of the Government of GB therefore the latter does not have the jurisdiction to issue writs/directions to the former; xviii. In Constitutional Petition No.18/2018 the petitioner is a citizen of Pakistan after remaining in the permanent and pensionable service of the Armed Forces Medical College Rawalpindi. This is mainly a service dispute and the petitioner seeks implementation of the judgment of the Federal Service Tribunal against the Principal Public School & College, Jutial, Gilgit. The petitioner seeks quashment of the judgment passed in Writ Petition No.108/2017 filed by the respondents to be declared without lawful authority, coram non judice and not maintainable; and xix. In Constitutional Petition No.41/2018, the Federation of Pakistan through Secretary Ministry of Kashmir Affairs and Gilgit Baltistan Islamabad seeks quashment of the impugned judgment wherein the GB Supreme Appellate Court vide order dated 20.06.2018 stayed the operation of the 2018 Order and its implementation process was suspended till the decision of the suo moto taken by the said Court. Const.P. No.50/2018 etc. -: 9 :- 2. The following common but key questions stem from the foregoing factual background:- i. Would granting fundamental rights and a status, role and recognition to the people of GB within the constitutional scheme of Pakistan prejudice Pakistan’s cause for the resolution of the Kashmir dispute by such appropriate means as may be acceptable to Pakistan (which could, for example, be a United Nations sanctioned and supervised plebiscite)? ii. What rights can be granted to the people of GB? iii. Is the GB Supreme Appellate Court a constitutional court? To answer the foregoing questions, it is pertinent to examine some of the commitments made to the people of Jammu and Kashmir. Their importance is enhanced by some special provisions in the constitutions of both Pakistan and India. These constitutional provisions are not only a continuing reminder of those commitments but especially from Pakistan’s side most definitely and certainly reiterate its commitment to a peaceful resolution of the Kashmir dispute in accordance with International Law and the aspirations of the people of Kashmir. 3. The Kashmir issue, starting as it did in the dying days of the British Raj and erupting and escalating into a dispute (and indeed armed conflict) shortly thereafter, became one of Partition’s defining moments. A process that could have produced two empowered, independent countries— countries with a shared history and hopes of a productive and cooperative future—instead embroiled Pakistan in strife that it did not want and was not of its making. The origins of the dispute lay in the contrived (some might even say coerced) accession of Kashmir to India by the Hindu ruler of a Muslim majority state, which was contrary to the expectations of the population and to the basis professed to be preferred by the British for accession by Princely States. The resultant heroic uprising and resistance by the majority was but inevitable. Subsequent United Nations (UN) intervention Const.P. No.50/2018 etc. -: 10 :- recommended, and Pakistan and India accepted, a de-escalatory approach leading up to calls for a plebiscite to determine the wishes of the people of the region. Successive Security Council Resolutions asked the UN to facilitate a “free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” 4. What does require clarification is that the commitment to a plebiscite was, at least ostensibly, echoed also from Indian side, perhaps in an attempt to calm the uproar around the obvious injustice of Maharaja Hari Singh’s alleged declaration of accession to India. Thus, the then Prime Minister of India, Pandit Jawaharlal Nehru unambiguously committed himself to the plebiscite arrangement. His telegrams to the Prime Ministers of Pakistan and the United Kingdom (UK) sought to create the impression that any Indian recognition of the Maharaja’s accession to India was only provisional and that the question of the future of Jammu and Kashmir (i.e., whether as part of Pakistan or India) would be determined by its own people after the restoration of law and order. What, after all, could (at least facially) be more unambiguous than Mr. Nehru’s telegram to the British Prime Minister, Clement Attlee where, in paragraph No.3, he committed that “I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view.”1 [Emphasis supplied] This commitment of the Prime Minister of India was repeated and forwarded by the Prime Minister of Britain to the Prime Minister of Pakistan on 27th October, 1947 by stating that “He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India.”2 1 Reproduced in Modern History of Jammu and Kashmir: Ancient times to Shimla Agreement by J. C. Aggarwal, S. P. Agrawal (originally published in 1995, page 35, paragraph 3). 2 Kashmir: The Case for Freedom By Tariq Ali, Arundhati Roy, Pankaj Mishra, Hilal Bhatt, Angana P. Chatterji (originally published in 2011, page 125). Const.P. No.50/2018 etc. -: 11 :- 5. Mr. Nehru continued his protestations of supporting the right of the Kashmiri people to so decide their future in direct communications with Pakistan’s leaders. Thus in his telegram of 28th October, 1947 to Mr. Liaquat Ali Khan, Mr. Nehru reiterated that:- “In regard to accession also it has been made clear that this is subject to reference to people of State and their decision. The Government of India have no desire to impose any decision and will abide by people's wishes.”3 Similarly, in his telegram of 31st October, 1947 to the Prime Minister of Pakistan, the Prime Minister of India reasserted as follows:- “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this State to people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.”4 Mr. Nehru’s claims of sincerity in empowering the people of Kashmir to so decide their future continued unabated. In his telegram of 4th November, 1947 to the Prime Minister of Pakistan, Mr. Nehru declared, yet again that:- “I wish to draw your attention to broadcast on Kashmir which I made last evening. I have stated our Government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave final decision to people of Kashmir. I further stated that we have agreed on impartial international agency like United Nations supervising any referendum. This principle we are prepared to apply to any state where there is a dispute about accession.”5 3 Modern History of Jammu and Kashmir: Ancient times to Shimla Agreement By J. C. Aggarwal, S. P. Agrawal (originally published in 1995, page 41). 4 Regional and Ethnic Conflicts: Perspectives from the Front Lines By Judy Carter, George Irani, Vamik D Volkan (originally published in 2009, page 44). 5 Quoted in “Unravelling the Kashmir Knot” by Aman M. Hingorani (originally published in May 2016). Const.P. No.50/2018 etc. -: 12 :- Mr. Nehru’s claims of fealty to the rights to the Kashmiris were echoed by his government's representatives. The Indian representative to the UN, Mr. Gopalaswami Ayyangar, made a policy statement in the UN Security Council on 15th January, 1948 where he claimed that India desired “only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established.” 6. It was on the basis of such assurances that the UN Security Council passed resolutions on 17th and 20th January, 1948 establishing the UN Commission for India and Pakistan (UNCIP). The UNCIP was directed to investigate the facts and to report its advice. On 6th February, 1948, the Security Council made an appeal to both parties to agree on a just settlement of the Kashmir problem, to put an end to violence and hostilities and to withdraw all regular and irregular forces who had entered the State from outside. These resolutions were supplemented by a comprehensive resolution passed on 21st April, 1948 and the UNCIP’s resolutions of 13th August, 1948 and 5th January, 1949. Truce was declared on 1st January, 1949. However, rather than adopting the process of demilitarization as envisaged in the aforesaid resolutions India has made the area that it holds in Kashmir as one of the most militarized areas in the world. 7. We have taken the liberty of citing at length from the statements of the Indian leadership because it is important to understand that the concept of the international nature of the Kashmir dispute was not a demand put forth merely by Pakistan. To the contrary, the repeated statements of Mr. Nehru make clear that the right of self-determination of the Kashmiri people was a right acknowledged, promoted and committed to by the Government of India as well as the Government of Pakistan and embraced and sanctified by the international community through the UN. Const.P. No.50/2018 etc. -: 13 :- 8. Commitments of this nature ought to be inviolable. Pakistan has certainly not resiled from its commitments—whether to the people of Kashmir or the international community. However, and this is a sad but hard reality, despite the passage of seven decades the promised plebiscite has yet to be held and the territory of Kashmir continues to remain divided—Jammu and Kashmir under the Indian Constitution, increasingly subsumed into India (hereinafter referred to as “Indian Occupied Kashmir” or “IOK”) on the one hand, and the State of Azad Jammu and Kashmir (hereinafter referred to as “AJK”) and the territory of GB on the other. 9. Over the decades the trajectories of the divided region have diverged. The part under Pakistan’s administrative control (i.e., GB)—subject to the writ of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution)—and that aligned with Pakistan (i.e., AJK) have progressed (though perhaps not as swiftly or as much as Pakistanis would have desired) and remained largely at peace, while the portion of Kashmir under Indian control has been convulsed with resistance and rebellion—expressions of popular sentiment that have been met with ever worsening repression and suppression. 10. The situation at present in IOK is dire. To reach such conclusion we need not turn to any official document or statement from Pakistan. Reliance can be placed upon the most recent report of the Office of the UN High Commissioner for Human Rights (OHCHR) issued in the summer of 2018 which pulls no punches and is damning. It notes widespread allegations of “human rights violations [that] include torture and custodial deaths, rape, enforced disappearances and extrajudicial killings.” With some 500,000 to 700,000 troops in the territory, the OHCHR report noted that “Indian Kashmir” is “one of the most militarized zones in the world.” “Impunity for human rights violations and a lack of access to justice” are just a few of the human rights challenges in IOK. This impunity is sanctioned and promoted by such draconian laws as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) that grants broad powers to the security forces and Const.P. No.50/2018 etc. -: 14 :- effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions prior to being launched. As per the OHCHR, the law “gives virtual immunity against prosecution for any human rights violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government.” The provisions of AFSPA fly in the face of the most basic international norms and conventions. For example, section 4 thereof allows any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons.” The use of pellet guns is regarded as directly responsible for the blinding, and thus incapacitation, of hundreds of Kashmiri youth. Others have been bound, in some of the most bizarre sights of the modern era, in front of military vehicles, self-evidently as so- called “human shields” against stones lobbed by unarmed youth facing the terrible might of one of the world’s largest and most well-equipped armies. 11. In contrast, circumstances on the Pakistan side of the Line of Control (LOC) are markedly better. Tellingly, the OHCHR Report devotes most of itself to the situation in Indian-held Kashmir. There is of course an obvious and understandable reason for this. In all of the seven decades since Independence even when Pakistan itself was caught in, and convulsed by, turmoil of the most tragic nature, there was always an obvious and popular acceptance of, and for, Pakistan by the people, both in AJK and GB. On the Indian side however state sanctioned violence seems to go on and on. 12. As acknowledged by the OHCHR Report, AJK is neither a police state, nor are military laws or rules in place. Basic rights are available to the population and most elements of due process exist. Relative to IOK, the region is empowered, peaceful and prosperous. But a relative improvement as compared with the dire situation across the border is Const.P. No.50/2018 etc. -: 15 :- not the standard that Pakistan should ever be satisfied with. Nor is this Court prepared to tolerate or condone any violation of human rights on this side of the prevailing divide even though those breaches involve no violence as reported from the other side. We should seek to hold ourselves to the highest standards of conduct in relation to the territories for which Pakistan bears responsibility. In this context, there is always more work to be done. 13. As noted, Pakistan has responsibilities in relation to two regions: AJK and GB. In 1948, UNCIP recognized the existence of local authorities (as distinct from the Government of Pakistan) for the territories. We are of course here concerned with GB alone. The region has not been incorporated into Pakistan as it is considered to be a part of the disputed State of Jammu and Kashmir. However, it has always remained completely under Pakistan’s administrative control. 14. For the governance of the region, a series of administrative structures and laws have been applied to GB since 1947. These have included the following (up to 1999):- Year Legal instrument Description 1947 Frontier Crimes Regulations (FCR) implemented First law to be enforced was a continuation of the colonial law of FCR. Under this British law for the tribal areas and GB, a civil bureaucracy exercised all judicial and administrative power. 1949 Karachi Agreement On 28th April, 1949, officials of the Pakistan Government met with those of the AJK Government to ink the Karachi Agreement. Under this accord, it was agreed that the affairs of Gilgit would be run by the Pakistan Government. It appears that no leader from Gilgit was included in this agreement.6 1950 Ministry of Kashmir Affairs and Northern Areas created Affairs of Northern Areas handed over to the Ministry of Kashmir Affairs and Northern Areas (KANA). Joint Secretary of the Ministry of Kashmir Affairs has been performing duties of Resident in the Northern Areas with all administrative and judicial authority since 1952.7 1952 Political Resident Appointed Joint Secretary of the Ministry of Kashmir Affairs who headed the local administration and judiciary; was responsible for enforcement of the FCR and was also the 6 Information retrieved from http://gbla.gov.pk/page/history#advocuncil. 7 AJK and Gilgit-Baltistan, Journal of Contemporary Studies, Vol. V, No. 1, Summer 2016, at page 80, paragraph 2, available at: https://ndu.edu.pk/fcs/Publications/fcsjournal/JCS_2016_summer/5.AJK-and-Gilgit- Baltistan.pdf. Const.P. No.50/2018 etc. -: 16 :- financial and revenue commissioner. The Resident also exercised legislative powers in the Northern Areas in consultation with the Federal Government.8 1967 Political Agents appointed KANA transferred powers of the High Court and Revenue Commissioner to the Resident and appointed two Political Agents, one each for Gilgit and Baltistan.9 1970 Advisory Council for Northern Areas Council Constitutional Order Between Pakistan and the Azad Kashmir Government. 21 elected and non-elected members headed by the then Resident for GB as Chairman under KANA Division O.M. No.NA-1(6)/70 dated 18th November, 1970. 16 members of Northern Areas Advisory Council (NAAC) were elected in 1970.10 1975 Northern Areas Council Legal Framework Order 1975 FCR Abolished Major administrative, judicial and political reforms were introduced. The jagirdari nizam was abolished. GB was transformed into districts like those in Pakistan. The FCR was abolished, and the civil and criminal law was extended to the Northern Areas. The Advisory Council for Northern Areas was replaced by Northern Areas Council (NAC).11 1994 Northern Areas Council Legal Framework Order (LFO) of 1994 Administrative instrument devised by KANA, supplemented by the Northern Areas Rules of Business (NARoB) (also of 1994) serving as a sort of basic law but with only limited advisory functions devolved on the council.12 1999 Al Jehad Trust judgment (1999 SCMR 1379) This Court declared it could not prescribe a form of government for the region, nor could it direct that the region be represented in the Parliament since that could undermine Pakistan’s stand on Kashmir. It left such issues to the Federal Government and the Parliament. However, it directed the Government to take “proper administrative and legislative steps” to ensure that the people of the Northern Areas enjoyed their rights under Pakistan's Constitution.13 1999 Northern Areas Council Legal Framework (Amendment) Order, 1999 The Northern Areas Council was renamed as the Northern Areas Legislative Council (NALC) which was given the powers to legislate on 49 subjects. The post of Speaker and three women seats were also created.14 15. As of today, the situation ultimately to emerge both for AJK and GB, as also of course for the rest of the erstwhile State, is enshrined in the aspiration expressed in Article 257 of the Constitution, which provides that “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, 8 Ibid at paragraph 2. 9 Supra. 10 Information retrieved from http://gbla.gov.pk/page/history#advcouncil. 11 Information retrieved from http://gbla.gov.pk/page/history#advcouncil. 12 Volume 7, page 108, paragraph 35. 13 Volume 7, Pg 108, Paragraph 36. 14 Information retrieved from http://gbla.gov.pk/page/history. Const.P. No.50/2018 etc. -: 17 :- the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.” 16. Be that as it may, in 1999, this Court in the seminal judgment reported as Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others Vs. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 directed the Pakistan Government to extend fundamental freedoms to the Northern Areas (now of course referred to as GB) within six months. The judgment declared that Pakistan exercised both de facto and de jure administrative control over the Northern Areas. This Court ruled that the people of the region were “citizens of Pakistan for all intents and purposes...and could invoke constitutionally guaranteed fundamental rights.” (at page 1393) The ruling emphasized that the people of the Northern Areas were “entitled to participate in the governance of their area and to have an independent judiciary to enforce...Fundamental Rights.” (at page 1396). 17. This Court has thus been sensitive for a long time to the fundamental rights of the people of GB. At the same time it was recognized that in the prevailing circumstances the Northern Areas’ Legislative Council could not simply be equated with a Provincial Government. The problem clearly required a resolution. However, there was no immediate follow-up to the judgment passed in the Al-Jehad Trust case (supra) as the Executive procrastinated. But after the lapse of a decade, the Federal Government promulgated the 2009 Order which, it argued, would establish a system of full internal governance in GB. The 2009 Order was a step towards the empowerment of the people of GB, but was not a complete solution. Thus, the Human Rights Commission of Pakistan (HRCP) emphasized, in a 2016 report based on a fact-finding mission, that the 2009 Order “falls short of providing a democratic system in which the people of Gilgit-Baltistan could enjoy the rights available to other Pakistan citizens.” Other deficiencies noted in the report included, in part, that it (the 2009 Order) did not guarantee the right to protection against double punishment nor a right to information and the Const.P. No.50/2018 etc. -: 18 :- right to education. According to the report, discrimination on the basis of sex was not prohibited nor was the State obliged to take affirmative action in favour of women and children. This situation appears to be most unsatisfactory to this Court. Even though some rights are indeed available in GB, albeit under laws such as the Pakistan Penal Code and the Code of Criminal Procedure, 1898 (CrPC), and are given effect by the respective courts, these are not protected under any overarching framework of a constitutional nature. This therefore remains unsatisfactory. Perhaps unsurprisingly, the 2009 Order failed to fully address the aspirations of the people of GB for full empowerment and representation. Reflecting this discontent, the GB Legislative Assembly passed a unanimous resolution in August 2015 demanding that the region be included in Pakistan as a constitutional Province with representation in Parliament. The desire of the people of GB to participate fully in the national life of Pakistan is palpable. The HRCP mission had noted that “a large number of people living in Gilgit- Baltistan aspire to have full rights as citizens of Pakistan. They argue that whenever it suits the federal government they are viewed as Pakistanis but when they ask for equal rights they are reminded of their controversial constitutional status.” [Emphasis supplied] 18. The division of Kashmir has dragged on for more than seven decades. Given continued Indian policy to deny a plebiscite, it is possible that it may persist for a considerable further period. Under these circumstances, it is surely a denial of fundamental rights to have the people of GB linger on in legal limbo—deprived of rights simply because they await a future event that may not practically occur within their individual lifetimes. Quite obviously, the question of fundamental rights cannot be addressed in isolation. Such rights do not hang in the air. In order to have meaningful life and force, they must be embedded in (thereby drawing support and sustenance from, and in turn, fertilizing and enhancing) a properly articulated system of governance of a constitutional nature. These two—fundamental rights and a system of governance—of necessity go hand in hand. The former without Const.P. No.50/2018 etc. -: 19 :- the latter is not possible and only desirable, and the latter without the former, though possible, is not desirable. To attempt to put in place one but not the other would be a lopsided exercise, lacking the proper balance that must exist. Fortunately, a path forward is already available in the recommendations of the Committee on Constitutional and Administrative Reforms in GB (Committee) constituted by the Prime Minster in 2015. The Committee, which submitted its report in March 2017, was tasked with reviewing the constitutional and administrative arrangements in GB and recommending reforms, as well as reviewing the existing internal arrangements of the region. The Committee was led by the veteran civil servant and former Foreign Minister Mr. Sartaj Aziz. The report of the Committee concluded that further reforms were required to enhance the sense of participation of the people of GB and to upgrade the standard of governance and public service delivery. At the same time, the Committee noted that the reforms proposed should not prejudice Pakistan’s principled position in the context of UN resolutions on Kashmir. 19. We are in agreement with the conclusions of the Committee on both the above noted counts: (i) that there is a need for further substantive reforms to enhance the participation of GB's citizenry in governance; and (ii) that in no way and at no point should the proposed reforms prejudice Pakistan’s principled position regarding the status of Kashmir. Indeed, the latter point is of crucial importance and must guide and inform any and all recommendations regarding reforms in GB. It is within the context of the above framework that we must examine the recommendations of the Committee. The Committee recommended, in part, that:- i. GB be accorded a “provisional” and special status of a Province pending final settlement of the Jammu and Kashmir dispute; ii. The region be given representation in the National Assembly and the Senate of Pakistan through amendments to Articles 51 Const.P. No.50/2018 etc. -: 20 :- and 57 of the Constitution, rather than an amendment to Article 1 thereof; iii. All legislative subjects other than those enumerated in Article 142 of the Constitution and its Fourth Schedule be assigned to the GB Assembly; iv. GB be given representation in all constitutional bodies; and v. A robust local bodies system be introduced. The Committee also suggested broad reforms in other key areas including infrastructure development, socio-economic uplift and the civil service. 20. We are cognizant of the fact that nothing this Court recommends or orders should affect the nature and status of the Kashmir issue. It is within this light that we have reflected upon the recommendations of the Committee with great care. We also recognize that some of the recommendations may require Acts of Parliament and even amendments to the Constitution. At the same time, we have also been comforted by the fact that the Committee itself was acutely aware of the sensitivities of the issue before it, and provided its recommendations only after considering their implications, if any, on the status of the Kashmir dispute. It must be emphasized that all the above measures must be predicated by the caveat that these are subject to the result of the plebiscite, which is duly recognized in Article 257 already alluded to above. The Committee’s recommendations have been considered in the backdrop of Pakistan’s international commitments and their constitutional endorsement. As a responsible member of the comity of nations Pakistan remains aware of its obligations in such terms. As and when the promised plebiscite is organized by the parties to the dispute, it will be up to the people of all of Jammu and Kashmir, and of GB, to make their choice. Till then, it is surely incumbent upon both India as well as Pakistan to ensure that the people of this region enjoy maximum rights for Const.P. No.50/2018 etc. -: 21 :- areas within each country’s control. Therefore, till such time that the plebiscite is held, a proper arrangement must be provided for by Pakistan for the people of GB for purposes of governance within a framework of a constitutional nature, including most importantly the enjoyment of fundamental rights. 21. This Court has already held in the case of Al-Jehad Trust (supra) that the people of GB are “citizens of Pakistan for all intents and purposes...and could invoke constitutionally guaranteed fundamental rights” and emphasized that they were “entitled to participate in the governance of their area and to have an independent judiciary to enforce...Fundamental Rights.” (at page 1393) This Court’s observations in the noted case find expression in the Committee’s report which distinguishes between the (yet to be finally resolved) status of GB, and the legitimate aspirations of the people of the region to participate in national life. It is clear that granting full rights to them does not in any way prejudice the eventual determination of the status of Jammu and Kashmir. A state of vacuum cannot be created for the people of GB. They, after all, are as entitled to all the fundamental rights as are enjoyed by others. Therefore there can be no prejudice to Pakistan’s position on the plebiscite issue if the men, women and children living in GB are guaranteed basic human rights and a role in their own governance within a framework of a constitutional nature. Indeed, full rights for the people of GB can only bolster Pakistan’s case for the right of self-determination for all the people of Kashmir. Pakistan has the principled position that the people of Kashmir deserve to exercise all fundamental rights including the right of self-determination in terms of the plebiscite, the promise of which remains yet to be actuated. 22. Regrettably, this latter right is not solely within Pakistan’s own prerogative to proffer. It is a right that can only be exercised with the participation of India and the international community through the UN. However, Pakistan does have the ability to itself empower the people of Const.P. No.50/2018 etc. -: 22 :- GB with all those fundamental rights that Pakistanis enjoy, without the involvement of India or the international community, and without prejudice to the right of self-determination through a plebiscite of all the people of Jammu and Kashmir. These rights for GB residents would include the right to representation as well as all other rights enjoyed by the citizens of Pakistan. In conferring these rights Pakistan is not only discharging its obligations to the people in the territory that it controls and administers, it is also making a loud and clear statement in favour of providing all rights to all the people of Kashmir. As such, its actions can only strengthen the case for self-determination of Kashmir in accordance with the commitment to ensure exercise of all fundamental rights. It may be mentioned clearly, and without any ambiguity, that the most fundamental and basic right, the right of self-determination is for all the people of Jammu and Kashmir, and it remains a matter of satisfaction that their right to choose through a plebiscite remains a solemn commitment. That is why we hold that the Committee’s recommendations relating to the provision and enforcement of fundamental rights provided by the Constitution must be implemented immediately and with full force and effect. As a matter of law as well as morality, there should be no discrepancy in the fundamental rights available to those in GB relative to Pakistani citizens anywhere in the country. As for a framework for governance, of a constitutional and political nature, for GB we are of the view that the right to self-government through an empowered GB Assembly as well as a robust system of local bodies is entirely uncontroversial and must be enforced as early as possible. 23. We hold the above while yet again emphasizing our considered view that these changes do not in any way prejudice or affect Pakistan’s principled stance on Kashmir. As such, these reforms are by definition provisional until the time when the people of Kashmir exercise their right of self-determination under the plebiscite. They have been deprived of this Const.P. No.50/2018 etc. -: 23 :- choice for far too long and at far too great a cost. Our judgment today merely states and upholds the obvious—that the parties to the Kashmir issue have an obligation to hasten the final resolution of this dispute and until that takes place, we must do everything in our power to minimize the suffering that this region has had to bear on account of its prolonged division. 24. Another question before this Court is whether the GB Supreme Appellate Court lacks the judicial power and jurisdiction to suspend, set aside or vary an Order promulgated by the President of Pakistan for the governance of GB, i.e., the 2018 Order or any Order amending, substituting or replacing the same. Now, given the present status of GB, i.e., as a region that is fully within the administrative control of Pakistan, and where Pakistan functionally exercises all aspects of sovereignty, it is clear that the Federation (i.e., Parliament and the Federal Government) is fully empowered to make arrangements for the governance of the region. This power extends to enacting and putting into place, whether on the executive side by means of an Order promulgated by the President or on the legislative side by an Act of Parliament, a framework and system of governance that is of a constitutional nature. The 2018 Order was issued in exercise of these powers, and the courts in GB were created under the same. The question now being considered can be put in more general terms: what would be the position (i.e., status, powers and jurisdiction) of the judicial, legislative and executive organs established by an instrument of the nature of the 2018 Order? In accordance with well-established principles of law, the GB legislature would only have such powers as are conferred upon it by the Federation through the Proposed Order. The courts created by such Order shall have the power to judicially review the laws enacted by such legislature. Of course, the organs created by the 2018 Order, and especially any legislative body, would be bound not merely by the Order, but also by the Constitution (under which the Order itself Const.P. No.50/2018 etc. -: 24 :- came into existence). For the present purposes, the more immediate point is that a court created by the 2018 Order, such as the GB Supreme Appellate Court or the Chief Court, can examine whether the GB Assembly has exceeded the remit of its competence as conferred by the Order (when, e.g., enacting a law), and can declare it to be ultra vires the same. However, this jurisdiction is of necessity territorially bound. It can only apply and operate in relation to GB, and to things done or purported to be done under the 2018 Order. It cannot extend to any matter beyond or outside GB, or the vires or validity of the 2018 Order itself. The jurisdiction of a GB court of the sort being considered in the present context is confined to the territory of GB. Therefore, it may be concluded that the intention was to give the GB Supreme Appellate Court and the Chief Court the status of a “constitutional” court within the ambit of GB and the 2018 Order, but confining the scope to interpreting and implementing the said Order and conducting judicial review within the territory of GB in this regard. It is thus a “constitutional” court inasmuch as it has the jurisdiction to strike down any law made by a GB legislature on the recognized concept of ultra vires. But it would not be in a position to question, in any manner and on any ground whatsoever, the very law that created it. This view is bolstered by the fact that an ouster clause has been inserted as Article 118 of the 2018 Order, whereby the GB courts have been restrained from calling into question the validity of the 2018 Order. The said Article reads as under:- “118. Order to override other laws, etc.– (1) The provision of this Order shall have effect notwithstanding anything contained in the provisions of any law for the time being in force except that in case of conflict between the laws of Pakistan and the law framed under this Order, the laws of Pakistan shall prevail. Const.P. No.50/2018 etc. -: 25 :- (2) No Court, including the Gilgit-Baltistan Supreme Appellate Court and the Gilgit-Baltistan High Court, shall call into question or permit to be called into question, the validity of this Order.” 25. Therefore it may be concluded that the GB Court does not sit as a court having the power of judicial review in respect of the territory of Pakistan, nor can it declare Orders made or legislation passed by the President or the Parliament as ultra vires, nor can it initiate judicial review of departments working outside of GB. Instead, the 2018 Order can be challenged by, inter alia, the people of GB, but only before this Court, either under Article 184 of the Constitution or in the manner herein after provided. 26. We now turn to a question of importance, which is crucial for the success of the project of creating a framework of governance for GB of a constitutional nature. Any framework of such a nature necessarily implies, and indeed it could be said demands, a degree of continuity in the manner provided in the Proposed Order (hereinafter referred to). Otherwise, what good is it? Of what value are the fundamental rights enshrined in such a framework, and how independent can a judiciary created thereby be, if the structure is impermanent, and even ephemeral? This is all the more so where the framework is put in place in exercise of executive authority, by means of an Order promulgated by the President. Such an Order can be put in place, as it were, with a stroke of the pen, but likewise instantly cast into oblivion. Indeed, the manner in which the 2009 Order was replaced by the 2018 Order is a telling illustration of the point now under consideration. During the course of the hearing of these petitions, and in light of the submissions by various learned counsel and the observations of the Court, the Federal Government constituted a committee shepherded by the learned Attorney General, to review the entire matter, and place before the Court a draft of a fresh Order for the governance of GB. This was duly Const.P. No.50/2018 etc. -: 26 :- done, and the draft so placed was examined by the Court in light of the submissions made before it. In our view, that draft, as modified in the manner hereinafter stated, does provide a suitable framework in the hue of constitutional nature for the governance of GB. The Federal Government stands committed to promulgating the same (hereinafter referred to as the “Proposed Order”), in substitution of the 2018 Order. However, the question of permanence remains. It is this point that must now be considered. 27. As noted above, the matters before us have been instituted under Article 184(3) of the Constitution. The jurisdiction thereby conferred upon this Court has been considered in a number of decisions, which have settled a well-known jurisprudence that requires no elaborate rehearsal. There is also Article 187 of the Constitution, which confers a special jurisdiction on this Court. As the text of Article 184(3) supra indicates, this Court can give “such directions to any person or authority including any Government… as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II” of the Constitution. It is now well settled that this constitutional power, within the scope of the grant, is not just plenary; it is also dynamic and flexible. Indeed, if we may adapt (in a somewhat modified manner) for present purposes a famous metaphor used by the Privy Council in relation to the Canadian constitution, in granting fundamental rights the Constitution has planted a “living tree capable of growth and expansion”. Understandings of both the nature of fundamental rights, and what must be done to ensure their meaningful enjoyment in full, have developed and evolved over the decades and will undoubtedly continue to do so in times to come. Thus, to take but one example, the meaning of the right to life conferred by Article 9 of the Constitution has developed in a manner that would, perhaps, be breathtaking for previous generations. The categories and varieties of cases involving or raising issues of fundamental rights of public importance can never be closed. They are shaped by the human condition and the vagaries of the human experience, which by its very Const.P. No.50/2018 etc. -: 27 :- nature is limitless. This is not to say that the scope of the constitutional power is, as a matter of law, boundless, but only to stress that any artificial straitjacketing, based on preconceived notions or whatever passes for orthodoxy or received wisdom in a particular age, is to be avoided. Now, precedent is too often perceived as a limitation. Certainly, at least in the common law tradition, it is a defining characteristic of judicial power. It should however, perhaps also be given greater recognition as a useful tool in the judicial arsenal. It must never be forgotten that while we are certainly tied to the past we are not shackled by it. And this is perhaps all the more so when the jurisdiction is of the nature as conferred by Article 184(3) supra. To this must be added the power conferred on this Court under Article 187 supra, to “issue such directions, orders or decrees as may be necessary to do complete justice” in any pending case or matter. Keeping these provisions in mind, and the special nature of the issue before us—the settling of a framework, of a constitutional nature, for the governance of GB—we are of the view that our jurisdiction extends to the giving of suitable directions to the Federation, both to promulgate the Proposed Order and also for ensuring its continuity. It is only in this way that fundamental rights can be granted to the people of GB in the meaningful and realistic manner envisaged by this Court in the case of Al-Jehad Trust (supra). At the same time, as indeed was accepted on behalf of the Federation, the directions that we can give extend to making certain modifications in the Proposed Order, again in order to properly effectuate the objective sought to be achieved. It is in the foregoing terms that we have, indeed, made certain modifications to the Proposed Order, which have been incorporated therein, and have also for convenience been gathered in the appendix to this judgment. 28. Before concluding, we would like to make one last point. It is a matter of some concern that although this Court had articulated the basic position as regards the status and rights of the people of GB in the case of Const.P. No.50/2018 etc. -: 28 :- Al-Jehad Trust (supra) two decades ago, the actual realization by the Executive of that expression has remained fitful at best. This is not acceptable. This Court has not hesitated in the past to give legal recognition to the aspirations of people who have unhesitatingly, enthusiastically (and, if we may put it like that, joyously) cast their lot with Pakistan right from the beginning. We do not hesitate now to take the matter further. Therefore, we do not just provide judicial imprimatur to the proposed framework: we also give it permanence, so that the people of GB have unassailable confidence that their rights, and the enjoyment thereof, is not subject to the whims and caprice of every passing majority, but are firmly grounded in the Constitution itself. And let it be clearly understood: we will not hesitate in future, should the need and occasion arise, to take, within our constitutional mandate, all such steps as may be required. The human rights jurisprudence of this Court has served, and will continue to serve, as the sheet-anchor of the liberties and rights of all the people. Those of Gilgit-Baltistan are no exception. 29. Accordingly, we hereby direct and order as follows:- i. The Proposed Order, which (modified as noted above) is annexed to this judgment, shall be forthwith promulgated by the President on the advice of the Federal Government, and in any case within a fortnight hereof; ii. No amendment shall be made to the Order as so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this Court by the Federation through an application that will be treated as a petition under Article 184(3) of the Constitution. Nothing in this judgment shall be construed to limit the jurisdiction conferred on this Court by the Proposed Order itself; and Const.P. No.50/2018 etc. -: 29 :- iii. If the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution. 30. In light of the foregoing, the instant matters are disposed of accordingly, save those petitions in which a specific order or judgment, of either the GB Supreme Appellate Court or the Chief Court, has been challenged. Such petitions (being only Constitution Petitions No.2/2016, 3/2016, 34/2016, 6/2017, 30/2017, 18/2018, 50/2018 and 51/2018) shall be deemed pending and be treated and disposed of as the leave petitions envisaged under Article 103 of the Proposed Order, when promulgated. Such petitions shall be listed in the normal course before an appropriate Bench. CHIEF JUSTICE Announced in open Court on 17.01.2019 at Islamabad Approved for Reporting M. Azhar Malik JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE No.F.13 (2)/2018-Admn(GBC) GOVERNMENT OF PAKISTAN MINISTRY OF KASHMIR AFFAIRS AND GILGIT-BALTISTAN ******** Islamabad, the January, 2019 AN ORDER to provide for further political empowerment and good governance in Gilgit-Baltistan WHEREAS the Federal Government intends to give Gilgit-Baltistan the status of a provisional Province, subject to the decision of the Plebiscite to be conducted under the UN Resolutions, with all privileges provided by the Constitution, however, a proper Constitutional Amendment needs to be made in the Constitution of the Islamic Republic of Pakistan. This needs two thirds majority in the Parliament and would take time. However, as an interim measure the Federal Government intends to give such Fundamental Right as given to the other Province. WHEREAS it is expedient to provide for greater empowerment so as to bring Gilgit-Baltistan at par with other provinces and to initiate necessary legislative, executive and judicial reforms for the aforesaid purposes; NOW, THEREFORE, the President of Islamic Republic of Pakistan is pleased to make the following Order:- 1. Short title, extent and commencement.- (1) This Order may be called the Gilgit-Baltistan Governance Reforms, 2019. (2) It extends to whole of the Gilgit-Baltistan. (3) It shall come into force on at once. 2 PART - I PRELIMINARY 2. Definitions.- (1) In this Order, unless there is anything repugnant in the subject or context.- (a) “Assembly” means the Gilgit-Baltistan Legislative Assembly; (b) “Citizen” means a person who has a domicile or resident of Gilgit- Baltistan; (c) “Council” means the Gilgit-Baltistan Council constituted under this Order; (d) “Chairman” means the Chairman of the Council who shall be the Prime Minister of Pakistan; (e) “Federation” means the Federal Government of Islamic Republic of Pakistan; (f) “Financial year” means the year commencing on the first day of July and ending on the thirtieth day of June; (g) “Gilgit-Baltistan” means the areas comprising districts of Astore, Diamer, Ghanche, Ghizer, Gilgit, Hunza, Nagar, Skardu, Shigar, Kharmang and such other districts as may be created from time to time; (h) “Governor” means the Governor of Gilgit-Baltistan and includes a person for the time being acting as Governor; (i) “Government” means the Government of Gilgit-Baltistan (j) “Joint Sitting” means a joint sitting of the Assembly, the Federal Minister in-charge of the Council Secretariat and the members of the Council; (k) “Judge” in relation to the Gilgit-Baltistan Supreme Appellate Court or the Gilgit-Baltistan Chief Court, includes the Chief Judge of the Gilgit-Baltistan Supreme Appellate Court and the Chief Court; (l) “person” includes any body politic or corporate; (m) “prescribed” means prescribed by law or rules made there under; (n) “President” means the President of Islamic Republic of Pakistan; (o) “Property” includes any right, title or interest in property, movable or immovable, and any means and instruments of production; (p) “remuneration” includes salary and pension; 3 (q) “Service” means the Service of Pakistan, Service of Gilgit- Baltistan and Service of Azad Jammu and Kashmir; (r) “Service of Gilgit-Baltistan” means any service, post or office in connection with the affairs of Gilgit-Baltistan, but does not include service of Council, service as Governor, Speaker, Deputy Speaker, Chief Minister, Minister or Advisor, Parliamentary Secretary, Advisor to the Minister or a member of the Assembly; (s) “Service of Council” means any service, post or office in connection with the affairs of Gilgit-Baltistan Council which shall be the service of Pakistan, but does not include service as the Chairman of the Council, Advisor to Chairman, Member of the Council, Chairman of the Council's Committees; (t) “Speaker” means Speaker of the Assembly and includes any person acting as the Speaker of the Assembly; and (u) “Supreme Court of Pakistan” means the Supreme Court as defined by the Constitution of the Islamic Republic of Pakistan, 1973; (v) “Vice Chairman of the Council” means the Governor of Gilgit- Baltistan. 3. Elimination of exploitation.- The Government shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work. 4. Right of individuals to be dealt with in accordance with law, etc.- (1) To enjoy equal 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 in Gilgit-Baltistan (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 4 (c) no person shall be compelled to do that which the law does not require him to do. 5. Obedience to this Order.- Obedience to this Order and law is the inviolable obligation of every citizen, wherever he may be, and of every other person for the time being within Gilgit-Baltistan. PART - II FUNDAMENTAL RIGHTS 6. Laws inconsistent with or in derogation of Fundamental Rights to be void.- (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this part, shall, to the extent of such inconsistency, be void. (2) The Government shall not make any law which takes away or abridges the rights so conferred by this Order and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The Provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Part. (4) The rights conferred by this Part shall not be suspended except as expressly provided by this Order. 7. Security of person.- No person shall be deprived of life or liberty save in accordance with law. 8. Safeguard as to arrest and detention.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. 5 (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. (3) Nothing in clause (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding three months unless the Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention. Explanation I.— In this article, "the Review Board" means, a Board appointed by the Chief Judge of the Supreme Appellate Court of Gilgit-Baltistan consisting of a Chairman, the Secretary of the Department concerned with Home Affairs and a person, who is or has been a Judge of the Supreme Appellate Court or the Chief Court. Explanation II.—The opinion of the Review Board shall be expressed in terms of the views of the majority of its members. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: 6 Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose. (6) The authority making the order shall furnish to the Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government, to the effect that it is not in the public interest to furnish any documents, is produced. (7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in any law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity. (8) The Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family. (9) Nothing in this article shall apply to any person who for the time being is an enemy alien. 9. Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. 7 10. Slavery and forced labour prohibited.- (1) No person shall be held in slavery, and no law shall permit or in any way facilitate the introduction into Gilgit-Baltistan of slavery in any form. (2) All forms of forced labour and traffic in human beings is prohibited. (3) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment. (4) Nothing in this clause shall be deemed to affect compulsory service- (a) by persons undergoing punishment for offences under any law; or (b) required by any law for a public purpose. 11. Protection against retrospective punishment.- No law shall authorize the punishment of a person- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. 12. Protection against double punishment and self-incrimination. No person— (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself. 13. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence. 14. Freedom of movement.- Every citizen shall have the right to remain 8 in, and, subject to any reasonable restrictions imposed by law in the public interest, enter and move freely throughout Gilgit-Baltistan and to reside and settle in any part thereof. 15. Freedom of assembly.- Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of morality or public order. 16. Freedom of association.- (1) Subject to this Order, every citizen shall have the right to form association or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order. (2) No person or political party in the area comprising Gilgit-Baltistan shall propagate against, or take part in activities prejudicial or detrimental to the ideology of Pakistan. (3) Every citizen, not being in the Service, 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 or any part thereof and such law shall provide that where the Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or any part thereof, the Government of Gilgit- Baltistan shall, within fifteen days of such declaration, refer the matter to the Supreme Appellate Court whose decision on such reference shall be final. (4) Every political party shall account for the source of its funds in accordance with law. 17. Freedom of trade, business or profession.- Every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this article shall prevent- (a) the regulation of any trade or profession by a licensing system; or 9 (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by Government or by a corporation controlled by Government, of any trade, business, industry or service, to the exclusion, complete or partial, or other persons. 18. Freedom of speech.- Every citizen shall have the right to freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the security, public order, decency or morality, or in relation to contempt of Court, commission of, or incitement to an offence. 19. Right to information.-Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law. 20. Freedom to profess religion and manage religious institutions.- Subject to law, public order and morality,- (a) every citizen has the right to profess and practice his religion; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its places of worship. 21. Safeguard against taxation for purposes of any particular religion.- No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own. 22. Safeguard as to educational institutions in respect of religion etc.- (1) No person attending any educational institution shall be required to receive religious instructions or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own. (2) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in 10 any educational institution maintained wholly by that community or denomination. (3) No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth. (4) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation. (5) Nothing in this paragraph shall prevent any public authority from making provision for the advancement of any society or educationally backward class. 23. Provisions as to property.- Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to acquire, hold and dispose of property. 24. Protection of property.- (1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given. (3) Nothing in this clause shall, affect the validity of- (a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or (b) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be evacuee property under any law; or 11 (c) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law ; or (d) any law providing for the taking over of the management of any property by the Government for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or (e) any law providing for the acquisition of any class of property for the purpose of- (i) providing education and medical aid to all or any specified class of citizen; or (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizen; or (iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or (f) any law in force immediately before the coming into force of this Order: Explanation.- In clause (2) and (3), the expression ‘property’ means immovable property, or any commercial or industrial undertaking, or any interest in any undertaking. (4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court. 25. Equality of citizens.- (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of gender. (3) Nothing in this Article shall prevent the Government from making any special provision for the protection of women and children. 12 26. Right to education.- The Government shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. 27. Non-discrimination in respect of access to public places.- In respect of access to places of public entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, gender or place of birth, but nothing herein shall be deemed to prevent the making of any special provision for women. 28. Safeguard against discrimination in services.- No citizen otherwise qualified for appointment in the service of Gilgit-Baltistan, shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste or gender: Provided that, in the interest of the said service, specified posts or services may be reserved for members of either sex. 29. Preservation of language, script and culture.- Subject to Article 117 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose. PART - III PRINCIPLES OF POLICY 30. Principles of Policy.- (1) The Principles set out in this Part shall be known as the Principles of Policy, and it is the responsibility of each organ and authority of the Government, and of each person performing functions on behalf of an organ or authority of the Government, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority. (2) In so far as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the Principle shall be regarded as being subject to the availability of resources. 13 (3) In respect of each year, the Governor shall cause to be prepared and laid before the Assembly, a report on the observance and implementation of the Principles of Policy, and provision shall be made in the rules of procedure of the Assembly, for discussion on such report. 31. Responsibility with respect to Principles of Policy. (1) The responsibility of deciding whether any action of an organ or authority of the Government, or of a person performing functions on behalf of an organ or authority of the Government, is in accordance with the Principles of Policy is that of the organ or authority of the Government, or of the person, concerned. (2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the Government or any organ or authority of the Government or any person on such ground. 32. Islamic way of life. (1) Steps shall be taken to enable the Muslims of Gilgit-Baltistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The Government shall endeavor:- (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b) to promote unity and the observance of the Islamic moral standards; and (c) to secure the proper organization of zakat, ushr, auqaf and mosques. 33. Promotion of local Government institutions.- The Government shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special 14 representation will be given to peasants, workers and women. 34. Parochial and other similar prejudices to be discouraged.- The Government shall discourage parochial, racial, tribal and sectarian prejudices among the citizens. 35. Full participation of women in national life.- Steps shall be taken to ensure full participation of women in all spheres of national life. 36. Protection of family, etc.- The Government shall protect the marriage, the family, the mother and the child. 37. Protection of minorities.-The Government shall safeguard the legitimate rights and interests of minorities, including their due representation in the service of Gilgit-Baltistan. 38. Promotion of social justice and eradication of social evils.- The Government shall: (a) promote, with special care, the educational and economic interests of backward classes or areas; (b) remove illiteracy and provide free and compulsory secondary education within minimum possible period; (c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit; (d) ensure inexpensive and expeditious justice; (e) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment; (f) enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Gilgit-Baltistan; (g) prevent prostitution, gambling and taking of injurious drugs, 15 printing, publication, circulation and display of obscene literature and advertisements; (h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes; and (i) decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public. 39. Promotion of social and economic well-being of the people.- The Government shall: (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants; (b) provide for all citizens, within the available resources of the Gilgit-Baltistan, facilities for work and adequate livelihood with reasonable rest and leisure; (c) provide for all persons employed in the service of Gilgit- Baltistan or otherwise, social security by compulsory social insurance or other means; (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; (e) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Gilgit-Baltistan; and (f) eliminate riba as early as possible. 40. Participation of people in Armed Forces.- The Government shall enable people from all parts of Gilgit-Baltistan to participate in the Armed 16 Forces of Pakistan. PART - IV GOVERNOR 41. The Governor.- (1) There shall be a Governor of the Gilgit-Baltistan who shall be appointed by the President on the advice of the Prime Minister. (2) When the Governor, by reason of absence from Gilgit-Baltistan or for any other cause, is unable to perform his functions, the Speaker of the Assembly and in his absence any other person as the President may nominate shall perform the functions of Governor until the Governor returns to Gilgit-Baltistan or, as the case may be, resumes his functions. (3) A person shall not be appointed a Governor unless he is qualified to be elected as a member of the Assembly and is not less than thirty-five years of age and is a registered voter and resident of Gilgit-Baltistan. (4) The Governor shall hold office during the pleasure of the President and shall be entitled to such salary, allowances and privileges as the President may determine. (5) The Governor may, by writing under his hand addressed to the President, resign his office. (6) The President may make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in this Order. (7) Before entering upon office, the Governor shall make before the Chief Judge of the Gilgit-Baltistan Supreme Appellate Court an oath in the form set out in the First Schedule. (8) The Governor shall not hold any office of profit in the Service nor occupy any other position carrying the right to remuneration for the rendering of services. 17 (9) The Governor shall not be a candidate for election as a member of the Assembly, and, if a member of the Assembly is appointed as Governor, his seat in the Assembly shall become vacant on the day he enters upon his office. 42. Governor to act on advice, etc.- (1) Subject to this Order in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister: Provided that the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered to the Governor by the Chief Minister or the Cabinet shall not be inquired into or by, any court, tribunal or other authority. PART - V THE GOVERNMENT 43. The Government.- (1) Subject to this Order, the executive authority of Gilgit-Baltistan shall be exercised in the name of the Governor by the Government, consisting of the Chief Minister and the relevant Minister(s), which shall act through the Chief Minister, who shall be the Chief Executive. (2) In the performance of his functions under this Order, the Chief Minister may act either directly, through the Ministers or through their subordinate Officers. 44. The Cabinet.- (1) There shall be a Cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions. (2) The Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor. 18 (3) After the election of the Speaker and the Deputy Speaker, the Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members to be the Chief Minister. (4) The Chief Minister shall be elected by the votes of the majority of the total membership of the Assembly: Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secures the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister: Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further polls shall be held between them until one of them secures a majority of votes of the members present and voting. (5) The member elected under clause (4) shall be called upon by the Governor to assume the office of Chief Minister and he shall, before entering upon the office, make before the Governor oath in the form set out in the First Schedule: (6) The Cabinet shall be collectively responsible to the Assembly and the total strength of the Cabinet shall not exceed twelve members or eleven percent of the total membership of the Assembly, whichever is higher: Provided that the aforesaid limit shall be effective after the next general elections. (7) The Chief Minister shall hold office during the pleasure of the Governor, but 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 Assembly, in which case he shall summon the Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. 19 (8) The Chief Minister may, by writing under his hand addressed to the Governor, resign his office. (9) A Minister who for any period of six consecutive months is not a member of the Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly. (10) Nothing contained in this Article shall be construed as disqualifying the Chief Minister or any other Minister for continuing in office during any period during which the Assembly stands dissolved, or as preventing the appointment of any person as Chief Minister or other Minister during any such period. (11) The Chief Minister shall not appoint more than two Advisers. 45. Governor to be kept informed. The Chief Minister shall keep the Governor informed on matters relating to administration and on all legislative proposals the Government intends to bring before the Assembly. 46. Ministers.-(1) Subject to clause (9) and (10) of Article 44, the Governor shall appoint Ministers from amongst members of the Assembly on the advice of the Chief Minister. (2) Before entering upon office, a Minister shall make before the Governor oath in the form set out in the First Schedule. (3) A Minister may, by writing under his hand addressed to the Governor, resign his office or may be removed from office by the Governor on the advice of the Chief Minister. 47. Vote of no-confidence against Chief Minister.-(1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the Assembly may be passed against the Chief Minister by the Assembly. 20 (2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the Assembly. (3) If the resolution referred to in clause (1) is passed by a majority of the total membership of the Assembly, the Chief Minister shall cease to hold office. 48. Chief Minister continuing in office.- The Governor may ask the Chief Minister to continue to hold office until his successor enters upon the office of Chief Minister, in case of a vote of no confidence. 49. Extent of executive authority of Government. Subject to this Order, the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws: Provided that, in any matter with respect to which both Council and the Assembly has power to make laws, the executive authority of the Government shall be subject to, and limited by law made by the Council 50. Conferring of functions on subordinate authorities. On the recommendation of the Government, the Assembly may by law confer functions upon officers or authorities subordinate to the Government. 51. Conduct of business of Government. (1) All executive actions of the Government shall be expressed to be taken in the name of the Governor. (2) The Government shall by rules specify the manner in which orders and other instruments made and executed in the name of Governor shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the Governor. (3) The Government shall also make rules for regulation, allocation and transaction of its business and may for the convenient transaction of that 21 business delegate any of its functions to the officers or authority subordinate to it. 52. Parliamentary Secretaries.- (1) The Chief Minister may appoint Parliamentary Secretaries from amongst the members of the Assembly to perform such functions as may be prescribed. (2) A Parliamentary Secretary may, by writing under his hand addressed to the Chief Minister, resign his office or may be removed from office by the Chief Minister. 53. Advocate-General.- (1) The Governor, shall appoint a citizen, being a person qualified to be appointed as Judge of the Gilgit-Baltistan Chief Court, to be the Advocate-General for Gilgit-Baltistan. (2) It shall be the duty of the Advocate-General to give advice to Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Government. (3) The Advocate-General shall hold office during the pleasure of the Governor and shall not engage in private practice so long as he holds the office of the Advocate General. (4) The Advocate-General may, by writing under his hand addressed to the Governor resign his office. (5) The person holding the office as Advocate-General immediately before the commencement of this Order shall be deemed to be the Advocate-General, appointed under this Order. PART - VI GILGIT-BALTISTAN COUNCIL 54. Gilgit-Baltistan Council.- (1) There shall be a Gilgit-Baltistan Council consisting of.- (a) the Prime Minister of Pakistan; (b) the Governor; 22 (c) six members nominated by the Prime Minister of Pakistan from time to time from amongst Federal Ministers and members of Parliament: Provided that the Federal Minister for Kashmir Affairs and Gilgit-Baltistan shall be an ex officio member and Minister-in-Charge of the Council: (d) the Chief Minister of Gilgit-Baltistan; (e) six members to be elected by the Assembly in accordance with single non-transferable majority vote. (2) The Prime Minister of Pakistan shall be the Chairman of the Council. (3) The Governor shall be the Vice-Chairman of the Council. (4) The Minister of State for Kashmir Affairs and Gilgit-Baltistan shall be an ex officio non-voting member of the Council. (5) The qualifications and disqualifications for being elected, as, and for being, a member of the Council shall, in the case of a member referred to in sub-clause (e) of clause (1), be the same as those for being elected as, and for being a member of the Assembly. (6) The seat of a member of the Council elected by the Assembly, hereinafter referred to as an elected member, shall become vacant,- (a) if he resigns his seat by notice in writing under his hand addressed to the Chairman or, in his absence, to the Secretary of the Council; (b) if he is absent, without the leave of the Chairman, from ten consecutive sittings of the Council; (c) if he fails to make the oath referred to in clause (11) within a period of ninety days after the date of his election, unless the Chairman, for good cause shown, extends the period; or (d) if he ceases to be qualified for being a member under any provision of this Order or any other law for the time being in force. 23 (7) If any question arises whether a member has, after his election, become disqualified from being a member of the Council, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be member and his seat shall become vacant. (8) An election to fill a vacancy in the office of an elected member shall be held not later than thirty days from the occurrence of the vacancy or, if the election cannot be held within that period because the Assembly is dissolved, within thirty days of the general election to the Assembly. (9) The manner of election of elected members and filling of a casual vacancy in the office of an elected member shall be such as may be prescribed. (10) An elected member shall hold office for a term of five years from the day he enters upon his office. (11) An elected member shall, before entering upon office, make before the Chairman or the Vice Chairman oath in the form set out in the First Schedule. (12) The executive authority of the Council shall extend to all matters with respect to which the Council has power to make laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which Federal Minister for Kashmir Affairs and Gilgit-Baltistan shall be incharge. Provided that the Council may direct that, in respect of such matters it may specify, its authority shall be exercisable by the Vice-Chairman of the Council, subject to such conditions, if any, as the Council may specify. (13) The Chairman may from among the elected members of the Council appoint not more than three Advisors on such terms and conditions as he may determine. 24 (14) An advisor shall, before entering upon office, make before the Chairman oath in form set out in the First Schedule. (15) An Advisor who is a member of the Assembly shall have the right to speak in, and otherwise take part in the proceedings of the Council, but shall not by virtue of this clause be entitled to vote. (16) The Council may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings of the Council shall not be invalid on the ground that a person who was not entitled to do so sat, voted or otherwise took part in the proceedings. (17) Orders and other instruments made and executed in the name of the Council shall be authenticated in such manner as may be specified in rules to be made by the Council and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Council. (18) The Chairman may regulate the allocation and transaction of the business of the Council and may, for the convenient transaction of that business, delegate any of its functions to officers and authorities subordinate to it. 55. Chairman of Council power to pardon and reprieve.- The Chairman shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. PART - VII THE LEGISLATURE 56. Legislative Assembly.- (1) The Legislative Assembly shall consist of thirty three members of whom- (a) twenty four members shall be elected directly on the basis of adult franchise; (b) six women members shall be elected on the pattern as in case of reserved seat in Pakistan. 25 (c) three technocrats and other professional members shall be elected on the pattern as in case of reserved seat in Pakistan. Explanation.- In sub-clause (c), the expression “technocrat or other professional” includes a person who is in possession of such qualification or experience as may be prescribed. (2) The manner of election of the members of the Assembly and the manner of filling casual vacancies shall be such as may be prescribed. (3) The Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting. (4) A general election to the Assembly shall be held within a period of sixty days immediately preceding the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and result of the election shall be declared not later than fourteen days before that day. (5) On dissolution of Assembly on completion of its term, or in case it is dissolved under Article 62, the Chairman of the Council shall appoint a care- taker Cabinet: Provided that the care-taker Chief Minister shall be selected by the Chairman of the Council in consultation with the Chief Minister, the leader of the Opposition in the outgoing Assembly and the Minister for Kashmir Affairs and Gilgit-Baltistan: Provided further that the members of the care-taker Cabinet shall be appointed on the advice of the care-taker Chief Minister: Provided also that if the Chief Minister, the Leader of the Opposition in the outgoing Assembly and the Minister for Kashmir Affairs and Gilgit-Baltistan do not agree on any person to be appointed as care-taker Chief Minister, the Chairman of the Council may appoint, in his discretion, a care-taker Chief Minister. 26 57. Oath of members of the Assembly.- (1) A person elected as a member of the Assembly shall not take his seat in the Assembly until he makes before such person as is prescribed by rules of the Assembly an oath in the form set out in the First Schedule. (2) The oath may be made when the Assembly is in session. (3) If any person sits or votes in the Assembly knowing that he is not qualified to be, or is disqualified from being a member of the Assembly he shall be liable in respect of every day on which he so sits or votes; shall be guilty of an offence punishable for a term which shall not be less than seven years and a fine which shall not be less than two hundred thousand rupees. 58. Qualifications of members of the Assembly.- (1) A person shall be qualified to be elected as, and to be, a member of the Assembly if- (a) he is a citizen; (b) he is not less than twenty-five years of age; (c) his name appears on the electoral roll of any constituency in Gilgit- Baltistan; and (d) he is not a dual national. (2) A person shall be disqualified from being so elected if- (a) he is of unsound mind and stands so declared by a competent court; or (b) he is an un-discharged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent; or (c) he has been on conviction for any offence sentenced to transportation for any term or imprisonment for a term of not less than two years unless a period of five years has elapsed since his release; or (d) he holds any office of profit in the Service of Gilgit-Baltistan or Azad Jammu and Kashmir or Pakistan other than an office which is not a whole time office remunerated either by salary or by fee other than an office specified in the Second Schedule; or (e) he has been in the Service or of any statutory body or anybody which is owned or controlled by the Government of Pakistan or 27 Gilgit-Baltistan or Azad Jammu and Kashmir or in which such Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (f) he has been dismissed for misconduct from the Service unless a period of five years has elapsed since his dismissal; or (g) he is otherwise disqualified from being a member of the Assembly by this Order or by any other law. 59. Seat in Assembly becomes vacant under certain circumstances.- (1) The seat of a member of the Assembly shall become vacant if- (a) he/she resigns his seat by notice in writing under his hand addressed to the Speaker, in his absence, to the Secretary of the Assembly; or (b) he/she is absent from the Assembly without the leave of the Assembly for thirty consecutive sitting days of the Assembly; or (c) he/she fails to make the oath referred to in Article 57 within a period of ninety days after the date of his election unless the Speaker for good cause shown extends the period; or (d) he/she is elected as member of the Council; or (e) he/she ceases to be qualified for being a member under any provision of this Order or any other law. (2) If the member of the Assembly is elected to more than one seat, he shall within a period of thirty days after the declaration of result for the last such seat, resign all but one of his seats, and if he does not so resign, all the seats to which he has been elected shall become vacant at the expiration of the said period of thirty days except the seat to which he has been last elected or, if he has been elected to more than one seat on the same day, the seat for election to which his nomination was filed last. (3) If any question arises whether a member of the Assembly has, after his election become disqualified from being a member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become 28 disqualified the member shall cease to be a member and his seat shall become vacant. (4) When except by dissolution of the Assembly, a seat in the Assembly has become vacant not later than one hundred and twenty days before the term of the Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy. 60. Right of Governor to address the Assembly.- (1) The Governor may address the Assembly and may for that purpose require the attendance of the members. (2) The Advocate General shall have the right to speak and otherwise take part in the proceedings of the Assembly or any Committee thereof of which he may be named a member, but shall not by virtue of this Article be entitled to vote. 61. Meetings of the Assembly.- (1) The Assembly shall assemble at such times and at such places as the Governor may appoint, and the Governor may prorogue a session of the Assembly except when the Assembly has been summoned by the Speaker. (2) Any meeting of the Assembly may be adjourned by the Speaker or other person presiding thereat. (3) There shall be at least three sessions of the Assembly every year, and not more than one hundred and twenty days shall intervene between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session. Provided that the Assembly shall meet for not less than one hundred and thirty working days in each parliamentary year. (4) On a requisition signed by not less than one-third of the total membership of the Assembly, the Speaker shall summon the Assembly to meet, at such time and place as he thinks fit, within fourteen days of the receipt of the 29 requisition, and when the Speaker has summoned the Assembly, only he may prorogue it. 62. Dissolution of the Assembly.- (1) The Governor shall dissolve the Assembly if so advised by the Chief Minister, and the Assembly shall, unless sooner dissolved, stands dissolved at the expiration of the forty-eight hours after the Chief Minister has so advised. Explanation.- Reference in this Article to Chief Minister shall not be construed to include reference to a Chief Minister against whom a resolution for a vote of no-confidence has been moved in the Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the Assembly. (2) When the Assembly is dissolved a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the result of the election shall be declared not later than fourteen days after the conclusion of the polls. (3) Notwithstanding anything in the Order, if at any time it is not possible for any reason to hold general election to the Assembly, the Chairman of the Council may postpone the election for a period not exceeding ninety days at a time. 63. Speaker of the Assembly.- (1) After a general election, the Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker of the Assembly. Provided that the period intervening between the declaration of the official result of the election to the Assembly and the date for assumption of office of members shall not exceed thirty days. (2) Before entering upon office, a member of the Assembly elected as Speaker or Deputy Speaker shall make before the Assembly an oath in the form set out in the First Schedule. 30 (3) All the proceedings of the Assembly shall be conducted in accordance with rules of procedure made by the Assembly and approved by the Governor. (4) The Speaker shall preside the meetings of the Assembly except when a resolution for his removal from the office is being considered and, when the office of the Speaker is vacant, or the Speaker is absent, or is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker and if at that time, the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member of the Assembly present as may be determined by the Rules of Procedure of the Assembly shall preside at the meeting of the Assembly. (5) Soon after as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall elect one of its members to fill the office. (6) The Speaker may resign from his office by writing under his hand addressed to the Governor. (7) The Deputy Speaker may resign his office by writing under his hand addressed to the Speaker. (8) The office of the Speaker or Deputy Speaker shall become vacant if- (a) except as provided in clause (9) he ceases to be a member of the Assembly; or (b) he is removed from office by a resolution of the Assembly, of which not less than seven days’ notice by not less than one- fourth of the total membership of the Assembly has been given and which is passed by a majority of total membership of the Assembly. (9) When the Assembly is dissolved, the Speaker shall continue in his office till the person elected to fill the office by the next Assembly enters upon his office. 64. Voting in Assembly and quorum.- (1) Subject to this Order,- 31 (a) a decision in the Assembly shall be taken by a majority of the votes of the members present and voting but the Speaker or the person presiding in his absence shall not vote except when there is an equality of votes in which case he shall exercise his casting vote; (b) the Assembly may act notwithstanding any vacancy in its membership; and (c) any proceedings in the Assembly shall not be invalid on the ground that some person who was not entitled to do so sit, voted or otherwise took part in the proceedings. (2) If at any time during the meeting of the Assembly the attention of the person presiding at the meeting is drawn to the fact that number of the members is less than one-third of the total membership of the Assembly, it shall be the duty of the person presiding either to adjourn the meeting or to suspend the meeting till such number of members are present. 65. Restriction on discussion in Assembly, etc.- No discussion shall take place in the Assembly or the Council or the joint sitting with respect to matters relating to Foreign Affairs, Defence, Internal Security and Fiscal Plans of Government of Pakistan and the conduct of the any Judge of the Gilgit- Baltistan Supreme Appellate Court or the Gilgit-Baltistan Chief Court in the discharge of his duties. 66. Finance Committee.- (1) The expenditure of the Assembly within authorized appropriation shall be controlled by the Assembly acting on the advice of the Finance Committee. (2) The Finance Committee shall consist of the Speaker, the Finance Minister and such other members as may be elected thereto by the Assembly. 67. Secretariat of the Assembly.- (1) The Assembly shall have a separate Secretariat. (2) The Assembly may by law regulate the recruitment and conditions of service of persons appointed to the Secretariat Staff of the Assembly. 32 (3) Until provision is made by the Assembly under clause (2) the persons appointed to the Secretariat Staff of the Assembly shall continue to be governed by conditions of service for the time being applicable to them. PART - VIII DISTRIBUTION OF LEGISLATIVE POWERS 68. Legislative Powers.- (1) Subject to the succeeding provisions of this Article, both the Council and the Assembly shall have the power to make laws,- (a) for the territories of Gilgit-Baltistan; (b) for all citizens of Gilgit-Baltistan; and (c) for the officers of the Council or as the case may be, the Government, wherever they may be. (2) Subject to clause (3)- (a) the Council shall have exclusive power to make laws with respect to any matter in the Legislative List set out in the Third Schedule, hereinafter referred to as the Legislative List; and (b) subject to clause 2 (a), the assembly shall and the Council shall not, have power to make laws with respect to any matter not enumerated in the Legislative List. (c) The Council shall have the powers to adopt any amendment in the existing Laws or any new Law in force in Pakistan. (3) Notwithstanding anything contained in this Order, the Government of Pakistan shall have exclusive powers and the Council and the Assembly shall not have powers to make any law in respect of the following matters.- (a) the defence and external security of Gilgit-Baltistan; (b) the current coin of the issue of any bills, notes or other paper currency; or (c) the external affairs of Gilgit-Baltistan including foreign trade and foreign aid; or (d) such other matters as the President may specify by Order. 33 69. Tax to be levied by laws only.- No tax shall be levied for the purposes of the territories of Gilgit-Baltistan except by or under the authority of an Act of the Council or the Assembly and all taxes and levies competently imposed under an Act of the Assembly or the Council or under any law made by the Government of Pakistan shall remain in force. PART - IX ISLAMIC PROVISIONS 70. No laws against Islamic Injunctions, etc.- No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah. 71. Reference to Council of Islamic Ideology.- (1) If one-third of the total number of the members of the Assembly or, as the case may, the Council so requires, the Assembly or the Council shall refer to the Council of Islamic Ideology constituted under the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Islamic Council) for advice on any question as to whether a proposed law is or is not repugnant to the injunctions of Islam. (2) When a question is referred by the Assembly or the Council, as the case may be, the Council of Islamic Ideology shall, within fifteen days thereof, inform the Assembly or the Council, as the case may be, of the period within which the Council of Islamic Ideology expects to be able to furnish that advice. (3) Where the Assembly or, as the case may be, the Council considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Council of Islamic Ideology is furnished, the law may be made before the advice is furnished. Provided that, where a law is referred for advice to the Council of Islamic Ideology and the Council advises that the law is repugnant to the injunctions of Islam, the Assembly or, as the case may be, the Council shall reconsider the law so made. 34 72. General provisions regarding Council, etc.- (1) The validity of any proceedings in the Council or the Assembly shall not be questioned in any Court. (2) An officer or member or an authority in whom powers are vested for regulation of proceedings, conduct of business, maintain order in the Council or the Assembly shall not, in relation to exercise by him of any of those powers, be subject to the jurisdiction of any Court. (3) A member of, or a person entitled to speak in, the Council or the Assembly, shall not be liable to any proceedings in any Court in respect of anything said by him or any vote given by him in the Council or the Assembly or in any Committee thereof. (4) A person shall not be liable to any proceedings in any Court in respect of publication by or under the authority of the Council or the Assembly, of any report, paper, vote or proceedings. (5) No process issued by a Court or other authority shall except with the leave of the Chairman of the Council or the Speaker be served or executed within the precincts of the place where a meeting of the Council or, as the case may be, the Assembly is being held. (6) Subject to this Article, the privileges of the Council, the Assembly, the Committees and members of the Council, or the Assembly and of the persons entitled to speak in the Council, or the Assembly, may be determined by law. 73. Authentication of Bills Passed by the Council.- A Bill passed by the Council shall not require the assent of the Governor and shall, upon its authentication by the Chairman of the Council, become law and be called an Act of the Council. 74. Governor’s assent to Bills.- (1) Subject to this Order, when a Bill has been passed by the Assembly it shall be presented to the Governor for assent. (2) When a Bill is presented to the Governor for assent, the Governor shall, within thirty days,- 35 (a) assent to the Bill; or (b) in the case of a Bill other than a Money Bill, return the Bill to the Assembly with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered. (3) When the Governor has returned a Bill to the Assembly, it shall be reconsidered by the Assembly and, if it is again passed, with or without amendment, by the Assembly, by the votes of the majority of the members of the Assembly present and voting, and in accordance with the provision of this Order and in not in any manner prejudicial to the security, integrity, solidarity and strategic interest of Pakistan, it shall be again presented to the Governor and Governor shall not withhold assent thereform. (4) When the Governor has assented to a Bill, it shall become law and be called an Act of Assembly. PART - X FINANCIAL PROCEDURE 75. Council Consolidated Fund.- (1) All revenues received by the Council, all loans raised by the Council and all moneys received by it in payment of any loan shall form a part of Consolidated Fund, to be known as the Council Consolidated Fund. (2) All other moneys- (a) received by or on behalf of the Council; or (b) received by or deposited with the Gilgit-Baltistan Supreme Appellate Court or any other Court established under the authority of this Order shall be credited to the Public Account of the Council. (3) The Custody of the Council Consolidated Fund, the payment of money into that Fund, the withdrawal of money there from, the custody of other moneys received by or on behalf of the Council, their payment into, and withdrawal from the Public Account of the Council, and all matters connected with or ancillary to the matters aforesaid, shall be regulated by the Act of the 36 Council or, until provision in that behalf is so made, by rules made by the Chairman of the Council. (4) The Council shall, in respect of every financial year, cause to be prepared, and approve, a statement of estimated receipts and expenditure of the Council for that year. Provided that the Government of Pakistan shall provide grant in aid to the Council to meet its revenue deficit. (5) The Chairman of the Council shall authenticate by his signature the statement approved by the Council under clause (4), and no expenditure from the Council Consolidated Fund shall be deemed to be duly authorized unless it is specified in the statement so authenticated. (6) If in respect of any financial year it is found: (a) that the amount authorized to be expended for a particular service for the current financial year is insufficient, or that a need has arisen for expenditure upon some new service not included in the statement referred to in clause (4) for that year; or (b) that any money has been spend on any service during a financial year in excess of the amount granted for that year, the Chairman of the Council shall have the power to authorize expenditure from the Council Consolidated Fund and shall cause to be laid before the Council a supplementary statement or, as the case may be, an excess statement, setting out the amount of that expenditure, and the provision of clause (3) and (4) shall apply to these statements as they apply to the statement referred to in clause (3). (7) Notwithstanding anything contained in the foregoing provisions of this Article, the Council shall have power to make any grant in advance in respect of the estimated expenditure for a part of any financial year, not exceeding four months, pending completion of the procedure prescribed in clause (3) and (4). 37 76. Gilgit-Baltistan Consolidated Fund.- (1) All revenues received by the Government, all loans raised by the Government with the approval of Government of Pakistan and all moneys received by it in payment of any loan shall form a part of Consolidated Fund, to be known as the Gilgit-Baltistan Consolidated Fund. (2) All other moneys- (a) received by or on behalf of the Government; or (b) received by or deposited with any other Court established under the authority of the Government, shall be credited to the Public Account of the Government. (3) The custody of the Gilgit-Baltistan Consolidated Fund, the payment of money into that Fund, the withdrawal of money therefrom, the custody of other moneys received by or on behalf of the Government, their payment into, and withdrawal from the Public Account of the Government, and all matters connected with or ancillary to the matters aforesaid, shall be regulated by the Act of the Assembly or, until provision in that behalf is so made, by rules made by the Governor. 77. Budget.- (1) The Government shall, in respect of every financial year, cause to be laid before the Assembly a statement of estimated receipts and expenditure for that year, to be called the Annual Budget. (2) The Annual Budget shall be submitted to the Assembly in the form of demands for grant and the Assembly shall have power to assent to, or to refuse to assent to any demand, or to assent to any demand subject to a reduction of the amount specified therein. (3) No demand for a grant shall be made except on the recommendation of the Government. (4) The Annual Budget as passed by the Assembly shall be placed before the Governor who shall authenticate it by his signature. 38 (5) If in respect of any financial year it is found_ (a) that the amount authorized to be expended for a particular service for the current financial year is insufficient, or that a need has arisen for expenditure upon some new service not included in the Annual Budget for that year; or (b) that any money has been spend on any service during a financial year in excess of the amount granted for that year, the Government shall have the power to authorize expenditure from the Gilgit-Baltistan Consolidated Fund and shall cause to be laid before the Assembly a Budget or, as the case may be, an excess Budget, setting out the amount of that expenditure, and the provisions of this Article shall apply to those Budgets as they apply to the Annual Budget. (6) Notwithstanding anything contained in the foregoing provisions of this Article, the Assembly shall have power to make any grant in advance in respect of the estimated expenditure for a part of any financial year, not exceeding four months, pending completion of the procedure prescribed in clause (2) for the voting of such grant and the authentication of the Budget as passed by the Assembly in accordance with the provisions of clause (4) in relation to the expenditure. 78. Special provisions regarding Budget, etc.- (1) Where the Annual Budget for any financial year cannot be passed by the Assembly by reason of its having been dissolved, the Chief Minister shall cause to be prepared an Annual Budget for that year and, by his signature, authenticate the Budget. (2) The Annual Budget for any financial year authenticated by the Chief Minister under clause (1) shall, for the purpose of this Order, be deemed to have been passed by the Assembly. 79. Restriction on expenditure.- No expenditure shall be incurred by the Government except authorized by the Annual or Supplementary Budget as passed or deemed to have been passed by the Assembly. 39 PART - XI ORDINANCE 80. Power to make Ordinance.- (1) The Governor may, except when the Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance; (a) shall be laid before the Assembly and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and (b) may be withdrawn at any time by the Governor. (3) Without prejudice to the provisions of clause (2) an Ordinance laid before the Assembly or the Council shall be deemed to be a Bill introduced in the Assembly or the Council, as the case may be. (4) The Governor shall likewise, except when the Council is in session, if so advised by the Chairman of the Council, make, promulgate and withdraw an Ordinance as the circumstances may require, and the provisions of clause (2) and clause (3) shall apply to an Ordinance so made as if references therein to ‘Act of the Assembly and, Assembly were references respectively to’ Act of the Council and Council. PART - XII THE JUDICATURE 81. Appointment of Judges to the Supreme Appellate Court and Chief Court, Gilgit-Baltistan.- (1) There shall be a Judicial Commission of Gilgit-Baltistan, hereinafter in this Article referred to as the Commission, for 40 appointment of Judges of the Supreme Appellate Court and Chief Court as hereinafter provided. (2) For appointment of Judges of the Supreme Appellate Court, the Commission shall consist of- i. Chief Judge, Supreme Appellate Court; Chairman ii. Secretary Kashmir Affairs & Gilgit-Baltistan Member iii. One most senior Judge of the Supreme Appellate Court; Member iv. One former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan for a terms of two years Member v. Minister for Law, Govt. of Gilgit-Baltistan; Member vi. Chief Secretary, Gilgit-Baltistan; and Member vii. A Senior Advocate of the Supreme Appellate Court of Gilgit- Baltistan nominated by the Bar Council for a term of two years. Member viii. Joint Secretary, Gilgit-Baltistan Council Secretary (3) On recommendation of the Commission, the Gilgit-Baltistan Council shall move a summary to the Chairman Gilgit-Baltistan Council for approval of the appointment of Judge, Supreme Appellate Court; (4) Notwithstanding anything contained in clause (1), clause (2) or clause (3), the Chief Judge of the Supreme Appellate Court shall be appointed by the above Commission. However, the Secretary, Kashmir Affairs and Gilgit- Baltistan shall replace the Chairmanship of Commission. (5) The Commission may make rules regulating its procedure. (6) For appointment of Judges of the Chief Court, Gilgit-Baltistan the Commission shall in clause (2) shall also include the following, namely:- i. Chief Judge, Chief Court; Member ii. One most senior Judge of the Chief Court; Member iii. A Senior Advocate of the Chief Court of Gilgit- Baltistan nominated by the concerned Bar Council Member 41 for a term of two years. Provided that for appointment of the Chief Judge of the Chief Court, the most Senior Judge mentioned in paragraph (ii) shall not be member of the commission. 82. Gilgit-Baltistan Supreme Appellate Court.- (1) There shall be a Gilgit-Baltistan Supreme Appellate Court, referred to as the Supreme Appellate Court to be the highest Court of Appeal. (2) Subject to the provisions of this Order, the Supreme Appellate Court shall have such jurisdiction as is or may be conferred on it by this Order or by under any law. (3) The Supreme Appellate Court shall consist of a Chief Judge to be known as Chief Judge of Gilgit-Baltistan and two other Judges: Provided that the Government of Pakistan may from time to time increase the number of judges. (4) The person holding office as Chief Judge or other Judge of the Supreme Appellate Court immediately before the commencement of this Order shall be deemed to be the Chief Judge or other Judge as the case may be appointed under this Order. (5) A person shall not be appointed as the Chief Judge or Judge of the Supreme Appellate Court of Gilgit-Baltistan unless he_ (a) has been, or is qualified to be, a judge of the Supreme Court of Pakistan; or (b) has for a period of, or for periods aggregating, not less than five years been a Judge of a Chief Court; or (c) for a period of or for periods aggregating, not less than fifteen years has been an advocate of a High Court. Explanation.- In this sub-clause, the expression ‘High Court’ includes,- (a) the Chief Court of Gilgit-Baltistan, or an equivalent Court that existed in Gilgit-Baltistan before this order; and 42 (b) a High Court in Pakistan including a High Court that existed in Pakistan at any time before this order. (6) Before entering upon office, the Chief Judge of Gilgit-Baltistan shall make before the Governor and any other Judge of the Supreme Appellate Court of Gilgit-Baltistan shall make before the Chief Judge of Supreme Appellate Court, oath in the form set out in the First Schedule. (7) The Chief Judge and judges of the Supreme Appellate Court of Gilgit-Baltistan shall be appointed by the Chairman on recommendation of the Commission and shall hold office until he/she attains the age of 65 years, or unless he/she sooner resigns or is removed from office in accordance with law: Provided that if the Chief Judge or a Judge is a person who has been a Judge of the Supreme Court of Pakistan, he/she shall hold office until he/she attains the age of 70 years, or unless he/she sooner resigns or is removed from office in accordance with law. (8) At any time when the office of Chief Judge of Gilgit-Baltistan is vacant, or the Chief Judge, is absent or unable to perform the functions of his office due to any other cause, the Chairman shall appoint the senior most Judge of the Supreme Appellate Court to act as Chief Judge of Gilgit-Baltistan. (9) The remuneration and other terms and conditions of service of the Chief Judge and of a Judge of the Gilgit-Baltistan Supreme Appellate Court shall be such as are admissible to the Chief Justice of Pakistan and Judges of the Supreme Court of Pakistan. Provided that Council will provide funds to Supreme Appellate Court Gilgit-Baltistan. 83. Original Jurisdiction._ (1) Without prejudice to the provisions of Article-94, the Supreme Appellate Court, on an application of any aggrieved party, shall if it considers that a question of general public importance with reference to the enforcement of any of the fundamental right conferred by Part 43 II of this Order is involved, have the power to make declaratory order of the nature mentioned in the said Article. (2) An application made under clause (1) shall be heard by a Bench comprising not less than two Judges to be constituted by the Chief Judge. 84. Appellate Jurisdiction.- (1) Subject to the succeeding provision of this Article, the Supreme Appellate Court of Gilgit-Baltistan shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of the Chief Court of Gilgit-Baltistan. (2) An appeal shall lie to the Supreme Appellate Court of the Gilgit- Baltistan from any judgment, decree, final order or sentence of the Chief Court of Gilgit-Baltistan,- (a) if the Chief Court has on appeal reversed an order of acquittal of an accused person and sentenced to death or to imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or. (b) if the Chief Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the Chief Court has imposed any punishment on any person for contempt of the Chief Court; or (d) if the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involved directly or indirectly some claim or question respecting property or the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or 44 (f) if the Chief Court certifies that the case involves a substantial question of law as to the interpretation of this Order. (3) An appeal to the Gilgit-Baltistan Supreme Appellate Court of from a judgment, decree, order or sentence of the Chief Court in a case to which clause (11) does not apply shall lie only if the Supreme Appellate Court grants leave to appeal. (4) (a) an appeal to Gilgit-Baltistan the Supreme Appellate Court shall be heard by a Bench consisting of not less than two judges to be constituted or reconstituted by the Chief Judge; (b) if the Judges hearing a petition or an appeal are divided in opinion, the opinion of majority shall prevail; (c) if there is no such majority as aforesaid the petition or appeal, as the case may be, shall be placed for hearing and disposal before another Judge to be nominated by the Chief Judge: Provided that in case of difference of opinion as aforesaid, the decision of the Supreme Appellate Court shall be expressed in term of opinion of the senior of the two Judges. (5) The person holding office as Chief Judge of the Gilgit-Baltistan Supreme Appellate Court of Gilgit-Baltistan immediately before the commencement of this Order shall as from such commencement hold office as Chief Judge of Supreme Appellate Court under this Order on terms and conditions prescribed in this Order provided these are not inferior to the terms and conditions applicable to him immediately before such commencement. (6) All legal proceedings pending in the Gilgit-Baltistan Supreme Appellate Court, immediately before the commencement of this Order, shall on such commencement, stand transferred to, and be deemed to be pending before the Supreme Appellate Court for determination and any judgment or order of the Supreme Appellate Court delivered or made before such commencement shall 45 have the same force and effect as if it had been delivered or made by the Supreme Appellate Court. 85. Issue and execution of processes of Supreme Appellate Court.- (1) The Supreme Appellate Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Gilgit-Baltistan as if it has been issued by the Gilgit-Baltistan Chief Court. (3) All executive and judicial authorities throughout Gilgit-Baltistan shall act in aid of the Supreme Appellate Court. (4) Subject to this Order and Law, the Supreme Appellate Court may, in consultation with the Council, make rules regulating the practice and procedure of the Court: Provided that till the new rules are framed, the rules framed by the Supreme Appellate Court shall, so far as they are not inconsistent with this Order and any other law, deemed to have been made by the Supreme Appellate Court until altered or amended and references to the Supreme Appellate Court in these rules shall be construed to be referred to the Supreme Appellate Court. 86. Decisions of Supreme Appellate Court binding on other Courts.- Any decision of the Supreme Appellate 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 the Gilgit-Baltistan. 87. Seat of the Supreme Appellate Court.- (1) The Seat of the Supreme Appellate Court shall be at Gilgit. (2) The Supreme Appellate Court may sit at such other place or places as the Chief Judge of Gilgit-Baltistan, with the approval of the Governor, may appoint. 46 88. Review of judgment or order by the Supreme Appellate Court.- The Supreme Appellate Court shall have powers, subject to the provisions of an Act of the Assembly or the Council and of any rules made by the Supreme Appellate Court, to review any judgment pronounced or any order made by it. 89. Supreme Judicial Council.- (1) There shall be a Supreme Judicial Council of Gilgit-Baltistan. (2) The Supreme Judicial Council shall consist of,_ (a) the Chief Judge of Gilgit-Baltistan who shall be its Chairman. (b) the Senior Judge of the Supreme Appellate Court; and (c) the Chief Judge of the Chief Court . (3) A Judge of the Supreme Appellate Court or of the Chief Court shall not be removed from office except as provided by this Article. Explanation: The expression “Judge” includes the Chief Judge of Gilgit- Baltistan and the Chief Judge of Chief Court of Gilgit-Baltistan. (4) If on information received from the Supreme Judicial Council or from any other source, the Chairman of the Gilgit-Baltistan Council or the Governor is of the opinion that a Judge of the Supreme Appellate Court or of the Chief Court,_ (a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or (b) may have been guilty of misconduct, the Chairman or the Governor, as the case may be, shall direct the Supreme Judicial Council to inquire into the matter. (5) If, upon any matter inquired into by the Supreme Judicial Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Supreme Judicial Council shall be expressed in terms of the view of the majority. 47 (6) If, after inquiring into the matter, the Supreme Judicial Council reports to the Chairman of the Gilgit-Baltistan Council that it is of the opinion. (a) that the Judge is incapable of performing the duties of his office or has been guilty of misconduct; and (b) that he should be removed from office, the Chairman shall advise the Governor to remove the Judge from his office and the Governor shall pass orders accordingly. (7) The Supreme Judicial Council shall issue a Code of conduct to be observed by Judges of the Gilgit-Baltistan Supreme Appellate Court, and of the Gilgit-Baltistan Chief Court. (8) If at any time the Supreme Judicial Council is inquiring the conduct of a Judge who is a member of the Supreme Judicial Council, or a member of the Supreme Judicial Council is absent or is unable to act due to illness or any other cause, than; (a) If such member is the Chief Judge or the Judge of the Supreme Appellate Court the Judge of the Supreme Appellate Court who is next in seniority; (b) If such member is the Chief Judge of Gilgit-Baltistan Court, the most senior most of the other Judges of the Chief Court, shall, act as a member of the Supreme Judicial Council in his place. (9) If, upon any matter inquired into by the Supreme Judicial Council, there is a difference of opinion amongst its member, the opinion of the Supreme Judicial Council shall be expressed in terms of the view of the majority. 90. Power of Supreme Judicial Council to enforce attendance of persons, etc.- (1) for the purpose of inquiring into any matter, the Supreme Judicial Council shall have the same powers as has the Supreme Appellate Court, to issue directions or order for securing the attendance of any person or the discovery or the production of any document and any such direction or order shall be enforceable as if it has been issued by the Supreme Appellate Court. 48 (2) The provisions of Article 81, shall, mutatis mutandis apply to the Supreme Judicial Council as they apply to the Gilgit-Baltistan Supreme Appellate Court and the Gilgit-Baltistan Chief Court. 91. Bar of Jurisdiction.- The proceedings before the Supreme Judicial Council, and the removal of a Judge under Article 87, shall not be called in question in any Court. 92. Gilgit-Baltistan Chief Court.- (1) There shall be a Gilgit-Baltistan Chief Court, hereinafter called the Chief Court, which shall consist of a Chief Judge and six other judges, of whom 60% will be appointed from lawyers community and 40% from subordinate judiciary: Provided that the Government of Pakistan may from time to time increase the number of judges. (2) The function of the Chief Court may be performed by a Single Bench, a Division Bench or a Full Bench:, but the Chief Judge may recall a case pending before a Bench and make it over to another Bench or constitute a larger Bench for the purpose. (3) In case of difference of opinion in a Full Bench, the opinion of the majority shall prevail; (4) In case of difference of opinion in a Division Bench, the matter shall be referred to a third judge and the decision of the Chief Court shall be expressed in terms of judgment of the majority. (5) The person holding office as Chief Judge or other Judge of the Chief Court Immediately before the commencement of this Order shall be deemed to be the Chief Judge or other Judge as the case may be appointed under this Order. (6) A person shall not be appointed as a Judge of the Chief Court unless he is 45 years of age and; 49 (a) he has for a period, or for periods aggregating, not less than ten years, been an Advocate of the Chief Court or a High Court in Pakistan. Provided that the expression “High Court” herein shall include a High Court or an equivalent Court; or (b) he has for a period of not less than ten years held a judicial office out of which not less than three years shall have been as District and Sessions Judge. (7) Before he enters upon his office, the Chief Judge of the Chief Court shall make before the Governor, and judge of the Chief Court shall make before the Chief Judge, an oath in the form set out in the First Schedule. (8) The Chief Judge or a Judge of the Chief Court shall hold office until he attains the age of sixty two years, unless he sooner resigns or is removed from office in accordance with law: (9) If at any time any Judge of the Chief Court is absent or is unable to perform his functions due to illness or some other cause, the Chairman of the Gilgit- Baltistan Council may appoint a person qualified for appointment as a Judge of the Chief Court to be an Additional Judge for the period for which the Judge is absent or unable to perform his functions. (10) A Judge of the Chief Court shall not,- (a) hold any other office of profit in the service of the Gilgit- Baltistan if his remuneration is thereby increased; or (b) occupy any other position carrying the right to remuneration for the rendering of services, but this clause shall not be construed as preventing a Judge from holding or managing private property. (11) A person who has held office as Judge of the Chief Court shall not hold any office of profit in the service of Gilgit-Baltistan not being a Judicial or quasi-Judicial office or the office of Chief Election Commissioner or of Chairman or member of the Public Service Commission, before the expiration of two years after he ceased to hold that office. 50 (12) The remuneration and other terms and conditions of service of the Chief Judge and Judges of Chief Court shall be such as admissible the Chief Justice and the Judges of the High Courts of Pakistan. 93. Acting Chief Judge.- At any time when- (a) the Office of Chief Judge of Chief Court is vacant; (b) the Chief Judge of Chief Court is absent or is unable to perform the functions of his office due to any other cause, the Chairman shall appoint the most senior Judge of the Chief Court to act as Chief Judge. 94. Jurisdiction of Chief Court.- (1) The Chief Court shall have such jurisdiction as is conferred on it by this Order or by any other law. (2) Subject to this Order, the Chief Court may if it is satisfied that no other adequate remedy is provided by law,- (a) the Government, exercising any power or performing any function in, or in relation to, Gilgit-Baltistan as may be appropriate for the enforcement of any of the fundamental rights conferred by this Order. on the application of any aggrieved party, make an order,-- (i) directing a person performing functions in connection with the affairs of Gilgit-Baltistan or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Gilgit-Baltistan 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.- (i) directing that a person in custody in Gilgit-Baltistan be brought before the Chief Court so that the Court 51 may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Gilgit- Baltistan to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council. (3) An order shall not be made under clause (2) on application made by or in relation to a person in the Armed Forces of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action in relation to him as a member of the Armed Forces of Pakistan. (4) Where,-- (a) an application is made to the Chief Court for an order under sub-clause (a) or sub-clause (c) of clause (2); and (b) the Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim order unless the Advocate-General has been given notice of the application and the Court, after the Advocate-General or any officer authorized by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in sub-clause (b) of this clause. (5) In this Article unless the context otherwise requires, the expression “person” includes any body politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the Gilgit- Baltistan Supreme Appellate Court, the Chief court or a Court or tribunal establish under a law relating to the Armed Forces of Pakistan. 52 95. Rules of procedure.- Subject to this Order and law the Chief Court may in consultation with the Government, make rules regulating practice and procedure of the Court or of any Court subordinate to it. 96. Decision of Chief Court binding on subordinate Courts.- Subject to Article 86, any decision of Chief 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. 97. Seat of the Chief Court.- (1) The permanent seat of the Chief Court shall be at Gilgit. (2) The Chief Court may, from time to time, sit at such other place as the Chief Judge of the Chief Court, with the approval of the Governor, may appoint. 98. Contempt of Court.- (1) In this Article the expression “Court” means the Gilgit-Baltistan Supreme Appellate Court or the Chief Court. (2) A Court shall have power to punish any person who- (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalizes the Court or otherwise does anything which tends to bring the Court or a judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court. (3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court. 99. The Chief Court to superintend and control all courts subordinate to it, etc.- (1) The Chief Court shall superintend and control all other courts that are subordinate to it. 53 (2) A Court so established shall have such jurisdiction as conferred on it by law. (3) No Court shall have any jurisdiction which is not conferred on it by this Order or by or under any other law. 100. Advisory jurisdiction.– (1) If, at any time, the Chairman of the Council or the Governor desires to obtain the opinion of the Gilgit-Baltistan Supreme Appellate Court on any question of law which he considers of public importance, he may refer the question to the Supreme Appellate Court of Gilgit-Baltistan for consideration. (2) The Gilgit-Baltistan Supreme Appellate Court shall consider a question so referred and report its opinion on the question to the Chairman of the Council or as the case may be, the Governor. 101. Administrative Courts and Tribunals.– (1) Notwithstanding anything herein before contained, the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of, - (a) matters relating to the terms and conditions of persons who are or have been in the service of Gilgit-Baltistan including disciplinary matters; (b) matters relating to claims arising from tortuous acts of the Council or the Government or any person in the service of Gilgit-Baltistan or of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant; or (c) matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law. 54 (2) Notwithstanding anything herein before contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment. (3) An appeal to the Gilgit-Baltistan Supreme Appellate Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Appellate Court of Gilgit-Baltistan being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal. Provided that Council will provide funds to Administrative Courts and Tribunals of Gilgit-Baltistan fall under Council legislative list. 102. Employees of Court.- The Gilgit-Baltistan Supreme Appellate Court and the Gilgit-Baltistan Chief Court, with the approval of the Chairman and Governor respectively, may make rules providing for the appointment of employees of the Court and for their terms and conditions of employment. 103. Supreme Court of Pakistan.- (1) The Supreme Court shall, to the exclusion of every other court including the Supreme Appellate Court and the Chief Court, have original jurisdiction in respect of: (i) any dispute between the Government, the Federation or the Government of a Province of Pakistan; (ii) any challenge to, or dispute raising any issue regarding, the vires or validity of this Order or any amendment hereto or modification herein, including an Order repealing, replacing or substituting this Order, and clause (2) of Article 126 hereof shall apply accordingly. (2) Any aggrieved person may, subject to clause (3), appeal to the Supreme Court against any judgment, order or decree of the Supreme Appellate Court or the Chief Court made in any proceedings where the subject matter of 55 the dispute or the matter in issue is not exclusively in relation to or under this Order or any law made hereunder or Gilgit-Baltistan. (3) An appeal under clause (2) shall lie only if the Supreme Court grants leave to appeal. (4) A decision of the Supreme Court, whether made under any of the foregoing clauses or otherwise, shall be as binding on all courts established by or under this Order as it is in terms of Article 189 of the Constitution on all courts in Pakistan, and Article 86 and Article 96 hereof shall apply accordingly. PART - XIII SERVICES 104. Public Service Commission. – There shall be a Public Service Commission for Gilgit-Baltistan which shall consist of such number of members, including a Chairman to be appointed by the Chairman of the Council on the advice of Governor, and perform such functions as may be prescribed on such terms and conditions as may be determined by the Governor. Provided that till the establishment of the Gilgit-Baltistan Public Service Commission, the Federal Public Service Commission shall continue recruitment functions on behalf of Gilgit-Baltistan Government. 105. Services. – (1) Subject to this Order, the appointment of persons to, and the terms and conditions of service of persons in the service of Gilgit-Baltistan and Council shall be regulated by law. (2) Until an Act of the Council in respect of persons employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such persons employed in connection with the affairs of the Government, makes provision for the matters referred to in clause (1), all rules and orders in force immediately before the commencement of this Order, shall continue to be in force and may be amended from time to time by the Council or, as the case may be, the Government. 56 (3) Notwithstanding anything contained in clause (1) or (2) the position or vacancy sharing formula between the Government of Gilgit-Baltistan and the Government of Pakistan, i.e. Gilgit-Baltistan Civil Service and Pakistan Administrative Service (PAS), Police Service of Pakistan (PSP), or all Pakistan Service (APS) shall be as specified in the Fourth Schedule. (4) Gilgit-Baltistan shall be given representation in Federal Services in accordance with provisions made for the purpose thereof for the provinces. Necessary, civil service reforms, including up gradation of posts, commensurate with the increased delegation of powers and in line with other provinces shall be carried out in Gilgit-Baltistan. PART - XIV ELECTIONS 106. Chief Election Commissioner.- (1) There shall be a Chief Election Commissioner to be appointed by the Chairman of the Council on the advice of Governor on such terms and conditions as may be prescribed. (2) Before entering upon office, the Chief Election Commissioner shall make before the Chief Judge of Gilgit-Baltistan oath in the form set out in the First Schedule. PART - XV AUDITOR GENERAL 107. Auditor-General.- (1) There shall be an Auditor General of Gilgit- Baltistan who shall be appointed by the Governor on the advice of the Council. Provided that till the appointment of Auditor-General of Gilgit-Baltistan, the Chairman of the Gilgit-Baltistan Council may ask Auditor- General of Pakistan to work as Auditor-General of Gilgit-Baltistan also. (2) Before entering upon office, the Auditor General shall make before the Chief Judge of Gilgit-Baltistan oath in the form set out in the first Schedule 57 (3) The terms and conditions of service, including the terms of office, of the Auditor-General shall be determined by Act of the Council and, until so determined, by rules made by the Council. (4) The Auditor-General shall, in relation to- (a) the accounts of the Council and any authority or body established by the Council; and (b) the accounts of the Government and any authority or body established by the Government, perform such functions and exercise such powers as may be determined, by or under Act of the Council and, until so determined, by rules made by the Council. (5) The accounts of the Council and of the Government shall be kept in such form and in accordance with such principles and methods as may be determined by the Auditor-General with the approval of the Council. (6) The reports of the Auditor-General relating to the accounts of the Council shall be submitted to the Chairman of the Council; who shall cause them to be laid before the Council; and the reports of the Auditor-General relating to the accounts of the Government shall be submitted to the Governor who shall cause them to be laid before the Assembly. PART - XVI GENERAL 108. Continuance of existing laws.- Subject to the provisions of this Order, all laws which immediately before the commencement of this Order, were in force in Gilgit-Baltistan shall continue to be in force until altered, repealed or amended by an Act, of the appropriate authority. Explanation.- In this Article.- (a) The expression ‘laws includes Ordinance, Orders, rules, bye- laws, regulations and any notification and other legal instruments having the force of law, and 58 (b) The expression ‘in force’ in relation to any law, means having effect as law whether or not the law has been brought into operation. 109. General provision regarding Governor and Ministers.- (1) The Governor, the Chief Minister, a Minister or an Advisor shall not.- (a) hold any other office of profit in the service of Gilgit- Baltistan or any other country; or (b) occupy any other position carrying the right to remuneration for the rendering of services; but this action shall not be construed as preventing the Governor, the Chief Minister, a Minister or an Advisor from holding or managing his private property. (2) No criminal proceedings whatsoever shall be instituted or continued against the Governor or the Chairman of the Council while he is in office. (3) No civil proceedings in which relief is claimed against the Governor or the Chairman of the Council shall be instituted while he is in office in respect of anything done or not done, or purporting to have been done or not done, by him in his personal capacity, whether before or after he enters upon his office unless at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him, stating the nature of the proceedings, the cause of the action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which he claims. (4) Except in relation to proceedings referred to in clause (3) no process whatsoever shall be issued from any court or tribunal against the Governor or the Chairman of the Council, whether in a personal capacity or otherwise, while he is in office. (5) Subject to this Order, the Governor, the Chief Minister, the Chairman of the Council, the Federal Minister who is a member of the Council, a Minister or an Advisor shall not except in respect of anything done or not done by him in contravention of law , be answerable to any court or Tribunal in the 59 exercise of the powers, or the performance of the duties, of his office or for any act done or purporting to be done by him in the exercise of those powers or in the performance of those duties: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Council or as the case may be, the Government. 110. Power to acquire property and to make contracts, etc.- (1) The executive authority of the Government and of the Council shall extend, subject to any Act of the appropriate authority to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Government or as the case may be, the Council, and to the making of contracts. (2) All property acquired for the purpose of the Government or of the Council shall vest in the Government or, as the case may be, in the Council. (3) All contracts made in the exercise of the executive authority of the Government or of the Council shall be expressed to be made in the name of the Governor, or as the case may be, the Council and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor or the Council by such persons and in such manner as the Governor, or as the case may be, the Council may direct or authorize. (4) Neither the Governor, nor the Chairman of the Council, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Government or, as the case may be the Council, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. (5) Transfer of land by the Government or the Council shall be regulated by law. PART - XVII EMERGENCY PROVISIONS 60 111. Power to issue proclamation.- (1) If the Chairman of the Gilgit- Baltistan Council ,on receipt of a report from Governor of Gilgit- Baltistan or otherwise, is satisfied that a grave emergency exists in which the security of Gilgit-Baltistan is threatened by war or external aggression or by internal disturbances, in which the Government of the Gilgit-Baltistan cannot be carried on in accordance with the provisions of this Order, Chairman of the Council shall issue Proclamation of Emergency, hereinafter referred to as the Proclamation. (2) Assume to himself, or direct the Governor of the Gilgit-Baltistan to assume on behalf of the Chairman of the Council , all or any of the functions of the Government of the Gilgit-Baltistan, and all or any of the powers vested in, or exercisable by, anybody or authority in the Gilgit-Baltistan, other than the Assembly; (3) A Proclamation shall be laid before a Joint Sitting of the Council and the Assembly which shall be summoned by the Chairman of the Council on the advice of Governor to meet within thirty days of the Proclamation being issued and- (a) shall, cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the Joint Sitting; and (b) shall, subject to the provisions of sub-clause (a), cease to be in force upon a resolution disapproving the resolution being passed by the votes of the majority of the total membership of the Joint Sitting. (4) Notwithstanding anything contained in clause (2), if .the Assembly stands dissolved at the time when the Proclamation is issued, the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Council. (5) A Proclamation may be made before the actual occurrence of war or external aggression if the Governor is satisfied that there is imminent danger thereof. 61 112. Power to suspend fundamental rights.- (1) While a Proclamation is in operation, the Governor may, by order, declare that right to move any Court for the enforcement of such of the rights conferred by Part as may be specified in the order, and all proceedings pending in any Court for the enforcement of the rights so specified, shall remain suspended for the period during which the Proclamation is in force. (2) Every order made under clause (1), shall, as soon as may be, laid before the Assembly. 113. Power to vary or rescind proclamation.- (1) A Proclamation issued under Article 108 may be varied or revoked by a subsequent Proclamation. (2) The validity of any Proclamation issued or order made under Article 108 or Article 109 shall not be questioned in any Court. 114. Failure to comply with requirement as to time does not render an act invalid.- When any act or thing is required by this Order to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period. PART - XVIII MISCELLANEOUS 115. Oath of office.- (1) An oath required to be made by person under this Order shall be made in a language that is understood by that person. (2) Where, under this Order, an oath is required to be made before a specified person and for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by that person. (3) Where, under this Order, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath. 62 116. Chairman may make laws of indemnity, etc. Nothing in the Order shall prevent the Chairman from making any law indemnifying any person in the service of Gilgit-Baltistan, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Gilgit- Baltistan. 117. Protection to Chairman, Governor, Minister, etc.—(1) The Chairman, the Governor, the Chief Minister, and Ministers shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government. (2) No criminal proceedings whatsoever shall be instituted or continued against the President, Chairman or Governor in any court during his term of office. (3) No process for the arrest or imprisonment of the President, Chairman or a Governor shall issue from any court during his term of office. (4) No civil proceedings in which relief is claimed against the Chairman or Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims. 118. Legal proceedings.— Any legal proceedings which, but for this Order, could have been brought by or against the Government in respect of a matter which, immediately before the commencing day, was the responsibility of the Council and has, under the Order, become the responsibility of the Assembly, 63 shall be brought by or against the Government; and if any such legal proceedings were pending in any court immediately before the commencing day then, in those proceedings, for the aforesaid Council the Government shall, as from that day, be deemed to have been substituted. 119. Failure to comply with requirement as to time does not render an act invalid.- When any act or thing is required by this Order to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period. 120. Official language. (1) The official language of Gilgit-Baltistan is Urdu. (2) Subject to clause (1), the English language may be used for official purposes until arrangements are made for its replacement by Urdu. (3) Without prejudice to the status of the National language, the Assembly may by law prescribe measures for the teaching, promotion and use of any other language in addition to the National language. 121. Private armies forbidden. (1) No private organization capable of functioning as a military organization shall be formed, and any such organization shall be illegal. (2) The Chairman shall, by law, provide for the punishment of persons found guilty of the offence under this Article and such law may also provide for establishment of special courts for trial of such offence. 122. Local Government. (1) The Government shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments. (2) Elections to the local governments shall be held by the Election Commission. 64 123. Order not to prejudice stance.- The provision of this Order shall not derogate form, or in any manner prejudice, the declared stand of the Government of Pakistan regarding the right of self-determination for the people of Jammu and Kashmir in accordance with the United Nations Resolutions. 124. Power to amend.- (1) The President on advice of the Federal Government may, by notified Order, amend the provisions of this Order: Provided that no amendment shall be made or take effect unless it has been placed before the Supreme Court under application moved by the Federal Government, which shall be treated as a petition under clause (3) of Article 184 of the Constitution, and the Supreme Court has not disapproved of the amendment. (2) For the purposes of this Article, any Order proposing or seeking to repeal or replace this Order shall be deemed to be a measure to amend it. 125. Power to make rules.- The Governor or as the case may be, the Chairman of the Council, may make rules for carrying out the purposes of this Order. 126. Order to override other laws, etc.- (1) The provision of this Order shall have effect notwithstanding anything contained in the provisions of any law for the time being in force except that in case of conflict between the laws of Pakistan and the laws framed under this Order, the laws of Pakistan shall prevail. (2) No Court, including the Gilgit-Baltistan Supreme Appellate Court and the Gilgit-Baltistan Chief Court, shall call into question or permit to be called into question, the validity of this Order or an Act to amend it. 127. Repeal and saving.- (1) The Government of Gilgit-Baltistan Order, 2018, hereinafter in this Article referred to as “the Repealed Order” together with the Orders amending it, is hereby repealed. 65 (2) Any rules made under the Repealed Order is so far as they are not inconsistent with the provisions of this Order shall continue to be in force unless altered amended or repealed by the competent authority. 128. Effect of repeal.- Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Order, the repeal shall not, except as otherwise provided in this Order;- (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. *************** 66 FIRST SCHEDULE OATH OF OFFICE OF- GOVERNOR [See Article 41(7)] I, ……………………………. do hereby solemnly swear in the name of Allah; That, as Governor of Gilgit-Baltistan, I will remain loyal to Pakistan; That I will perform my functions as Governor honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Governor. So help me Allah. Signature of Governor Place Date Signature of Chief Judge Supreme Appellate Court, Gilgit-Baltistan CHIEF MINISTER [See Article 44(5)] I, ……………………………. do hereby solemnly swear in the name of Allah; That, as Chief Minister of Gilgit-Baltistan, I will remain loyal to Pakistan; That I will perform my functions as Chief Minister honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Chief Minister; So help me Allah. Signature of Chief Minister Place Date Signature of Governor Gilgit-Baltistan 67 MINISTER [See Article 46(2)] I, ……………………………. do hereby solemnly swear in the name of Allah; That, as Minister of Gilgit-Baltistan, I will remain loyal to Pakistan; That I will perform my functions as Minister honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Minister; So help me Allah. Signature of Minister Place Date Signature of Governor Gilgit-Baltistan SPEAKER OR DEPUTY SPEAKER OF LEGISLATIVE ASSEMBLY [See Article 63(2)] I, ……………………………. having been elected as Speaker or Deputy Speaker of Gilgit-Baltistan Legislative Assembly do hereby solemnly swear in the name of Allah; That I will remain loyal to Pakistan; That I will perform my functions as Speaker or Deputy Speaker of the Legislative Assembly honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Speaker or Deputy Speaker of the Assembly; So help me Allah. Signature of Speaker/Deputy Speaker Place Date Signature of Outgoing Squeaker /Sitting Speaker Gilgit-Baltistan Legislative Assembly 68 MEMBER OF LEGISLATIVE ASSEMBLY [See Article 57(1)] I, ……………………………. having been elected as Member of Gilgit- Baltistan Legislative Assembly do hereby solemnly swear in the name of Allah; That I will remain loyal to Pakistan; That I will perform my functions as Member of the Legislative Assembly honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Member of the Legislative Assembly; So help me Allah. Signature of Member Place Date Signature of Speaker Gilgit-Baltistan Legislative Assembly MEMBER OF GILGIT-BALTISTAN COUNCIL [See Article 54(11)] I, ……………………………. having been elected as Member of Gilgit- Baltistan Council do hereby solemnly swear in the name of Allah; That I will remain loyal to Pakistan; That I will perform my functions as Member of the Gilgit-Baltistan Council honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Member of the Council; So help me Allah. Signature of Member Place Date Signature of Chairman/Vice Chairman Gilgit-Baltistan Council 69 CHIEF JUDGE/JUDGE OF GILGIT-BALTISTAN SUPREME APPELLATE COURT [See Article 82(6)] I, …………………… having been appointed Chief Judge/Judge of Gilgit - Baltistan Supreme Appellate Court do solemnly swear and I will bear true faith and allegiance to Pakistan and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment and will administer justice according to the law in force Gilgit- Baltistan, without fear or favour, affection or ill-will. Signature of Chief Judge/Judge Place Date Signature of Governor/Chief Judge Gilgit-Baltistan OATH OF CHIEF JUDGE/JUDGE OF GILGIT-BALTISTAN CHIEF COURT [See Article 92(7)] I, ……………………. having been appointed Chief Judge/Judge of Gilgit- Baltistan Chief Court do solemnly swear that I owe allegiance to Allah and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment and will administer justice according to the law in force in the Areas comprising Gilgit-Baltistan, without fear or favour, affection or ill-will. Signature of Chief Judge/Judge Place Date Signature of Governor/Chief Judge Gilgit-Baltistan 70 OATH OF ADVISOR [See Article 54(14)] I, ……………………………. do hereby solemnly swear in the name of Allah; That I will remain loyal to Pakistan. That I will perform my functions as Advisor honestly and faithfully; and That I will not directly or indirectly communicate or reveal to any person any official secret which, may, come to my knowledge as Advisor; So help me Allah. Signature of Advisor Place Date Signature of Chairman of Council Gilgit-Baltistan AUDITOR-GENERAL [See Article 107(2)] I, ……………………. do hereby solemnly swear and bear true faith and allegiance to Pakistan. That, as Auditor-General of the Areas comprising Gilgit- Baltistan, I will perform my functions honestly, faithfully, in accordance with the Gilgit - Baltistan (Empowerment and Self-Government) Order, 2009, and the law and to the best of my knowledge, ability and judgment, without fear or favour, affection or ill-will. Signature of Auditor General Place Date Signature of Chief Judge of Supreme Appellate Court Gilgit-Baltistan 71 CHIEF ELECTION COMMISSIONER [See Article 106(2)] I, ……………………. do hereby solemnly swear and bear true faith and allegiance to Pakistan. That, as Chief Election Commissioner of the Areas comprising Gilgit- Baltistan, I will perform my functions honestly, faithfully, in accordance with the Gilgit-Baltistan (Empowerment and Self-Government) Order, 2009, and the law and to the best of my knowledge, ability and judgment, without fear or favour, affection or ill-will. Signature of Chief Election Commissioner Place Date Signature of Chief Judge of Supreme Appellate Court Gilgit-Baltistan SECOND SCHEDULE [See Article 58(2)(d)] 1. An office, which is not a whole time office remunerated either by salary or by fee. 2. The office of Lamberdar, Inamdar, Sufedposh and Zaildar, whether called by this or any other title. 3. The office of the Chairman of any elective body constituted under any law relating to the Local Government. 4. Reserve of the Armed Forces. 5. Any other office which is declared by an Act of the Assembly not to disqualify its holder from being elected as, or from being a member of the Assembly. 72 THIRD SCHEDULE COUNCIL LEGISLATIVE LIST [See Article 68 (2) (a)] 1. Nationality, citizenship and naturalization. 2. Migration from or into, or settlement in Gilgit-Baltistan. 3. Admission into, and emigration and expulsion from Gilgit-Baltistan, including in relation thereto the regulation of the movements in Gilgit- Baltistan of persons not domiciled in Gilgit-Baltistan; pilgrimages to places beyond Pakistan. 4. Post and telegraphs, including telephones, wireless, broadcasting and other like forms of communications; Post Office Saving Bank. 5. Foreign Exchange; cheques, bills of exchange, promissory notes and foreign aid. 6. Public debt, including the borrowing of money on the security of the Gilgit- Baltistan Council Consolidated Fund. 7. Public debt of the Federation, including the borrowings of money on the security of the Federal Consolidated Fund; foreign loan and foreign aid. 8. Council public services. 9. Pensions, that is to say, pensions payable by the Council out of the Council Consolidated Fund. 10. Ombudsman. 11. Administrative courts for the subjects in legislative list. 12. Libraries, museums, and similar institutions controlled by the Council. 13. Federal agencies and institutions for the following purpose, that is to say, for research, for professional or technical training, or for the promotion of special studies. 14. Education as respects students of Gilgit-Baltistan in foreign countries and foreign students in Gilgit-Baltistan. 15. Nuclear energy, including.- (a) mineral resources necessary for the generation of nuclear energy; (b) the production of nuclear fuels and the generation and use of nuclear energy; and (c) ionizing radiations. (d) boilers 73 16. Ports quarantine, seamen‟s and marine hospitals and hospitals concerned with port quarantine. 17. Maritime shipping and navigation, including shipping and navigation on tidal waters, Admiralty jurisdiction. 18. Aircraft and air navigation; the provision of aerodromes; regulations and organization of air traffic and of aerodrome. 19. Light Houses, including lightships, beacons and other provisions for safety of aircraft. 20. Carriage of passengers and goods by sea or by air. 21. Copyright, inventions, designs, trademarks and merchandise marks. 22. Opium so far as regards sale for export. 23. Import and exports across customs frontiers as defined by the Federal Government, inter-provincial trade and commerce with foreign countries; standards of goods to be exported out of Pakistan. 24. State Bank of Pakistan; banking, that is to say, the co-ordination with the Government of Pakistan of the conduct of banking business by corporations other than corporations owned or controlled by Gilgit-Baltistan and carrying out business only within Gilgit-Baltistan. 25. The law for insurance, except as respects insurance undertaken by Government of Gilgit-Baltistan, and the regulation of the conduct of insurance business, except as respect to business under taken by Government of Gilgit-Baltistan, Government insurance, except so far as undertaken by the Government of Gilgit-Baltistan by virtue of any matter within the legislative competence of the Assembly. 26. Stock-exchange and future markets with object and business not confined to the areas comprising Gilgit-Baltistan. 27. Corporations, that is to say, the incorporation regulation and winding up of trading corporations including banking, insurance and financial corporations, but not including corporations owned or controlled by the Provincial Government of Gilgit-Baltistan and carrying on business, cooperative societies, and of corporations, whether trading or not, with object not confined to the Gilgit-Baltistan, but not including universities. 28. International treaties conventions and agreements and international arbitration 29. National Highways, strategic roads, and highways continuing beyond the territory of the Gilgit-Baltistan. 74 30. Federal surveys including geological surveys and Federal meteorological organizations. 31. Fishing and fisheries beyond territorial waters 32. Works, lands and buildings vested in, or in the possession of the Government or Federal Government, for the purpose of the Federation (not being Military, Naval or Air Force works), but as regards property situate in the Gilgit- Baltistan, subject always to law made by the Assembly, save in so far as Federal law otherwise provides. 33. Census. 34. Establishment of standards of weights and measures. 35. Extension of the powers and jurisdiction of members of a police force belonging to the Gilgit-Baltistan or any Province of Pakistan to any area in such Province or the Gilgit-Baltistan, but not so as to enable the police of the Gilgit-Baltistan or such province to exercise powers and jurisdiction in such Province or the Gilgit-Baltistan without the consent of the Government of that Province or the Gilgit-Baltistan; extension of the powers and jurisdiction of members of a police force belonging the Gilgit-Baltistan or a Province of Pakistan to railway areas outside the Gilgit-Baltistan or that Province. 36. Duties of Customs, including export duties. 37. Duties of excise, including duties on salt but not including duties on alcoholic liquors, opium and other narcotics. 38. Railways. 39. Mineral oil natural gas; liquids substances declared by Federal law to be dangerously inflammable. 40. Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day of this Order 41. Electricity and bulk water storage. 42. Major ports, that is to say the declaration and delimitation of such ports, and the constitution and powers of port authorities therein 43. All regulatory authorities established under Federal laws. 44. Supervision and management of public debt. 45. Legal, medical and other professions. 46. Standards in institutions for higher education and research, scientific and technical institutions. 75 47. Terminal taxes on goods or passengers carried by railway or air, taxes on their fares and freights. 48. Fees in respect of any of the matter enumerated in this list. 49. Fees in respect of any of the matters enumerated in this list, but not including fees taken in any court. 50. National Planning and national economic coordination including planning and coordination of scientific and technological research. 51. Inter-provincial matters and co-ordination 52. Jurisdiction and powers of all courts with respect to any of the matters enumerated in this list. 53. Offences against laws with respect to any of the matters enumerated in this list. 54. Inquiries and statistics for the purpose of any of the matters enumerated in this list. 55. Matters which under the law are within the legislative competence of the Council or relates to the Chairman of the Council. 56. Taxes on income other than agricultural income. 57. Taxes on corporations. 58. Taxes on the sale and purchases of goods and services imported, exported, produced, manufactured or consumed. 59. Taxes on the capital value of the assets, not including taxes on capital gains on immovable property. 60. Taxes and duties on the production capacity of any plant, machinery, under taking, establishment or installation in lieu of the taxes and duties specified in entries 56 and 57 or in lieu of either or both of them. 61. Election to the Council 62. The salaries, allowances and privileges of the Members of the Council and Advisors. 63. Matter incidental or ancillary to any of the matters enumerated in this list. 76 FOURTH SCHEDULE SERVICES [See Article 93(3)] POSITION OR VACANCY SHARING FORMULA BETWEEN THE GOVERNMENT OF PAKISTAN AND THE GOVERNMENT OF GILGIT- BALTISTAN. Government of Gilgit-Baltistan PAS /PSP/APS BS-17 BS-18 BS-19 BS-20 BS-21 25% 40% 50% 60% 65% N.B-Percentage showing the share earmarked for PAS/PSP/APS, out of total number of vacancies in Gilgit-Baltistan (on the pattern of Federal Government and Provinces of Pakistan). _________________________________________________ F.No. 13 (2)/2018-Admn (GBC) (Hamid Mahmood Rana) Deputy Secretary APPENDIX A. In the proposed Article 82: (i) In clause (5), for sub-clause (a), substitute the following: (a) has been, or is qualified to be, a judge of the Supreme Court of Pakistan; or (ii) In clause (7), replace the full stop with a colon, and add the following proviso at the end: Provided that if the Chief Judge or a Judge is a person who has been a Judge of the Supreme Court of Pakistan, he/she shall hold office until he/she attains the age of 70 years, or unless he/she sooner resigns or is removed from office in accordance with law. B. For the proposed Article 103, substitute the following: 103. Supreme Court of Pakistan.- (1) The Supreme Court of Pakistan shall, to the exclusion of every other court including the Supreme Appellate Court and the Chief Court, have original jurisdiction in respect of: (i) any dispute between the Government, the Federation or the Government of a Province of Pakistan; (ii) any challenge to, or dispute raising any issue regarding, the vires or validity of this Order or any amendment hereto or modification herein, including an Order repealing, replacing or substituting this Order, and clause (2) of Article 126 hereof shall apply accordingly. (2) Any aggrieved person may, subject to clause (3), appeal to the Supreme Court of Pakistan against any judgment, order or decree of the Supreme Appellate Court or the Chief Court made in any proceedings where the subject matter of the dispute or the matter in issue is not exclusively in relation to or under this Order or any law made hereunder or Gilgit-Baltistan. (3) An appeal under clause (2) shall lie only if the Supreme Court of Pakistan grants leave to appeal. (4) A decision of the Supreme Court of Pakistan, whether made under any of the foregoing clauses or otherwise, shall be as binding on all courts established by or under this Order as it is in terms of Article 189 of the Constitution on all courts in Pakistan, and Article 86 and Article 96 hereof shall apply accordingly. C. For the proposed Article 124, substitute the following: 124. Power to amend.- (1) The President on advice of the Federal Government may, by notified Order, amend the provisions of this Order: Provided that no amendment shall be made or take effect unless it has been placed before the Supreme Court of Pakistan under application moved by the Federal Government, which shall be treated as a petition under clause (3) of Article 184 of the Constitution, and the Supreme Court has not disapproved of the amendment. (2) For purposes of this Article, any Order proposing or seeking to repeal or replace this Order shall be deemed to be a measure to amend it. -: 1 :- 17th January 2019 PRESS SUMMARY CIVIL AVIATION AUTHORITY VS. SUPREME APPELLATE COURT GILGIT BALTISTAN, ETC. (CONSTITUTION PETITION NO.50/2018, ETC.) JUSTICES Chief Justice Mian Saqib Nisar, Justice Sh. Azmat Saeed, Justice Umar Ata Bandial, Justice Faisal Arab, Justice Ijaz Ul Ahsan, Justice Sajjad Ali Shah and Justice Munib Akhtar BACKGROUND The instant matters pertain to an important historical and constitutional issue involving the status, authority and powers for Gilgit-Baltistan, including the judiciary and the rights available to its people. The following issues were presented in the various petitions and considered by the Court:- i. Would granting fundamental rights and a status, role and recognition of Gilgit-Baltistan in the constitutional scheme of Pakistan prejudice Pakistan’s cause for the resolution of the Kashmir dispute by such appropriate means as may be acceptable to Pakistan (which could, for example, be a United Nations sanctioned and supervised plebiscite)? ii. What rights can be granted to the people of Gilgit-Baltistan? iii. Is the Gilgit-Baltistan Supreme Appellate Court a constitutional court? JUDGMENT The Supreme Court disposes of the matters according to the details contained in the judgment, save those petitions in which a specific order or judgment, of either the Gilgit-Baltistan Supreme Appellate Court or the Chief Court, has been challenged. Such petitions shall be deemed pending and be treated and disposed of as the leave petitions envisaged under Article 103 of the Proposed Order (as described in the judgment), when promulgated. REASONS FOR JUDGMENT Nothing this Court recommends or orders should affect the nature and status of the Kashmir issue. It must be emphasized that all the measures and directions taken and given must be predicated by the caveat that these are subject to the result of the plebiscite, which is duly recognized in Article 257 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). As a responsible member of the comity of nations Pakistan remains aware of its obligations in such terms. As and when the promised plebiscite is organized by the parties to the dispute, it will be up to the people of all of Jammu and Kashmir, and of Gilgit-Baltistan, to make their choice. Till then, it is surely incumbent upon both India as well as Pakistan to ensure that the people of this region enjoy maximum rights for areas within each country’s control. Therefore, till such time that the plebiscite is held, a proper arrangement must be provided for by Pakistan for the people of Gilgit-Baltistan for purposes of governance within a framework of a -: 2 :- constitutional nature, including most importantly the enjoyment of fundamental rights. (See paragraph 20 of the judgment) In 1999, this Court in the case of Al-Jehad Trust (1999 SCMR 1379) directed the Pakistan Government to extend fundamental freedoms to the Northern Areas (now referred to as Gilgit- Baltistan) within six months. The judgment declared that Pakistan exercised both de facto and de jure administrative control over the Northern Areas. This Court ruled in the Al-Jehad Trust case that the people of the region were “citizens of Pakistan for all intents and purposes...and could invoke constitutionally guaranteed fundamental rights.” It also emphasized that the people of the Northern Areas were “entitled to participate in the governance of their area and to have an independent judiciary to enforce...Fundamental Rights.” (See paragraph 16 of the judgment) In the judgment, the Court has considered what would be the position (i.e., status, powers and jurisdiction) of the judicial, legislative and executive organs established by an instrument of the nature of the Gilgit Baltistan Order, 2018. In accordance with well-established principles of law, the Gilgit-Baltistan legislature would only have such powers as are conferred upon it by the Federation through the Proposed Order. The courts created by such Order shall have the power to judicially review the laws enacted by such legislature. Of course, the organs created by the Proposed Order (or any previous or subsequent such Order), and especially any legislative body, would be bound not merely by the Order, but also by the Constitution. The jurisdiction of a Gilgit-Baltistan court established by or under the Proposed Order is confined to the territory of Gilgit-Baltistan. Therefore, it is concluded that the intention was, and is, to give the Gilgit- Baltistan Supreme Appellate Court and the Chief Court the status of a “constitutional” court within the ambit of Gilgit-Baltistan and the Proposed Order. The Gilgit-Baltistan Courts do not, and will not, sit as courts having the power of judicial review in respect of the territory of Pakistan, nor can they declare Orders made or legislation passed by the President or the Parliament as ultra vires, nor can they initiate judicial review of departments working outside of Gilgit-Baltistan. Instead, the Proposed Order (or any previous or subsequent such Order) can be challenged by, inter alia, the people of Gilgit-Baltistan, but only before this Court, either under Article 184 of the Constitution or in the manner herein after provided. (See paragraphs 24 and 25 of the judgment) DIRECTIONS Accordingly, by the judgment, this Court directs and orders as follows:- i. The Proposed Order (modified in the manner as noted in the judgment), and annexed to the judgment, shall be forthwith promulgated by the President on the advice of the Federal Government, and in any case within a fortnight hereof; ii. No amendment shall be made to the Order as so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this Court by the Federation through an application that will be treated as a petition under Article 184(3) of the Constitution. Nothing in the judgment shall be construed to limit the jurisdiction conferred on this Court by the Proposed Order itself; and iii. If the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution. (See paragraph 29 of the judgment) NOTE: This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. The judgment is a public document and available at http://www.supremecourt.gov.pk.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Constitution Petition No.53 of 2007 & Constitution Petition No.83 of 2012 Sh. Riaz-ul-Haq, Advocate Supreme Court (in Const.P.53/07) M. Shabbir Ahmed Nasir, Advocate High Court (in Const.P.83/12) VERSUS Federation of Pakistan thr. Ministry of Law, etc. (in Const.P.53/12) The President of Pakistan thr. his Principal Secretary, President’s Secretariat & others (in Const.P.83/07) For petitioners: Mr. M. Shoaib Shaheen, ASC (in Const.P.53/2007) Nemo (in Const.P.83/12) On Court’s Notice: Attorney General for Pakistan (absent) For Govt. of Balochistan: Mr. Muhammad Azam Khattak, Addl. A.G For Govt. of KPK: Syed Arshad Hussain Shah, Addl. A.G. For Govt. of Punjab: Mr. Jawwad Hassan, Addl. A.G. For Govt. of Sindh: Mr. Muhammad Qasim Mirjat, Addl. A.G. For Law Commission: Raja Faisal Iftikhar, Deputy Secretary Date of hearing: 09.01.2013 JUDGMENT Iftikhar Muhammad Chaudhry, CJ.— Founder of Pakistan, Quad-e-Azam Muhammad Ali Jinnah while addressing the civil officers in Peshawar on 14.04.1948 advised them as follows:- Const.P. 53/07 & Const.P.83/12 2 “The services are the backbone of the state. Governments are formed. Governments are defeated. Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business. Whichever government is formed according to the constitution, and who ever happens to be the prime minister or minister, coming into power in the ordinary course, your duty is only to serve that government loyally and morally but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you start with that determination, you will make a great contribution to the building up of Pakistan of our conceptions and our dream- a glorious state and one of the greatest nations in the world. While impressing this upon you, I wish also to take the opportunity of impressing upon our leaders and politicians in the same way, that if they ever try to interfere with you and bring political pressure to bear upon you, which leads to nothing but corruption, bribery and nepotism-which is a horrible disease and for which not only your province but others too are suffering-if they try to interfere with you in this way, I say they are doing nothing but disservice to Pakistan. … …” 2. In recognition of the status of civil servants, and so that they may work fearlessly, maintaining their high reputation, prestige, honesty and the integrity of their service, as was the dream of our founding father, the Constitution of Islamic Republic of Pakistan, 1973 under Article 212(1)(a) provides for the establishment of Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters by means of appropriate legislation. Said Article is reproduced hereinbelow:- Const.P. 53/07 & Const.P.83/12 3 212. Administrative Courts and Tribunals.-(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of – (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) ……… (c) ……… As a consequence of above constitutional provision, following Federal and Provincial Service Tribunals Acts were promulgated to establish Service Tribunals respectively:- (1) The Service Tribunals Act, 1973 (STA, 1973) whereunder the Federal Service Tribunal (FST), was established; (2) The Sindh Service Tribunals Act, 1973 (SSTA, 1973) whereunder the Sindh Service Tribunal (SST) was established; (3) The Punjab Service Tribunals Act, 1974 (PSTA, 1974) whereunder the Punjab Service Tribunal (PST), was established; (4) The NWFP (KPK) Service Tribunals Act, 1974 (NSTA, 1974) whereunder the NWFP (KPK) Service Tribunal (NST) was established; (5) The Balochistan Service Tribunals Act, 1974 (BSTA, 1973) whereunder the Balochistan Service Tribunal (BST) was established. For the sake of convenience, sections 3 of STA, 1973 (Federal), is reproduced hereinbelow:- 3. Tribunals. (1) The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants In respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act. (2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. (3) A Tribunal shall consist of— (a) a Chairman, being a person who is, or has been, or is qualified to be Judge of a High Court ; and (b) such number of members not exceeding three, each of whom is a person who possesses such Const.P. 53/07 & Const.P.83/12 4 qualifications as may be prescribed by rules, as the President may from time to time appoint. (4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine. (5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President. (6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is thereby increased. (7) Notwithstanding anything contained in sub-section (3), sub-section (4), sub-section (5) or sub-section (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President. Aforesaid section of STA, 1973 is pari materia with the provisions of the respective Provincial Service Tribunals Acts. Subsection (3)(b) of section 3 ibid specifies that the qualifications of a member of the Tribunal shall be prescribed by rules, as such, the Federal Government has framed rules namely the Service Tribunals (Qualification of Members) Rules, 1974, providing qualification for the appointment of Member of the Tribunal, which read as under:- “2. A member of the Tribunal shall be a person who has for a period of or for periods aggregating not less than 20 years held an appointment or post in the Service of Pakistan, or in a Corporation or other body set up by Government or who, for the said period, has been an advocate or legal practitioner. Explanation: In computing the period during which a person has held an appointment or post or has been an advocate or legal practitioner there shall be included any period during which he has held an appointment or post after he became an advocate or legal practitioner or, as the case may be, the period during which he has been an advocate or legal practitioner after having held the appointment or post.” Const.P. 53/07 & Const.P.83/12 5 In exercise of powers conferred by section 3(4) of STA, 1973, the terms & conditions of the Chairman and the Members of the Tribunals were prescribed by the President in the Federal Service Tribunal Chairman and Members Service Rules, 1983. Rules 1 (ibid) provides the tenure of the Chairman and the Members of the Tribunal in the following terms:- “1. The Chairman and members shall hold office at the pleasure of the President, for such tenure, which may normally be for three years extendable by a further period not exceeding three years, as may be determined by the President.” Similarly, in terms of section 3(3)(b) of (PSTA, 1974) the Government of Punjab has framed the Punjab Service Tribunals (Qualifications of Members) Rules, 1978, which provides following qualification for the appointment of Member of the Tribunal:- “A member of the Tribunal shall be a person who is not below the status of Secretary to Provincial Government and has at least 18 years service in Grade 17 or above.” The qualifications of Members of the Tribunal have been prescribed in section 3(3)(b) of provincial statutes of Sindh, NWFP (KPK) and Balochistan, therefore, rules were not required to be framed thereunder. For reference, same are reproduced hereinbelow:- Sindh Service Tribunals Act, 1973: 3. Tribunals: (1) ……… (2) …… (3) A Tribunal shall consist of— (a) a Chairman, being a person who has been, or is qualified to be, Judge of a High Court ; and (b) not more than two members each of whom is a person who has for a period of not less than seventeen years held a post in grade 16 or an equivalent or a higher post under the Federal Government or a Provincial Government. (4) ……… NWFP (KPK) Service Tribunals Act, 1974: Const.P. 53/07 & Const.P.83/12 6 3. Tribunals: (1) ……… (2) …… (3) A Tribunal shall consist of: (a) a Chairman, being a person who has been, or is qualified to be, Judge of High Court ; and (b) not less than two and not more than four members, each of whom is a person who has for a period of not less than fifteen years held a Class I or an equivalent post under the Federal Government or a Provincial Government. (4) ……… Balochistan Service Tribunals Act, 1974: 3. Tribunals: (1) ……… (2) …… (3) A Tribunal shall consist of— (a) a Chairman, being a person who has been, is a or qualified to be, a Judge of High Court ; and (b) two members each of whom is a person who has for a period of not less than ten years held a Class I post under the Federal Government or a Provincial Government. (4) ……… 3. Initially, the FST was under the administrative control of the Establishment Division. Subsequently, its administrative control was transferred to the Law and Justice Division. As such, it has been enjoying the status of attached department of the Federal Government. The position of Provincial Service Tribunals is also not different from FST. 4. Petitioner in Constitution Petition No.53 of 2007 has submitted that the respondents may be directed to fulfill the Constitutional Obligations to ensure independence of judiciary from the Executive by suitably amending the Service Tribunal Acts and Rules framed thereunder. He further prayed that the amended Acts and Rules should ensure as under:- (a) The appointment of Chairman and the Members of the Service Tribunals are made after meaningful consultation Const.P. 53/07 & Const.P.83/12 7 with the Chief Justice of Pakistan or, as the case may be, the Chief Justice of the respective Province; (b) The Tribunal should not be under the administrative or financial control of the Executive. For this, on the analogy of the judges of the High Courts and Federal Shariat Court, the terms and conditions of the Chairman and Members may be independently determined so as to make them outside the Executive influence and to ensure uniformity. (c) Appropriate legal and judicial experience may be prescribed for appointment as Member. Practicing lawyers, who are qualified to be appointed as Judge of the High Court, be given preference for induction as Members of the Service Tribunals. 5. Mr. M. Shoiab Shaheen, learned ASC appearing for the petitioner formulated following prepositions for consideration: - “(1) Whether the Service Tribunals are judicial forums and are performing functions of a Court within the meaning of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973; (2) Whether section 3 of Service Tribunals Act, 1973 and the Service Tribunals (Qualification of Members) Rules, 1974 promulgated by the Federal Government including corresponding provisions applicable in the provinces relating to appointment of Chairman and Members of the tribunals are violative of Article 175 read with Articles 2A, 5, 8 & 25 of the Constitution; and (3) Whether appointments of the Chairman and Members of the Service Tribunals should be made with the meaningful consultation with the Chief Justice of Pakistan and concerned Provincial High Court, as the case may be.” 6. He argued that the Service Tribunals are the judicial forums having exclusive jurisdiction for redressal of grievances of civil Const.P. 53/07 & Const.P.83/12 8 servants relating to terms and conditions of service, under which they are governed. 7. According to him, the Service Tribunals exercise judicial powers with a limited scope of challenge before this Court under Article 212(3) i.e. subject to satisfaction of the Court that the case involves a substantial question of law of public importance. Thus, the matters regarding appointment of the Chairman and Members of the Service Tribunals are as important as those of judges of the High Courts. Under these circumstances, the appointments of the Chairman and Members of the Service Tribunals must be made in consultation with the Honourable Chief Justice of Pakistan, or as the case may be, the Chief Justice of the respective High Courts. Reliance is placed on S. P. Sampath Kumar v. Union Of India (AIR 1987 Supreme Court 386). 8. In continuation of his above arguments he further submitted that appointment of serving or retired bureaucrats as Members with no legal and judicial background is against the principle of Independence of judiciary. Inasmuch, as the Federal Government had been appointing such persons as Chairman and Members, who are either retired judges or bureaucrats usually of 60 to 65 years. 9. He also submitted that the spirit of Service Tribunal (Procedure) Rules 1974 is against the fundamental principles as contained in the Code of Civil Procedure, 1908. The administrative control of the Federal Service Tribunal had earlier been with Establishment Division (Respondents No.2) and was then transferred to the Law and Justice Division (Respondents No.3). The matter regarding appointment of Chairman and Members of the Federal Service Tribunal are processed through Respondents No.2 & 3. The Const.P. 53/07 & Const.P.83/12 9 other matters regarding terms & conditions of Chairman and Members (such as leave, allotment of cars, housing and telephone facilities etc.) are also dealt with by the administrative Ministry. Further, since its constitution, the Federal Service Tribunal has been working as an attached department of the Federal Ministries. The position of the Provincial Tribunals too is not different. Therefore, this state of affairs is clearly violates Article 175 of the Constitution. 10. Learned Attorney General for Pakistan, despite notice, is not in attendance. 11. The learned Deputy Attorney General, appearing on behalf of Federation of Pakistan, raised preliminary objections to the maintainability of the petitions on the ground that the petitioners have no cause of action to file the petition as the Chairman and the Members of Federal Service Tribunal are appointed in accordance with law. The matter is not of a great public importance and no Fundamental Right of the petitioner has been infringed as well. 12. He submitted that the Chairman/Members of the Tribunal are appointed in terms of section 3(4) of the STA, 1973 and the Service Tribunals (Qualifications of Members) Rules, 1974 and not in terms of Article 193 of the Constitution, which provides qualification for appointment of a Judge of the High Court, therefore, the role of these Tribunals in administration of justice is not equal to that of the High Court. 13. His next submission was that the Act and the rules do not provide consultation with respective Chief Justices as FST has been established to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, therefore, provision of Const.P. 53/07 & Const.P.83/12 10 Article 175 of the Constitution is not applicable in the context of separation of Judiciary from Executive. 14. He further submitted that the appointment of Chairman/Members of FST is made by the President of Pakistan, therefore, do not fall directly under the control of Law Ministry and the Chairman/Members are independent in making decisions with regard to the matters brought before it in respect of terms and conditions of service. He contended that there could not be a single instance where Ministry of Law and Justice ever interfered with or exercised influence in the functioning of Service Tribunal. 15. According to him the High Courts are judicial forums and are established under the Constitution presided over by a serving Judge, whereas, the Tribunal does not function as a Court, it has only one subject to deal with i.e. matters relating to the terms and conditions of civil servants. The FST is an administrative Tribunal, as such it is not equal to a High Court, thus no consultation with the Chief Justice is necessary. 16. Mr. Jawwad Hassan, learned Additional Advocate General, Punjab has submitted that the Service Tribunals are administrative tribunals, meant to resolve disputes between the persons in the service of Pakistan and the State of Pakistan. These tribunals are protected as they function within the meaning of Article 175(3) read with Article 212 of the Constitution, and in Article 175, the word ‘tribunal’ has not been mentioned rather only term ‘court’ has been used. He further contended that the provisions of Service Tribunals Acts and rules made thereunder are not violative of any provision of the Constitution as held by Full Bench of the Lahore High Court in the Const.P. 53/07 & Const.P.83/12 11 case of Muzaffar Hussain v. The Superintendent of Police [2002 PLC (CS) 442]; rather they have the backing of Article 212 of the Constitution. Additionally, the constitution of Anti-Terrorism Courts were upheld because these Courts had the backing of Article 175 but it had no concern with Article 212 of the Constitution, therefore, whatever has been decided in the case of Aurangzeb Shafi Burki v. Province of Punjab (PLD 2011 Lahore 198) does not apply stricto senso in the instant case. 17. He contended that the PSTA, 1974 was enacted by the Provincial Assembly, Punjab whereby the Governor was empowered to establish one or more Service Tribunals; the rules have been framed under the authority of section 11 of PSTA, 1974 and the appointment of Chairman/Members of the Tribunal have been made strictly in accordance with law/rules. He further contended that neither the provisions of Article 212 of the Constitution nor the PSTA, 1974 or the rules framed thereunder envisage that the Chairman/Members of the Tribunal should be appointed after consultation with the Chief Justice. Therefore, such appointment made without consultation of Chief Justice cannot be construed as unconstitutional or impinging upon independence of judiciary. Reliance has been places on the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein it has been held that where the Constitution makers wanted to provide judicial forums other than what is envisaged by Article 175, 202 and 203, they expressly provided for the same in the Constitution in shape of Article 212 of the Constitution. He further contended that in absence of term ‘consultation’ appearing in Article 212, it cannot be read into or introduce in the said Article. Even the law made under the authority Const.P. 53/07 & Const.P.83/12 12 of the said Article does not envisage any consultation with the concerned Chief Justice unlike the Indian approach where the same has been provided. He submitted that the judgments relied upon by the petitioner were rendered in the context of Articles 177 and 193 relating to the Supreme Court and the High Courts and not with reference to Article 212 of the Constitution. 18. He further contended that Articles 175, 202 and 203 of the Constitution provide the basic framework of the judiciary i.e. the Supreme Court, a High Court for each Province as well as Islamabad and such other Courts as may be established by law, i.e. the subordinate courts. However, Constitution also stipulates other specified courts/tribunals to share judicial powers with the courts mentioned in Article 175 of the Constitution, which include Federal Shariat Court, Administrative Courts and Tribunals established under Article 212 as well as Election Tribunals constituted in terms of Article 225 of the Constitution. According to him, the court or tribunal which is not founded by any of the Articles of the Constitution cannot lawfully share the judicial powers with the Courts referred to in Article 175 of the Constitution, however, the above referred tribunals including the Service Tribunals have been envisaged by the Constitution itself, therefore, sharing of judicial powers by them with the Court cannot be conceived as creating a parallel judicial system. He added that in discharge of judicial function, the Tribunal works subject to judicial supervision of the Supreme Court. 19. He further contended that the appointment of the Chairman and Members of Tribunal after superannuation cannot be termed as unconstitutional or in derogation of independence of Const.P. 53/07 & Const.P.83/12 13 judiciary, inter alia because the Constitution nowhere prohibits appointment of a superannuated person whereas the PSTA, 1974 and the rules provide a specific provision to that effect. He submitted that the Tribunal and the High Courts are two separate entities performing assorted functions under separate dispensations and should not be construed as equal or comparable. 20. His last contention was that as per 1st Schedule to the Punjab Government Rules of Business, 2011, PST has not been shown as an attached department rather it is reflected as special institution associated for administrative linkages with Services & General Administration Department like Lahore High Court, Provincial Ombudsman and Punjab Public Service Commission. In fact PST has been assigned an independent and autonomous status. 21. He informed that the Chief Minister, Punjab has constituted a Cabinet Sub-Committee for review of Service Laws and following recommendations have been made:- (a) The existing Punjab Service Tribunal Act 1974 stipulates that the Chairman of the Punjab Service Tribunal shall be a person who is or has been qualified to be a Judge of the High Court. Thus, judicial experience is inbuilt in the existing provision and no further amendment was required. (b) The qualification for the members of Tribunal and method of recruitment may, however, be revised as under in the light of the observations of the Hon’ble court: “(2) A member of the Tribunal shall be a person who has been serving as Secretary to the Government and has been performing quasi-judicial functions or functions relating to service matters. (3) A member shall be appointed on the recommendations of the Selection Committee consisting of the Chief Secretary (Convener), Senior Member Board of Const.P. 53/07 & Const.P.83/12 14 Revenue, Chairman P&D Board, Secretary Law and Secretary Services (S&GAD).” It was further informed that the Cabinet has already approved the following recommendations: - (a) Serving civil servants shall not be appointed as members of the Tribunal; (b) The terms of office of a member and Chairman shall be fixed for a minimum period of 3 years or till attaining the age of 65 years, for the members and 67 years for the Chairman, whichever is earlier; and (c) The term of office of a member, including the Chairman shall not be extended and a sitting incumbent shall not be appointed for another term. 22. Mr. Muhammad Kassim Mir Jat, learned Additional Advocate General, Sindh has submitted that the concept of Administrative Tribunals was introduced by the framers of the Constitution which was regularized through Legislation at the Federal and the Provincial level. He stated that in the United States the Court systems exercise the power of judicial review. However, the adjudication of dispute is also done by Tribunals and Federal Agencies including the Security & Exchange Commission, the inter State Commerce Commission, the National Labour Relations Board, etc., with a large measure of independence from Executive. In Britain, Special Tribunals ensure that public agencies carry out the instructions of Parliament. In France, the Courts are forbidden to oversee the public agencies; this job is done by a council of State. The French system has been adopted by other countries including Belgium, Italy, Portugal, Greece, Egypt and Turkey. Germany has also Administrative Court System and a Federal Administrative Court acts as a Court of Const.P. 53/07 & Const.P.83/12 15 Appeal. In Pakistan, separate Administrative Tribunals have been established under Article 212 of the Constitution which deals with the matter relating to terms & conditions of service. The Tribunals not only provide speedy remedy to the civil servants but also share the burden of Courts. 23. He further submitted that it is not a parallel judicial system as it has the backing of the Articles 175, 203 or 212 of the Constitution. As the appeal against the judgments of Tribunal lies before the Supreme Court under Article 212(3) of the Constitution, therefore, the Tribunals fall under the judicial hierarchy. He has relied upon the case of Muzaffar Hussain v. The Superintendent of Police [2002 PLC (CS) 442], which view was also endorsed by this Court in the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1455), Khan Asfandyar Wali v. The Federation of Pakistan (PLD 2001 SC 607) and Liaqat Hussain v. Federation of Pakistan(PLD 1999 SC 504). 24. Learned counsel also submitted that the cases referred from the Indian Jurisdiction are not applicable in our jurisdiction as the Indian Service Laws provided for consultation with the Chief Justice. 25. Syed Arshad Hussain, learned Additional Advocate General, KPK has submitted that Article 212 of the Constitution empowers the Provincial Legislature to establish as many Courts or Tribunal to exercise exclusive jurisdiction in respect of matters enumerating therein. The Provincial Service Tribunal, KPK has been established in terms of Article 212 of the Constitution read with NWFP (KPK) Service Tribunal Act, 1974 as such it cannot be equated with the High Court. He contended that the appointment of Chairman of the Tribunal in KPK has always been made in consultation with the Chief Const.P. 53/07 & Const.P.83/12 16 Justice Peshawar High Court, whereas the Members of Tribunals are appointed from civil servants in terms of section 3(2)(b) of NSTA, 1974 by the Governor. He added that as per section 3(2)(b) of NSTA, 1974, there is no requirement of making the appointment of Members from amongst the lawyers/judicial officers as such there is no violation of the Constitution or the law in the appointments made till date. According to him, like Income Tax and Customs Appellate Tribunal, where a matter is heard and decided by a Judicial and Technical Member, it can be constituted to include a Judicial Member in the Tribunal. He further contended that a situation where difference of opinion takes place between the members of the Tribunal has been dealt with in section 6(4) of the NSTA, 1974 which provides that in case of difference of opinion between the Chairman and member or members, when the appeal is heard under sub-section (2) and no majority view can be formed, the appeal shall be referred to the other member, and the decision of the Tribunal shall be expressed in terms of the view of the majority. He lastly submitted that a special committee in the light of the directions of this Court has proposed the following amendments in NSTA, 1974: - (i) Section 3(3)(b) of the Act, 1974 may be substituted with the following: Such number of members to be determined by the Government from time to time of which equal number may consist of judicial members, having judicial or legal background of either being exercising the functions and powers of Additional District & Sessions Jude or is an Advocate qualified to be a Judge of High Court (ii) A proviso to be added at the end of subsection (3)(b) to section 3 of the Act, 1974: Provided that non judicial members maybe appointed from amongst the holders of the post in BS-20 or equivalent under provincial and Federal Government. Const.P. 53/07 & Const.P.83/12 17 (iii) In subsection (4) of section 3 of the Act, 1974 following proviso to be added: Provided that the Chairman and judicial members of the tribunal shall be appointed in consultation with the Chief Justice of the High Court. 26. Learned Additional Advocate General, Balochistan has stated that it remains the practice that appointment of Chairman of Service Tribunal has been made in consultation with the Chief Justice of High Court of Balochistan. He has contended that the incumbent Chairman/ Members are fully qualified to be appointed as such and no provision of Constitution or the law has been violated. Even in the past, the persons who were appointed as Chairman/Members were fully qualified. 27. We have heard the parties and have gone through the relevant provisions of law as well as the material placed before us. 28. It would be appropriate to first of all take up the question of maintainability of instant petition under Article 184(3) of the Constitution in view of the objections raised by the learned Deputy Attorney General. The petitioner’s case is that he has approached this Court for the vindication of Fundamental Right to have access to justice enshrined in Articles 9 of the Constitution. It is to be noted that the right of “access to justice to all” is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of “due process of law”. It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal. 29. The scope of jurisdiction of this Court under Article 184(3) of the Constitution by now is fairly settled in a plethora of case-law. In Const.P. 53/07 & Const.P.83/12 18 the case of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) it has been held as under:- "... ... After all the law is not a closed shop and, even in adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under a disability. Why not then a person, if he were to act bona fide, activise the Court for several reasons. This is what public interest litigation seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and un-redressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(1) 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. ..." [the World Peace Through Law Conference at Lagos in 1961]” In Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), maintainability of petition under Article 184(3) was discussed and decided as under:- "6. While construing Article 17 which guarantees fundamental right, our approach should not be narrow and pedantic but elastic enough to march with the changing times and guided by the object for which it was embodied in the Constitution as a fundamental right. Its full import and meaning must be gathered from other provisions such as preamble of the Constitution, principles of policy and the Objectives Resolution, which shed luster on the whole Constitution. Reference in this connection may be made to the observations made by Muhammad Haleem, C.J. (as he then was) in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 at 489:-- "... ... 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." In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) it has been held that whenever the Constitution is violated, every Const.P. 53/07 & Const.P.83/12 19 citizen has a right to challenge the same. Relevant paras there from read as under:- “12. Yet another objection raised was that the petitioner could not invoke Article 184(3) of the Constitution as he has not been able to show whether any one, of his fundamental rights was infringed. … It is submitted by the petitioner that he is a practicing lawyer and has a very vital interest in the Judicial set-up which can function independently only when there is proper and total compliance of the Articles relating to the Judiciary and appointments are also made in accordance with the Constitutional scheme made there under. According to him, a lawyer cannot survive if the Judiciary is not independent. … It appears that the remedies under Articles 199 and 184 (3) available in a High Court and the Supreme Court respectively are concurrent in nature and question of locus standi is relevant in a High Court, but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution. According to the petitioner, he went to the High Court and his writ petition was dismissed without deciding the questions of controversy. He filed the petition for leave to appeal against the impugned judgment and also filed the direct petition under Article 184(3) of the, Constitution praying for examination of the Articles relating to the Judiciary and in that connection has called in question some appointments in the Superior Judiciary. … 13. We are of the view that the petitioner has rightly invoked the jurisdiction of this Court under Article 184(3) of the Constitution and leave has rightly been granted in the other petition for the reason that in both the cases common question of interpretation of the Articles relating to the Judiciary are involved, which are of public importance. We are not impressed by the contention that interpretation of the Articles in these cases would be merely an exercise of academic nature. On the contrary, it can be said that this exercise has become very essential and necessary and would help a great deal in making the matters very clear by interpreting the relevant provisions of the Constitution relating to the Judiciary. It is held by this Court in the case of Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 that the interpretation of the Constitution is the prerogative as well as the duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. … This right to interpret the Constitution is not acquired de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to Const.P. 53/07 & Const.P.83/12 20 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 the matter of: Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963) it has been held as under:- “20. The judiciary including the High Courts and the Supreme Court is bound to protect and preserve the Constitution as well as to enforce fundamental rights conferred by the Constitution either individually or collectively, in exercise of the jurisdiction conferred upon it either under Article 199 or 184(3) of the Constitution. We are fully cognizant of our jurisdiction, it is one of the functions of the judicial functionaries to decide the matters strictly in accordance with the Constitution and law. We are conscious of our jurisdiction, and exercise the same with judicial restraint. But such restraint cannot be exercised at the cost of rights of the citizens to deny justice to them. The scheme of the Constitution makes it obligatory on the part of superior Courts to interpret Constitution, law and enforce fundamental rights. There is no cavil with the proposition that ultimate arbiter is the Court which is the custodian of the Constitution, as it has been noted herein before and without repeating the same, this Court had initiated proceedings in the instant case as is evident from the detailed facts and circumstances noted hereinabove to ensure that corruption and corrupt practices by which the Hujjaj were looted and robbed has brought bad name to the country.” In the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407) it has been held as under:- “9. … … Article 184(3) ibid empowers this Court to exercise jurisdiction thereunder whenever the Court considers a matter to: (i) be of public importance and (ii) that it pertains to the enforcement of fundamental rights. The determination on both these counts is to be made by this Court itself, keeping the facts of the case in mind. That this case involves a question which relates to the “enforcement of fundamental rights” has not been seriously questioned. ... 10. Furthermore, in making this determination, the Court is not to be swayed by expressions of public sentiment nor is it to conduct an opinion poll to determine if the public has any interest in an issue being agitated before the Court under Article 184(3) of the Constitution. Instead, a whole range of factors need to be kept in mind, which have, over the years, been expounded in numerous precedents of this Court.” In the case of Muhammad Azhar Siddiqui v. Federation of Pakistan Const.P. 53/07 & Const.P.83/12 21 (PLD 2012 SC 774)it has been held as under: - “15. In the case at hand the Prime Minister stood convicted by the apex Court of the land for wilfully, deliberately and persistently defying a direction issued in Dr. Mobashir Hassan case, and such persistent defiance at the highest level was considered substantially detrimental to the administration of justice, and as tending not only to bring this Court, but also the entire judiciary of this country into ridicule. The ruling of the Speaker declaring that no question of disqualification of the respondent had arisen despite a concluded judgment of the apex Court defied the principles of independence of the judiciary and trichotomy of powers, and also constituted a violation of the due process clause under Article 10A of the Constitution. All this has made it a case suitable for invoking the original jurisdiction of this Court. Accordingly, we hold that the instant petitions raise a question of public importance with reference to the enforcement of Fundamental Rights enshrined in Articles 9, 10A, 14, 17 & 25 of the Constitution and meet the requirement of Article 184(3) of the Constitution, therefore, the same are held to be maintainable. The objection raised by the learned counsel for the respondents, being devoid of any merit, is overruled.” In the case of Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109) it has been held as under: - “25. A perusal of the above quoted provision would demonstrate that this Court was possessed of powers to make any order of the nature mentioned in Article 199 of the Constitution, if, in the opinion of this Court, a question of public importance relating to the enforcement of any of the Fundamental Rights was involved in the matter. As has been mentioned in the preceding parts of this order, what was at stake was not only a colossal amount of money/property belonging to at least one million depositors i.e. a large section of the public but what was reportedly at stake was also the very existence of the Bank of Punjab which could have sunk on account of the mega fraud in question and with which would have drowned not only the said one million depositors but even others dealing with the said Bank". And what had been sought from this Court was the protection and defence of the said- public property. It was thus not only the right of this Court but in fact its onerous obligation to intervene to defend the said assault on the said fundamental right to life and to property of the said public.” Const.P. 53/07 & Const.P.83/12 22 In Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089) it has been held that: - 80. The expression "public importance" has been interpreted in a number of cases including Manzoor Elahi v. Federation of Pakistan, (PLD 1975 SC 66), General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director Industries and Mineral Development, Punjab, (1994 SCMR 2061) and Mrs. Shahida Zahir Abbasi v. President of Pakistan, (PLD 1996 SC 632). It is quite clear that the question as to whether a particular case involves the element of 'public importance' is to be determined by this Court with reference to the facts and circumstances of each case. In the case of Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) it has been held that the right of access to justice and independent judiciary is also one of the most important rights of the citizens and if there is any threat to the independence of judiciary, it would be tantamount to denial of access to justice, which undoubtedly is a fundamental right under Article 9 of the Constitution. Whenever there is a violation of Articles 9 and 25 of the Constitution, it will involve a question of public importance with reference to enforcement of the Fundamental Rights of the citizens, who may approach the Court for the enforcement of these rights under Article 184(3) of the Constitution without having to discharge the burden of locus standi. The scheme of the Constitution makes it obligatory on the superior Courts to interpret the Constitution and the law and enforce the Fundamental Rights. 30. It is to be noted that the independence of judiciary is one of the salient features of our Constitution. The preamble to the Constitution provides that 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 Const.P. 53/07 & Const.P.83/12 23 is a sacred trust; and whereas it is the will of the people of Pakistan to establish an order wherein the independence of the judiciary shall be fully secured. The Objectives Resolution, which is now a substantive part of the Constitution by means of Article 2A of the Constitution, also commands that independence of judiciary has to be fully secured. The superior Courts have elaborately interpreted the words ‘fully’ and ‘secured’ to elucidate the concept of ‘independence of judiciary’. In the case of Chairman, NWFP Forest Development Corporation v. Khurshid Anwar Khan (1992 SCMR 1202) it has been held that our Constitutional setup preserves the independence of superior Courts, by a definite mandate including the command of the Objectives Resolution that independence of the judiciary has to be fully secured. In the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) it has been held that the Constitution aims at an independent Judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the Judiciary and had fixed a time limit for such separation. The separation of the judiciary as contemplated in Article 175 of the Constitution and independence of the judiciary as envisaged in the Objectives Resolution (Article 2A) cannot be achieved without having independent annual budget for the judiciary. In the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) it has been held as under: - “The Constitution of the Islamic Republic of Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2A) declares that “the independence of the judiciary shall be fully secured” therein. Now, according to the consensus of the jurists, the independence of the judiciary means: - Const.P. 53/07 & Const.P.83/12 24 (a) that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and (b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.” In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) it has been held that our country has Federal system of Government which is based on trichotomy of power; each organ of the State is required to function within the bounds specified in the Constitution, though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. In the case of Syed Zafar Ali Shah v. General Pervez Musharaf (PLD 2000 SC 869) it has been held that the Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of judiciary, federalism and parliamentary form of government, blended with Islamic Provision cannot be altered even by the Parliament. In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) certain provisions of NRO were strike down being contrary to the principle of independence of judiciary in the following terms: - “81. Thus, it would not be sustainable being contrary to the principle of independence of judiciary, as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme Const.P. 53/07 & Const.P.83/12 25 for the establishment of the courts, including the superior courts and such other courts as may be established by law. In the present case, except an appeal under section 32 of the National Accountability Ordinance, 1999 to the High Court of the Province, no other remedy is available to a convict against his conviction/sentence, to get it set aside.” In the case of Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) it has been held as under: - “64. In the case of Chairman, N.W.F.P. Forest Development Corporation v. Khurshid Anwar Khan (1992 SCMR 1202), it was held that Court acting under rules framed by virtue of the Constitutional power was not bound to follow any other statutory dispensation, which came in conflict with the independence of judiciary. Supreme Court was not even bound by the provisions of Civil Procedure Code, 1908 or Criminal Procedure Code, 1898 in so far as regulation and control of practice and procedure of the Court itself was concerned. It was further held that Article 2A of the Constitution (Objectives Resolution) commands that independence of judiciary has to be fully secured. Words `fully' and `secured' are explicit enough not to leave any doubt that Constitutional set up of Pakistan preserves the independence of Supreme Court by a definite mandate.” 31. Admittedly, civil servants being citizens of Pakistan have Fundamental Rights including the right of access to justice as envisaged under Article 9 of the Constitution. The enforcement of terms and conditions of service of these civil servants depends upon the impartial, independent and unbiased Tribunal. Further, in the words of our founding father, the services are the backbone of the state as the affairs of the Government are performed by the civil servants. Therefore, ultimately, the general public gets affected from the functioning of the service Tribunals; as such, the instant case involves a question of public importance. 32. It may be mentioned here that the instant petition falls in the category of public interest litigation, which is not adversarial but inquisitorial in nature. It is well settled that this Court has the Const.P. 53/07 & Const.P.83/12 26 jurisdiction to adjudicate upon a case if it falls within the ambit of inquisitorial proceedings. Reference may be made to the cases of Watan Party v. Federation of Pakistan (PLD 2011 SC 997), All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1) and Workers' Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681). Thus, the instant petitions are maintainable and objection is overruled. 33. Now we would examine as to whether or not the Service Tribunals, Federal and Provincial, are judicial forums and are performing their functions within the meaning of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973, which deals with the establishment and jurisdiction of courts as well as independence of judiciary through its separation from the Executive. Clause (1) of the said Article provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory and such other courts as may be established by law. Whereas, Clause (3) provides that the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. 34. Firstly, it is to be examined whether Service Tribunals established under Article 212(1)(a) of the Constitution read with Federal or Provincial Legislation, fall within the definition of a court, under Article 175 of the Constitution. 35. It is to be noted that the word ‘Court’ has not been defined in any legal instrument, therefore, we have to refer to its dictionary meanings, which are as under: - Corpus Juris Secundum; vol. 21 Const.P. 53/07 & Const.P.83/12 27 Generally, a court is a body in the government to which the public administration of justice is delegated, being a tribunal officially assembled under authority of law, at the appropriate time and place, for the administration of justice, through which the State enforces it sovereign rights and powers, and consisting in its jurisdiction and functions and not its title or name. The court exists as a forum to hear and resolve suits and controversies raised by parties who have invoked its authority. The term ‘court’ may include a Judge and a jury, ……….may include a Tribunal presided over by a police judge, or by a justice or justices of the peace, or various other tribunals. Halsbury’s Laws of England, 4th Edition Vol.10: Originally the term ‘Court’ meant, among other things, the Sovereign’s place. It has acquired the meanings of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the sovereign…… A Tribunal may be a court in the strict sense of the term even though the chief part of its duty is not judicial. The Oxford Companion to Law by David M. Walker: A court was originally the King’s or a great lord’s place or mansion……A court is accordingly a person or group of persons having authority to hear and administer disputes in accordance with rules of law. Tribunals or adjudicators who exercise adjudicative functions by virtue of contract or of the voluntary submission of persons to their decisions. Words and Phrases Legally Defined (1969 Edition, Vol. I, p. 367) the terms `Court' originally meant the sovereign's palace; it acquired the meaning of the place where justice is administered and has come to mean the person who exercises judicial functions. The Major Law Lexicon, 4th Edition, 2010: “Court” includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. The “Court” means the person or persons before whom a legal proceeding is held or taken. “Court” means a civil, criminal or revenue Court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. Const.P. 53/07 & Const.P.83/12 28 Black’s Law Dictionary: An organ of government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice. Ballentine's Law Dictionary Court is the organ of the Government, consisting of one person, or of several persons called upon and authorized to administer justice. In Nasir Muhammad v. Murad Ali (PLD 1960 Lahore 757), a Division Bench, has held that “the expression ‘Court’ has not been defined either in the Limitation Act or the General Clauses Act and this can be said of almost all Acts in force in Pakistan. The expression, however, means according to the context in each case either the Presiding Officer or the whole Court including the Presiding Officer of the Court or the place where cases are heard.” In the case of Rehman Khan v. Asadullah Khan (PLD 1983 Quetta 52) while dealing with the question as to whether or not the Tribunals established under Civil Procedure (Special Provisions) Ordinance, 1968 were the Court and was competent to hear suits under section 42 of the Specific Relief Act, 1877, the High Court held as under: - “7. The Black's Law Dictionary defines the "Court" as "an organ of the Government belonging to the judicial Department, whose function is the application of the laws to controversies brought before it and the public administration of justice". This definition finds support from White Country v. Gwin (136 Ind. 562=36 N E 237=22 L R A 402), Bta-dley v. Town of Bloomfield (85 N J Law 506=89 A 1009). With reference to some other case-law it further defines the "Court" as a "body in the Government to which the administration of justice is delegated". Proceeding further it also says that the word "Court" is often applied in circumstances otherwise than in technical sense and is applied to various tribunals not judicial in their character, and includes Jury as well in the definition of the "Court." This explanation amply clarifies that although in strict sense Courts are such bodies or organs of the Government which apply laws to controversies and administer justice by pressing into service the prescribed rules of procedure and Evidence, but at times this term is loosely applied to such Const.P. 53/07 & Const.P.83/12 29 forums also which are not the Courts stricto senso. So it does not mean that all forums responsible for the settlement of various kinds of disputes created from time to time under different laws are all Courts by dint of their function. In Words and Phrases Legally Defined by Butterworths, Vol. 1, p. 367I the word "Court" has been defined as a Department entrusted with the' administration of justice and it also includes in its definition the Parliament I. Parliament is included because it passed verdict in impeachment proceedings. Otherwise, parliament would not fall into the category of the Court. Similarly Jury is included in the term Court and Mr. Ansari on this premises argued that alike Jury a Tribunal could also be called Court. It is a fallacy to says so. Jury in the Anglo Saxson system is the Judge of facts but in the Tribunals under Ordinance I of 1968, it is only a recommendatory body and its verdict is in no way binding upon the Deputy Commissioner over and above this Deputy Commissioner is not a judicial Officer but an executive authority. That makes all the difference. The "Shorter. Oxford English Dictionary" also defines the Court as a forum for the decision of causes and here also decision means decision in the fashion I have referred heretofore. It is thus manifest that although the term "Court" is at times used for quasi judicial or administrative tribunals also but on this premises it cannot be inferred that such forums should be equated with the "Court" of law. Therefore, in our opinion "Courts" are such organs of the State which administer justice strictly in accordance with law, meaning thereby that while applying laws to the controversies, they follow certain rules with regard to procedures and evidence and are not left altogether unguided and uncontrolled to act on their whims and fancies as in the case of the Ordinance I of 1968, which although a procedural law, nullifies all laws and all doctrines hitherto universally considered necessary for the imparting of justice. The Tribunal under the Ordinance I of 1968 is one such forum which is not bound by any law of procedure or Evidence and like the Jirga under the erstwhile F. C. R., it may or may not even record evidence; and if recorded, the applicability or otherwise of the same has no criterions. It all depends on the whims of the tribunal to deny or allow any kind of evidence.” According to the Dictionary meanings, following three elements are essential for the conception of Court: - (1) Time when Judicial functions may be exercised. (2) A place for the exercise of Judicial functions. (3) A person or persons exercising Judicial functions. Thus, the judicial functions are the common characteristic of each element. The term `judicial function' has also not been clearly spelt out either in any Dictionary or in any other book. However, Griffith, Const.P. 53/07 & Const.P.83/12 30 C.J. in Huddart Parker's case has defined the term as, “the words ‘judicial power’ as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subject, or between itself and its subjects, whether the rights relate to life, liberty, or property. The exercise of this power does not come into being until some tribunal which has power to give binding and authoritative decision (whether subject to appeal or not) is called upon to take action.” The same definition has been quoted with approval in Shell Co. of Australia Limited v. Federal Commissioner of Taxation [(1930) All E R 671] and United Engineering Workers’ Union v. Uevanayagam [(1976) 2 All E R 367]. From the detailed analysis of above case law it is clear that the exercise of Judicial power is considered to be an essential feature of a Court, and it distinguishes a Court from an administrative tribunal. 36. Under section 5(2) of the STA, 1973, the Tribunal is deemed to be a civil Court having all the powers which are vested in the civil Court as such it has the power to grant temporary injunction, mandatory or prohibitory, under Order XXXIX, Rules 1 & 2 CPC during the pendency of the appeal before it and has also the power of the appellate Court under Order XLI, Rule 5 to stay the execution/ operation of the decree or order. In terms of section 5(1) ibid, the Tribunal can set aside, vary or modify the order in an appeal before it, of course, after full and final hearing of the appeal. Thus, the tribunal performs the judicial function. Reference may be made to the case of Imran Raza Zaidi v. Government of Punjab (1996 SCMR 645). Relevant portion therefrom is reproduced hereinbelow:- “12. … … Service Tribunal in the instant case is established under section 3 of the Punjab Service Tribunals Const.P. 53/07 & Const.P.83/12 31 Act and appeal thereto is provided under section 4 while the powers conferred on it are reflected in section 5 … … Under subsection (2) of section 5, Service Tribunal is deemed to be a Civil Court having all the powers which are vested in the Civil Court under C.P.C. Such powers would include the jurisdiction of the Civil Court under Order XXXIX, rules 1 and 2, C.P.C. to grant temporary injunction and that of the appellate Court under Order 41, rule 5, C.P.C. to stay the execution/operation of the decree/order appealed from. … Apart from this, law is fairly well settled that even in the absence of an express provision for the grant of interim relief, the appellate Court/Tribunal having the power to grant the main relief can also grant the interim relief by suspending wholly or partially, the operation of the order under appeal before it as such a power is reasonably incidental or ancillary to the main appellate jurisdiction. … Needless to observe that under section 5(1) aforereferred, the Service Tribunal on an appeal filed before it can set aside, vary or modify the order appealed against, of course, after full and final hearing of the appeal. … Thus, viewed from whatever angle, the Service Tribunal has the power to grant interim relief/temporary injunction during. the pendency of the appeal.” In the case of Tariq Transport Company v. The Sargodha-Bhera Bus Service (PLD 1958 SC 437) while considering the question that as to whether an act is judicial, quasi-judicial or administrative, Justice Muhammad Munir, CJ has observed that the said question is clouded by a confusion which is extremely difficult to resolve and no clear cut distinction between these three functions can be discovered from the case law. In modern States where expertise is the dominating feature of Government more than one function is combined in administrative tribunals, and more often than not an administrative agency discharges not only legislative and administrative but also judicial functions. The true question in the case of such tribunals always is whether the act which is complained of is a judicial act and not whether the procedure adopted by the tribunal is judicial or quasi- judicial or whether the dominant or general aspect of the tribunal is that of a judicial, quasi-judicial or administrative body. A tribunal is not Const.P. 53/07 & Const.P.83/12 32 always furnished with the trappings of a Court, nor will such trappings make its action judicial. The character of the action taken in a given case and the nature of the right on which it operates must determine whether that action is judicial, ministerial or legislative or whether it is simply the act of a public agent. A tribunal acts judicially in the full sense of the term if it has to determine a dispute; the dispute relates to a right or liability which, whatever its immediate aspect, is ultimately referable to some right or liability, recognised by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decision; since every right or liability depends upon facts, the tribunal is under an obligation to discover the relevant facts; the ascertainment of the facts is in the presence of the parties either of whom is entitled to produce evidence in support of its respective case and to question the truth of the evidence produced by his opponent; and after an investigation of the facts and hearing legal arguments the tribunal renders a judgment which so far as the tribunal is concerned terminates the dispute. In the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the, approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word `quasi' as prefixed to the word `judicial' may either indicate that the tribunal is not acting purely administratively or Const.P. 53/07 & Const.P.83/12 33 that it is acting in a manner in which a judicial tribunal is expected to act. 37. In the case of Mohammad Hashim Khan v. Province of Balochistan (PLD 1976 Quetta 59) it has been held that the Tribunal under section 5 of the Service Tribunals Act is deemed to be civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court, the Tribunal will have the jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide. The conferment upon the Tribunal the exclusive jurisdiction to adjudicate upon these matters cannot be given any less effect even if it were to be assumed, though there is no warrant for such an assumption, that one or the other ground of challenge may not be available to the petitioners before the Tribunal. In the case of Iftikhar Ahmad v. Muslim Commercial Bank Ltd. (PLD 1984 Lahore 69) it has been observed that despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term ‘Court’. However, inspired by all that has peen said so far, and without claiming that it will be exhaustive, in my humble view, ‘judicial power’ is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justifiable issue, dispute, or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and Const.P. 53/07 & Const.P.83/12 34 protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called ‘Court’ and in performing its functions it declares, construes and applied law or custom or usage, having the force of law. The ‘judicial power’ is thus the instrument to be used by the Court. 38. In the case of Mehram Ali and others v. Federation of Pakistan,( PLD 1998 SC 1445) it has been held that Constitution recognizes only such specific Tribunals to share judicial powers with the Courts, established under Article 175 of the Constitution, which have been specifically provided by the Constitution itself, namely, Federal Shariat Court under Chapter 3A, Tribunals under Article 212, Election Tribunals under Article 255 of the Constitution. The same view was reiterated with approval by this Court in the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504). 39. In the case of Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27) it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However, the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Const.P. 53/07 & Const.P.83/12 35 Tribunal or be it called a Commission, for all legal intends and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, it was held that the Labour Appellate Tribunal, legally speaking, through denominated as a Tribunal, is a Court: nothing more, nothing less. 40. The perusal of above case law makes it abundantly clear that a tribunal is not always function as a ‘Court’, nor its action is always judicial; however, the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability, recognised by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially. Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intends and purposes it is a Court. Further, such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles. 41. It is pertinent to mention here that as the service Tribunals are not only deemed to be a civil Court but also exercise judicial powers, therefore, they are included in the term ‘Court’ mentioned in Article 175 of the Constitution. As such, these Tribunals are to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of Courts in Pakistan. 42. It is to be noted that independence of judiciary has been recognized as a universal human right. In terms of Article 10 of the Const.P. 53/07 & Const.P.83/12 36 Universal Declaration of Human Rights, G.A, 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial Tribunal. In Pakistan, the independence of judiciary is a basic principle of the constitutional system of governance. The Preamble and Article 2A state that “the independence of judiciary shall be fully secured”. This Court while interpreting Article 175 has further strengthened the principle of the independence of judiciary, by emphasizing the separation of Judiciary from the Executive. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of “separation of powers” based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. [see Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)]. Our Constitution is based on separation of powers whereby Parliament makes the laws and the judiciary interprets them. However, it remains the duty of the Judiciary to examine vires of legislation at the touchstone of the Constitution. Reference may be made to the case of Shahid Nabi Malik v. Chief Election Commissioner(PLD 1997 SC 32). 43. In the case of Chenab Cement Products v. Banking Tribunal (PLD 1996 Lahore 672) various provisions of the Banking Tribunals Ordinance, 1984 were challenged on the plea that the same were violative of the Article 25(1) and the theory of independence and Const.P. 53/07 & Const.P.83/12 37 separation of judiciary enshrined in the Constitution. A full Bench of the Court declared the sections 4, 6(6) [as amended by Act VII of 1990] and first proviso to section 9 of the Banking Tribunals Ordinance, 1984 to be unconstitutional as those eroded the independence of judiciary and were hit by Article 175 read with Articles 2A, 4, 8 and Article 25 of the Constitution and further held that the notifications appointing Presiding Officers of the Banking Tribunals, issued under the said Ordinance, were too unconstitutional and without lawful authority and were quashed. 44. In Kilbourn v. Thompsons [103 US 168; 26 L ED 377], it has been held that because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void. The house of representatives has the power under the Constitution to imprison for contempt; but the power is limited to cases expressly provided for by the Constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the proper performance of which it is essential. 45. The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of Const.P. 53/07 & Const.P.83/12 38 the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all courts subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustainable if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a “Court’ in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution. 46. In the light of the finding given hereinabove to the extent that the Service Tribunals are included in the term ‘Court’ mentioned in Article 175(3) of the Constitution and are to be managed, controlled and regulated in accordance with the law relating to the Courts in Pakistan, the question arises as to whether Service Tribunal enjoys independence even in the appointment of its Chairman and the Members. Although the Act and the rules do not provide consultation with the respective Chief Justice, yet having been declared that the Tribunals established under Article 212 fall within contemplation of Article 175(3) of the Constitution, the requirements of said provision Const.P. 53/07 & Const.P.83/12 39 has to be adhered to while making appointment to the Chairman/Members of the Tribunal. We are in agreement with the learned counsel for the petitioner that the Service Tribunals exercise judicial powers with remedy of appeal before this Court under Article 212(3), if the case involves a substantial question of law of public importance, as such, the matters regarding appointment of the Chairman and Members of the Service Tribunals are as important as those of judges of the High Courts. Thus, we are in agreement with the learned counsel for the petitioner that the Tribunal should not be under the administrative or financial control of the Executive. On the analogy of the judges of the High Courts and Federal Shariat Court, the terms and conditions of the Chairman and Members of the Tribunal may be independently determined so as to make them outside the Executive influence and to ensure uniformity. 47. In this context, it is to be noted that in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it has been held that the Constitution provided that the appointment of Judges of the superior Courts is to be made by the President after consultation with the consultees mentioned therein. Such ‘consultation’ cannot be treated lightly as a mere formality, rather supposed to be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The Chief Justice of the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but, must be given due Const.P. 53/07 & Const.P.83/12 40 weight. Their opinion, as to the fitness and suitability of a candidate for judgeship, is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive. 48. In the case of Imran v. Presiding Officer, Punjab Special Court (PLD 1996 Lahore 542), constitution of Special Courts under the Suppression of Terrorists Activities (Special Courts) Act, 1975 and the Offences in Respect of Banks (Special Courts) Ordinance, 1984 were challenged, on ground that the said courts were established and managed at the will of Executive as the Presiding Officers are appointed by the Government and work at its pleasure without having security of office. The Court held that it stands recognized that even if the power of appointment or of establishment of a Court vests in the Government/Executive, the appointments cannot be made arbitrarily, and the said power of appointment is to be exercised through meaningful consultation of the judiciary or its head (Chief Justice), and judicial power cannot be invested by the Executive by appointing persons on its own, providing any procedures or imposing any sentence or conviction so as to control free and fair exercise of judicial power. It was further held as under: - “20. The principles deductible from the survey of the Constitutional provisions and the case-law are that in order to comply with the mandate of independence and separation of Judiciary, the Courts howsoever designated as 'Special Court' or 'Tribunal' are to be established and constituted by making appointment with meaningful consultation of the Chief Justice of the High Court and by providing security of tenure for a period which will not act as a disincentive, such a tenure should then be secured by making necessary provision in the Statute itself. The concept of consultation with the Chief Justice/the High Court is not a new concept introduced by the Supreme Court in its recent judgment. The consultation with the High Court is provided by the Civil Courts Ordinance, 1962, for making appointments of District Judges under section Const.P. 53/07 & Const.P.83/12 41 5, for Additional District Judges under section 6 and for Civil Judges under section 8 of the Ordinance. … … Even the Executive Magistrates who desire -to be absorbed in the Judiciary on option are to be accepted by the High Court provided they fulfil the requisite qualifications prescribed by the relevant Service Rules. The appointments made to the judicial posts/tribunals as such by any contrary method is thus violative of the theory of independence of judiciary. In addition to these features, the power to transfer cases from one Tribunal to the other is not to be left to the discretion of the Executive and financial independence is also to be secured.” The matter of appointment of the judges of the special Courts was examined by this Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445) wherein it was held as under: - “35. The appointment of the Judges of the Special Courts are required, by subsection (2) of section 14 of the Act, to be made by the Government after consultation with the Chief Justice of the High Court. The Executive does not have a free hand in the making of such appointments. As to the meaning of consultation we can do no better than to rely on the recent judgments of the Supreme Court in the cases of Al-Jehad Trust through Raeesul Mujahideen Habib Al-Wahabul Khairi, and others v. Federation of Pakistan PLD 1996 SC 324 and Al-Jehad Trust through Raees-ul- Mujahidin Habib-Al-Wahabul Khairi, Advocate Supreme Court and another (PLD 1997 SC 84). The Federal Government is bound to accept the recommendations of the Honourable Chief Justice of the High Court except for valid reasons justifying a departure. We were informed by the learned Attorney General for Pakistan and the learned Advocate-General, Punjab, that no Presiding Officer of the Special Court shall be removable except with the consent/concurrence or recommendation by the Honourable Chief Justice of the High Court. Even otherwise, the power of removal is basically an adjunct to the power of appointment. We, however, notice that the security of tenure for a certain period is also required to be provided by making necessary provisions in the statute itself as held by a Full Bench of this Court in the case of Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others (PLD 1996 Lahore 542). In the precedent case, provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Offences in Respect of Banks (Special Courts) Ordinance, 1980, were examined threadbare. We allow two months' time of making necessary amendments in the law.” Const.P. 53/07 & Const.P.83/12 42 49. In the case of Hazrat Baz v. Political Agent/District Magistrate Khyber Agency (PLD 2010 Peshawar 7) it has been held that if it is required to establish Special Courts and then to appoint a Sessions Judge or an Additional Sessions Judge as a Judge Special Court, same should be done after consultation with the Chief Justice of the High Court. In the case of Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27) it has been held that in the appointment of Chairman of Labour Appellate Tribunal, the consultation with the Chief Justice of the High Court is an essential prerequisite and a condition precedent. It was further held that all judicial appointments must be subordinate to the High Court and it is only High Court which can and should exercise exclusive administrative and supervisory control over subordinate judiciary. Such supervisory and administrative control cannot exist if a credible and pivotal role is denied to the High Court in appointment of such persons. It will be axiomatic to say that a Court is subordinate to High Court but its Presiding Officers is to be appointed by the Provincial Government without consulting High Court. Reliance can also be placed on S. P. Sampath Kumar v. Union Of India (AIR 1987 Supreme Court 386). 50. From the above case law, it is manifest that whenever the appointment of a ‘judicial officer’ or the Chairman/Member of a Tribunal performing ‘judicial functions’ is made, the consultation with the concerned Chief Justice is prerequisite. Thus, the appointments of the Chairman/Member of the Service Tribunal, Federal or Provincial, must be made in consultation with the Chief Justice of Pakistan or the Chief Justice of concerned High Court, as the case may be and all appointments made without such consultation are void. Const.P. 53/07 & Const.P.83/12 43 51. Learned counsel for the petitioner has emphasized that there must be requirement of possessing legal and judicial experience for a Member of the Tribunal, to be able to deal with the judicial questions arising in a particular case and in this behalf, appropriate experience should be prescribed. According to him, practicing lawyers, who are qualified to be appointed as Judge of the High Court, be given preference for induction as Members of the Service Tribunals. In this regard it is to be noted that the law prescribes that the Chairman of the Tribunal must be a person who is or has been qualified to be a Judge of the High Court, which has an inbuilt mechanism of having legal/judicial experience, however, there is no requirement of having legal or judicial experience for the Members of the Tribunal. Whereas, according to law a Bench can be constituted comprising two members and Chairman or two members. Thus, the Bench, comprising the members only, could decide a particular case. If the Members who belong to the executive constitute a Bench, there is likelihood that they may not be able to decide the judicial question in appropriate manner, having no judicial experience and if the case is against the orders of the President/Governor or senior officers they may not be able to act fairly, justly and independently being under pressure, thereby eroding the concept of fair administration of justice. Keeping in view such situation, a full Bench of Lahore High Court in the case of Muzaffar Hussain v. The Superintendent of Police [2002 PLC (CS) 442], considered the possibility of appointment of Judicial Members in the Service Tribunal in line with the provisions of (Indian) Administrative Tribunals Act, 1985 and observed that the Tribunal should also have equal number of judicial members from amongst the Const.P. 53/07 & Const.P.83/12 44 persons qualified to be Judge of the High Court and to be appointed after meaningful consultation with the Chief Justice of and every Bench should be headed by at least one Judicial Member so as to eliminate any misgiving or apprehension of an aggrieved person as regards independent working of the Tribunal. Relevant portion from the said judgment is reproduced hereinbelow: - “62. … … We are of the view that in line with the provisions of (Indian) Administrative Tribunals Act,1985 the Tribunal should also have equal number of judicial members from amongst the persons qualified to be Judge of this Court and to be appointed after meaningful consultation with the Chief Justice of this Court and every Bench should be headed by at least one Judicial Member so as to eliminate any misgiving or apprehension of an aggrieved person as regards independent working of the Tribunal. This observation is not to be construed as a direction of this Court to legislate because we are conscious of our limitations but to improve the quality of justice by the Tribunal we very strongly feel that it is required to be done.” 52. As it has already been held that the Service Tribunals act as a Court and perform judicial functions, therefore, it is necessary that not only the Chairman but also the Members of the Tribunal must have legal/judicial experience. For that purpose, the person who is or has been qualified to be a District Judge, may be appointed as Member of the Tribunal. 53. It is to be noted that in the neighbouring country corresponding provision to Article 212 of our Constitution is Article 323A of the Constitution of India. In pursuance of said provision of Indian Constitution, Administrative Tribunal Act (Act No.13) of 1985 has been promulgated, section 28 whereof has excluded the jurisdiction of the High Court in relation to recruitment and matters concerning recruitment to any service or post or service matters Const.P. 53/07 & Const.P.83/12 45 concerning members of any service or persons appointed to any service, or post. A challenge was thrown to the said Act in the case of S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386), mainly to question the abolition of the jurisdiction of the High Court in respect of specific service disputes. In this judgment, the Indian Supreme Court without declaring the provision of section 28 of the Act, 1985 unconstitutional, as it has taken away the jurisdiction of the High Court, issued certain directions for making amendments in the Act, 1985, emphasizing that as the Administrative Tribunal has been made a substitute of the High Court, therefore, constitutionally and legally it must exercise its jurisdiction as a replacement of the High Court providing confidence to the litigants and the public that the statutory body is capable to administer efficaciously the powers of the judicial review. Relevant paras there from are reproduced herein below:- “3. Here, in the present case, the impugned Act has been enacted by Parliament in exercise of the power conferred by clause (1) of Article 323A which was introduced in the Constitution by Constitution (42nd Amendment) Act, 1976. Clause (2) (d) of this Article provides that a law made by Parliament under clause (1) may exclude the jurisdiction of courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1). The exclusion of the jurisdiction of the High Court under Articles 226 and 227 by any law made by Parliament under clause (1 ) of Article 323A is, therefore, specifically authorised by the constitutional amendment enacted in clause (2) (d) of that Article. It is dear from the discussion in the preceding paragraph that this constitutional amendment authorising exclusion of the jurisdiction of the High Court under Articles 226 and 227 postulates for its validity that the law made under clause (1) of Article 323A excluding the jurisdiction of the High Court under Articles 226 and 227 must provide for an effective alternative institutional mechanism or authority for judicial review. If this constitutional amendment were to permit a law made under clause (1) of Article 323A to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative 444 institutional mechanism or arrangement for judicial review, it would be violative of the basic structure doctrine and hence outside the constituent power of Parliament. It must, therefore, be read as implicit in this constitutional amendment that the law excluding the jurisdiction of the High Court under Articles 226 and 227 permissible under it must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it. Consequently, the impugned Act excluding the jurisdiction of the High Court under Articles 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit Const.P. 53/07 & Const.P.83/12 46 and coverage of clause (2) (d) of Article 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally efficacious as the High Court, so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power or judicial review as the High Court acting under Articles 226 and 227 of the Constitution. 4. It is necessary to bear in mind that service matters which are removed from the jurisdiction of the High Court under Articles 226 and 227 of the Constitution and entrusted to the Administrative Tribunal set up under the impugned Act for adjudication involve questions of interpretation and applicability of Articles 14, 15, 16 and 311 in quite a large number of cases. These questions require for their determination not only judicial approach but also knowledge and expertise in this particular branch of constitutional law. It is necessary that those who adjudicate upon these questions should have same modicum of legal training and judicial experience because we find that some of these questions are so difficult and complex that they baffle the minds of even trained Judges in the High Courts and the Supreme Court. That is the reason why at the time of the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member and one administrative member and there should be no preponderance of administrative members on any bench. Of course, the presence of the administrative member would provide input of practical experience in the functioning of the services and add to the efficiency of the Administrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court. Now section 6 provides that the Chairman of the Administrative Tribunal should be or should have been a Judge of the High Court or he should have for at least two years held office of Vice-Chairman or he should have for at least two years held the post of 445 Secretary to the Government of India or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or should have been a Judge of a High Court or he should have for at least two years held office as Vice- Chairman. If he has held office as Vice-Chairman for a period of at least two years he would have gathered sufficient experience and also within such period of two years, acquired reasonable familiarity with the constitutional and legal questions involved in service matters, But substituting the Chief Justice of a High Court by a Chairman of the Administrative Tribunal who has merely held the post of a Secretary to the Government and who has no legal or judicial experience would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court. We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity. Of course, I must make it clear that when I say this, I do not wish to cast any reflection on the members of the Civil Services because fortunately we have, in our country, brilliant civil servants who possess tremendous sincerity, drive and initiative and who have remarkable capacity to resolve and overcome administrative problems of great complexity. But what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. I am, therefore, of the view, in agreement with Ranganath Misra, J. that clause (c) of section 6 (1) must be struck down as invalid. Const.P. 53/07 & Const.P.83/12 47 6. That takes me to another serious infirmity in the provisions of the impugned Act in regard to the mode of appointment of the Chairman, Vice Chairman and members of the Administrative Tribunal. So far as the appointment of judicial members of the Administrative Tribunal is concerned, there is a provision introduced in the impugned Act by way of amendment that the judicial members shall be appointed by the Government concerned in consultation with the Chief Justice of India. Obviously no exception can be taken to this provision, because even so far as Judges of the High Court are concerned, their appointment is required to be made by the President inter alia in consultation with the Chief Justice of India. But so far as the appointment of Chairman, Vice-Chairmen and administrative members is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the impugned Act. There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice- Chairman and administrative members of the Administrative Tribunal. Now it may be noted that almost all cases in regard to service matters which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice-Chairmen and administrative members, if a judicial member or an administrative member is looking forward to promotion as Vice Chairman or Chairman, he would have to depend on the goodwill and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal. The same would be the position vis-a-vis promotion to the office of Chairman of the Administrative Tribunal. The administrative members would also be likely to carry a sense of obligation to the executive for having been appointed members of the Administrative Tribunal and that would have a tendency to impair the independence and objectivity of the members of the Tribunal. There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the 447 independence of the Chairman, Vice- Chairmen and members of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision-making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such cases. That is the reason why in case of appointment of High Court Judges, the power of appointment vested in the executive is not an absolute unfettered power but it is hedged in by a wholesome check and safeguard and the President cannot make an appointment of a High Court Judge without consultation with the Chief Justice of the High Court and the Chief Justice of India and a healthy convention has grown up that no appointment would be made by the Government which is not approved by the Chief Justice of India. This check or safeguard is totally absent in the case of appointment of the Chairman, Vice-Chairmen and administrative members of the Administrative Tribunal and the possibility cannot be ruled out indeed the litigating public would certainly carry a feeling that the decision making process of the Chairman, Vice-Chairmen and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion. It can no longer be disputed that total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential feature of the Constitution. The Constitution makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is Const.P. 53/07 & Const.P.83/12 48 taken away and vested in the Administrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice-Chairmen and members of the Administrative Tribunal. Or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid. I am, therefore, of the view that the appointment of Chairman, Vice-Chairmen and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons. There is also another alternative which may be adopted by the Government for making appointments of Chairman, Vice Chairmen and members and that may be by setting up a High Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of 448 India. Both these modes of appointment will ensure selection of proper and competent persons to man the Administrative Tribunal and give it prestige and reputation which would inspire confidence in the public mind in regard to the competence, objectivity and impartiality of those manning the Administrative Tribunal. If either of these two modes of appointment is adopted, it would save the impugned Act from invalidation. Otherwise, it will be outside the scope of the power conferred on Parliament under Article 323-A. I would, however hasten to add that this judgment will operate only prospectively and will not invalidate appointments already made to the Administrative Tribunal. But if any appointments of Vice- Chairmen or administrative members are to be made hereafter, the same shall be made by the Government in accordance with either of the aforesaid two modes of appointment. 7. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court. I would, therefore, direct the Government to set up a permanent bench and if that is not feasible having regard to the volume of work, then at least a Circuit Bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before 31st March, 1987. That would be necessary if the provisions of the impugned Act are to be sustained. So far as rest of the points dealt with in the judgment of Ranganath Misra, J. are concerned, I express my entire agreement with the view taken by him.” 54. As far as Article 212(1) of the Constitution is concerned, it has also excluded the jurisdiction of the High Court to the extent of some of the terms & conditions of the civil servants. Reference in this behalf may be made to the case of Syed Arshad Ali v. Pakistan Telecommunication Company Ltd. (2008 SCMR 314), wherein it has been held that jurisdiction of High Court was barred under Article 212 of the Constitution, as specific forum was provided for redressal of Const.P. 53/07 & Const.P.83/12 49 grievance of employees, even if order proposed to be challenged might have been passed in whatsoever circumstances viz. mala fide, coram non judice or without jurisdiction. Whereas, jurisdiction of this Court is also confined to fulfillment of the conditions mentioned in Article 212(1) of the Constitution, in view of the observations made in S.P. Sampath Kumar’s case (supra), reproduced hereinabove from the added note of Bhagwati, CJ, who had agreed with other members of the Bench, but in view of the importance of the case had added his independent note as well. 55. In the above background, this Court has also to examine the vires of section 3 of the STA, 1973 along with corresponding provisions of the Provincial Service Tribunal Acts, reproduced hereinabove, to make it possible that a Service Tribunal, having backing of the Legislation as well as the Constitution, is capable to maintain the principle of independence of judiciary as well as to ensure enforcement of Fundamental Rights enshrined in Article 9 of the Constitution, namely, access to justice. At this juncture, it may be noted that under this Article, right to ‘access to justice’ has been recognized to be one of the Fundamental Rights. Reference in this behalf may be made to the case of Ms. Benazir Bhutto's case (PLD 1989 SC 416) wherein it has been held as under: - “In this milieu, I am of the view that the adversary procedure, where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney General, for enforcing the Fundamental Rights, would become self-defeating as it will not then be available to provide "access to justice to all" as this right is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broadbased remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic Const.P. 53/07 & Const.P.83/12 50 values incorporated therein, one of which is social solidarity, i.e. , national integration and social cohesion by creating an egalitarian society through a new legal order. In Sharaf Faridi v Islamic Republic of Pakistan (PLD 1989 Karachi 404) after referring to Ms. Benazir Bhutto's case (supra) it was observed as under: - The right of 'access to justice to all' is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarised as follows: - (1) He shall have due notice of proceedings which affect his rights. (2) He shall be given reasonable opportunity to defend. (3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4) That it is a Court of competent jurisdiction. " It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it. In the case of Government of Balochistan through Additional Chief Secretary v Azizullah Memmon (PLD 1993 SC 341), it was held as under: - 13. The above extract indicates what are the basic requirements of the doctrine "due process of law", which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Const.P. 53/07 & Const.P.83/12 51 Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. In the instant case the Returning Officer was seized of the question, whether respondent No.1 was qualified to be a candidate for the office of the President. His decision that respondent No.1 was not qualified to be elected as a member of the Parliament would have entailed his non-seating as a member of the Senate, which was a question of the nature, which could not have been adjudicated upon in a summary inquiry under Rule 5(3)(a) of the rules, particularly when the correctness of the contents of the interview was not admitted by respondent No.1. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) after referring the Sharaf Faridi’s case (supra) it was observed that the right to have access to justice through an independent Judiciary is a Fundamental Right; without having an independent Judiciary, the Fundamental Rights enshrined in the Constitution will be meaningless and will have efficacy or beneficial value to the public at large. The same view has been reiterated in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), Muhammad Nadeem Arif v. Inspector General of Police, Punjab (2011 SCMR 408) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1). 56. On having discussed hereinabove and before identifying void parts of certain provisions of the Federal and the Provincial Service Tribunal Acts, it is observed that under Article 8 of the Constitution, any law, inconsistent with the rights conferred by the said Chapter, shall, to the extent of such inconsistency, be void. 57. This Court in exercise of judicial review, time and again has maintained that violation of Article 8 casts a duty/obligation upon this Court to declare any such law to be void. In the case of Baz Const.P. 53/07 & Const.P.83/12 52 Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) it has been held as under: - “14. The apprehensions expressed by the learned counsel for the Federation are unfounded. Pakistan has a written Constitution and all the organs of the State, namely, legislature, executive and the judiciary are functioning within their respective domains. The judiciary has never claimed supremacy over other organs of the State. However, it has a duty to interpret the Constitution and law as well as to examine the constitutionality of any law if it is concluded that it has been promulgated in derogation of the Fundamental Rights as envisaged by Article 8 of the Constitution, or where any of the provision of any law is found contrary to the Constitution. It is also one of the recognized principles of jurisprudence that person specific laws cannot be promulgated because such exercise instead of promoting the administration of justice causes injustice in the society amongst the citizens who are being governed under the Constitution, particularly, in a matter relating to implementation of Court orders following the directions of the Court. The Courts have always made efforts to avoid enforcement of their orders by taking extreme steps of punishing the delinquents for disobeying the orders/judgments. However, if an act of contempt of Court persists and no prompt action is taken, the court loses its authority and all its decisions and the judgments will be considered mere paper decrees, therefore, to maintain its dignity and respect and to restore the confidence of the citizens in the supremacy of the Constitution and the rule of law, as a last resort, proceedings for contempt of Court are initiated.” Reference may also be made to the cases of Mrs. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 66), Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697) and Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265). 58. On having discussed the cases supra it is concluded that Service Tribunals (Federal and Provincial) falling in the category of Court capable to exercise judicial powers are bound to follow the principal of independence judiciary for the purpose of ensuring enforcement of fundamental rights of access to justice under Article 9 of the Constitution, thus, are required to be separated from the Const.P. 53/07 & Const.P.83/12 53 Executive under Article 175(3) of the Constitution. These listed constitutional objects ought to have been redressed by the Legislature in making suitable amendments in the law governing the Tribunals and the rules framed thereunder to the extent as noted hereinabove, any of the provisions of the law contrary to the fundamental and constitutional provisions if any. 59. To make the Chairman and the Members of the Service Tribunal independent, it is necessary to make their appointment with the meaningful consultation of the Chief Justice i.e. for the purpose of Federal Service Tribunal, with the Chief Justice of Pakistan and for Provincial Service Tribunals, with the Chief Justice of the respective High Court. It is to be noted that compliance of such condition seems to be necessary, because if the Chairman has to be appointed amongst the sitting Judges of a High Court, without consent of the Chief Justice, judicially and administratively, no Judge of the High Court can relinquish the post of Judge of High Court without the approval of the concerned Chief Justice as he has to discharge his function as a Judge of High Court under the administrative control of the Chief Justice. Similarly, a person qualified to be the Judge of High Court, either a District Judge or an advocate, has to be appointed with the meaningful consultation of the Chief Justice of the High Court because the District Judge, if is allowed to hold the charge of Provincial Service Tribunal, can only be released, if permission is granted by the Chief Justice. As far as the appointment of an advocate who is qualified to be the Chairman of a Tribunal or the Member is concerned, his performance or capability can only be evaluated during the period when he had been practicing law because a person who had obtained enrollment but Const.P. 53/07 & Const.P.83/12 54 had never appeared before the High Court or Supreme Court cannot claim to have legal experience. 60. As far as a sitting Judge of the High Court acting as Chairman of the tribunal is concerned, there is no difficulty in determining the tenure during which he shall hold the charge in addition to his own functions, simultaneously performing as a Judge of the High Court and the Chairman of the Tribunal. Preferably, it would be appropriate and in the interest of institution if a sitting Judge is not asked to perform his duties as Chairman of a Federal or Provincial Service Tribunals. However, appointments for the position of Chairman can conveniently be made from amongst the Judges who had been a Judge of the High Court. If a retired Judge of the High Court is to be appointed as Chairman of the Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal, who may nominate a retired Judge. The tenure of such incumbent should not be for a period of more than three years for one time only. By adopting these measures, the object of ensuring the principle of independence of judiciary and also enforcement of the right of access to justice could be achieved, otherwise such Hon’ble retired Judges would try their best to continue to hold such post for an indefinite period against the principle of independence of judiciary, which also speaks about the tenure of such post. Reference in this behalf may also be made to the notification No. F.38(1)/2012-A.II, dated 03.09.2012, whereby the incumbent Chairman of Federal Service Tribunal, Mr. Justice (R) Abdul Ghani Shaikh, was appointed contrary to the rules, for an indefinite Const.P. 53/07 & Const.P.83/12 55 period, as a Chairman, whereas, the Federal Service Tribunal Chairman and Members Service Rules, 1983, provide that a Chairman shall not continue to hold office for a period over three years at a time. However, when the petitioner and his counsel objected on issuance of such a notification by filing a Civil Miscellanies Application, then the same was rectified and a fresh notification has been issued on 22.09.2012. It may not be out of context to point out that the incumbent Chairman had been holding the same position earlier for the period of three years from 05.06.2009 to 04.06.2012. Prior to it, he had remained as Chairman, Sindh Service Tribunal w.e.f. 11.11.2000. Had the Chief Justice of Province or the Chief Justice of Pakistan been consulted, they would have advised to nominate someone else for the purpose of said appointment. Therefore, the Executive cannot be allowed to interfere in the process of appointment of such important functionaries of Tribunals i.e. Chairman, who is required to be appointed independently because while discharging its functions the tribunal does not act as an executive body rather performs judicial functions. If such a body/tribunal is not in a position to enforce Fundamental Rights, including the right to have access to justice because of the reason that when the appointments have to be made, they remain at the mercy of the executive, which is itself a litigant party in most of the cases before the Tribunal, and no hope can be pinned on such a tribunal to discharge its functions independently. 61. As far as the Members of the Tribunal are concerned, except in few cases i.e. in the Province of Balochistan where at least one Member is appointed from the Judiciary (District Judge), the practice is going on to appoint members from the bureaucracy. For Const.P. 53/07 & Const.P.83/12 56 reference the detail of Chairman/Members of present composition of Service Tribunals is given herein below:- Sr.No. Name of the Tribunal Chairman Members 1. Federal Service Tribunal Retired Judge of the High Court  Four retired government servants;  Two Advocates and  Two retired District Judges. 2. Punjab Service Tribunal Retired Judge of the High Court All the six Members are retired government servants 3. Sindh Service Tribunal Retired Judge of the High Court  One retired government servants; and  One retired Addl. District Judges. 4. KPK Service Tribunal Serving District Judge All the four Members are Serving government servants 5. Balochistan Service Tribunal Advocate  One retired government servants; and  One District Judge. 62. The above table shows that in the case of Sindh, Punjab and KPK, retired government officers have been appointed as Members of the Tribunals because there is no restriction in the law for the appointment of any person notwithstanding whether he has reached the age of superannuation as a government servant or not, therefore, efforts are made at the Federal and the provincial level to accommodate retired officers including civil servants or the servants belonging to disciplinary forces like police department etc. The record, if collected, would reveal no dearth persons who were appointed as Members of the Tribunal with no judicial experience. Const.P. 53/07 & Const.P.83/12 57 63. We are conscious of the fact that there are civil servants who are quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members has to be made in consultation with the Chief Justice, on having gone through the credentials of nominees and by also giving preference to those, who have a legal background and had not reached the age of superannuation with their tenure, which is to be restricted to a one time tenure not more than a period of three years or till the date of superannuation, whichever is earlier. 64. In the Province of Balochistan it is evident from the material placed on record that the incumbent Chairman has been appointed from amongst the Advocates, whereas, one of the Members is District Judge while the other is civil servant. The Chairman of Provincial Service Tribunal, KPK is a District Judge, whereas, the members are from government service. In Punjab and Sindh, the Chairman is a retired Judge of the High Court, whereas, the all the Members are retired government servants. 65. It is to be observed that the Chairman would also be facilitated by the presence of a combination of judicial officers i.e. District Judge/Advocate and the civil servants to constitute the Bench. In such a situation, with reference to the disputes of civil servants, both can give their input on the judicial and executive sides, which would improve the quality of the decision making and the judgments pronounced and strengthen the independence of judiciary in its role of enforcing the Fundamental Right of access to justice. Const.P. 53/07 & Const.P.83/12 58 66. It is also to be observed that where District Judges or incumbent civil servants are not available for appointment, the Executive with the consultation of the respective Chief Justice may appoint Advocates qualified for appointment as a Judge of the High Court, either as a Member or the Chairman, as the case may be. Reference in this behalf has already been made to the incumbent Chairman of the Balochistan Service Tribunal, who was an Advocate, qualified to be appointed as a Judge of the High Court. Similarly, the KPK Service Tribunal is presently headed by a sitting District & Sessions Judge. 67. It has already been discussed hereinabove that the Service Tribunal performs ‘judicial functions’ in exercise of ‘judicial powers’ conferred upon it by the Legislature and therefore, enjoys status of a ‘Court’ and is required to be separated from the Executive in terms of Article 175(3) of the Constitution; however, no steps have been taken in this behalf by making suitable amendments in the Service Tribunals Acts, because existing provisions of the law relating to the appointment of Chairman and Members of the Service Tribunals do not provide for consultation of the Chief Justice and ensure that they (Chairman and the Members) should act independently following the principle of independence of judiciary, especially since their role is in substitution of the highest constitutional body i.e. High Court. And the Tribunal, as judicial fora, must enforce the Fundamental Right of access to justice and they should also enjoy financial autonomy as has been given to the High Courts and the Supreme Court. Reference in this behalf may be made the case of Government of Sindh v. Sharaf Const.P. 53/07 & Const.P.83/12 59 Faridi (PLD 1994 SC 105), relevant Para therefrom is reproduced hereinbelow:- “In our opinion, financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would be competent to make reappropriation of the amounts from one head to another, create new posts, abolish old posts or change their nomenclature and to upgrade or downgrade etc. as per requirements of their respective Courts and this should be possible, as has been observed earlier, without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, an Accounts Officer of the Accountant General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently.” 68. In view of the above discussion, the following provisions of STA, 1973; PSTA, 1974; SSTA, 1973; NSTA, 1974 and BSTA, 1974, to the extent reproduced hereinbelow, are void and unconstitutional being in derogation of Article 2A and 9 read with Article 175 of the Constitution: - Service Tribunals Act, 1973 (Federal) Section 3(1): The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants In respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act. Const.P. 53/07 & Const.P.83/12 60 Section 3(3): A Tribunal shall consist of— (a) a Chairman, being a person who is, or has been, or is qualified to be Judge of a High Court. Section 3(3)(b): Such number of members not exceeding three, each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint. Section 3(4): The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine. Section 3(7): Notwithstanding anything contained in sub-section (3), sub-section (4), sub-section (5) or sub-section (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President. Service Tribunals (Qualifications of Members) Rules, 1974 Rule 2: A member of the Tribunal shall be a person who has for a period of or for periods aggregating not less than 20 years held an appointment or post in the Service of Pakistan, or in a Corporation or other body set up by Government or who, for the said period, has been an advocate or legal practitioner. Federal Service Tribunal Chairman and Members Service Rules, 1983 Rule 1: The Chairman and members shall hold office at the pleasure of the President, for such tenure, which may normally be for three years extendable by a further period not exceeding three years, as may be determined by the President. Similarly, Section 3(3)(b) of the Sindh Service Tribunals Act, 1973, Section 3(3)(b) of the KPK Service Tribunals Act, 1974 and Section Const.P. 53/07 & Const.P.83/12 61 3(3)(b) of the Balochistan Service Tribunals Act, 1974 are also declared to be ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973. 69. It is to be noted that while constituting a Bench, the Chairman shall preferably constitute each bench comprising one Judicial/legal Member and one Member from civil service. However, where a single Member Bench is to be constituted, preference should be given to the Judicial Member to hold the hearing. 70. The Service Tribunals Acts do not contain any specific provision providing for the financial autonomy of the Tribunals. Thus, on this score as well, the Service Tribunals cannot discharge their functions independently. The Tribunals must be duly empowered to disburse their annual funds, allocated by the Parliament and the Provincial Assemblies, in their respective annual budgets, within the prescribed limit by the Chairman of the respective Tribunals, without the need to seek approval of the Finance Ministry or provincial Finance Department. 71. The Service Tribunals both Federal and Provincial perform vital judicial functions by adjudicating upon issues pertaining to the terms and conditions of Civil Servants, therefore, it is imperative that appropriate legislation action be taken post-haste. Consequently, to avoid denial of access to justice to them, the Federal and the Provincial Governments through their respective Law Secretaries are hereby allowed 30 days’ time to give effect to the above conclusions/findings and implement this judgment forthwith by making fresh appointments of Chairmen/Members of the Tribunals, following the observations made hereinabove. If no steps are taken within the stipulated time, Const.P. 53/07 & Const.P.83/12 62 either through temporary or permanent legislation, the provisions of the legislation which have been declared void under Article 8 of the Constitution shall seize to have effect. As a consequence whereof, the incumbent Chairman/Members of the Tribunals, whose cases are not covered under the above-said proposed provisions, shall also seize to hold said positions, as the case may be. Similarly, independent budgetary allocation for annual expenditures of the Service Tribunals shall be provided for in accordance with the Constitution, enabling the Tribunals to function independently. 72. The petitions are disposed of in the above terms. No order as to costs. Chief Justice Judge Judge Announced in Open Court on at Islamabad Chief Justice

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja, CJ Mr. Justice Dost Muhammad Khan Mr. Justice Qazi Faez Isa Constitution Petition No.56 of 2003 Muhammad Kowkab Iqbal. … Petitioner(s) Versus Govt. of Pakistan thr. Secretary Cabinet Division, Islamabad. … Respondent(s) Constitution Petition No.112 of 2012 Syed Mehmood Akhtar Naqvi … Petitioner(s) Versus President of Pakistan and others … Respondent(s) For the petitioner(s): Mr. Kokab Iqbal, ASC, in person (in Const.P.56) Syed Mehmood Akhtar Naqvi, in person (in Const.P.112/12) For the applicant(s): Mr. Abid Saqi, ASC with Mohtarma Parveen Malik (in CMA-4981/2015) For the Federation: Mr. Aamir Rehman, Addl. AGP Mohtarma Saba Mohsin Raza, Addl. Secy. M/o Information. Dr. Irum Najam, Joint Secy. Cabinet Div. Mr. Khalil Ahmed Chaudhry, Dy. Secy. Cabinet Div. Dr. Rashid Hamid, Dy. Secy. National Language Authority Mr. Mehboob Bugti, Dy. Director, National Language Authority Mr. Tanvir Hussain Shah, S.O. Cabinet Div. Mr. Iftikhar Shah, PS to Secy. M/o Information For Govt. of Punjab: Mr. Razzaq A. Mirza, Addl. Advocate General Mr. Waqar Ahmed, Director Rawalpindi Arts Council Mr. Sajjad Hussain, Asstt. Director For Govt. of Sindh: Mr. Shehryar Khan Qazi, Addl. AG For Govt. of KP: Mian Arshad Jan, Addl. AG Mr. Hidayatullah, Dy. Secy. Education Mr. Liaquat Amin, Asstt. Director Information Deptt. For Govt. of Balochistan: Mr. Muhammad Ayaz Khan Swati, Addl. AG Date of hearing: 26.08.2015 Const.P.56 of 2003 2 ORDER Jawwad S. Khawaja, CJ.- These two Constitution Petitions filed under Article 184 (3) of the Constitution of Pakistan have raised an issue which has a direct nexus with the life of every common man and woman living in Pakistan. Mr. Muhammad Kowkab Iqbal, Petitioner in Constitution Petition No. 56 of 2003 and Syed Mahmood Akhtar Naqvi, Petitioner in Constitution Petition No. 112 of 2012, have prayed for the implementation of Article 251 of the Constitution, which commands the state to adopt Urdu as the official language of the country and also stipulates that steps may be taken by the provinces for the promotion of provincial languages. Since both Constitution Petitions have sought similar relief, the same were heard together. 2. As the matter revolves around Article 251 of the Constitution, for ease of reference, it is reproduced as under: “National Language 251. (1) The National language of Pakistan is Urdu, and arrangements shall be made for its being used for official and other purposes within fifteen years from the commencing day. (2) Subject to clause (1), the English language may be used for official purposes until arrangements are made for its replacement by Urdu. (3) Without prejudice to the status of the National language, a Provincial Assembly may by law prescribe measures for the teaching, promotion and use of a provincial language in addition to the national language.” (emphasis supplied) 3. The Petitioner, Mr. Kowkab Iqbal, submitted that the State and the Government are deliberately not implementing Article 251 of the Constitution and on account of the non- implementation of this provision a societal and linguistic divide has been created in society. It was further argued that this constitutional provision was to be implemented within 15 years of the date of coming into effect of the Constitution. The said period expired in the year 1988 and while 27 years have elapsed since then the said mandatory provision has still not been implemented. Similar submissions were made by the other Petitioner, Syed Mehmood Akhtar Naqvi. 4. At this juncture, we may highlight the constitutional significance of the issue raised in these petitions which seems to be lost on the respondent. The importance of our national language has been stressed upon in various judgments of this Court. In one of our recent Const.P.56 of 2003 3 judgments, District Bar Association, Rawalpindi Vs. Federation of Pakistan (Constitution Petition No. 12 of 2010 etc), wherein the 18th and 21st Constitutional Amendments were challenged, it was observed that: ”ﻞﮑﯿﭨرآ ﮯﮐ ﻦﯿﺋآ ہﻠﺼﯿﻓ ہﯾ251 ﮯﻠﮩﭘ ﮯﺳ سا ۔ﮯﮨ ﺎﮨر ﺎﺟ ﺎﯿﮐ ﺮﯾﺮﺤﺗ ﮟﯿﻣ ودرا ﺮﻃﺎﺧ ﯽﮐ ﮯﻧﺮﮐ ارﻮﭘ ﺎﺿﺎﻘﺗ ﯽﻨﯿﺋآ جرد ﮟﯿﻣ ﻞﮑﯿﭨرآ ﻢﮨ ﯽﮭﺑ251ﮐ تﺎﺟرﺪﻨﻣ ﮯﮐ ﯽﺋﺎﺑﻮﺻ روا نﺎﺑز ﯽﻣﻮﻗ ﮟﯿﻣ رﻮﻣا یرﺎﮐﺮﺳ روا ﮟﯿﮨ ﮯﮑﭼ ﻻد ہﺟﻮﺗ فﺮﻃ ﯽﮐ ﺖﯿﻤﮨا ﯽ نﺎﺘﺴﮐﺎﭘ ِقﺎﻓو مﺎﻨﺑ ﺮﯿﻣ ﺪﻣﺎﺣ ناﻮﻨﻌﺑ ہﻣﺪﻘﻣ ۔ﮟﯿﮨ ﮯﮑﭼ ﺮﮐ ﺮﮔﺎﺟُا ﻮﮐ ﺖﯿﻤﮨا ﯽﮐ ﺞﯾوﺮﺗ ﯽﮐ ںﻮﻧﺎﺑز)2013 SCMR 1880 ( ﮟﯿﻣ ہﮐ ﮟﯿﮨ ﮯﮑﭼ ﺮﮐ نﺎﯿﺑ ﻢﮨ ﯽﮭﺑ’’ تﺪﺷ سﺎﺴﺣا ہﯾ ﺮﺜﮐا ﮟﯿﻣ ﺖﻋﺎﻤﺳ ﯽﮐ ﯽﺋاوررﺎﮐ ﯽﺘﻟاﺪﻋ ِﺖﻨﺤﻣ ﯽﮐ ںﻮﯿﺋﺎﮨد ﯽﺌﮐ ہﮐ ﮯﮨ ﺎﺗﻮﮨ ﮯﺳ ﺮﺜﮐا روا ۔ﮯﮨ نﺎﺑز ﯽﮐ ںﻮﮔﻮﻟ ﻢﮐ ﯽﮨ ﺖﮩﺑ ںﺎﮨ ےرﺎﻤﮨ یﺰﯾﺮﮕﻧا ﯽﮭﺑ جآ دﻮﺟوﺎﺑ ﮯﮐ ںﻮﺷوﺎﮐ ﯽﮐ ںﻮﻠﺴﻧ اﻮﻧ ﮯﺑ ﯽﺌﮐ روا ہﻗﺎﺷ ﮯﮐ نﻮﻧﺎﻗ روا ﻦﯿﺋآ ہﮐ ﮯﮨ ہﯾ ہﺠﯿﺘﻧ ۔ﮯﮨ رﺎﮐرد ہﮐ ﯽﻨﺘﺟ ﮯﺘﮭﮐر ﮟﯿﮩﻧ ترﺎﮩﻣ ﯽﻨﺗا ﮟﯿﻣ سا ﯽﮭﺑ نﺎﺒﺣﺎﺻ ﺞﺟ روا ءﻼﮐو ﻞﺿﺎﻓ ﺘﺒﺴﻧ ﻞﮑﯿﭨرآ ﺮﮕﻣ ہﮕﺟ ﯽﻨﭘا ﻮﺗ ﯽﮔﺪﯿﭽﯿﭘ ﯽﻨﻓ ہﯾ ۔ﮟﯿﮨ ﮯﺗﻮﮨ مﻮﻠﻌﻣ ﻢﮩﻓ ِﻞﺑﺎﻗﺎﻧ روا ﮦﺪﯿﭽﯿﭘ ﯽﺋﺎﮩﺘﻧا ﯽﮭﺑ ﮯﺘﮑﻧ ﮦدﺎﺳ ًﺎ251 ذﺎﻔﻧ مﺪﻋ ﮯﮐ ﺮﭘ دﻮﺧ ﮦو ہﮐ ﮯﮨ سﺎﮑﻋ ﺎﮐ ﺶﮨاﻮﺧ سا ﯽﮐ ماﻮﻋ ﮯﮐ نﺎﺘﺴﮐﺎﭘ ﻦﯿﺋآ ارﺎﻤﮨ ۔ﮯﮨ کﺎﻨﺸﯾﻮﺸﺗ ﮦدﺎﯾز ﮟﯿﮩﮐ ﯽﮭﺑ ﮯﺳ سا ﻮﻠﮩﭘ ﮏﯾا ﺎﮐ اﻮﺿ ﯽﻧﻮﻧﺎﻗ مﺎﻤﺗ ﮯﻟاو ﮯﻧﻮﮨﻮﮔﻻ ﮯﺘﮨﺎﭼ ﺎﻨﮭﺠﻤﺳ ﺖﺳار ِﮦاﺮﺑ ﻮﮐ ںﻮﻠﺼﯿﻓ ﮯﯿﮔ ﮯﯿﮐ ردﺎﺻ ﺖﺑﺎﺑ ﯽﮐ قﻮﻘﺣ ﯽﻨﯿﺋآ ﮯﻨﭘا روا ﻂﺑ ﮟﯿﻣ نﺎﺑز ﯽﺋﺎﺑﻮﺻ ﺎﯾ ﯽﻣﻮﻗ ہﮑﻠﺑ ،ﮟﯿﮩﻧ ﮟﯿﻣ نﺎﺑز ﯽﺋاﺮﭘ ﮏﯾا ﻮﺗ ںﻮﮨ ﺐﻃﺎﺨﻣ ﮯﺳ نُا ﺐﺟ ناﺮﻤﮑﺣ ہﮐ ﮟﯿﮨ ﮯﺘﮨﺎﭼ ہﯾ ﮦو ۔ﮟﯿﮨ ﮟﯿﻣ قﻮﻘﺣ یدﺎﯿﻨﺑ ﮯﮐ نا ہﮑﻠﺑ ﮯﮨ ہﺒﻟﺎﻄﻣ ﺎﮐ ﺲﻔﻧ ِتﺰﻋ فﺮﺻ ہﻧ ہﯾ ۔ﮟﯾﺮﮐ ﻮﮕﺘﻔﮔ ﮏﯾا ۔ﮯﮨ ﺎﺿﺎﻘﺗ ﯽﮭﺑ ﺎﮐ رﻮﺘﺳد روا ﮯﮨ ﻞﻣﺎﺷ ۔ﮯﮨ ہﺨﺴﻧ ﮦدﻮﻣزآ روا ﺎﻧاﺮﭘ ﮏﯾا ﺎﮐ ﺖﯿﺟاﺮﻣﺎﺳ ہﯾ ﮟﯿﮩﻧ قﺎﻔﺗا ﺾﺤﻣ ﺎﻧﺮﮐ ردﺎﺻ ﻢﮑﺣ ﺮﭘ ںﻮﮔﻮﻟ ﮟﯿﻣ نﺎﺑز ﯽﮑﻠﻣ ﺮﯿﻏ ﯽﻨﯿﻃﻻ فﺮﺻ نﺎﯿﺑ ﺎﮐ نﻮﻧﺎﻗ و عﺮﺷ ںﺎﮩﺟ ﺎﮨر جار ﺎﮐ ںﻮﺘﻟاﺪﻋ ﯽﺋﺎﺴﯿﻠﮐ ﮏﺗ ﮯﺻﺮﻋ ﮏﯾا ﮟﯿﻣ پرﻮﯾ ہﮐ ﮯﮨ ﯽﺗﺎﺘﺑ ﮟﯿﻤﮨ ﺦﯾرﺎﺗ ﮟﯿﻣ نﺎﺑز ﮟﯿﻣ ﺪﮩﻋ ﯽﺋﺎﯾرآ ﮟﯿﻣ ﺪﻨﮨ و کﺎﭘ ﺮﯿﻐﺻﺮﺑ ںﺎﮩﯾ ۔ﯽﮭﺗ ﮟﯿﮩﻧ نﺎﺑز ﯽﮐ ﯽﺴﮐ اﻮﺳ ﮯﮐ ںوداﺰﮩﺷ روا ںﻮﺒﮨار ﻮﺟ ،ﺎﮭﺗ ﺎﺗﻮﮨ ﮯﮐ ﯽﺴﮐ اﻮﺳ ﮯﮐ ںﻮﺗﮉﻨﭘ روا ںﻮﯾﺮﺘﺳﺎﺷ ، ںﻮﻨﻤﮨﺮﺑ ہﮐ ﺎﺗ ﺎﯾد ﺮﮐ دوﺪﺤﻣ ﮟﯿﻣ رﺎﺼﺣ ﮯﮐ تﺮﮑﺴﻨﺳ ﻮﮐ نﻮﻧﺎﻗ ﮯﻧ ﮯﻘﺒﻃ ناﺮﻤﮑﺣ نﺎﺑز ﯽﺘﻟاﺪﻋ روا یرﺎﺑرد ﮟﯿﻣ ﺪﻌﺑ ۔ےﮍﭘ ہﻧ ﮫﭽﮐ ﮯﻠﭘ ﻮﺗ ﯽﮐ ںﻮﺴﯿﺋر روا ںﻮﯿﺿﺎﻗ ،ںﻮﮨﺎﺷدﺎﺑ ﻮﺟ ﯽﮨر ﯽﺳرﺎﻓ ﮏﺗ ہﺻﺮﻋ ﮏﯾا یرﺎﻤﮨ ہﯾﺎﺳ ِﺮﯾز ﮯﮐ چﻮﺳ ﻦﻤﺷد ﺐﯾﺬﮩﺗ ﯽﮐ ﮯﻟﺎﮑﯿﻣ ڈرﻻ ﺪﻌﺑ ﮯﮐ ﮯﺒﻠﻏ ﮯﮐ ںوﺰﯾﺮﮕﻧا ۔ﯽﮭﺗ ہﻧ نﺎﺑز ﯽﮐ ماﻮﻋ ﻦﮑﯿﻟ ﯽﮭﺗ نﺎﺑز ﺟ روا ۔ﮯﮨ یرﺎﺟ ﮏﺗ جآ ﮯﺳ ﯽﺘﻤﺴﻗﺪﺑ ﻮﺟ اﻮﮨ عوﺮﺷ بﺎﺑ ﺎﯿﻧ ﮏﯾا ﺎﮐ ﺮﯿﻘﺤﺗ ﯽﮐ ںﻮﻧﺎﺑز ﯽﻣﻮﻗ روا ﯽﻣﺎﻘﻣ ﮏﯾا ﮟﯿﻣ ہﺠﯿﺘﻧ ﮯﮐ ﺲ ﺖﯿﻠﻗا ﺐﻟﺎﻏ روا یﻮﻗ ﻦﮑﯿﻟ ﻞﯿﻠﻗ ﮏﯾا ﮯﻧ ﺲﺟ ﮯﮨ ﺎﯿﻟ ﻢﻨﺟ ﮯﻧ ﻖﯾﺮﻔﺗ ﯽﺗﺎﻘﺒﻃ) ﮯﻟﺎﮭﺒﻨﺳ ﺖﻣﻮﮑﺣ ِنﺎﻨﻋ روا ﮯﮨ ﯽﺘﻧﺎﺟ یﺰﯾﺮﮕﻧا ﻮﺟ ﮯﮨ ﮯﺋﻮﮨ ( سﺎﻨﻟا ماﻮﻋ روا)ﮟﯿﮩﻧ ﺎﻨﺷآ ﮯﺳ یﺰﯾﺮﮕﻧا ﻮﺟ ( ﯽﻣﻮﻗ رﻮﻃ ﯽﮭﺑ ﯽﺴﮐ ﻮﺟ ﮯﮨ ید ﺮﮐ اﺪﯿﭘ ﺞﯿﻠﺧ ﯽﺴﯾا ﮏﯾا نﺎﯿﻣرد ﮯﮐ زﺎﺳ ﮯﯿﻟ ﮯﮐ ﯽﺘﮩﺟ ﮏﯾ ںﻮﮭﻨﺟ ،ﮯﮨ تﻮﺒﺛ ﺎﺘﻟﻮﺑ ہﻨﻣ ﺎﮐ رﻮﻌﺷ ﯽﺒﯾﺬﮩﺗ روا ﯽﺳﺎﯿﺳ ﮯﮐ ماﻮﻋ ےرﺎﻤﮨ ہﺘﺒﻟا نﺎﺘﺴﮐﺎﭘ ﻦﯿﺋآ ۔ﮟﯿﮩﻧ رﺎﮔ ﻞﮑﯿﭨرآ ﮯﻧ251 ﻞﮑﯿﭨرآ روا 28 جاور و ﻢﺳر ہﻧﺎُﻤّﮑﺤﺗ ﯽﮭﺑ ﻮﮐ ںﻮﻧاﺮﻤﮑﺣ روا ،ﮯﮨ ﺎﯾد ہﮐ دﺎﺑ ﺮﯿﺧ ﻮﮐ چﻮﺳ ہﻧﺎﻣﻮﮑﺤﻣ ﮟﯿﻣ ﻦﯿﺋآ ۔ﮯﮨ ﺎﯾد ہﯾﺪﻨﻋ ﺎﮐ ﮯﻧﺎﻨﭘا ہﻧﺎﻣدﺎﺧ ِﺖﻨُﺳ روا ﮯﻧﺮﮐ کﺮﺗ ﮯﮐ نا ﻢﮐ زا ﻢﮐ ﺎﯾ ﺎﻧﺎﻨُﺳ ﮟﯿﻣ ودرُا ﮯﻠﺼﯿﻓ ﻖﻠﻌﺘﻣ ﮯﺳ ﺢﯾﺮﺸﺗ ﯽﮐ ﮏﯾا ﮯﯿﻟ ﮯﮐ ﮯﻧﺎھﮍﺑ ﮯﮔآ ﻮﮐ یﮍﮐ ﯽﺳا ﮯﻧ ٰﯽﻤﻈﻋ ِﺖﻟاﺪﻋ ۔ﮯﮨ یﮍﮐ ﯽﺳ ﯽﭨﻮﮭﭼ ﮏﯾا ﯽﮐ ﮯﻠﺴﻠﺳ ﯽﺳا ﺎﻧاﺮﮐ ﮟﯿﻣ ودرا ﻢﺟاﺮﺗ ﮯﮨ ﺎﺗﺮﮐ ﻞﻘﺘﻨﻣ ﮟﯿﻣ نﺎﺑز ﻢﮩﻓ مﺎﻋ ﻮﮐ ںﻮﻠﺼﯿﻓ ﯽﺘﻟاﺪﻋ ﻮﺟ ﮯﮨ ﺎﯿﮐ ﻢﺋﺎﻗ ﯽﮭﺑ ﻢﺟاﺮﺗ ۂﺒﻌﺷ‘‘ ﺮﻣا سا ںﺎﮩﯾ۔ یروﺮﺿ ﺖﯾﺎﮩﻧ ﮦدﺎﻋا ﺎﮐ یرﺎﮐﺮﺳ رﻮﻄﺑ ﻮﮐ ودرا ہﮐ ﮯﮨ ﻢﮑﺣ ﯽﻨﯿﺋآ ہﯾ ہﮑﻠﺑ ﺎﮐ ﯽﻧﺎﺳآ ﻦﺗ یرﺎﻤﮨ ﯽﮨ ہﻧ روا ﮟﯿﮩﻧ ہﻠﻣﺎﻌﻣ ﺎﮐ ﺪﻨﺴﭘ ﺎﻧ ﺪﻨﺴﭘ یرﺎﻤﮨ ہﯾ ہﮐ ﮯﮨ ۔ﮯﺋﺎﺟ ﯽﮐ ﺞﯾوﺮﺗ ﯽﮐ ںﻮﻧﺎﺑز ﯽﺋﺎﺑﻮﺻ روا ﮯﺋﺎﺟ ﺎﯾﺎﻨﺑ ﯽﻨﯿﻘﯾ رﻮﻣا ﺮﮕﯾد ﮯﺋاﺮﺑ روا نﺎﺑز‘‘ Const.P.56 of 2003 4 5. Indeed the importance of this issue cannot be emphasized enough. Yet, the way in which this issue is being dealt with by the Government has been very casual and non serious. 6. During the course of this year alone, these petitions have come up for hearing before this Court eighteen times. However, despite the time the Court dedicated to this crucial issue, no substantial progress was made. On 12.05.2015, for instance, Mr. Abdul Rashid Awan, DAG for the Federation, clearly submitted that in spite of his best efforts the Secretary Cabinet and the Secretary Information, Government of Pakistan, and other concerned functionaries were not paying any heed to the Constitutional imperative in Article 251. Although, reports were filed in Court thereafter, with regret we say that these reports were not satisfactory and no substantial action has been taken by the concerned authorities for the implementation of Article 251 of the Constitution. The same is the situation till now. 7. Almost all orders of the Court in the present case portray this dismal situation and lack of interest by the concerned functionaries in implementing the command of Article 251 of the Constitution. The following synopsis of only some of the Court orders over the last seven months will demonstrate this: S# Order dated Synopsis of Court order and related submissions 1 22.01.2015 Mr. Abdul Rasheed Awan, learned DAG, requested for some time to submit a concise statement. 2 10.04.2015 The learned law officer was unable to give any satisfactory reply why the breach of Article 251 had not been rectified yet. In order to ascertain causes of delay he once again requested for some time. 3 23.04.2015 Learned law officer sought time to file a more comprehensive statement. 4 30.04.2015 Learned law officer once again sought time to file concise statement. 5 12.05.2015 Learned law officer stated that despite his best efforts the Secretary Cabinet and the Secretary Information, Government of Pakistan, and other concerned functionaries were not paying heed to the matter and to the orders of this Court. 6. 13.05.2015 Learned Attorney General appeared and assured that if some time is given to the Government then solid suggestions shall be presented for implementation of Article 251 of the Constitution. Const.P.56 of 2003 5 7. 20.05.2015 The Court observed that attitude of Federal Govt. was non-serious. Learned DAG sought time to file his report. Rs. 10,000/- costs were also imposed on the Federal Govt. 8. 02.06.2015 Despite orders, the Federal Government was unable to explain what steps had been taken over the last 42 years for implementation of Article 251 and who was responsible for such omission. 9. 05.06.2015 It was observed that Punjabi language was not being given its place by the Government of the Punjab and no substantial steps had been taken for this purpose although in the other Provinces concrete steps had been taken. 10. 11.06.2015 Secretary Information stated that summary with suggestions had been sent to Secretary Cabinet for implementation of Article 251. Assistant Advocate General Punjab requested for some time to file report. 11. 02.07.2015 Decision of Cabinet awaited; Case was adjourned. 12. 10.07.2015 Cabinet decision still pending as Prime Minister is out of country. 13. 11.08.2015 Secy. Information informed the Court that vide letter dated 06.07.2015 certain directions have been issued by the Govt. Mr. Sikandar Javed, Chairman GEC informed the Court that the Law Ministry was neither taking any interest in the legal dictionary made by them to facilitate Urdu translation of laws nor was it rendering any financial assistance. 14. 18.08.2015 Court still not informed of satisfactory arrangements by the Government. 8. This record shows that other than words, no progress has been made for implementation of Article 251 of the Constitution. The Government appears to be acting on the untenable premise that it has the right not to adhere to Article 251 of the Constitution. This is most disturbing. The language of Article 251 leaves no room for such an interpretation. Article 251 uses the term “shall”, which shows that it is a mandatory provision and not an optional or directory one. Defiance of Article 251 should not be allowed. 9. Here we may advert to Article 5 of the Constitution which stipulates that “… obedience to the Constitution and law is the inviolable obligation of every citizen …”. It also needs to be emphasized that all senior functionaries of the State take an oath to “preserve protect and defend the Constitution”. State functionaries in positions of authority therefore, cannot give short shrift to the Constitution which they are bound to preserve, protect and obey. On various occasions we have pointed out that the rule of law begins with the powerful; if the Const.P.56 of 2003 6 Government itself does not follow the commands of the Constitution then it cannot legitimately exercise authority to enforce the law on the general public. 10. In the case of Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 876 at 1242) this Court has remarked that it “would … be for the representatives of the people and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today.” The lack of interest shown by the Government to the constitutional command contained in Article 251 directly feeds into the lawlessness that prevails in our society. Here it may be useful for us to take guidance from a famous incident involving Baba Farid Ganj Shakar. 11. A mother brought her child to Baba Sahib with a complaint that her son was eating too much ‘shakar’ and should be cautioned against this habit. Baba Sahib asked that lady to bring the child again after one week. When she brought her son again, Baba Sahib forbade the child and he obeyed. The woman asked Baba Sahib why he did not just forbid the child when she had visited last. Baba Sahib replied that at that time he himself was copiously consuming ‘shakar’ and therefore, could not have asked the child to abstain. This wisdom seems to be lost on those in Government. 12. What is also lost on the Government is that Article 251 is not a stand-alone provision;. this provision is directly linked to the realization of various fundamental rights protected by the Constitution, especially the right to dignity (Article 14), the right to equal treatment under the law (Article 25), and the right to education (Article 25A). It is a corollary of a person’s right to dignity enshrined in the Constitution that his or her language (national or provincial) should be respected and recognized by the State which exercises authority over him or her. Likewise, it is a corollary of a person’s right to equality that he or she must not be denied access to economic and political opportunities because he or she is only conversant in the languages recognized and referred to in Article 251 and not conversant with the English language. When the state refuses to recognize this it denies to its citizens equality of status and opportunity and also their dignity in a very real sense. 13. There is also no doubt that the right to education has a direct link with language. Article 25A of the Constitution states that the “State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by Const.P.56 of 2003 7 law.” Empirical studies throughout the world (including those by UNESCO) advocate the use of a child’s native language in instruction since this is the language the child grows up with and which is in use in his home and around him. But the Government seems to be ignoring this important issue. 14. We may also note here that it is not as if the Government lacks the imagination or expertise to conceive ways in which Article 251 may be implemented. For instance, even in 1981 certain recommendations were made by the National Language Authority, (presently renamed as National Language Promotion Department vide Notification dated 17.08.2012), for implementation of Article 251. The same are reproduced herein below: ن�ز �� غو� ہرادا)ن�ز �� ہر� ( ت�ر� �١٩٨١ء )�ا (ت�ر� � � � ��ا � ودرا � ر� � ن�ز ىر�ور� روا ى�دُ )i(  � ن�� ر� ِ١٩٨١� ر� � ن�ز ىر�ور� روا ى�د � ودرا راو �� � � ىر� �ڈرآ �ا � ءُ �ا � � ��ا  ۔�� ىر� �������� ii( ) ١٩٨١۔�� � م� � �� �� روا ىر� � ہد� ،�دادور � ن�ز ودرا � م�ا � ءُ ١٩٨٢ ( iii)  ہو � �� � �� ۔� �� � م� ��� � �� � �د م�ا ر�ا ى�د � ن�ز ودرا � م�ا � ءُ �� ودراُ ۔ے� �ا� ز� � � ىرا�� � � ١٩٨٣ ( iv)  م� � ر� نا�ا ل� ��� ��و روا � �� � ر� � ن�ز ودرا روا ت� �� م� � ن�وڈ �� � ءُِ ۔�� �د م�ا � ن�ز ودرا ر�اُ )ب (� � ��ا � �رذ ر� � ودراُت�ر�  ١٩٨٤ )i(  ���ا � � ء)م� �آ ،� �ا �ا ،ےا �ا ( � � � �ا �ا روا �ا � ،م� �ا ،ےا � ،��ڈ �اراو � ۔� � ن�ز ودرا � �رذُ ii( ) ١٩٨٦ا �ا روا ےا � � ،�ا �ا ،م� �ا ،ےا �ا ،ىا � ،� �ا �ا ،� �ا � � � ء � ن�ز ودرا ت��ا م� � �ا �ُ ۔ں� ( iii) ١٩٨٧۔ں� � � ودرا � ت��ا � ےا � �ا روا � �ا �ا � � ءُ (iv)  � ودرا � ر� � ن�ز � �ر� ۔��� �� ل� ودرا لڈ� �ا � ن�وڈ �ا � � � � � � � شر� � � ُُ  ل�ا �ا � ت�� � م� روا �� � �� ودرا � ت�� � ىڈ �ا � م� ۔�� �ا� � ��رو � � �د غو� �ُ ۔�� � � �� � م� � ں�� � � �رذ ى��ا � �� �د را� ىرو� �د � ودرا ��ُ )ج (� ت��ا � ��ت�ر� � � �� ر�ا �رذ � ودرا ُ )i(  � � � � �� �� �� �ز� �ا � ودرا � � ت��ا � �� ُ٥٠۔ں�  Const.P.56 of 2003 8 ii( )  � � �� �ا� فر� �� ىر�ا �ا � بدا ودرا ُ٢٠٠۔ں� �  (iii)  ر� ىر� � ودرا � � ت��ا � �� ُ۔�� �د � ى��ا روا ودرا ت� �� م� روا �� ��ا � ر� � ن�ز �ُ Various other committees have been formed and recommendations submitted from time to time. What is lacking therefore is not imagination or expertise, but the will to preserve, protect, defend and obey the Constitution . 15. Even as these petitions were being heard, vide letter No. 1/Prog/2015 dated 06.07.2015 issued by Government of Pakistan, Cabinet Secretariat, the Cabinet Division directed that certain short term measures be taken by all Ministries and Divisions. The letter for ease of reference is being reproduced as under: "ن�� �� ن�وڈ ��،��� �� �1/Prog/2015  �ر�6 ��� 2015ء نا� :ت��ا � � ل�ا � ن�ز ودرا � � �� �د و ىر��  �رآ � ن�� �آ ،� � � � � پآ � �251� �� �د روا ىر�� � ن�ز ودرا  �� �� � ل�ا �  ۔� ا� � � � � ��� ر� � �� � ن�� �ا �زو ب� ت� � � سا ۔� 2۔�� �د � عو� ت�ا�ا � ر� ىر� � � �� �آرد � � � �� � � � شرا� ا� �ا� �ر� ۔ )ن� �ا مرا �اڈ( �ى�� �ا)��( � ں��وڈ روا ں�رازو م� ن�� جر�ا ��� ��ا روا ��� ع�ا �ا� �: 1د�آ م�ا ، �آ �ا �زو ،�ا �زو �ا� ى�� ۔ 2د�آ م�ا ن�� �� �رو �� و ت�� ،ت��ا ترازو ى�� ب� �� ۔ِ �� � ىر�/ت�ا�ا �� �: Const.P.56 of 2003 9 ١ےرادا م� �او �� م� م�ا �ز � ق�و ۔)ىر�� � و ىر�� ( �� �� ودرا ر�ا � ہ� � � ں�� �اُ ۔�� ٢ےرادا �او �� م� م�ا �ز � ق�و ۔)ىر�� � و ىر�� (� ہ� � �� ودرا � �ا� م�ُ۔�� ��  ٣ےرادا م� �او �� م� م�ا �ز � �� ��و ۔)ىر�� � و ىر�� ( ى��ا � ہ� � مر� � ح� � ۔�� �ا� � � ودرا �� �ُ ٤ ہ�و ں� ،ںورادا � ،ں�ر� ،ں�� ،ں�� ،ں�ا� � ں� � �ا �ا� م� ۔ � � �� ہار � ۔� �� � ںا�وآ ر�ا � ہ� � ڈر� � � ودرا �� �� � ى��ا ٥ ،ن�� فآ � �ا ،� �� ،ا�او ،ن�� فآ ل� �ڈآ ،رآ � � ےا ،� �ا � ،�آ ٹر�� ۔ � ں� �� روا �� ��ارڈ ������� ت�ار�ا م� � ٹر�� ۔�� �ا� � ودرا � ہ� � تا�و�د م� ُ ۔�� � � � � ودرا �� � ى��اُ ٦ےرادا م� �او �� م� م�ا �ز � �� ��و ۔)ىر�� � و ىر�� ( �� �و �ا) (Website  ہ� � � � � ودرا ر�ا �۔� ٧ � ى��ا ر�ا � ہ� � ڈر� �� � � ض� � �� ہار � ںور� � ں�ا�� ى� �� � � ےر� ۔ ۔�� � � � � ودرا ��ُ ٨ت�� ىر�� م� ۔/۔�� � عو� � ودرا ر�ا � ہ� � راو �ا� �اورر� � ں��اُ ٩� ر� ۔ � م� سا روا �� �ر� � ودرا �� روا ر�ا � � �ا روا ے�� ىر�� ��و م� روا �ا �زو ،ُ ۔�� �د � ز�آ ر�ا � ہ� � راو �� ١٠� � �� سا � � �� ىد � ى�� � ن�ز �� غو� ہرادا � � � �و� و ذ� � ودرا ۔ُِ � ىروآ �  � � � رود � زا � � �� �� � ں�و�ر � �ار’’۔ It remains to be seen to what extent these directions will be followed. 16. We may also emphasize here that implementing Article 251 is not just a matter of obeying the Constitution: it has real practical implications for the Pakistani public. In this regard, we may refer to a highly relevant historical fact. In 1972, the provincial government in Balochistan led by the Chief Minister and the provincial government in North West Frontier Province (now KPK) led by the Chief Minister Maulana Mufti Mahmud took some concrete steps towards introducing Urdu as the official language in their respective Provinces. A note by a former Chief Secretary of NWFP (now KPK) highlights the fact that as a result, available human and financial resources of both provincial governments were optimized. Again in 2004, the government in KPK introduced the National language for official and other purposes. In addition, the use of Urdu as the official language augmented the self esteem of civil servants employed by the two Governments. At that time, it was Const.P.56 of 2003 10 immediately noticed that this measure remarkably improved the efficiency of the concerned provincial governments: even an Assistant in BS-11 was able to initiate notings in Urdu which was a language he was educated and familiar with. The very same activity and perhaps with a lesser quality, is now being undertaken by a Section Officer in BS-17 (since official noting is required to be in the English language). 17. In the governance of the Federation and the Provinces there is hardly any necessity for the use of the colonial language which cannot be understood by the public at large. Even for many civil servants and public officials, who may have received education in English, this language would in most cases, not be the language most used by them. Many officials are therefore forced to spend time on attempting to initiate and take decisions in a language which they are not entirely comfortable with. The time thus spent is quite wasteful because a lot of energy is dedicated to deciphering the language of the noting (which could have been easily drafted in the Urdu language) itself rather than understanding its content or substance. This wasteful exercise at times results in absurd and farcical outcomes which would be wholly avoided by use of the National language. 18. It is not at all the object of this judgment to denigrate the importance of English as a language used in international commerce and other activities which require the use of that language. The point before us as noted above is very different. Article 5(2) of the Constitution commands that “[o]bedience to the Constitution and law is the inviolable obligation of every citizen …”. We are tasked to both obey the Constitution and to enforce it, and we cannot shy away from our obligation to the same while the nation suffers even if some may (from habit or training) find it more convenient to continue using the colonial language. 19. Therefore, bearing in mind the constitutional commands in Articles 5 and 251 reproduced above and noting the inaction and failure of successive governments to implement this important provision, we have no option but to order as under:- i) the provisions of Article 251 shall be implemented with full force and without unnecessary delay by the Federal and Provincial Governments; ii) the time-lines (given in letter dated 06.07.2015 reproduced above) which are given by the Government itself must be considered for Const.P.56 of 2003 11 implementation by the Government in line with Article 251 for implementation; iii) the Federal Government as well as Provincial Governments should coordinate with each other for uniformity in the “rasmulkhat” for the National language; iv) Federal as well as provincial laws should be translated in the National languages within three months; v) statutory, regulatory and oversight bodies shall take steps to implement Article 251 without unnecessary delay and also ensure compliance by regulatees; vi) in the competitive examinations at Federal level the recommendations of government bodies noted above, should be considered by the Government for implementation without unnecessary delay; vii) Judgments in cases relating to public interest litigation and judgments enunciating a principle of law in terms of Article 189 must be translated in Urdu and should be published in line with Article 251 of the Constitution; viii) in Court cases government departments should make all reasonable efforts to submit their replies in Urdu to enable citizens to effectively enforce their legal rights; ix) if, subsequent to this judgment, any public bodies or public officials continue to violate the constitutional command contained in Article 251, citizens who suffer a tangible loss directly and foreseeably resulting from such violation shall be entitled to enforce any civil rights which may accrue to them on this account. 20. Copies of this Judgment shall be sent to all the Federal as well as Provincial Secretaries, who are to take immediate steps for enforcement of Article 251 in line with Article 5 of the Constitution. The concerned Federal and Provincial Secretaries shall submit Const.P.56 of 2003 12 reports showing compliance with the above orders. The first report of progress should be fixed in Court within three months. Chief Justice Judge Judge NOTE: To meet the requirement of Article 251 of the Constitution, the Urdu version of this judgment is also issued. In view of Article 251(3), the Provinces may issue translations in provincial languages. (Jawwad S. Khawaja) Chief Justice Islamabad, the Announced on 8th September, 2015. M. Azhar Malik/* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR CONSTITUTION PETITION NO.57 OF 2016 (Under Article 184(3) of the Constitution) AND C.M.A.NO.681-K OF 2018 IN CONST.P.NO.57 OF 2016 (Applicant for amendment of petition) AND C.R.P.NO.440 OF 2016 IN C.M.A.NO.5135 OF 2016 IN C.R.P.142 OF 2015 IN CONST.P.NO.104 OF 2011 (On review of this Court’s order dated 24.8.2016 passed in C.M.A.No.5135/2016) AND CONSTITUTION PETITION NO.24 OF 2018 (Under Article 184(3) of the Constitution) AND HUMAN RIGHTS CASE NO.30998-S OF 2018 (Regarding shortage of water supply in Karachi) AND HUMAN RIGHTS CASE NO.50363-P OF 2010 (In the matter regarding acute shortage of water supply in Karachi) AND CONSTITUTION PETITION NO.37 OF 2018 (Under Article 184(3) of the Constitution) AND CONSTITUTION PETITION NO.38 OF 2018 (Under Article 184(3) of the Constitution) Const.P.57/2016: Barrister Zafarullah Khan Vs. Federation of Pakistan etc. C.M.A.681-K/2018: CMA for amendment in Constitution Petition C.R.P.440/2016: Engineers Study Forum (Regd.), through its President Mian Fazal Ahmad Vs. Federation of Pakistan, etc. Constitution Petition No.57 of 2016 etc. -: 2 :- Const.P.24/2018: Agha Qasim Raza Vs. Federation of Pakistan through Secretary Ministry of Water Islamabad and others H.R.C.30998-S/18: In the matter regarding acute shortage of water supply in Karachi H.R.C.50363-P/10: Application by Malik Abdul Latif Khokhar Const.P.37/2018: Rana Ilamuddin Ghazi Vs. Federation of Pakistan, through Secretary Cabinet Division, Islamabad and others Const.P.38/2018: Sutlej Ravi Water Forum through its Chairman Zia Shahid Vs. Federation of Pakistan through Secretary Interior, Government of Pakistan, Islamabad. In attendance: For the petitioner(s)/ applicant(s): Barrister Zafarullah Khan, ASC (In Const.P.57/2016) Nemo (In Const.P.24/2018) Nemo (In Const.P.37/2018) Nemo (In C.R.P.440/2016) Dr. Khalid Ranjha, Sr. ASC (In Const.P.38/2018) Malik Abdul Latif Khokhar, ASC (In H.R.C.50363-P/2010) Nemo (In C.M.A.5788/2018) For Federation: Mr. Khalid Jawed Khan, Attorney General for Pakistan Syed Nayyar Abbas Rizvi, Addl.A.G.P. Assisted by: Barrister Asad Rahim Khan For Provinces: Mr. Razzaq A. Mirza, Addl.A.G. Punjab Ms. Sehar Chaudhry, Law Officer, Irrigation, Punjab Mr. Shehryar Qazi, Addl.A.G. Sindh Mr. Jamal Mustafa Syed, Secy. Irrigation, Sindh Mr. Khalid Mehmood, M.D. KWSB, Sindh Mr. Ayaz Swati, Addl.A.G. Balochistan Barrister Qasim Wadood, Addl.A.G. KPK Constitution Petition No.57 of 2016 etc. -: 3 :- For LJCP: Dr. Muhammad Rahim Awan, Secretary On Court’s call: Mr. Shams-ul-Mulk, ex-Chairman WAPDA Mr. Zafar Mehmood, ex-Chairman WAPDA Mr. Mujeeb-ur-Rehman Pirzada, ASC On Court’s notice: For M/o Planning & Development: Mr. Shoaib Ahmed Siddiqui, Secretary Mr. Naseer Ahmed Jillani, Sr. Chief (Water) Mr. Arshad Ali, Joint Secretary For M/o Water Resources: Mr. Shumail Ahmed Khawaja, Secretary Syed Muhammad Mehar Ali Shah, Joint Secretary/Commissioner Indus Water For M/o Finance: Mr. Arif Ahmed Khan, Secretary For M/o Climate Change: Mr. Yousaf Naseem Khokhar, Secretary For WAPDA: Lt. Gen. (R) Muzammil Hussain, Chairman Mr. M. Babar, Deputy Director Mr. Shahzad Asif, Director Date of hearing: 4.7.2018 ORDER MIAN SAQIB NISAR, CJ.- For the reasons to be recorded later in elaboration of this short order, we dispose of these matters in the following terms: 1. That the need for water reservoirs is not only expedient but also sine qua non for the survival of the people and economy of Pakistan. All those present in the Court including officials of the various departments and experts on the subject are unanimous in this regard. They are also unanimous on the point that according to the decision of the Council of Common Interest the Diamer Bhasha Dam and pursuant to the approval of the ECNEC both the said and Mohmand Dam must be built on urgent basis by the Federal Government and in this regard there is no dispute or discord of any nature amongst the Provinces; 2. That right to life is a fundamental right and without water there can be no existence of life. The establishment of water Constitution Petition No.57 of 2016 etc. -: 4 :- reservoirs is therefore not a question of just quality of life rather the very existence thereof. Therefore, in terms of the provisions of Article 184(3) of the Constitution read with Article 9 and as guardians of the fundamental rights of the people of Pakistan, this Court has the jurisdiction to issue necessary directions to the Government for the practical enforcement of the primordial right to life. Accordingly, we direct the Federal and Provincial Governments, WAPDA and all the Executive Authorities in Pakistan who are responsible or have nexus/connection with the building of the afore-said dams and all matters connected thereto, to take all necessary steps for the commencement of construction and early completion of these dams. A comprehensive report in this regard with detailed timelines and milestones shall be submitted to this Court within a period of three weeks by the Committee formed herein below; 3. For the construction of these dams and also for oversight of execution of their works, we hereby constitute an Implementation Committee headed by the Chairman WAPDA and for the time being comprising experts and officials of the Federal and KPK Governments including the following persons: (i) Additional Secretary (Budget), Finance Division, Federal Government; (ii) Joint Secretary, Water Resources Division, Federal Government; (iii) Joint Secretary, PM Office (to be nominated by Secretary to PM); (iv) Senior Chief (Water), Planning Division, Federal Government; (v) Chief Secretary Gilgit-Baltistan; (vi) Senior Member Board of Revenue, KPK (vii) Additional Chief Secretary (Development), KPK; (viii) The Committee can co-opt any members/ experts. Constitution Petition No.57 of 2016 etc. -: 5 :- 4. Under the provisions of Article 78 of the Constitution, any funds deposited in the Public Account of the Federation can be dedicated for a specified project or purpose. We therefore direct the establishment of an account, for the time being in the name of the Registrar of the Supreme Court of Pakistan, for collecting funds donated by the people of Pakistan for the construction and establishment of the aforementioned dams; 5. In the foregoing behalf we accordingly appeal to the Nation for making its contributions, whether in the shape of foreign currency or in Pakistani rupees, directly to the said account. The funds in the said account shall be utilized solely for the construction and establishment of the aforementioned dams and shall for the time being be operated under the orders of this Court on the recommendations of the Implementation Committee. It is made clear that the funds in this account shall not under any circumstance or for any reason be diverted or utilized for any purpose other than the construction of the afore-noted dams. For avoidance of doubt it is directed that no questions shall be asked by any authority or department including, but not limited to the tax authorities, relating to the source of funds contributed to the afore-noted account. The utilization of the said funds shall be subject to audit as per directions of this Court. CHIEF JUSTICE JUDGE JUDGE JUDGE Islamabad, the 4th of July, 2018 Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ghulam Rabbani Mr. Justice Khalilur Rehman Ramday CONSTITUTION PETITION NO. 58 OF 2010 WITH CIVIL MISC. APPLICATION NO.3387 OF 2010 Mir Muhammad Idris & another … PETITIONERS VERSUS Federation of Pakistan through Secretary Ministry of Finance & others … RESPONDENTS For the petitioners: Mr. Manzoor Qadir, ASC Mr.G.N. Gohar, AOR For the applicant Barrister Zafarullah Khan, ASC (CMA.3387/10) On Court notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan For respondent No.3: Mr. Abid S. Zubairi, ASC Kh. Muhammad Farooq, Sr. ASC Dr. Ibrar Baig, SEVP Mr. Fazal-ur-Rahman, EVP Mr. Tariq Zafar Iqbal, Regional Chief Mr. Saeed Khan, Legal Head For respondent No. 2: Mr. M. Bilal, Sr. ASC Mr. Babar Bilal, ASC Syed Safdar Hussain, AOR Mr. Amjad Iqbal, Joint Director For respondent No. 1: Mr. Ali Sher, S.O. Date of hearing: 05.01.2011 .-.-. J U D G M E N T Iftikhar Muhammad Chaudhry, CJ –. By the above Constitution Petition, the petitioners have challenged the validity of the Const. P. 58 of 2010 2 reappointment of respondent No. 3, Syed Ali Raza as President of the National Bank of Pakistan (NBP) for fifth time for one year commencing from 01.07.2010 by the respondent No. 1, Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan. It has been prayed that the notification of his reappointment vide No. F.1(8)Bkg-III/2000 dated 10.04.2010 be declared illegal, null and void and that the respondent No.3 be restrained from acting as President NBP. It has further been prayed that the respondent be directed to produce a list of those personalities who got benefits of loans written off by the respondent No. 3 since his first appointment i.e. from 01.07.2000 till 31.07.2010. 2. The case of the petitioners is that the respondent No.3 was, initially, appointed as President, NBP for a period of three years w.e.f. 01.07.2000, for another period of three years w.e.f. 01.07.2003, for yet another period of three years w.e.f. 01.07.2006 and for a further period of one year w.e.f. 01.07.2009 and then for one year more w.e.f. 01.07.2010. It is stated that before the expiry of his previous term of one year commencing from 01.07.2009 vide notification dated 20.03.2010, the respondent No.3 was reappointed till further orders; however, by another notification dated 21.03.2010, the first mentioned notification dated 20.03.2010 was withdrawn and then by a notification dated 10.04.2010, he was again reappointed for a period of one year w.e.f. 01.07.2010. The grievance of the petitioners is that the respondent No.3 is holding office of President NBP illegally and unlawfully, his reappointment for fifth term being void ab initio. 3. Mr. Manzoor Qadir, ASC for the petitioners contended that in view of the provision of section 11(3)(d) of the Banks Const. P. 58 of 2010 3 (Nationalization) Act, 1974 as amended by the Banks (Nationalization) (Amendment) Act, 1997, a person could be appointed as President NBP for not more than two terms, but the respondent No. 3 was reappointed from time to time as President NBP for several terms by making amendments in the Banks (Nationalization) Act, 1974, hereinafter referred to as the Act of 1974 illegally with a view to extend favour to him. The learned counsel submitted that on promulgation of the Act of 1974 as amended, the ownership, management and control of all banks including the NBP stood transferred and vested in the Federal Government w.e.f. 01.01.1974. Section 11(1) of the Act of 1974 provided that a Bank shall have a Board consisting of a President and not less than five and not more than seven other members to be appointed by the Federal Government for a period of three years while under section 11(3)(d) ibid, a person could be so reappointed for a further period of three years. However, while the respondent No.3 was holding office of President by reappointments, in order to favour him to continue with it, a further amendment in section 11(3)(d) was brought about by Ordinance No. XII of 2006 dated 31.05.2006, providing that the reappointment may be made for “such further term or terms as may be determined”. The said Ordinance, according to learned counsel, stood repealed at the expiration of 120 days as it was not laid before the National Assembly within the said period, however, the aforesaid amendment was reintroduced by another Ordinance No. XXIX of 2006 dated 04.11.2006 operative from 28.09.2006, which too stood repealed on expiry of the prescribed period since the same was not laid before the National Assembly. Later, learned counsel emphasized, this exercise of amending the Act of 1974 continued persistently, such Const. P. 58 of 2010 4 as by means of Ordinance No. IV of 2007 dated 05.02.2007 effective from 28.01.2007 and Ordinance No. XXVIII of 2007 dated 04.06.2007 effective from 28.05.2007 evidently to accommodate the respondent No.3. Ultimately, learned counsel contended, the said amendment was incorporated unconstitutionally by way of the Finance Act, 2007. 4. The learned counsel further submitted that during the tenure of respondent No. 3, loans of billions of rupees were written off to accommodate influential borrowers with the result that the annual profits of the bank started showing evident decline since 2007, therefore, there was no justification for his reappointment as President. He stressed that the Act of 1974 could not have been amended through the Finance Act, 2007, as the Finance Act only dealt with fiscal matters, and was passed, not by both the Houses of Parliament, but by the National Assembly alone; therefore, as a consequence the notification dated 10.04.2010 whereby the respondent No. 3 was reappointed for a period of one year w.e.f. 01.07.2010, having been issued in pursuance of an invalid law, was void. In support, he placed reliance on Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879). 5. Barrister Zafarullah Khan, ASC appeared in CMA No. 3387 of 2010 filed for impleadment as party. He reiterated the arguments made by Mr. Manzoor Qadir and added that the Ordinance No. XII of 2006 dated 31.05.2006 under which the respondent No.3 was reappointed for the third term died its natural death after lapse of 120 days as it was never laid before the National Assembly, but he was allowed to continue holding the post illegally. 6. Mr. Abid Zubairi, ASC, learned counsel for respondent No.3 submitted that the amendments in the Act of 1974 were to be seen by Const. P. 58 of 2010 5 the Court as a whole and not just the amendment in section 11(3)(d) of the Act of 1974 whereby the appointment of President could be made for such further term or terms as may be determined. He contended that the appointment of respondent No.3 made vide notification dated 10.04.2010 for a period of one year from 01.07.2010 to 30.06.2011 was a past and closed transaction and the declaration by the Court, if any, would have a prospective effect not affecting his such appointment. According to him, the Finance Act was an Act of Parliament, duly assented to by the President under Article 75 of the Constitution to be seen as falling within the scope of Article 73(4) & (5). Mr. Zubairi, alternatively, argued that in case the Court came to the conclusion that amendment in the Act of 1974 could not have been brought about through the Finance Act, therefore, it would void, not void ab initio and it would also not revive the old law. He has placed reliance on Sindh High Court Bar Association's case, Dr. Mobashir Hasan v. Federation of Pakistan (PLD 2010 SC 265), Abul A’la Maudoodi v. Govt. of West Pakistan (PLD 1964 SC 673) and Hajji Muhammad Hussain v. Province of Blochistan (NLR 1995 CrLJ 313). 7. Khawaja Muhammad Farooq, Sr. ASC also appeared on behalf of respondent No. 3. He argued that the petitioners’ averment that the Act of 1974 was amended from time to time for the benefit of respondent No.3 could not be maintained on the ground that mala fides could not be attributed to the legislature; Constitution/Writ Petitions were filed in the High Court of Sindh and the Lahore High Court with the same prayer by the employees of the Bank who had individual grievances, which were sub judice, therefore, in line with the general principle of jurisprudence that the higher courts should have the benefit of judgment/views of the lower courts, the High Courts Const. P. 58 of 2010 6 should be allowed to proceed with the matters pending before them; the appointment of respondent No.3 was in accordance with the provisions of the Act of 1974 as amended from time to time; the Bank had flourished on account of vast experience in the banking industry of the respondent No. 3, who had earned appreciation and praise both from national as well as international forums for his professional competence and his efforts for enhancing the international rating of the Bank; the amendment of the Act of 1974 by means of the Finance Act was valid as in the past many laws, such as Companies Ordinance, Securities and Exchange Commission Act, Social Security Ordinance, Khushhali Bank and even the Act of 1974 itself had been amended by various Finance Acts/Ordinances; the respondent No. 3 was not the authority to write off the loans, which was done by the Board in accordance with the policy guidelines/circulars issued by the State Bank of Pakistan, reports whereof were submitted to the State Bank and were also reflected in the annual reports of the Banks; and that the actions taken, orders passed, notifications issued during the currency of a repealed Ordinance did not lose legal force and continued to hold the field and could not be called in question on account of lapse/repeal of the Ordinance. 8. Learned Attorney General for Pakistan also followed same line of arguments of respondent No.3. However, he stated that if section 11(3)(d) of the Act of 1974 was declared unconstitutional, it would have effect on other such like provisions, which were amended by means of Finance Act, 2007. Therefore, he emphasized to save this provision as respondent No.3 otherwise will retire on 30.06.2011. 9. Mr. M. Bilal, Sr. ASC appeared on behalf of State Bank of Pakistan and stated that respondent No.3 was appointed with the Const. P. 58 of 2010 7 concurrence of Ministry of Finance in accordance with existing law. No arguments were advanced on behalf of Federation of Pakistan nor request was made to engage a counsel. 10. We have heard the learned counsel and have gone through the relevant provisions of the law and Constitution as also the case law cited at the bar. 11. The main question falling for determination by this Court in the instant case is whether section 11(3)(d) of the Act of 1974, which related to the appointment of Chairman, President and members of the NBP Board, could have been amended by the Finance Act, 2007 [Money Bill] passed in terms of Articles 73 and 75 of the Constitution. Therefore, for better understanding to determine this question, it will be pertinent to reproduce below Article 73 of the Constitution, which defines Money Bill, and section 11(3) of the Act of 1974 before and after amendment brought about in its clause (d) by way of the Finance Act, 2007: - Article 73 of the Constitution “73. Procedure with respect to Money Bill. (1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly: Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall be transmitted to the Senate which may, within seven days, make recommendations thereon to the National Assembly. (1A) The National Assembly shall, consider the recommendations of the Senate and after the Bill has been passed by the Assembly with or without incorporating the recommendations of the Senate, it shall be presented to the President for assent. (2) For the purpose of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:- (a) the imposition, abolition, remission, alteration or regulation of any tax; Const. P. 58 of 2010 8 (b) the borrowing of money, or the giving of any guarantee, by the Federal government, or the amendment of the law relating to the financial obligations of that Government; (c) the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund; (d) the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge; (e) the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys; (f) the audit of the accounts of the Federal Government or a Provincial Government; and (g) any matter incidental to any of the matters specified in the preceding paragraphs. (3) A Bill shall not be deemed to be a Money Bill by reason only that it provides:- (a) for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or payment of a licence fee or a fee or charge for any service rendered; or (b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (4) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the National Assembly thereon shall be final. (5) Every Money Bill presented to the President for assent shall bear a certificate under the hand of the Speaker of the National Assembly that it is a Money Bill, and such certificate shall be conclusive for all purposes and shall not be called in question.” “Section 11 of the Act of 1974: (1) …………………………………………………………………………………. (2) …………………………………………………………………………………. (3) The Chairman, the President, and other members of the Board representing the Federal Government’s direct and indirect shareholding” – (a) Shall be appointed by the Federal Government, in consultation with the State Bank, for a term of three years, on such terms and conditions as may be fixed by the General Meeting of the bank; provided that the Chairman and the President shall be appointed from amongst professional bankers whose names are included in a panel of bankers qualified to be maintained and varied, from time to time, by the State Bank; (b) May be removed for misconduct or physical and mental incapacity before the expiry of the Const. P. 58 of 2010 9 three years’ term by the Federal Government in consultation with the State Bank; (c) Shall stand removed if he becomes ineligible on any of the grounds specified in subsection (12); and (d) May be reappointed by the Federal Government, in consultation with the State Bank of Pakistan, for a further period of three years. Clause (d) after amendment by the Finance Act, 2007 “(d) may be reappointed by the Federal Government, in consultation with the State Bank of Pakistan, for such further term or terms as may be determined.” Article 73(2) of the Constitution, reproduced above, reflects that a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the matters enumerated in clauses (a) to (g) of Paragraph 2 of this Article. In our opinion, reappointment of Chairman, the President and other members of the Board of NBP does not fall within ambit of clauses (a) to (g) ibid. Thus, it is crystal clear that the amendment in question could not have been introduced in clause (d) of subsection (3) of section 11 of the Act of 1974 by way of Finance Act, 2007, as it lacked constitutional requirement envisaged by Article 70 of the Constitution, i.e. approval by two Houses of Parliament. Be that as it may, when confronted with the definition of the Money Bill reproduced above, Mr. Abid Zubairi, ASC for respondent No.3 candidly conceded that the subject matter of amendment of section 11(3)(d) of the Act of 1974 was not covered by Money Bill, therefore, the amendment on that score, in the light of the law laid down in Sindh High Court Bar Association's case, was unconstitutional and could not be upheld. However, his submission was that as was done in the precedent case, the instant matter be also referred back to the appropriate legislature. The learned Attorney General for Pakistan, Const. P. 58 of 2010 10 who appeared in response to the notice issued to him in terms of Order XXVIIA Rule 1 CPC submitted that in such eventuality the danger was that the other legislation carried out under the Finance Act might be affected by such a declaration, therefore, restraint ought to be exercised. As for the fear expressed by the learned Attorney General, suffice it to say that no other provision either of the Act of 1974 or of any other law amended by a Finance Act having been challenged by anyone before us, this judgment will be confined to the issue involved in the present case, namely, the unconstitutionality of the amendment of section 11(3)(d) of the Act of 1974 brought about by the Finance Act, 2007. We are afraid the submission of Mr. Zubairi that the instant matter be also referred back to the appropriate legislature, as was done in the Sindh High Court Bar Association's case, has no force. As a matter of fact, the learned counsel has not appreciated the law laid down in the said case, wherein this Court, after having held that the amendment in the Supreme Court (Number of Judges) Act, 1997, effected by the Finance Act, 2008 was unconstitutional and illegal, further held that the appointments of Judges over and above the strength as already determined under the Act of 1997 could not be sustained on that score as well, and as a result, certain Judges of the Supreme Court were made to relinquish office. In the instant case, we are confronted with almost a similar situation. Since, admittedly, the amendment made in section 11(3)(d) of the Act of 1974 by the Finance Act, 2007 was unconstitutional and illegal, the appointment of respondent No.3 made under an unconstitutional and illegal legislation would not remain unaffected as the foundation on which its superstructure rested stood removed. The argument of the learned counsel for respondent No. 3 that the Const. P. 58 of 2010 11 appointment of respondent No.3 was made by the Federal Government in exercise of the power conferred upon it by a legislative instrument passed by the concerned legislature, therefore, the same was not liable to be interfered with being a past and closed transaction is not tenable. If the appointments of Judges were affected on account of a similar defect in legislation, how the appointment of respondent No.3, who, too, was appointed under such an unconstitutional and illegal amendment could be protected. 12. As for the submission of the learned counsel for the petitioners that a large number of loans had been written off during the tenure of respondent No.3, we would not like to go into the said question in the instant case as the said matter is sub judice before this Court in another case. 13. For the foregoing reasons, the instant Constitution Petition is allowed. The reappointment of respondent No.3 Syed Ali Raza as President NBP by way of notification dated 10.04.2010 is declared to be unconstitutional and he shall cease to hold office as President NBP with immediate effect. 14. CM No. 3387 of 2010 is disposed of. CHIEF JUSTICE JUDGE JUDGE ANNOUNCED ON _14th _January, 2011 At Islamabad. CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Constitution Petition No. 59 of 2011 and CMAs Nos. 326 and 633 of 2012 and Crl. O. P. 94 of 2012 in Const. P. 59/2011. (Petition under Article 184 (3) of the Constitution) Muhammad Ashraf Tiwana etc. .… Petitioner(s) Versus Pakistan etc. … Respondent(s) For the Petitioner(s): Mr. Afnan Karim Kundi, ASC (in both cases) Assisted by Barrister Momin Ali Khan (Advocate) In Const. P. 59/2011: For respondents-1&3: Mr. Anwar Mansoor Khan, Sr. ASC Mr. Naveed Akhtar, S.O. Finance Division For respondents-2,5&6: Mr. Muhammad Akram Sheikh, Sr. ASC assisted by Barrister Sajeel Sheryar and Ch. Hasan Murtaza Mann (Advocates) For respondent-4: Mr. Salman Akram Raja, ASC assisted by Malik Ghulam Sabir Advocate Mr. Sameer Khose Advocate Ms. Aneesa Agha Advocate Malik Ahsan Mehmood Advocate Ms. Zainab Qureshi Advocate In Crl. O.P.94/12: For respondent-1: Mr. Anwar Mansoor Khan, Sr. ASC For respondent-2: Mr. Muhammad Akram Sheikh, Sr. ASC Amicus Curiae: Nemo For SECP: Mr. Muzaffar Ahmed Mirza, Dir. Litigation. Date of Hearing: 09.04.2013 ORDER Jawwad S. Khawaja, J. This petition has raised important questions of public importance relating to the enforcement of fundamental rights guaranteed in Chapter I of Part II of the Constitution. The salient aspect of this petition relates to the functioning and governance structure of the Securities and Exchange Commission of Pakistan (SECP) which is the apex regulator inter alia, of the corporate sector and the capital markets of the country. 2. Over the course of several days, we have heard and noted in detail, the submissions of learned counsel representing the parties. For reasons to be recorded we hold, declare and direct as under:- 3. That:- (a) the selection and appointment of respondent No. 4 namely, Muhammad Ali Ghulam Muhammad as Commissioner and Chairman SECP does not meet the requirements of the Securities and Exchange Commission of Pakistan Act 1997 (the SECP Act); (b) as a consequence, the notification No. SRO 21 (KE)/2011 dated 24th December 2010 appointing Mr. Muhammad Ali Ghulam Muhammad as Commissioner and Chairman SECP is set aside; (c) the Federal Government shall, without delay, make appointments to statutory positions in SECP which meet the requirements of the SECP Act including Sections 5, 6 and 7 thereof, in a credible, rigourous, transparent and open manner, through a selection and appointment process undertaken with due diligence and deliberation which manifestly and demonstrably ensures that the appointees meet the requirements of law as enunciated by precedent, including mutatis mutandis, the principles of law determined in the case of Muhammad Yasin vs. Federation of Pakistan (PLD 2012 SC 132); (d) the insertion of section 5(5) in the SECP Act through the Finance Act 2003 was violative of the Constitution and in particular Article 73 thereof; (e) Clause 3(1) of Chapter 11 of the SECP Service Rules (HR Handbook), which allow for termination simpliciter (without cause) of employees of SECP, is ultra vires the Constitution and inter alia, the SECP Act; (f) the above Clause must be replaced appropriately by provisions ensuring due process and adherence, inter alia to Articles 9, 10A, 14, 18 and 25 of the Constitution and which are consistent with the provisions of the SECP Act ensuring independent and objective decision making without fear or favour, required of an independent regulator; (g) the prayer in the petition for striking down the order dated 13.6.2011 terminating the employment of the petitioner is disallowed as not pressed, but without prejudice to his rights/remedies, if any, before a competent forum in accordance with law; (h) respondent No.1 (Federation) and respondent No.2 (SECP) shall bear the costs of the petitioner. 4. A copy of this Order shall be sent to each member of the Securities and Exchange Policy Board for action deemed appropriate by said Board in relation to the governance structure and decision making policies of SECP as per requirements of the SECP Act and for consideration on issues of policy-making highlighted by the present petition and for the effective performance of the Board’s functions under the SECP Act, particularly section 21 thereof. The Board having, inter alia, the duty to “oversee the performance of [SECP] to the extent that the purposes of the [SECP] Act are achieved”, shall look into this petition and documents placed on file and after making such further inquiries as may be deemed appropriate by it, submit within 45 days, a report as to the performance of the SECP. 5. A copy of this Order shall be sent to the Secretary, Ministry of Finance to enable the Federal Government to remain compliant with the law and legal principles enunciated by this Court, in terms of Article 189 of the Constitution. The Secretary (Finance) shall also look into this petition and documents placed on file (including those filed by the Ministry itself) to examine wrongdoings/shortcomings, if any, within the Ministry and the decision-making processes of the Federal Government under the SECP Act. A report in this respect shall be submitted in Court within 45 days. Judge Judge Islamabad, the Announced on 12.4.2013. A. Rehman

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE EJAZ AFZAL KHAN Const. Petitions No. 5 & 15 of 2004, C.M.A. No. 4251/2011 & H.R.C. No. 14144-S of 2009 Dr. Akhtar Hassan Khan Petitioner (in Const. P. 5/2004) Watan Party through its President Petitioner (in Const. P. 15/2004) Application by Amjad Ali Petitioner (in H.R.C. 14144-S/2009) Versus Federation of Pakistan and others Respondents (in Const. Petitions) For the petitioner: Mr. M. Ikram Ch., Sr. ASC [in Const. P. 5/04) For the Petitioner: Barrister Zafarullah Khan, Sr. ASC (in Const.P.15/04) For Respondent 2: Ch. Aitzaz Ahsan, Sr. ASC (in Const.P.5/04) & Assisted by Mr. Faisal Qausain For Respondent 3 Naqvi, Adv. (in Const. P.15/2004) Barrister Gohar Ali Khan, Adv. Mr. Arshad Ali Chaudhry, AOR For respondent No.3 Mr. Makhdoom Ali Khan, Sr. ASC (in Const.P.5/04) & Mr. M.S. Khattak, AOR For respondent No.5 assisted by Saad Hashmi, Adv. (in Const.P. 15/04) For Respondent No.4 Mr. S. M. Zafar, Sr. ASC (in Const.P.5/04) & Syed Ali Zafar, ASC For Respondent No.6 Raja Abdul Ghafoor, AOR (in Const. P. 15/04) assisted by Talib Hussain, Adv. For respondents 7-23: Syed Iftikhar Hussain Gillani, (in Const.P.5/04) Sr. ASC Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 2 For respondent No.1: Maulvi Anwar ul Haq, Attorney General (in Const. P. 5/04 & for Pakistan. Const. P.15/04) Date of hearing: 27.10.2011, 21, 22, 23, 24, 28, 29 November, 2011 JUDGMENT Tassaduq Hussain Jillani, J.- Privatization of Habib Bank Limited [hereinafter referred to as the “HBL”] effected through open bidding held on 29.12.2003 has been challenged through these two petitions filed under Section 184(3) of the Constitution of Islamic Republic of Pakistan. Having heard learned counsel for the parties at length, the issues which crop up for consideration broadly are as follows: - i) Whether the privatization of HBL was carried out in utter haste and on the desire of the International Monitory Fund? ii) Whether the procedure adopted to privatize HBL was tainted with mala fides and violative of the provisions of Privatization Commission Ordinance and the Rules framed there under? iii) Whether the approval of the highest bidder AKFED by the Cabinet Committee on Privatization in its meeting held on 1.1.2004, was an improper exercise of discretion and amenable to interference in accord with the well Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 3 recognized principles of judicial review of administrative action; iv) Whether injecting an amount of Rs. 17.7 billion in HBL and thereafter offering it for privatization was an act of financial mismanagement of a financial institution causing loss to the public ex-chequer and against the best practices? and v) Whether the petitioners have locus standi to challenge the privatization of HBL? 2. Facts giving rise to these petitions briefly stated are that the decision to privatize HBL though taken in 1995, but a decisive step culminating in its sale was taken in the year 2000, when the Privatization Commission Ordinance was promulgated and the Privatization Commission [hereinafter to be called the ‘P.C.’] appointed an accountancy firm of Pakistan AF Ferguson as the Financial Advisor for valuation of the HBL. It invited Expressions of Interest [hereinafter referred to as the “EOIs’] from prospective bidders in June 2002 but on account of sluggish response, the process was called off. In the following year (April 2003), the PC again called for EOIs and this time 19 parties submitted EOIs followed by submission of Statements of Qualification [hereinafter referred to as the ‘SOQs’]. The SOQs of the bidders were examined by a Pre-qualification Committee and Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 4 these bidders were also granted access to the Data Room prepared by the Bank and the PC. It was opened on September 8, 2003 and closed on 21st of November, 2003. However, only three parties entered the Data Room to conduct due diligence. 3. In November 2003, with a view to provide further incentive to the prospective bidders, the PC decided that while bidders would be required to bid for 51% of the issued and paid up capital of the Bank, they would also have the option of either purchasing the entire 51% stake at once or first to acquire a 26% or more stake with management control and then pay for the remaining stake within a period of not exceeding two years. The reference price recommended by the Financial Advisor (AF Ferguson & Co.) was Rs. 20.609 billion for the value of government stake of 51% in the Bank which was being invested. However, this reference price was revised by the PC itself and fixed at Rs.22.143 billion in its meeting held on 26th of December 2003. This price was later approved by the Cabinet Committee on Privatization [hereinafter to be referred to as the ‘CCOP’]. 4. The Pre-qualification Committee formed by the PC in its meeting dated 20th of December, 2003 permitted three potential bidders to participate in the bidding process. Agha Khan Foundation for Economic Development [hereinafter referred to as the “AKFED”] was declared the highest bidder in the bidding for Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 5 sale of 51% shares of HBL held on 29.12.2003 and it was higher than the reference price of Rs.22.143 billion. 5. The State Bank of Pakistan also provided their clearance for declaring AKFED as successful bidder vide letter dated 31st December 2003. The CCOP accepted the recommendation of the PC in its meeting held on Ist of January 2004. AKFED then paid the initial sale price and entered into an agreement on 26th of February 2004 with the PC and the State Bank of Pakistan for the purchase of 51% share of the government stake in Habib Bank Limited and for taking over the management of the HBL. 6. Petitioner Dr. Akhter Hassan Khan (in Const. P. No. 5 of 2004) is a former Federal Secretary Planning, Government of Pakistan. According to him, the process of bidding was not transparent; that prior to bidding (dated 29th of December 2003) on 23.12.2003, the Economic Coordination Committee of the Cabinet [hereinafter referred to as the “ECC”] decided to make Habib Bank attractive for privatization. The ECC approved issuance of bonds amounting to Rs.9.84 billion against income tax funds due to the HBL. The Ministry of Finance also advised transfer of Rs. 9.00 billion of HBL’s bad debts to the Corporate and Industrial Restructuring Corporation [hereinafter referred to as the “CIRC”] and in this way a benefit of Rs.18.84 billion were given to the Habib Bank after short listing of three bidders. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 6 According to him if these benefits had been announced before the Expression of Interest, the response would have been much greater and multinational banks would have expressed interest. His learned counsel Mr. Muhammad Ikram Chaudhry, ASC contended as follows:- (i) that the net assets of the HBL valued more than the highest bid at which it has been sold; (ii) that in the year 2003 it had 1425 branches in Pakistan and 48 branches in 26 countries of the world including USA, UK, France, Germany, Saudi Arabia and UAE and had a staff of 17000 employees. The good will of the bank can be gauged from the fact that at the time of privatization, it had 20% of the overall business in the banking sector with subsidiary companies; (iii) that good will of the bank, the value of movable and immovable properties as also assets were not correctly valued by the Financial Advisor and the decision was taken in posthaste by the Privatization Commission and the CCOP in violation of the Privatization Commission Ordinance, the Rules and other relevant laws; (iv) that it is on record that respondent No. 5 (Central Insurance Co. Ltd) could not manage Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 7 the earnest money of U.S Dollars 20 Million and respondent No. 6 (State of Qatar) were not found up to the mark having proposed a bid of Rs.21.09 billion in comparison to the successful bidder’s bid of Rs.22.4 billion. If this was the state of affairs, the Privatization Commission should have restarted the process of inviting parties for fresh bidding process as contemplated in the Privatization Commission Ordinance 2000, Privatization Commission Valuation of Property Rules, 2001 and Privatization Modes Procedure Rules 2001; (v) that the appointment of AF Fergusan and others etc was flawed because the procedure adopted for appointment of Financial Advisor and other consultants was violative of the Privatization Commission Ordinance, 2000 and the Rules/Regulations framed thereunder; (vi) that the method of valuation adopted by AF Fergusan and Co. as DDM was not suitable as it caused huge financial loss to public at large and Pakistan. The decision taken to sell 5% shares by public offering in the case of National Bank of Pakistan, OGDC, SSGC having multiple response Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 8 could have been replicated in HBL. The sale of its shares could have brought a huge money of Pakistanis residing abroad (which in the present case would not be) and it would have also given fresh impetus and a better and positive idea to correctly evaluate the assets of HBL including goodwill and a base for determining better Reference Price; (vii) that the decision of Privatization Commission and CCOP seems to be made in posthaste as most of the proceedings are relatable to specific dates i.e. in a short span of time bidders entering the data room, on or before 21.12.2003, final reference price approved by December 26, 2003 bidding on 31.12.2003, approval of the final bid of AKFED on 1.1.2004. It is humanly impossible to go through all the details/documents, in merely 8 days or so to arrive at a decision of approval by CCOP on December 17, 2003 and the steps taken thereafter for appointment of advisors, consultants and valuation of the assets etc of HBL were also done in a hurried manner. The enhancement of sale of shares from 26% to 51% was also not publicized in the manner Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 9 required by law and till 23rd December, 2003, Rs. 9.84 billion investment made by issuance of bonds and also transfer of bad debts of Rs.9 billion of HBL to CIRC as referred in the preceding paras were also not earlier, or thereafter advertized to the public which could have brought more money. It is evident from the record as well that IMF and World Bank pressure was also cause of hasty and under valued sale of HBL of course violated the law as well; (viii) Dilating on the financial worth of the HBL, learned counsel placed on record the following table of the yearly profit of the bank (after privatization) indicating that respondent AFKED had recovered the entire sale price of Rs.22.4 billion in a period of five years. The table is given below:- Year Profit before tax Profit after tax AKFED Share of 2004 7,163 5,679 2,896 2005 13,834 9646 4,919 2006 18840 12700 6477 2007 13127 8041 4100 2008 15855 10000 5100/23492 2009 21000 13400 6834 (ix) that the real worth of HBL is evident from the fact that the Government in October 2007 Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 10 decided to sell 7.5% shares of the HBL in the market and they fetched Rs.12.61 billion. Calculated at this price, the value of 51% share, according to him, comes to Rs.82.7 billion instead of 22.4 billion for which it was sold. He referred to the World Bank Paper No. 403 by Mr. Dick Welch Oliver Fremond titled as “The Case- by-Case Approach to Privatization Techniques and Examples” to contend that the Privatization Commission should have conducted the privatization process in accord with the recommendations of such competent academics who have expertise in the field and in the afore- referred paper, he has proposed various steps for a credible process of privatization. 7. Learned counsel for the petitioner, Barrister Zafarullah, ASC in Constitution Petition No. 15 of 2004 in addition to the contentions which in substance were similar to the ones canvassed by petitioner’s learned counsel in Constitution Petition No. 5 of 2010 argued as follows:- (i) that the process of privatization has not been transparent inasmuch as although Section 23 of the Privatization Ordinance, 2000 specifically Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 11 mandates that advertisements for Privatization will be placed in newspapers with an “international circulation”, the respondent-PC placed the advertisements in Statesman of India, Express, Nawa-i-Waqt, Dawn, Frontier Post, the News, Jang in Pakistan; Arab News of Jeddah and Khaleej Times of UAE. The advertisements in Pakistani newspapers were large and in some detail whereas advertisements in foreign newspapers were short and cryptic; (ii) that AKFED had offered the highest bid of Rs. 22.409 billion or Dollars 350 million for 51% shares and QSCEAI offered Rs. 21.99375 billion which indicates very marginal difference between the two bids and it could be termed as collusive i.e. based on previous arrangements between the parties since QSCEAI joined the sale proceedings later on. The bid was confirmed by CCOP within forty eight hours which was unholy haste; (iii) that the two bidders, neither had any experience of owning or managing an operation as expansive as the HBL, in such a situation, a prudent course would have been to postpone the Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 12 sale so as to analyze and ascertain the reasons behind this lack of interest and to take corrective measures so as to make the Bank and Pakistan’s investment climate more attractive. Instead by processing this complex transaction within 48 hours on the strength of only two bids, it has created the impression of not only distressed sale but also not completely above board; (iv) that with the control of HBL in selected geographical areas, the AKFED will be in possession of a combination of financial power and mind controlling influence like East India Company; that after privatization a new branch of HBL was immediately opened in Afghanistan i.e. the hub of terrorism which is unfortunate and the possibility cannot be ruled out that other interested actors in Afghanistan can infiltrate and misuse the organization for non-commercial objectives; (v) that this is not surprising that AKFED’s core competence is that for profit development urgency creating economic capacity and opportunity and is region specific in the Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 13 developing world. Apart from this there is reason for concern on two other counts:- (i) The new Board (Privatization Commission Board) was unable to successfully resist political pressure or stay aloof of crony capitalism. Already there are ethical problems with AKFED nominees on board, one being closely connected with security brokerage i.e. a Financial Advisor to the PC and other being Legal Advisor to several corporate borrowers of HBL. (ii) In Pakistan the AKFED is known too deeply involved in executing the educational reforms with an agenda in the wake of post 9/11 developments. (vi) that in any case the net result of restructuring by the Privatization Ministry’s Financial Advisor leaves the people of Pakistan out of pocket by Rs.14 billion when it is realized that Rs.17.7 billion of public money was injected by the State Bank of Pakistan to “fill a hole” in HBL’s balance sheet and further in December 2003, just week before the bidding, the Finance Ministry first authorized transfer of Rs. 9.00 billion of HBL bad debts to the CIRC (Corporate Industrial Restructuring Corporation) and then issued another 9.00 billion rupees worth of bonds to cover a tax liability to CBR now FBR this all Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 14 amounts to Rs.27 billion to get Rs.22.4 billion only for sale of HBL. 8. Learned counsel for the applicant, Mr. Iftikhar Gillani in CMA No. 742 of 2011 who wanted to be impleaded as party as he represents ex-employees of HBL who were laid off during the process of downsizing by various modes including the golden handshake scheme also questioned the transparency of the entire exercise of privatization and in addition to the submissions which were similar to the one’s made by learned counsel for the petitioners in the connected petitions, contended as follows:- (i) that the privatization of the Bank was undertaken on the dictation of IMF. The Memorandum of Economic and Financial Policies for January-June 2003 states in Para 23 that potential investors in HBL have been pre- qualified and have started due diligence and bidding will take place in December. The bidding did take place on 29th December, 2003 in compliance with the undertaking given to the IMF; (ii) that on 23rd December, 2003 a few days before the bidding the government decided to issue bonds worth 9.84 billion against the taxation Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 15 liability of the Bank to get it ready for privatization and in the same month the Finance Minister authorized transfer of Rs.9.00 billion of the bank’s bad debts to the CIRC (Corporation Industrial Restructuring Corporation), besides Rs. 17.7 billion were injected by the State Bank of Pakistan to “fill a hole” in the Bank’s balance sheet. Thus Rs. 36.84 billion; and the AKFED has recovered the entire sale price of Rs.22.4 billion in five years. This is a very short period in the life of a bank or any other service industry because in such institutions there is very little depreciation and the normal pay out period is about 15 years or even more. 9. Learned counsel for the PC, Mr. Aitzaz Ahsan, ASC defended the privatization of HBL and submitted as follows:- (i) that these petitions have been filed under Article 184(3) of the Constitution which are not maintainable as neither any question of public importance with reference to enforcement of fundamental rights is involved nor the judicial review is tenable in policy making domain of the executive authority; Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 16 (ii) that the policy decision to privatize the strategic assets taken by the competent authority in the Federal Government cannot be assailed as the courts in exercise of power of judicial review have refrained from interfering in this domain; (iii) that the petitions have raised multiple disputed questions of fact entailing factual enquiry which exercise cannot be undertaken in a Constitution petition; (iv) that the argument that HBL should not have been privatized once it had become a profit- earning enterprise is inherently flawed. If accepted, the logic of the argument would mean that an institution can never be privatized because if it is making losses, very few will be interested in buying it. More seriously, the fundamental argument behind privatization is that the private sector can be more reliably depended upon as a source of profits than the public sector. Thus, the decision in relation to the privatization of an asset is really a decision as to which mode of operation or control is likely to provide results in the long run. And, from that Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 17 perspective, it is submitted that the results are clear: 1) It is not in dispute that the nationalization of the banks in Pakistan caused financial havoc and the destruction of a once-proud industry. 2) HBL was indeed rescued from collapse through a massive effort by the Government of Pakistan but the effort and the cash injections required were not a sustainable commitment from the Federal Government’s perspective. 3) By comparison, HBL, since privatization, has only gone from strength to strength as can be seen from its annual reports. The privatization of HBL has thus caused no loss to the nation but has instead greatly benefited it. 4) More specifically: (a) The net assets of HBL in the year 2008 were worth Rs.66.3 billion and the net profit (before taxation) was Rs.16.9 billion (USD 200.9 million (in contrast to USD 52 million in June 2003). Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 18 (b) Similarly, the net assets of HBL in the year 2009 were worth Rs.84.3 billion and the net profit (before taxation) was Rs.21.3 billion (USD 253.8 million). (v) The privatization of HBL has been a huge financial success from the perspective of the Federal Government: (1) As of 31.12.2003, the accumulated losses of HBL were Rs.13 billion. (2) From 2004 till date, the Federal Government has made a profit of Rs.60.5 billion from HBL (inclusive of tax receipts, dividends and income from sale of shares). (vi) that the allegations leveled by the Watan Party against the Ismaili community are despicable, based on communal hatred and deserve to be censured. They are also entirely unsustainable. Other international banks operating in Afghanistan include the National Bank of Pakistan and Standard Chartered Bank, neither of which has ever been accused of patronizing terrorism by virtue of a branch in Kabul; (vii) that the process of privatization of HBL does not reflect an undue haste as it commenced in the Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 19 year 1995 and decisive decision was taken in 2003; (viii) that the privatization of the Bank was part of an overall policy decision taken by the Federal Government to dispose of State owned enterprises and the first step in this regard was the establishment of Privatization Commission in the year 1991 for supervision and oversee of the disposal of State owned enterprises; (ix) that nationalized banks were privatized because they were no longer profit bearing enterprises; that balance sheet reflected losses on account of overstaffing, over-branching, huge portfolios of non-performing loans, poor customer services, under-capitalization, poor management and undue interference in lending and recovery of loans; that the banks and financial institutions privatized during the period in question are as follows: (i) In April 1991, 26% of the shares of Muslim Commercial Bank Limited in April 1991 were sold to the National Group. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 20 (ii) In September 1991, 26% of the shares of Allied Bank of Pakistan Limited were sold to the Allied management Group. (iii) Bankers Equity Limited was privatized in 1996. (iv) Habib Credit & Exchange Bank Limited (presently Bank Alfalah Limited) was privatized in June 1997. (v) United Bank Limited was privatized in October 2002. (x) that the privatization of HBL was a careful bipartisan exercise which commenced in 1995 and completed in 2004. During this period, where steps were taken by successive Governments (detailed breakup is given in concise statement) culminating ultimately in the approval by the CCOP of the highest bid on 15th of January 2004 reflect that the process was bipartisan and in accordance with the Privatization Ordinance and the Rules framed thereunder. (xi) In support of the submissions made, learned counsel relied on: Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 21 (1) Suo Moto Case No. 10 of 2007 (PLD 2008 SC 673 & 689) (2) Gatron (Industries) Limited v. Government of Pakistan (1999 SCMR 1072). (3) All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600). (4) Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793 at 801). 10. Mr. Makhdoom Ali Khan, learned counsel for HBL also filed a detailed concise statement narrating the history of the institution; its corporate profile; how it was ranked as one of the largest Banks in Asia prior to privatization; how the nationalization of the institution in 1974 reduced its market share from 15 to 18%; why it was deemed appropriate by the Federal Government to privatize it; how the process initiated in 1995 got delayed; why various attempts to privatize it remained abortive; and the various steps taken from 2002 to approval of the final bid and signing of the share-purchase agreement in February 2004 reflect due diligence, transparency and a continued object to ensure that the ownership of this important national strategic asset does not go in the hands of buyer who does not have credible credentials. Explaining the rationale of the establishment of Corporate and Industrial Restructuring Corporation [hereinafter referred to as the “CIRC”] he argued that this corporation was established to plug the holes in various Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 22 banks/financial institutions. The portfolio of non-performing loans in HBL had become huge and unless the State had intervened, it would have collapsed and thereby would have led to the economic meltdown in the country. Under this scheme, the HBL in 2001 transferred 22 non-performing loans worth Rs.309.815 million to CIRC followed by transfer of 69 loans worth 894.587 million in 2003. These loans were transferred back and various other amounts were also adjusted by mutual consent and an amount of Rs.994.076 million was paid to HBL by CIRC on 18.9.2006 through letter bearing No. CIRC/MF-MA3665. Defending the issuance of bonds by the Federal Government against the latter’s admitted liability of refunding the tax which were collected in excess of what was due from HBL, learned counsel submitted that this liability was a matter of record and no exception could be taken to it. This was a sensible decision taken by the Federal Government to maximize the privatization value of HBL; all the bidders had been informed about the transfer of non-performing assets to CIRC and they had accordingly factored this development into their bid values. 11. Repelling the argument of petitioners that the Government had sunk Rs.17.7 billion into HBL and then sold it for Rs. 22.409 billion at a loss of Rs.4.4. billion, learned counsel contended that if the Federal Government had not contributed Rs. 17.7 billion to recapitalize the HBL, it would have been close Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 23 to bankruptcy. This financial bail out, he argued was not unique in Pakistan but the governments world over in the 1980s injected billions of dollars to save their financial and banking institutions and thereby stalled the process of further deterioration of economies. In this regard, he referred to the two recent books titled, ‘Beyond the Crash’ authored by former Prime Minister of UK Mr. Gordon Brown and the book titled, ‘On the Brink’ authored by Mr. Henry M. Paulson, Jr., former US Treasury Secretary, whereby the authors explain various steps taken by these countries to assist the banks and economy. A special law was enacted to save these financial institutions called the Troubled Assets Relief Program and a sum of US Dollars 150 billion were given to five banks alone to keep them afloat. Defending the mode of valuation of the bank by the Financial Advisor, learned counsel submitted that Discounted Dividend Model (DDM) takes into account, inter alia, the potential development of the entity/financial institution and its capacity to generate income in the future. The DDM took into account the revised business plan till the year 2009 developed by the FA for HBL. Even in valuating UBL prior to its privatization, DDM method was adopted. While conducting valuation, the FA took into account the decision of the Federal Government to issue bonds to HBL aggregating (i) Rs. 9.804 billion in respect of tax refunds; (ii) Rs. 2.247 billion in respect of public sector debts; (iii) transfer Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 24 of non-performing loans having a book value of Rs.1.283 billion to CIRC; and (iv) the impact of additional provisioning in the sum of Rs.6.2 billion. If these factors had duly been taken into consideration in valuating HBL then it cannot be dubbed as flawed or tainted. The determination of reserved price as recommended by the FA, by the PC and its Board and its approval by the CCOP, therefore, cannot be regarded as arbitrary or collusive. 12. Mr. S.M. Zafar, learned counsel for the AKFED submitted that a careful study of the various steps taken by the Federal Government and the PC to privatize HBL would indicate that the entire process was carried out strictly within the parameters of law i.e. the Privatization Commission Ordinance, 2000 and the Rules/Regulations framed thereunder. He submitted that respondent AKFED was the highest bidder in open bidding; that it had the most credible corporate profile and a history of service in the developing countries including Pakistan in the realm of social and economic sectors. It is an international development agency dedicated to promoting private initiative and building economically sound enterprises, primarily in the developing countries. He recounted services of Sir Sultan Mohamed Shah, Agha Khan III towards the establishment of Pakistan and how the family after the creation of this country worked for the wellbeing of the nation, his services in the area of Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 25 health and education and how His Highness Agha Khan has upheld the laudable traditions of his grandfather. He in particular made reference to the creation of the pioneering institutions such as Agha Khan University in Karachi and the Agha Khan Rural Support Program (AKRSP). The latter program, he contended, has transformed rural lives in the poor and remote areas of Northern Pakistan. Under the aegis of Agha Khan Development Network, about 185 schools and centers of learning impart education to almost 40,000 students in the country and around 200 health units and hospitals operate across Pakistan, serving its population in the rural as well as urban areas. He added that after the nuclear explosion in 1998 and the tragedy of 9/11, Pakistan was confronted with serious political economic, and law and order crisis which had a damaging effect on foreign investment. The global investors were reluctant to invest in Pakistan. In the wake of such a crisis, it was a conscious decision on the part of AKFED to participate in the privatization process so as to send a positive signal to the rest of the world that such a premier institution was ready to invest and was willing to take the challenge of contributing its bit towards country’s development. It was on account of purchase of the HBL by AKFED that former’s financial ranking has registered a steep rise and now it has become a thriving profit making venture and is among the best run banking institutions world wide. No wonder Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 26 the HBL received the Best Bank Award by Global Finance (2008), Best Bank Emerging Markets by Global Finance (2008), Best Bank of the Year by the Banker (2009), Best Bank-Pakistan by Global Finance (2009), Global Finance Award for the World’s Best Emerging Market Bank in Asia (2010), Global Finance Award for Best Bank in Pakistan (2010), Global Finance Award for World’s Best Trade Finance Bank 2011, among other such awards. 13. He also alluded to the Financial Statements of the year ending 2010 of HBL which indicate that it is being run in a professional manner; that its profits have tripled since privatization; that it has paid Rs.46.760 billion in taxes since privatization (this being higher than the total for 20 years of tax payments before privatization) and has paid Rs.6.332 billion in dividends to the government since privatization. Oblivious of the afore-referred facts and the remarkable performance of HBL, the petitioners, he lastly contended, have attempted to invoke Article 184(3) of the Constitution to destroy a valid legal transaction which has not only resurrected a crumbling banking institution but also has added strength to country’s economy. 14. We have given anxious consideration to the submissions made by learned counsel for the parties, have gone through the precedent case law cited at the bar as also the concise statements submitted by the parties and proceed to dilate on the broad questions framed in terms as follows: Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 27 Question No. 1: Whether the privatization of HBL was carried out in utter haste and on the desire of the International Monitory Fund? 15. This issue of necessity would entail a reference, though briefly to the history of HBL, its nationalization and the genesis of its privatization. The HBL was established in 1941 in Bombay and after the creation of Pakistan, it shifted its head office to Karachi and in a short span of time became one of the largest and successful banking institutions in the country. However, in 1974, it along with several other Banks was nationalized through promulgation of the Banks (Nationalization) Act, 1974. After nationalization, there was a financial crunch in the banking sector on account of various factors which is manifest from the fact that the portfolio of non-performing loans in this sector grew from 25 billion to 198 billion in the period from 1989 to 1998. After the military takeover in 1977, the Nationalization Policy was reviewed which is reflected in the Transfer of Managed Establishments Order, 1978. In 1991, the Federal Government brought certain amendments in the Banks (Nationalization) Act, 1974 with a view to sell its share in the capital of nationalized banks. In 1995, for the first time the Federal Government seriously examined the issue of privatization of the Bank, a summary was initiated, report was requisitioned from the Bank which among other things included taking ways Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 28 and means to improve the performance of the Bank so as to make it a profit earning enterprise rather than a loss making entity for sale. The process was however delayed and it was in December 1998 that the Privatization Commission invited the Expressions of Interest in relation to sale of 26% shares of the Bank and eight parties submitted the EOIs. The PC called for Statement of Qualification [hereinafter referred to as the “SOQ”] from potential bidders. However, this process had to be abandoned in view of the military takeover in October 1999. In the year 2000, the Privatization Commission Ordinance was promulgated to provide a legal regime to the privatization process and the PC appointed an accountancy firm of Pakistan AF Ferguson as the Financial Advisor for this exercise. The PC once again invited EOIs from prospective bidders in June 2002 and received 10 EOIs which was followed by soliciting SOQs from the bidders by 15th of August, 2002 but only four parties submitted their SOQs. Not satisfied with the response, the PC once again called for EOIs in April 2003 and this time 19 parties submitted EOIs followed by submission of SOQs. The SOQs of the bidders were examined by a Pre-qualification Committee and these bidders were also granted access to the Data Room prepared by the Bank and the PC. The Data Room was a physical space, had a sizeable location as well in which all the relevant information regarding the Bank and its assets were made available so that Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 29 the bidders could carry out due diligence at their end. It was open on September 8, 2003 and closed on 21st of November, 2003. However, only three parties entered the Data Room to conduct due diligence. 16. In November 2003, the PC decided that while bidders would be required to bid for 51% of the issued and paid up capital of the Bank, they would also have the option of either purchasing the entire 51% stake at once or first to acquire a 26% or more stake with management control and then pay for the remaining stake within a period of not exceeding two years. The Pre-qualification Committee formed by the PC in its meeting dated 20th of December, 2003 permitted three potential bidders to participate in the bidding process and those are:- (i) Agha Khan Foundation for Economic Development [hereinafter referred to as the “AKFED”]; (ii) Consortium of Central Insurance Company Limited [hereinafter referred to as the “CCIC”]; and (iii) Government of Qatar through the Supreme Council for Economic Affairs and Investment [hereinafter referred to as the “QSCEAI”]. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 30 17. The reference price recommended by the Financial Advisor (AF Ferguson & Co.) was Rs. 20.609 billion for the value of government stake of 51% in the Bank which was being invested. However, this reference price was revised by the PC itself and fixed at Rs.22.143 billion in its meeting held on 26th of December 2003. This price was later approved by the CCOP. 18. Bidding for the sale of 51% shares was held on 29.12.2003 but only two parties i.e. AKFED and QSCEAI submitted the bidding documents and the earnest money. The highest bid was received from AKFED and was accepted by the PC in its meeting on 30th of December, 2003 as it found it to be higher than the reference price of Rs. 22.143 billion. The State Bank of Pakistan also provided their clearance for declaring AKFED as successful bidder vide letter dated 31st December 2003. The CCOP accepted the recommendation of the PC in its meeting held on Ist of January 2004. AKFED then paid the initial sale price and entered into an agreement on 26th of February 2004 with the PC and the State Bank of Pakistan for the purchase of 51% share of the government stake in Habib Bank Limited and for taking over the management of the HBL. 19. It is not disputed that the privatization of HBL was part of the overall policy of privatization whereby several financial institutions were disinvested to shore up their financial Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 31 viability. Some of these institutions whose privatization preceded that of HBL are as under: - i) In April 1991, 26% of the shares of Muslim Commercial Bank Limited were sold to the National Group. ii) In September 1991, 26% of the shares of Allied Bank of Pakistan Limited were sold to the Allied Management Group. iii) Bankers Equity Limited was privatized in 1996. iv) Habib Credit & Exchange Bank Limited (presently Bank Alfalah Limited) was privatized in June 1997. v) United Bank Limited was privatized in October 2002. 20. The afore-referred narration of the process of privatization in general and of HBL in particular would show that the impugned privatization was neither done in utter haste nor it was institution specific. 21. The decline in financial worth of the bank can be gathered from a comparison of its 50% share of the local commercial banking market prior to its nationalization with the volume of its non-performing loans after nationalization which grew from Rs. 25.00 billion to Rs. 198.00 billion in the period between 1989 to 1998. It appears that the PC and CCOP were conscious of the checkered history of HBL privatization, the dire state of its finances and how the earlier attempts made since Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 32 1995 could not fructify. This baggage must have made them wiser to take every step with care and without unnecessary delay as also to search for a credible buyer. 22. The painful contrast between HBL’s glorious past, its corporate profile and financial strength prior to nationalization with its steep fall in the post nationalization period must have been one of the compelling factors which obliged successive governments in the country to review Nationalization Policy and to privatize public sector institutions particularly the banks. According to learned counsel for PC, Mr. Aitzaz Ahsan and which has not been contradicted by anyone, the accumulative loses of HBL as on 31.12.2003 were Rs. 13.00 billion. It is a matter of common observation that the nationalized banks were privatized because they were no longer profit bearing enterprises. Their poor performance and dismal balance sheets was attributable to a host of factors. Some of those factors were overstaffing, over- branching, political interference for grant and recovery of loans leading to huge portfolios of non-performing loans, under capitalization, poor customer services and lack of professional management. These growing losses and their obvious adverse effect on national economy were some of the compelling reasons which weighed with all the governments preceding the one which finally privatized it to remain committed to this objective. The allegation that the impugned exercise was undertaken merely at Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 33 the behest of the International Monetary Fund (IMF) or done in undue haste underpins a total lack of appreciation of the banking crisis which led to privatization. Such wild allegations shorn of any concrete proof and entailing factual inquiry cannot be valid basis for interference in constitutional jurisdiction of this Court. A mere advice or suggestion may not amount to a pressure of the kind to have deprived the competent authority under the law to have taken independent decision. Even otherwise, we are living in a globalized world of interdependence; a world where countries and international financial institutions assist and aid the developing countries in their march towards economic progress. International Monitory Fund is one of those institutions which has played its role in several countries. Though its policies some times may be open to criticism but that is for the concerned economists in the government or academics to examine and opine but once the Competent Authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority. In Asia Foundation & Construction Ltd Vs. Trafalgar House Construction (I) Ltd ((1997) 1 Supreme Court Cases 738), the Indian Supreme Court annulled the judgment of the High Court whereby the said Court had quashed the award of contract to a Company on the ground that the contract was awarded at the behest of Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 34 Asian Development Bank who had partly funded the project. The Court observed as follows: - “It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like World Bank or the Asian Development Banks grant loan or subsidy, as the case may be. When such financial institutions grant such huge loan they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to. In the aforesaid premises on getting the valuation bids of the appellant and respondent no. 1 together with the consultant's opinion after the socalled corrections made the conclusion of the bank to the effect "the lowest evaluated substantially responsive bidder is consequently AFCONS" cannot be said to be either arbitrary or capricious or illegal requiring court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouratism in the grant of contract in favour of the appellant. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 35 23. In Tata Cellular v. Union of India (36(1994) 6 SCC 651), the Court while dilating on the parameters of judicial review in matters of awarding of contract by the Government candidly laid down as follows:- “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. whether a decision-making authority exceeded its powers? 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy of particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:- (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time.” 24. In R v. Deptt. Of Constitutional Affairs [2006 All ER (D) 201] even some deviation from the best practice was found Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 36 to be no justification for judicial review. The Court held that, “It is not every wandering from the precise paths of best practice that lends fuel to a claim for judicial review.” In Reliance Airport Developers (P) Ltd v. Airports Authority of Indian and others [(2006) 10 SCC], the ratio of the afore-referred judgment was reiterated and it was observed that the power of judicial review would be available ‘only if public law element is apparent which would arise only in a case of “bribery, corruption, implementation of unlawful policy and the like.” In the cases of commercial contracts, the Courts’ lack of expertise was taken note of in Paras 50 and 51, in terms as follows:- ”It does not have the material or expertise in this context to ‘second guess’ the judgment of the panel. Furthermore, this process is even more clearly in the realm of commercial judgment for the defendant, which judgment cannot properly be the subject of public law challenge on the grounds advanced in the evidence before me.” To argue that better performance and rising profits of HBL after privatization be considered as proof that privatization was flawed or was done in utter haste under some external pressure amounts to a twisted logic. These positive results have on the contrary vindicated the impugned process of sale and made it a credible exercise. Question Nos. ii & iii: ii) Whether the procedure adopted to privatize HBL was tainted with mala fides and violative of the Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 37 provisions of Privatization Commission Ordinance and the Rules framed there under? iii) Whether the approval of the highest bidder AKFED by the Cabinet Committee on Privatization in its meeting held on 1.1.2004, was an improper exercise of discretion and amenable to interference in accord with the well recognized principles of judicial review of administrative action; (Question Nos. ii & iii have close nexus and are dilated upon together) 25. Question No. 2 has two dimensions i.e. (i) mala fides or collusion and (ii) violation of mandatory provisions of law and the rules framed thereunder. The allegations of mala fides and of the impugned exercise being collusive are questions of fact requiring factual inquiry. It is by now a well established principle of judicial review of administrative action that in absence of some un-rebuttable material on record qua mala fides, the Court would not annul the order of Executive Authority which otherwise does not reflect any illegality or jurisdictional defect. In Federation of Pakistan Vs. Saeed Ahmed Khan (PLD 1974 SC 151), this Court was called upon to dilate upon the mala fides as a ground for exercise of power of judicial review of administrative action and the Court observed as follows: - “Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 38 establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of male fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides mutt be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of male fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging male fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. "Male fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself.” 26. There is no allegation that any member of the CCOP or PC or the Financial Advisor had made some personal gain, or that any one of them wanted to help the highest bidder for mala fide reasons. The general allegations of being influenced by IMF or ‘crony capitalism’ are hardly sufficient to establish that the impugned privatization was tainted with mala fides warranting interference in judicial review. 27. Coming to the second tier of the question i.e. the alleged violation of law, it would be pertinent to refer to some provisions of the Privatization Commission Ordinance, 2000, Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 39 which may have bearing in the instant case. Those provisions are as follows: - Rules 3,4,5 & 6 of the Privatization (Modes and Procedures) Rules, 2001. 3. Manner and procedure for privatization.--(I) The manner for carrying out the privatization programme under section 22 of the Ordinance and the procedure for modes of privatisation under section 25 thereof shall, if, and to the extent, the Commission deems necessary, include - (a) legal, technical and financial due diligence of the property being privatised in order to, inter alia. (i) identify any obstacles to privatisation and suggest, where possible, ways to remove them; (ii) allow a fair and independent valuation of the property being privatised ; and (iii) prepare a suitable information memorandum together with other marketing instruments; (b) pre-qualification of prospective bidders to evaluate, where a privatization requires it, .that the prospective bidders are technically and financially in a position to own, manage and operate the assets being privatised; (c) preparation of bid documents which. shall include instructions to bidders and proforma sale instruments and the bid documents shall include appropriate disclaimers to protect the Federal Government, Commission and their respective officers, employees, consultants and advisers in respect of the information provided to the bidders; (d) holding of pre-bid conferences to discuss concerns of prospective bidders; Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 40 (e) creation of an enabling environment; and (f) carrying out of a bidding process. 2. Subject to the terms of appointment of an adviser, where an adviser has been appointed for the privatisation, it shall carry out or advise on any or all of the steps specified in clauses (a) to (f) of sub-rule (1). 4. Approval or rejection of highest ranked bidder.-- (1) Save in the case of negotiated sale process, the Commission shall carry out a bidding process which is suited to the needs of the privatization with the objective of selecting the highest ranked bidder amongst the bidders that he.-- (a) has satisfied the pre-qualification criteria determined by the Commission, if required; and (b) complied with instructions for bidding provided by the Commission to bidders. (2) Upon selection of a highest ranked bidder as specified in sub-rule (1) the Board shall refer the matter for approval, or rejection of such highest ranked bidder with full justification, to the Cabinet. 5. Additional modes of privatization. --- In terms of clause (f) of section 25 of the Ordinance, there shall be the following additional modes of privatisation, namely:- (a) public offering of shares other than through a stock. exchange; and (b) sale of shares, assets, business and property to a person that has a pre-emptive right to acquire the same (or any part thereof) subject to fulfillment of conditions attached to such rights. 6. Negotiated sale.---(1) The Commission may adopt he negotiated sale process for any of the modes of Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 41 privatization specified in section 25 of the Ordinance and rule 5 of these rules, if--- (a) in the opinion of the Board, sufficient interest for a privatization has not been received. (b) the Board has recommended to the Cabinet and the Cabinet has authorized the Commission to initiate the negotiated sale process; (c) the Board has approved the party or parties interested in purchasing the property being privatize; (d) a team for carrying out the negotiated sale process has been constituted by the Board which shall include a representative from the Ministry under whose jurisdiction the entity being privatized falls; and (e) the Board has delegated full power to the negotiation team for carrying out the negotiated sale process and defined the parameters for negotiation. (2) On conclusion of the negotiated sale process, the terms and conditions of the transfer of the property to be privatized to the interested party shall be submitted to the Cabinet for consideration and approval.” Regulation Nos. 3 of the Privatization Commission (Hiring of Valuers) Regulations, 2001 “3. Manner and procedure for hiring of valuers by the Commission(1) If, and to the extent, the Commission deems necessary to allow a fair and independent valuation of the property being privatised in terms of sub-clause (ii) of clause (a) of sub-rule (1) of rule 3 of the Privatisation (Modes and Procedures) Rules, 2001, by hiring a valuer, the terms of reference of valuation shall include inter-alia, a brief history of the entity, the financial position, a Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 42 description of the product line/ service of entity, if any, a description of land, buildings, plant & machinery, the current assets and liabilities, and the current state of the industry. (2) The Commission shall maintain a panel of valuers with the approval of the Board of the Commission. (3) Terms of reference formulated vide sub regulation (1) shall be sent to at least three valuers on the panel of valuers. (4) The valuer quoting lowest rate shall be selected for carrying-out valuation as per terms of reference; Provided that the valuer other than the valuer giving lowest quotation may be selected after recording reasons in writing. Rules 4, 5 & 6 of the Privatization Commission (Valuation of Property) Rules, 2001. “4. Manner and procedure for valuation of property by the valuer hired by the Commission. (1) The valuer appointed in terms of Privatization Commission (Hiring of Valuers) Regulations, 2001, shall associate a legal firm, a firm of chartered accountants, chartered surveyors, surveyor and other experts as may be applicable and include their reports with the valuation report. (2) The valuer shall submit a valuation report containing an executive summary, terms of reference provided by the Commission, summary of valuation, the different bases used for carrying out valuation alongwith a recommendation on the recommended basis of valuation and a value of the entity for the purpose of determining a reference price. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 43 5. Manner and procedure for valuation of property by the adviser hired by the Commission.--- The adviser hired by the Privatization Commission as per procedure shall carry out the valuation in terms of Financial Advisory Services Agreement. 6. Processing of valuation report.- (1) Upon receipt of the valuation report from the valuer or the adviser, a valuation note shall be prepared in the Commission and submitted to the Board of the Commission for recommending a reference price. (2) The reference price recommended by the Board of the Commission shall be submitted to the Cabinet for approval.” 28. We have already noted that the decision to privatize HBL was taken as far back as 1995. However, on account of political instability, discouraging market forces and lack of positive response from the potential investors / financial institutions, the privatization remained abortive. The first step taken in the latest round culminating in the impugned privatization was in the year 2000. In the concise statement filed by the Privatization Commission which has not been controverted by the petitioners’ learned counsel, it has explained in graphic detail various steps taken from the enactment of law and commencement of the privatization process to the culmination of approval of the highest bid to bring home the point that there was substantial compliance with law, the Rules and Regulations Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 44 framed thereunder. After putting in place the legal regime, some of the important steps were appointment of AF Ferguson as Financial Advisor because international response for the search remained sluggish (Regulation No. 3 of the Privatization Commission (Hiring of Valuers) Regulations, 2001), calling for Expressions of Interest through advertisement (2.6.2002), requisition of Statements of Qualification (SOQs) from bidders, constitution of a Pre-qualification Committee (in terms of the Privatization Commission (Modes & Procedures) Rules, 2001), the screening of three parties by the said Committee, the recommendations of three parties by the Pre-qualification Committee for undertaking due diligence. These parties were invited to review the documentation relating to HBL, however only AKFED submitted a Confidentiality Agreement in December 2002. If the PC intended to help AKFED, it could have had declared it the highest bidder there and then, instead in April 2003, the PC again called for Expressions of Interest (EOIs) through advertisements in newspapers, from parties interested in purchasing a minimum of 26% share of HBL along with transfer of management. Only 19 parties submitted Expressions of Interest. They were requested to tender SOQs; only seven of them submitted those. The Pre-qualification Committee recommended AKFED and two others (CCIC and SCEAI). The Board of PC approved the report of the Pre-qualification Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 45 Committee on 26.12.2003. Data Room of HBL remained opened from September 18, 2003 to November 25, 2003. Foregoing was the process of pre-qualification. The PC simultaneously was finalizing the mode of privatization. Various steps taken were as follows (Rules 3,4,5 of the Privatization Commission (Modes & Procedures) Rules, 2001):- “a. In its meeting dated 17 November 2003, CCOP decided that potential investors would be required to bid for 51% of the shareholding of HBL, but would be given the option to acquire 51% equity in one go or to acquire 26% equity initially along with transfer of management control. b. In the case of the second option, it was determined that shares representing the remaining 25% equity of BL would be transferred in the name of the successful investor only upon the full and punctual payment for the same in two installments over a maximum period of two years. c. It was also determined that payment for the balance stake would include, in the case of payment in US $, an interest rate of LIBOR plus 250 basis points while in the case of Pak Rs., mark up of PIB plus 250 basis points. d. Finally, it was decided that in case of default in payment of the balance stake, the transaction would be unwound and the shares earlier transferred would be bought back at a minimum 25% discount and that the US$ 10 Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 46 million Stand By Letter of Credit provided by the successful bidder would be encashed. e. Thus, the financial consequences of the two options were made equal while protection was also provided in the form of heavy penalties against a defaulting bidder.” 29. Ultimately, only two parties (namely AKFED and SCEAI) participated in the bidding on 29 December 2003 and the bid of AKFED as noted earlier was not only the highest but also was higher than the “reference price” approved by the CCOP on 26 December 2003. (Rule 6(2) of the Privatization Commission (Valuation of Property) Rules, 2001) 30. A careful perusal of the steps taken in the process for privatization of HBL referred to in the preceding paragraph would indicate that there was substantial compliance with the relevant provisions of the Privatization Commission Ordinance, 2000 and the Rules / Regulations framed thereunder. A minor deviation of Rules or Regulation, if any, in absence of any credible allegation of mala fides or corruption would not furnish a valid ground for interference in judicial review. 31. The transfer of non-performing loans having a book value of Rs.1.283 billion to CIRC (Corporate Industrial Restructuring Corporation) and issuance of recovery bonds to the tune of Rs.9.804 billion in respect of tax refunds as also injection of Rs.17.00 billion in HBL prior to privatization were cited as Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 47 some of the instances of mala fide acts designed to extend undue favour to the prospective highest bidder at the cost of public exchequer. There is force in the submissions of Mr. Makhdoom Ali Khan, learned Sr. ASC that the transfer of non-performing loans to CIRC (Corporate Industrial Restructuring Corporation) was carried out in an entirely transparent manner and all the bidders were informed in advance. He explained that a total of 22 non- performing loans worth Rs. 309.815 million were first transferred to CIRC by HBL in 2001 followed by a further 69 loans worth Rs.894.587 million in 2003. Some loans were then transferred back and various other amounts were also adjusted by mutual consent after which an amount of Rs.994.076 million was paid to HBL by CIRC on 18.9.2006 vide CIRC’s letter bearing Ref. No. CIRC/MF-MA3665. More generally, the transfer of bad loans to CIRC was a well thought out and fully planned strategy which had the effect of enhancing the value of HBL. Contact was established between HBL and officials from the Ministry of Finance on a regular basis in order to execute the transfer efficiently. The transfer to CIRC was accomplished after the completion of CIRC due diligence and resolution of HBL’s non- performing loans with the SBP Resolution Committee. 32. Similarly the issuance of bonds by the Federal Government against the admitted tax liability cannot be taken exception to because the taxation authorities had collected taxes Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 48 from HBL in excess of the actual liability. Both the transfer of non-performing loans to CIRC as also issuance of bonds were duly considered by the valuer in assessing the value of HBL. So far as the valuation of HBL is concerned, we could not find any material on record which could persuade us to hold that either the valuer was appointed collusively or the valuation carried out by it was against the Rules or best practices being followed. In the concise statement filed by the PC, the valuation and determination of fair price was defended by submitting that: “The reserve price of HBL was determined by the best experts available on the basis of the most well- recognized and internationally accepted accountancy methodologies. More importantly, that reserve price was based upon an 18-month long study of massive quantities of data, which data was also made available to the bidders through a data room.-------- ----The reserve price of HBL was fixed on the basis of a methodology known as “discounted Dividend Method” (or “DDM”) which is different from the “Discounted Cash Flow” (or “DCF”) methodology generally used to determine reserve prices in the case of privatizations of industrial units. More specifically: a. DDM is used in the case of banks (rather than DCF) because one of the major components of bank value is the ability to obtain deposits which is an asset value not captured through cash flow. Hence the future flow of dividends is estimated (as opposed to future cash streams) in order to determine potential investor value. b. Methodologies such as DDM and DCF are intended to produce valuations inclusive of the value of all assets, albeit on the assumption that those assets will continue to be used for the purposes for which they were earlier being used. The valuation of HBL was thus inclusive of the value of HBL’s other assets, such as licenses to operate branches in various countries as well as numerous pieces of real property.” i. This valuation concluded that the value of HBL’s assets if broken up and sold Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 49 separately (the net asset value) was Rs.22 billion as of 30 June 2003 and Rs. 23.7 billion as of 31 December 2003. ii. However, the valuation of HBL by the winning bidder (for 100% of the shares) was approximately Rs. 43.94 billion, which is almost twice that of the net asset value of 30 June 2003. iii. This massive differential makes it clear that the value at which HBL was privatized was inclusive of goodwill as well as all other intangible factors, such as the fact that the winning bidder would be acquiring control over HBL.” 33. No counter affidavit was filed by either of the petitioners to controvert the afore-referred stance of the PC. Moreover, it has not been disputed that the valuation was carried out in terms of the Financial Advisory Services Agreements; that the mode of valuation adopted by the valuer was permissible under the Privatization Commission (Valuation of Property) Rules 2001 and that the valuation report was processed by the Board of the PC in accord with the afore-referred Rules. For afore- referred reasons, the approval of the highest bid of AKFED by the CCOP being higher than the reference price was neither improper nor violative of the law governing the process of privatization to call for judicial review. 34. The Courts while dealing with cases relatable to financial management by the government or awarding of contract by it must appreciate that these are either policy issues or commercial transactions requiring knowledge in the specialized Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 50 fields. The Courts lack the expertise to express any opinion on the soundness or otherwise of such acts / transactions. The question whether a contractual transaction or decision taken in the exercise of executive authority by the Government can be subjected to judicial review has engaged the attention of constitutional courts in several countries and the judicial consensus generally has been that the Courts should ordinarily refrain from interfering in policy making domain of executive authority or in the award of contracts unless those acts smack of arbitrariness, favoritism and a total disregard of the mandate of law. In Watan Party Vs. Federation of Pakistan (PLD 2006 SC 697), the Court annulled the privatization of Karachi Steel Mill not merely because of violation of a single rule or regulation but there were several factors that weighed with the Court which included the abdication of the authority by the Cabinet Committee on Privatization to the Privatization Commission to issue letter of acceptance to whoever may be the highest bidder, the net assets of the Steel Mill which was privatized had not been included in the valuation report, the decision that the Government of Pakistan shall bear a huge financial liability of the VSS Scheme for the employees of the Steels Mill which was not part of the initial public offering to the bidders through the advertisement, the credentials of the highest bidder seriously impinged on its integrity as also the fact that the major share Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 51 holding in the highest bid was that of a company which had off shore offices. At page 763 of the Watan Party supra case, this Court commented in detail on the corporate credentials of a member of the consortium that had purchased it which reflected that the Privatization Commission had not kept in view the mandatory requirements of the process of pre-qualifying a bidder. There were 9 instances of financial irregularities in the corporate profile of the said member of the consortium, which were specifically noted in the para 87 of the said judgment. 35. As against this, in the instant case, the highest bidder, the AKFED is part of the Agha Khan Development Network, which has placed its company profile before this Court. Mr. S. M. Zafar, ASC submitted a detailed concise statement on its behalf wherein it has been averred that: - “AKDN is a group of private, International, non denominational agencies working to improve living conditions and economic opportunities for people in various regions of the developing world. The Network's organizations have individual mandates that range from the fields of health and education to architecture, rural development and promotion of private sector enterprise. Together they collaborate in working towards a common goal to build institutions and programs that can respond to challenges of social, economic and cultural change on an ongoing basis. ……………………………………………………………………………………………… ……………………………………………………………………………………………… In the context of Pakistan in particular, it is submitted that the AKDN, including by virtue of its economic development arm AKFED, has a very special and dear relationship with Pakistan and its people. Under the vision and leadership of His Highness the Aga Khan, the AKDN has a long-standing history in the nation's development. His Highness' Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 52 grandfather, Sir Sultan Mohamed Shah, Aga Khan III, is regarded as an important contributor to the founding of Pakistan. After the partition in 1947, Sir Sultan Mohamed Shah, Aga Khan III, worked for the wellbeing of the nation; his contributions in the area of health and education are widely known to all in the country. His Highness the Aga Khan has upheld the traditions of his grandfather Sir Sultan Mohamed Shah, Aga Khan III, which have led to the creation of pioneering institutions such as the Aga Khan University (AKU), which is today recognized as a premier provider of health and medical services in the country and which has also gained international recognition, and the Aga Khan Rural Support Program (AKRSP), which has essentially transformed rural lives in the poor and remote areas of Northern Pakistan. Under the aegis of the Aga Khan Development Network around 185 schools and centers of learning impart education to almost 40,000 students in the country, and around 200 health units and hospitals operate across Pakistan, serving its populations in the rural as well as urban areas. It may be mentioned to the Honorable Court that when the Government of Pakistan decided to sell its controlling interest in HBL in the last round of efforts which commenced in 2000, Pakistan was going through political, economic and law and order crisis: the era of post 9/11 may be described as somewhat challenging for this country. The Honorable Court may agree that foreign investment in any country requires confidence in the country's economic and political stability, its consistency in policies, availability of resources, labor and other business related factors, a general condition of law and order, and on a sound legal system. Owing to negative impact of the adverse publicity and harsh on-the-ground realities at that time, the conditions for investment in Pakistan were not encouraging. Global investors as such were reluctant and this was further exacerbated by their awareness that the Government of Pakistan had been trying to move forward with its privatization plans, including the privatization of HBL, for quite some time but all efforts to that effect, were proving unfruitful. Under these circumstances, AKFED took the view that its participation in the privatization process would send a very positive signal to the rest of the world by showing that a premier institution such as AKFED was ready to invest and was willing to take on the challenge of contributing towards the country's development in times of difficulty. ……………………………………………………………………………………………… ………………………………………………………………………………………………. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 53 As the details submitted in the paragraph below will show, following its participation in an open and transparent bidding process and being declared as successful and highest bidder, and having acquired controlling shares in HBL, AKFED has achieved the above-described objectives and aims. HBL is now a thriving profit-making venture and is among the best-run banking institutions worldwide. This is recognized by the fact that HBL received the Best Bank Award by Global Finance (2008), Best Bank Emerging Markets by Global Finance (2008), Best Bank of the Year by the Banker (2009), Best Bank - Pakistan by Global Finance (2009), Global Finance Award for the World's Best Emerging Market Bank in Asia (2010), Global Finance Award for Best Bank in Pakistan (2010), Global Finance Award for World's Best Trade Finance Bank 2011, among other such awards" (Emphasis is supplied). 36. The AKFED has an impressive profile both in the corporate and social sectors. The HBL’s performance after privatization recapitulated in the preceding paragraphs (which has not been controverted through a counter affidavit) have vindicated the process of privatization under challenge. The post privatization performance may be a hindsight reasoning as we have been called upon to decide it after a period of almost 6/7 years of the sale of HBL but the Court can take note of that in the peculiar facts of this case. This Court has generally exercised judicial restraint in interfering with the policy making domain of the executive authority while exercising the power of judicial review of administrative actions. In the case of Watan Party supra (Pakistan Steel Mills Case), the well established principles governing the power of judicial review were reiterated by holding that: Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 54 “in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter.” The Court quoted with approval the law laid down in Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) & BALCO Employees Union (Regd.) v. Union of India (AIR 2002 SC 350). In the latter judgment, the Indian Supreme Court held as follows: - "Process of disinvestments is a policy decision involving) complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority." 37. Similarly in Tata Cellular Vs. Union of India ((1994) 6 Supreme Court Cases 651), the Court laid down that the power of judicial review would be available qua the contractual powers of the government bodies to prevent arbitrariness or favourtism. However, the Government being guardian of finances is expected to protect the financial interest of the State. The Court nevertheless enunciated the principle of judicial restraint by holding that it does not sit as a court of appeal but merely to review the manner in which the decision was taken. This is so Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 55 because the Court does not have the expertise in the domain of administrative decision making. 38. In Sterling Computers Ltd Vs. M & N Publications Ltd ((1993) 1 Supreme Court Cases 445), the Court outlined parameters of judicial review in terms as follows:- "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process’….. By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable rational, not arbitrary and violative of Article 14 of the Constitution.” 39. In Air India Ltd Vs. Cochin International airport Ltd ((2000) 2 Supreme Court Cases 617), the Court held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation. Nevertheless it was observed, the State, its corporations, instrumentalities and agencies have the public duty to be fair in their transactions. In the event of some irregularity in the decision making process, it was further observed, the Court must exercise its discretionary powers of judicial review with circumspection and only in furtherance of public interest and not merely making out of a legal point. It should always keep the larger public interest in mind to interfere or not to interfere. Only Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 56 when the public interest overwhelms any other consideration, the Court should interfere. In Master Marine Services (P) Ltd Vs. Metcalfe & Hodgkinson (P) Ltd ((2005) 6 Supreme Court Cases 138), the Indian Supreme Court set aside the judgment of the High Court whereby the contract awarded to a party was quashed. Question No. IV: Whether injecting an amount of Rs. 17.7 billion in HBL and thereafter offering it for privatization was an act of financial mismanagement of a financial institution causing loss to the public ex-chequer and against the best practices? 40. It has not been disputed before us by the respondents that the government had contributed a sum of Rs.17.7 billion to recapitalize HBL but the reason being pressed into service is that if it had not been done, the institution would have been close to bankruptcy. In examining this issue, we have kept in view the financial crisis of 1980s, the banking bailouts in other countries and the condition of HBL at the time when this capital was injected as also the best practices being followed in similar situations. There is force in the submissions of Mr. Makhdoom Ali Khan, learned Sr. ASC that injecting money into financial institutions and particularly banks has been a worldwide phenomenon during the period of financial crunch which commenced in the last decade and still continues to an extent. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 57 41. George W. Bush has been the President of United States in country’s worst economic crisis after the great depression of 1930’s. There were many factors which led to this economic meltdown but one of the major factors was the huge advances made by the banks to the housing sector. In his autobiography “Decision Points”, he devotes a full chapter on “Financial Crisis” and describes how he faced that challenge and how some of those banks were saved from bankruptcy through various measures including injecting huge capital. One of those banks was Bear Stearns which then was one of the largest American banks and if it had failed, it could have a domino effect. To prevent that situation, the Government not only injected billion of dollars into it but also negotiated its purchase by J.P. Morgan Chase. He says that: “Hank shared my strong inclination against government intervention. But he explained that a collapse of Bear Stearns would have widespread repercussions for a world financial system that had been under great stress since the housing crisis began in 2007. Bear had financial relationships with hundreds of other banks, investors, and governments. I the firm suddenly failed, confidence in other financial institutions would diminish. Bear could be the first domino in a series of failing firms. While I was concerned about creating moral hazard, I worried more about a financial collapse. “Is there a buyer for Bear?” I asked Hank. Early the next morning, we received our answer. Executives at JPMorgan Chase were interested in acquiring Bear Stearns, but were concerned about inheriting Bear’s portfolio of risky mortgage-backed securities. With Ben’s approval, Hank and Tim Geithner, the President of the New York Fed, devised Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 58 a plan to address JPMorgan’s concerns. The Fed would lend $30 billion against Bear’s undesirable mortgage holdings, which cleared the way for JPMorgan to purchase Bear Stearns for two dollars per share.” 42. In his book ‘On the Brink’ Mr. Henry M. Paulson, Jr. (former CEO of Goldman Sachs and George Bush’s Treasury Secretary during his second term) explains how a bipartisan approach was adopted by the Congress to meet the financial crisis; how the latter empowered the Treasury Secretary to advance a sum of US Dollars 350 billion to troubled banks; how it unanimously passed the Troubled Assets Relief Program (TARP); and how a sum of US Dollars 250 billion1 in equity were transmitted to the banking system. The breakup of the amount injected into various financial institutions is as follows:- “Tim subsequently announced the capital amounts that regulators had settled upon just hours before: $25 billion for Citigroup, Wells Fargo, and JPMorgan; $15 billion for Bank of America; $10 billion for Merrill Lynch, Goldman Sachs, and Morgan Stanley; $3 billion for Bank of New York Mellon; $2 billion for State Street Corporation.” 43. Recounting the lessons learnt during the period he was at the helm of affairs, he lamented that the crisis was allowed to fester; that corrective measures were not taken in time to save the financial/banking institutions and described it as a ‘troubling political dysfunctioning’. It would be in order to refer to the following quote from his book. He says: 1 Page 358. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 59 ‘In my time in Washington, I learned that, unfortunately, it takes a crisis to get difficult and important things done. Many had warned for years of impending calamity at Fannie Mae and Freddie Mac, but only when those institutions faced outright collapse did lawmakers enact reforms. Only after Lehman Brothers failed did we get the authorities from Congress to inject capital into financial institutions. Even then, despite the horrific conditions in the markets, TARP was rejected the first time it came up for a vote in the U.S. House of Representatives. And, amazingly enough, as I write this in late 2009, more than one year after Lehman’s fall, U.S. government regulators still lack the power to wind down a nonbank financial institution outside of bankruptcy. I am not sure what the solution is for this ever more troubling political dysfunction, but it is certain that we must find a way to improve the collective decision-making process in Washington. The stakes are simply too high not to. Indeed, we are fortunate that in 2008 Congress did act before the financial system collapsed. This took strong leadership in both the House and the Senate, because all who voted for Tarp or to give us the emergency authorities to deal with Fannie and Freddie knew they were casting an unpopular vote2.” 44. Similarly Gordon Brown, former Prime Minister of UK, in his book “Beyond the Crisis” provides a telling account of how billions of Pounds were injected into collapsing Banks in Europe to prevent the crisis from going worse and to save the economies: “On Monday morning, October 13, as markets opened, we announced a £37 billion recapitalization of RBS, Lloyds, and HBOS. We would take a 57 percent stake in RBS and a 58 percent stake in HBOS, with a 32 percent stake in Lloyds subject to their mergers. The detailed terms of our £250 billion credit-guarantee scheme was also announced, along with new arrangements for dividends and remuneration and a commitment to keep credit flowing. 2 Page 439. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 60 I had long felt that we were dealing not only with a technical failure, but a moral failure too. So for me, a crucial part of the announcement was that some degree of justice was secured: remuneration was cut back, dividends were cancelled, and the chief executive and the chair of RBS both tendered their resignations. And the CEO of HBOS would not be working for the merged entity any more. On the same day Germany announced €400 billion in guarantees and €100 billion in capitalization; France €320 billion in guarantees of medium-term debt and €40 for capitalization; Italy €40 billion in capitalization and ‘as much as necessary in guarantees. Holland added €200 billion in guarantees, and Spain and Austria €100 billion each. That day saw a 10 percent rise in the European stock exchange, the biggest rise ever. At no point in history have governments ever injected so much money into buying up assets in the banking system, with capital and guarantees running into trillions. When officials gave me a list of all the countries that had followed Britain’s lead----- Germany, France, Spain, Denmark, Portugal, the Netherlands, Austria, Switzerland, and America-----I knew that we had come through this in one piece. The patient was out of the emergency room and into intensive care.” In a seminal paper titled as ‘White Paper on All the Options for Managing a Systemic Bank Crisis’ co-authored by three academicians3 of repute, precisely this issue has been addressed. According to them: “The short answer as to why banks are being saved is fear that the 1930 Depression nightmare would again become a reality. Since banks enjoy the monopoly of creating money through providing loans, bankrupt banks means reduced credit, which in turn results in a lack of money for the rest of the economy. Without access to capital, business and the means of production contract, which, in turn, causes mass unemployment and a host of collateral social problems. Thus, when banks are in trouble, 3 Bernard Lietaer from University of California, Dr. Robert Ulanowicz from University of Maryland and Dr. Sally Goerner from Integral Science Institute Chapel Hill, NC. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 61 they can trigger what is know as a Second Wavecrisis, through a ferocious circle making a victim of the real economy: Bad banking balance sheets => credit restrictions => recession => worse bank balance sheets => further credit restrictions and so the spiral downward goes. To avoid such a tailspin - governments feel the need to prop up the banks’ balance sheets. This exercise is already under way. For instance, several major banks were able to refinance themselves earlier in 2008, mainly by tapping sovereign funds. But, as the depth of the – insolvency has become more obvious, this has become harder to do. Central banks will step in to help by providing an interest yield - that makes it easy for financial institutions to earn a lot of money, at no risk. The next logical step is also formulaic. Whenever a bank that is too big to fail is in real trouble, the recipe has been the same since the 1930s: the taxpayers end up footing the bill to bail out the banks, so that they can start all over again. Of the 96 major banking crises around the world that the World Bank has counted over a recent 25 year period, taxpayer bailouts have been the answer in every instance. For example, the United States government that had funded Reconstruction Finance Corporation during 1932-53 period, repeated the exercise with the Resolution Trust Corporation for the Savings and Loan crisis in the 1989-95 period, and now again with the Troubled Assets Relief Program (TARP) of 2008. Other recent examples include the Swedish Bank Support Authority (1992- 96) and the Japanese Resolution and Collection Corporation which started in 1996 and is still ongoing. In the current international crisis, among the first institutions that were saved in this way include Bear Stearns in the US, and the nationalization of Northern Rock in the UK. In mid- October 2008, European governments pledged an unprecedented 1.873 trillion Euros, combining credit guarantees and capital injections into banks, based on the strategy pioneered by the United Kingdom. These bailouts end up being expensive for the taxpayers and the economy at-large. One exception has been in Sweden, which ended up costing only 3.6% of the GNP because important parts of the portfolio could be unwound over time at better conditions than those when the assets we originally Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 62 acquired. But such outcomes are rare -. Some examples of the staggering cost of bailing out banks as a percent of the corresponding countries’ annual GNP, as estimated by the World Bank. • Sweden 1992-96 3.6% • USA 1988 3.7% • Spain 1977-85: 16.8% • Venezuela 1994-5 18% • Mexico 1994 19.3% • Japan 1997 24% • Chile 1981-83 41.2% • Thailand 1997-2000 45% • Malaysia 1997-2000 45% • Argentina 1980-82: 55.3% • South Korea 1997-2000 60% If we add in the Citibank bailout announced in November 2008 to all the previous packages already approved, the total pledges by the American taxpayer of the bailout exceeds now $4.616 trillion dollars! In February 2009, the US Treasury Secretary Timothy Geithner has unveiled an additional bank bail-out plan worth at least another $1.5 trillion9 The Bloomberg estimate is even higher: 7.7 trillion, which amounts to $ 24,000 for every man, woman and child in the country. The only event in American history that comes even close to the pledges made so far is World War II: Original Cost: $288 billion, Inflation Adjusted Cost: $3.6 trillion. It is hard to believe, but true, that the US bailout could cost more than the inflation adjusted cost of the Louisiana Purchase, the New Deal and the Marshall Plan, the Korean and Vietnam War, the S&L debacle, NASA and the Race to the Moon combined!” 45. It is nobody’s case that when the HBL was recapitalized or offered for privatization, it had an impressive balance sheet. Admittedly when the amount in question was injected into HBL, the volume of its non-performing loans was huge and the Federal Government and its financial experts deemed it proper to finance HBL. Petitioners have not alluded to any opinion of some reputed economist holding this bailout to be Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 63 in-appropriate or unwise or against best practices being followed. If we keep the afore-referred opinions of those who were at the helm of affairs during one of the worst economic and banking crisis in history as also of the academics in the field in juxtaposition with the steps taken in Pakistan to forestall economic meltdown (including impugned privatization), we find that the decision makers by and large were motivated by the same bonafide considerations, though at a smaller scale. Rather the steps taken in Pakistan perhaps were more timely and that is why unlike the West, the banking and financial crisis in Pakistan comparatively has not been that serious. Some of the inferences that can be drawn in this regard are: first, that banks and particularly those who have major share of loans or investment in the economy are linked with other financial institutions and Government, if such banks fail, it has a domino effect on economy; second, that injecting money [(as done by the Federal Government in the case of HBL or by US by buying the toxic acids of the banks through TARP (Troubled Assets Relief Program) or through CIRC (Corporate and Industrial Restructuring Corporation) by Government of Pakistan)] are some of the known methods to prop up the banks; third, that these bailouts are not intended to merely help the Banks, rather these are designed for yet another salutary purpose i.e. to keep the economy afloat, so that the Banks continue to advance loans Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 64 for further investment which in turn means more jobs and great productivity; Fourth that through a credible mode, a financial institution could be sold even through negotiation, if it is deemed proper with a view to save the said institution from bankruptcy with the resultant meltdown effect on the economy. George W. Bush and its financial advisors took recourse to such a mode when after injecting a US 30 billion dollars loan by the US Federal Reserve Bank into Bear Stearns it was sold to JP Morgan. Even under the Privatization Commission (Modes and Procedures) Rules, 2001, Rule 3 spells out the manner and procedure for privatization. Rule 5 provides for additional modes of privatization and Rule 6 even authorizes PC to negotiate sale by adopting any of the modes of privatization specified in Section 25 of the Ordinance and Rule 5 of these Rules in certain situations enumerated therein and fifth that the Privatization Ordinance and the Rules as also the Regulations framed there under vest a certain amount of discretion with the PC and the Board during the sale process in line with the best practices in vogue in other countries. This discretion is sought to be regulated by the afore- referred law and Rules and any bona fide decision made in the exercise of the said discretion can only be interfered with in accord with the well recognized principles of judicial review of executive authority discussed while dilating upon question Nos. 2 & 3. Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 65 46. In view of the above, the various measures taken by the Federal Government to recapitalize HBL or to reduce the volume of its non-performing loans to make it more attractive for sale is neither against the law or the best practices being followed, nor does it reflect mala fides to furnish a ground for interference in these proceedings. Question No. V: Whether the petitioners have locus standi to challenge the privatization of HBL? 47. The petitioners in these two petition have admittedly no personal interest as petitioner in Constitution Petition No. 5 of 2011 is a former Federal Secretary, Government of Pakistan and the averments made in the petition reflect that he is a public spirited person motivated with a desire that the national strategic assets if privatized should reflect transparency which allegedly is lacking in the instant case. Similarly petitioner in Constitution Petition No. 15 of 2004 represents a party which may not claim a large constituency but is motivated by a similar spirit. These petitions are in the nature of public interest litigation and the Courts in exercise of its constitutional jurisdiction qua matters of public importance relating to enforcement of Fundamental Rights have been liberal particularly if the issue raised is relatable to a public injury arising from breach of public duty. In S.P. Gupta Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 66 and others v. President of India and others (AIR 1982 SC 149), the Court observed as follows:- “Where a legal wrong or a legal injury is caused to a person or to a determinate class of person by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.” 48. Similarly this Court in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) held that: “After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation /class action, seeks to achieve as it goes further to relax the rule on locus stands so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(1) 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" This Article does not say as to what proceedings should be followed, then whatever be its nature must he judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights. It is, therefore, permissible when the lis is between an aggrieved person Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 67 and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as afore-stated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can he made use of, if it is brought to the notice of the Court by the person acting bona fide. On the language of Article 184(3), it ::. needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, one would not read any constraint in it. Article 184(3) therefore, provides 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. 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.” 49. In Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), the Court took a similar view and in Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263), the Court came to a similar conclusion. In such cases, even the existence of an alternate remedy has not prevented the Court from exercising its power of judicial review if the said alternate remedy is neither efficacious nor expeditious. In Watan Party through President v. Federation of Pakistan (PLD 2006 SC 697), the Court repelled this argument by holding that:- “But at the same time, we have also to keep in mind another very important principle of law enunciated by this Court in the case of Syed Ali Abbas v. Vishan Singh (PLD 1967 SC 294) i.e. petitioner cannot be refused relief and penalized for not throwing himself again (by way of revision or review) on mercy of authorities who are responsible for such excesses. This principle has to be read along with the principle laid down in the case of Anjuman-e-Ahmadiya, Sargodha ibid wherein it has been held that if an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 68 to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly this principle has been reiterated in the Murree Brewery’s case ibid wherein it has been held that if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party. Thus we are of the opinion that under the circumstances of the case, it would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent. Therefore under the circumstances, referring the case of the petitioner to the Federal Government or this Court directing investigation under section 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interests of justice.” 50. While holding that these petitions are maintainable, we would like to strike a note of caution. The Court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty. In Ashok Kumar Pandey v. State of West Bengal (AIR 2004 SC 280), the Court was seized of such a petition when it observed as follows:- “Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 69 is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.” 51. Foregoing are the detailed reasons for the short order dated 29.11.2011 reproduced below in terms of which these petitions were dismissed:- “This judgment shall dispose of Constitution Petitions No. 5 and 15/2004, Civil Miscellaneous Application No.4251/2011 and Human Rights Case No.14144-S/2009 as they have nexus. 2. We have heard learned counsel for the parties at some length and have gone through the documents annexed as also the precedent case law cited at the bar. 3. For reasons to be recorded later in the detailed judgment, we hold and declare as under:- Const. P. No. 5 & C.M.A. No. 4251 of 2011 & Const. P. No. 15 of 2004 AND H.R.C. No. 14144-S of 2009 70 a) that the approval of the privatization of Habib Bank Limited by the Cabinet Committee on Privatization was within the purview of Privatization Commission; b) that it does not reflect violation of any statutory provisions; c) that neither the process was tainted with lack of transparency or malafides nor the successful bidder lacked qualifications prescribed in law; and d) that it is in accord with the best practices around the world and the law declared by this Court. The petitions are dismissed in afore-referred terms. JUDGE JUDGE JUDGE Islamabad, 29.11.2011 Khurram Anees Approved for Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Gulzar Ahmed Constitution Petition No.5 of 2011 Khawaja Muhammad Asif. … Petitioner(s) Versus Federation of Pakistan, etc. … Respondent(s) AND Human Rights Case No.15744-P of 2009 (Application by Mr. Imran Mughal for taking action on high- prices of LPG) For the Petitioner(s): Mr. Rashdeen Nawaz Kasuri, ASC with Khawaja Muhammad Asif, petitioner For Respondent No.1: Mr. Shah Khawar, Addl. AGP Mr. M. Nazir Malik, Director (Law) For Respondent No.2: Mr. Abid Hassan Minto, Sr. ASC Mr. Asim Hafeez, ASC Mr. Arshad Ali Chaudhry, AOR For Respondent No.3: Khawaja Ahmed Tariq Rahim, Sr. ASC Mr. Uzair Karamat Bhindari, ASC Mr. M. S. Khattak, AOR For Respondent No.4: Nemo. For Respondent No.5: Mr. Shahid Hamid, Sr. ASC For Respondent No.6: Mr. Muhammad Munir Paracha, ASC Mr. Mehmood A. Sheikh, AOR For Respondent No.7: Mr. M. Farooq, Dy. Director For the Applicant(s): Mr. Irfan Qadir, ASC (in CMAs-622023/13) Mr. Salman Akram Raja, ASC (in CMA-6235/13) Mr. Azhar Siddique, ASC (in CMAs-6247/13) Nemo. (In CMA-6327/13) Dates of hearing: 8.10.2013, 10.10.2013, 21.10.2013 & 22.10.2013. Const. P. 05/2011 2 J U D G E M E N T Jawwad S. Khawaja, J. Although the record of this case is voluminous, the relevant facts necessary for its disposal are fairly simple. Pakistan has been blessed with a vast array of natural resources including mineral oil and natural gas. The people of Pakistan are the ultimate owners of such resources through their Governments and State enterprises such as Sui Southern Gas Co. Ltd. This petition filed under Article 184(3) of the Constitution raises issues of public importance relating to such natural resources with reference to the enforcement of the fundamental rights guaranteed by the Constitution. Parties and Background. 2. The matter relates to the award of a project through competitive bidding, by respondent No. 2 namely, Sui Southern Gas Company Limited (SSGCL) to the respondent No. 3 namely, Jamshoro Joint Venture Limited (JJVL). SSGCL is a State enterprise incorporated under the Companies Ordinance, 1984. SSGCL has an authorized capital of Rs. 10 billion of which Rs. 6.7 billion is issued and fully paid up. The Government alongwith State owned entities owns more than 67% of the shares of SSGCL. In 2003 when the aforesaid contract was awarded all 14 Directors on the Board of SSGCL were Government appointees. Today, 11 out of the 14 Directors are nominees of the Government. SSGCL is a public limited Company listed on the Karachi Stock Exchange. 3. JJVL is an unlisted limited Company incorporated under the Companies Ordinance, 1984. It was incorporated for the purpose of making a bid for the aforesaid project which was aimed at extraction of Liquified Petroleum Gas (LPG) from natural gas mined in Badin and supplied to SSGCL under a Gas Sales Agreement (GSA) dated 12.08.2003. The contract was awarded to JJVL in circumstances which are considered below and provide the subject-matter of the petition. 4. To facilitate understanding of the issues arising in this petition it is appropriate to summarize briefly and in simple terms, some technical aspects of LPG. The natural gas which is received by SSGCL under the GSA is made up of a mix of gases. These include propane, butane and methane. Butane and propane, when extracted from the Const. P. 05/2011 3 mix, are liquefied and sold as LPG. As a result of extraction of LPG from natural gas, there is a reduction in the remaining volume and calorific value of natural gas which reduction is known in technical terms, as “gas shrinkage”. The volume of gas shrinkage is a factor to be considered in deciding the terms for awarding the project for extraction of LPG. LPG is presently being used in Pakistan amongst others, by persons who for various reasons are not receiving or using natural gas. 5. We can now state some relevant facts which, in the main, are not disputed. SSGCL invited Expressions of Interest (EoI) through public advertisements inter alia, in the Daily “Dawn” dated 13.3.2000. Bids for pre-qualification of prospective bidders were invited through public advertisements through the press, including the Daily “Express” dated 11.11.2000. The invitation to bid was for an LPG extraction Plant on a “Build Operate Own” (BOO) basis. Although bidding documents were obtained by nine parties only six of these were pre-qualified and from these only JJVL submitted a bid. It may be noted that this bid was made without a bid bond although this was an essential pre- requisite for a valid bid as per requirements of clause 5.0 of the Instructions to Bidders. 6. Notwithstanding the aforesaid defect in the bid made by JJVL, SSGCL decided to accept the defective bid and to enter into negotiations with JJVL whereafter the two parties executed an Implementation Agreement (IA) on 12.8.2003. Under the IA, JJVL was to establish a Plant for extraction of LPG from natural gas supplied to it by SSGCL. JJVL was, inter alia, to pay a compensation price to SSGCL for gas shrinkage and also royalty payments on the LPG extracted by it. The rate of royalty and the differences between SSGCL and JJVL in respect of the same is an important aspect of this case as will be examined shortly. 7. The petitioner before us is Khawaja Muhammad Asif, who was a member of the opposition in the National Assembly in 2011 when this petition was filed. Currently he is a part of the Government being the Minister for Water and Power in the Federal Cabinet. Learned counsel for some of the respondents contended that the proceedings could not continue subsequent to the Petitioner being appointed a Federal Minister. We, however, are of the opinion, for reasons appearing below, that this petition raises issues of vital public importance impacting the fundamental rights of the people, and Const. P. 05/2011 4 therefore, must be heard. It is by now well-settled that the Court’s jurisdiction under Article 184(3) can be exercised even without a petitioner when information is laid before the Court which justifies the exercise of such jurisdiction. Therefore, the proceedings can continue in the same manner as before. 8. The petitioner has approached this Court under Article 184(3) of the Constitution. It is his case that the extraction agreement awarded to JJVL was neither lawful or fair nor was it transparent. According to him, it was meant to extend illegal and undue favours to JJVL at the cost of the State and the People of Pakistan. He referred firstly; to the acceptance of the bid submitted without a bid bond; secondly, to the calculation of royalty payments by JJVL at rates different from those agreed, thus causing a very substantial loss to SSGCL and; thirdly, to the changes made in the draft Implementation Agreement (forming part of the bid documents) to extend undue benefits to JJVL. 9. We can now consider these aspects and the respective contentions of learned counsel representing the parties. Lack of Bid Bond. 10. At the outset it may be stated that as per Instructions to Bidders the bid submitted by JJVL on 12.9.2001 could not have been treated as valid because it was not accompanied by a bid bond. Part C Clause 5.0 of the Instructions to Bidders expressly stipulated that the “bidder at its cost shall submit a Bid Bond as part of its Bid for an amount of US$ 100,000 (United States one hundred thousand) or in equivalent Pakistani Rupees based on prevailing inter bank exchange rate”. The bid bond was to be submitted as part of the Technical Proposal. The absence of a Bid Bond constituted a major defect in JJVL’s bid because the Bid Bond constituted an integral aspect of the Bid. The envelope containing the Financial Proposal could not have even been opened when the Technical Proposal was not accompanied by the mandatory Bid Bond. This is apparent from Part C, Clause 5.4 of the Instructions to Bidders, which reads, “Any Bid not accompanied with Bid Bond of required amount will be considered as non-responsive, rejected by SSGC and returned to the Bidder.” It will thus be seen that rejection of the bid made by JJVL was obligatory. The unjustified acceptance of such bid also constituted unfairness and illegality in the Const. P. 05/2011 5 bidding process inasmuch as other potential pre-qualified bidders were never informed that they could submit bids without bid bonds. It appears from the record that a bid bond was subsequently furnished when JJVL became sure that the other prequalified bidders had not submitted bids. Neither SSGCL nor JJVL were able to proffer any explanation to justify such a material departure from the requirements of a valid bid. Learned counsel on behalf of JJVL argued that the lack of a bid bond was a mere technical irregularity which could not be a ground for striking down the whole transaction. This contention cannot be accepted. As stated above, furnishing the Bid Bond was clearly an essential condition of the bid and therefore, could not be deviated from. It is apparent from this circumstance that the bidding process leading to the award of the LPG extraction project to JJVL was tainted from its very inception and was geared towards advancing benefits and unfair advantage to JJVL by eliminating potential pre- qualified bidders who were not afforded the same favourable treatment as had been given to JJVL. 11. There is another significant aspect of the case, arising from the failure of JJVL to submit a bid bond as required by clause 5.0 (Bid Bond) of the Instructions to Bidders. We have noted that in the 311th meeting of the Board of Directors of SSGCL held on 15.11.2001, one of the Directors had suggested re-bidding for the extraction project. This suggestion was not accepted and it was decided “to let the management proceed with evaluation and take the decision when the matter would [come to the Board] with management’s recommendations”. It is important to note that the decision of the Board of Directors of SSGCL was based on a note prepared by the management of SSGCL. This note dated 13.11.2001, quite strangely, did not inform the Directors that the bid submitted by JJVL could not have been treated as valid because it was not accompanied by the mandatory bid bond. It does appear that the aforesaid material defect was deliberately concealed from the Board of Directors with the object of eliminating competition and giving undue benefit to JJVL. The Board itself was kept in the dark and if informed, would surely have taken note of the defective bid submitted by JJVL. There was no explanation forthcoming during the arguments advanced on behalf of JJVL as to why an essential condition of the bid had not been met by JJVL. Nor is there any justification given by Const. P. 05/2011 6 SSGCL as to why such bid had not been rejected for this reason. It is pertinent to observe that the Note to the Board of Directors dated 13.11.2001 detailing the acceptance of JJVL’s bid does not mention the fact that JJVL did not submit a bid bond. Thus, it appears that an attempt was made from the start, to conceal the fact that JJVL did not submit a valid bid. It is quite clear that such concealment could not have occurred in a transparent and fair transaction. Royalty Payments. 12. We can now take up the matter of royalty payments. According to the petitioner the royalty payments under the IA were to be calculated with reference to the Saudi Aramco reference price. The essential feature of the tender documents, inter alia, was that the bidder offering the highest amount of royalty and compensation for gas shrinkage etc., for the gas processed would be the successful bidder. Our attention was drawn to a letter dated 28.4.2003 written to SSGCL by Iqbal Z. Ahmad, Chairman/CEO of JJVL. In this letter it had been agreed that the Saudi Aramco ex-refinery price would be used as the basis for calculating royalties payable to SSGCL. It was also specifically stated in the said letter that “[f]or an apple-to-apple comparison, it is required that the Local Ex-Plant prices be compared with Saudi Aramco’s Ex-Plant prices and not with C&F Karachi price that includes various third party costs and government fees & levies etc.” 13. It is relevant in this context to note the letter from JJVL to SSGCL dated 05.09.2002, wherein JJVL had expressly agreed to the following: “Reference price of LPG should be Saudi Aramco’s prices of Propane and Butane in the ratio of 60:40 published in international Butane-Propane Newsletter plus LPG freight cost or local refineries cost other than PARCO, whichever is higher shall be taken for calculation of royalty.” (emphasis added). Most importantly, as per Instructions to Bidders in relation to royalty payments, it was stipulated that "the bidders will be required to propose the maximum amount of such royalty on a per-MCF basis". A Letter of Intent (LOI) was to be issued to the successful bidder. As noted elsewhere in this opinion, the LOI in terms of the Instructions to Bidders was issued to JJVL by SSGCL on 28.06.2002. The LOI was duly accepted by JJVL and as per accepted and agreed terms, the royalty payments were to be made on the basis of Saudi Aramco reference price plus freight if such price was higher than the price of locally Const. P. 05/2011 7 produced LPG. It is thus abundantly clear that JJVL had been willing and had agreed not only to pay the Saudi Aramco price, but also to pay the freight cost if the same was higher than the local price. However, this entire scheme of royalty payments suddenly and inexplicably was altered in favour of JJVL in the final Implementation Agreement, clause 9.2 of which reads: “9.2. Royalty shall be calculated with reference to a “Reference Price”. The highest ex-plant/ex-refinery price in Pakistan for LPG during a Month of one of the producers identified in Schedule 9 hereto will be used as the reference price for calculation of Royalty for such Month subject to a minimum price of US $250 per metric tonne.” (emphasis added). There is no correspondence on record nor was any explanation offered on behalf of JJVL as to why this change occurred in the final Implementation Agreement despite the fact that JJVL had clearly agreed on multiple occasions to reference the royalty payments to the Saudi Aramco price with freight cost or local price, whichever is higher. This material change has, according to SSGCL, caused loss to it, of an amount in excess of Rs. 22 billion to date. Thus, it is clear that the Implementation Agreement was entered into in a non-transparent and highly questionable manner resulting in undue benefit to JJVL and very heavy losses to the State enterprise SSGCL and consequently to the People of Pakistan. 14. It is not disputed that since the date of the Implementation Agreement, JJVL is paying royalty at a rate which is well below the reference price based on the Saudi Aramco price plus freight cost as had been specifically agreed. This has caused billions of rupees worth of loss to the State enterprise SSGCL and this, in turn, has adversely impacted, inter alia, its ability to invest in the improvement of its facilities and services to its consumers. Instead of the pricing formula agreed as above, the ex-refinery price of LPG produced in Pakistan has been used even though it is substantially lower than the Saudi Aramco price plus LPG freight cost. When confronted with this material deviation from the agreed basis for royalty payments, learned counsel for JJVL could not dispute the deviation but stated that even in respect of the Saudi Aramco reference price, the same had to be on FOB basis and according to him, if so calculated, no loss had been caused to SSGCL. This submission is wholly contrary to the agreed basis which Const. P. 05/2011 8 provided for royalties to be calculated on higher of the two i.e. FOB Saudi Aramco plus freight and the ex-refinery price of LPG produced in Pakistan. 15. SSGCL has calculated the difference in royalty payments on the agreed basis and those made so far. If this figure is taken as an approximation, JJVL owes more than Rs. 22 billion by way of royalty payments if freight is calculated at US $50 or over Rs. 23 billion if freight is calculated at US $60. For reasons appearing in the concluding paragraphs of this opinion, it is not necessary for us to determine in this opinion, the exact amount of short payment. We do, however, note that the royalty payments have not been made by JJVL to SSGCL in accordance with the agreed basis referencing such payments to Saudi Aramco prices FOB plus freight. Clause 9.2 of the Implementation Agreement constitutes a gratuitous and unlawful favour bestowed on JJVL. Furthermore, it must be noted that the first draft of the Implementation Agreement dated 06.11.2002 contained the wording of the letters dated 28.4.2003 and 05.09.2002 mentioned above; i.e. that JJVL would use the Saudi Aramco rate as reference price and also pay freight cost. However, with no justification or explanation, the “corrected draft” of the Implementation Agreement dated 19.5.2003 (less than a month subsequent to the letter dated 28.4.2003) removed this stipulation of royalty that JJVL had expressly agreed to. There is no correspondence or minutes on record to indicate why this material change occurred which allowed JJVL to pay a much lower amount of royalty. The Implementation Agreement executed between SSGCL and JJVL thus represents a significant loss to the State owned utility and thus ultimately to the People of Pakistan. Material Changes to the Implementation Agreement. 16. The next issue arising in the case relates to changes which were made in the Form of the Implementation Agreement. Such Form had been made part of the bid documents provided to the pre-qualified bidders. According to the petitioner, these changes were of a material nature and were meant to alter the terms of the Implementation Agreement to the advantage of JJVL. Learned counsel for JJVL did not dispute the fact that these changes constituted deviations from the Form of the Implementation Agreement which had been given to interested bidders. He, however, contended that such deviations were not of a material nature and further that the Const. P. 05/2011 9 changes did not bestow any advantage on JJVL. For reasons considered below, we have found these submissions to be untenable being without merit. 17. In order to examine the importance of the Implementation Agreement and the relevance of the changes made therein after the conclusion of the bidding process, it is necessary to set out the significant aspects of the bid documents, the bidding process and the form of the Implementation Agreement which was the most important element in the bidding documents. In the case of a fair and transparent process of competitive bidding, the bid documents constitute the basis on which assessments, calculations and the bid itself are prepared by the bidders. This is meant to ensure that the bidding is even-handed and provides for a fair, transparent and objective evaluation of bids received. 18. As noted above, the bid documents in the present case included a draft format of the Implementation Agreement which was to be the main instrument setting out the respective rights and obligations of SSGCL and the successful bidder. It is understandable that some parts of the Implementation Agreement have to be filled in on the basis of bids received, for example the royalty payment formula, compensation for gas shrinkage, compensation for acquisition of the plant etc. or to accommodate language etc. which does not materially alter the terms of the Implementation Agreement. If material changes are brought about in the Implementation Agreement subsequent to the bidding, this will in fact negate the notion of a fair and open competitive bidding process. In the present case, it has all along been urged by JJVL that the bidding for the LPG extraction plant was competitive i.e. that bids were to be submitted on the basis of the bidding documents (including the draft Implementation Agreement) which were given to all pre-qualified bidders. The fact, however, is that the Implementation Agreement which was executed by SSGCL in favour of JJVL was very substantially and materially different from the draft Implementation Agreement. As will be apparent from the changes made in the draft Implementation Agreement, all such changes as have been discussed below were material in nature and had been made to benefit JJVL. These changes were never available to other pre-qualified parties. Const. P. 05/2011 10 19. It is necessary to examine what these changes were to appreciate the submissions of the petitioner and JJVL. The Form of the Implementation Agreement which was part of the bidding documents defined GSA to mean “the Gas Sales Agreement between BP Pakistan Exploration & Production Inc., Oil and Gas Development Company Limited, Occidental Petroleum (Pakistan) Inc. and Government Holdings (GOP) dated 28.11.1988, as amended from time to time.” This clause was altered in the Implementation Agreement which was executed between SSGCL and JJVL so that the last few words of the definition of GSA would read “as amended and extended from time to time”(emphasis added). The record before us, which is considered below, provides the context within which the significance and materiality of this change can be very easily seen. Likewise, Article 2 of the draft Implementation Agreement was changed. In the Form issued with the bidding documents given to all bidders, Article 2 stipulated that the Implementation Agreement “shall commence and be effective on the date hereof, and shall, unless terminated earlier in accordance with its terms, continue in full force and effect until the validity of the GSA, which is currently valid up to the 3rd of February, 2011” (emphasis added). To this stipulation of the Implementation Agreement, the words “It is agreed that the Agreement shall continue on the same terms and conditions for any extension of the GSA beyond 3rd February, 2011” were added. 20. According to the petitioner, the above noted two changes made in the Implementation Agreement were meant to bestow undue favour and advantage to JJVL because these modified terms were materially in favour of JJVL but the same advantageous terms had not been provided to other potential bidders. It is thus clear that the Implementation Agreement which was finally executed between SSGCL and JJVL was significantly different from the Form of the Implementation Agreement which was handed out to at least six pre-qualified bidders who had received the bidding documents. 21. We can now examine the submissions made on behalf of the parties in the context of circumstances which emerge from the record. No reason whatsoever has been given as to why SSGCL would give up its potential and possibilities beyond 3rd February, 2011 on which date the Implementation Agreement was to expire. It was not Const. P. 05/2011 11 argued on behalf of JJVL that it was at a disadvantage by continuing with the Implementation Agreement on the same terms and conditions, after 3rd February, 2011. In fact, to the contrary, JJVL filed a suit in the Sindh High Court (Suit No. 151/2011) seeking inter alia, an injunction to restrain SSGCL from terminating the Implementation Agreement. The plaint in the suit as well as the order dated 1.2.2011 passed by the Sindh High Court granting a temporary injunction make it abundantly clear that JJVL placed reliance on the wording which had been added to Article 2 whereby it had been agreed that the Implementation Agreement “shall continue on the same terms and conditions for any extension of the GSA beyond 3rd February, 2011”. In this regard, it is useful to reproduce an extract from paragraph 14 of JJVL's plaint which avers “that by virtue of Article 2 thereof, the term of the Implementation Agreement is linked to the validity of the GSA. In plain words, Article 2 states that the Implementation Agreement will continue beyond 3 February 2011 on the same terms and conditions if the GSA is extended beyond the said date…”(emphasis added). There can be no clearer proof of the fact firstly; that JJVL considered the aforesaid changes in the Implementation Agreement to be material and secondly; that these changes were favourable to JJVL and thirdly; that even today JJVL is receiving undue benefit (i.e. extension of the Implementation Agreement) after 3.2.2011 which would not be available to it but for the unwarranted and unlawful additions made in the Implementation Agreement noted above. 22. The learned Bench of the Sindh High Court, in its order dated 1.2.2011, has granted the interim injunction sought by JJVL, as a result of the changes introduced in the Form of the Implementation Agreement. This is evident from the fact that the said Order has prominently reproduced and relied on the aforesaid changes in the Implementation Agreement. JJVL is still continuing to operate the LPG extraction plant because of the changes made, inter alia, in Article 2 of the Implementation Agreement after the competitive bidding process had been concluded and even though the other pre qualified bidders had been given no opportunity of basing their bid on the Implementation Agreement as modified for JJVL. These circumstances substantiate the point that JJVL itself considers the aforesaid deviations to be material and also to its advantage. We, therefore, are unable to accept the contention of learned counsel for JJVL Const. P. 05/2011 12 that the deviations were insignificant or that the same did not make any material change in the Implementation Agreement to favour JJVL. Considering that these changes were made gratuitously, and in a non-transparent manner, the same were not lawfully made and cannot be allowed to stand. 23. In addition to the above, we may also refer to the correspondence between JJVL and SSGCL which shows clearly that the changes, referred to above, made in the Implementation Agreement were actively sought by JJVL. This is evident inter alia, from the minutes of the meeting between JJVL and SSGCL dated 24.01.2003. JJVL reiterated its desire for the said changes vide letter dated 19.02.2003; and SSGCL finally acquiesced to the same vide fax dated 04.03.2003. If indeed, the changes sought by JJVL had no advantage for it or had no material bearing on the Implementation Agreement (as claimed by JJVL), there would have been no reason for JJVL’s insistence and avid desire for the above referred changes. 24. The most significant deviation from the Implementation Agreement, however, was in relation to clause 18 and the accompanying schedule (Schedule 5) to the Implementation Agreement. Clause 18 of the draft Implementation Agreement provided SSGCL the option of acquiring the extraction plant in the event of JJVL’s default as defined in Article 17 of the Implementation Agreement. This stipulation ties in directly with the short payments of royalty as discussed above. Schedule 5 set out the agreed basis on which such acquisition could be affected. The relevant fact is that clause 18 was a significant part of the Implementation Agreement and ensured that on the termination of the Implementation Agreement on account of JJVL’s default, including its failure to make the agreed royalty payments, the extraction plant could be acquired by it on the basis of an agreed formula for working out the acquisition price. It is also important to bear in mind that the basis of the bid made by JJVL was the bid documents and the most significant bid document undoubtedly was the Form of the Implementation Agreement. It is in this context important to note that the changes made therein by redefining the GSA and the significant change made in Article 2 ibid as to the term of the Implementation Agreement, had a direct nexus with the deletion of clause 18 of the Implementation Agreement as these changes were meant to skew the said agreement in Const. P. 05/2011 13 favour of JJVL. Correspondence between SSGCL and JJVL (discussed below) also shows that the financial bid submitted by JJVL was conditional inasmuch as the lenders of JJVL had strong reservations in respect of clause 18 of the Implementation Agreement and were not prepared to finance the Project because of clause 18 ibid. 25. We have gone through the documents and correspondence placed on record by SSGCL and JJVL. On 21.6.2002, a meeting between JJVL and SSGCL was held in Karachi. Consistent with the terms of the draft Implementation Agreement, SSGCL pointed out “that in the light of clauses 17 and 18 of the draft Implementation Agreement, SSGC would need extensive details and verification of the proposed plant …” The details required were to be furnished by JJVL and the verification thereof was to be made by SSGCL. The scheme of the bidding process as incorporated in the Instructions to Bidders followed the accepted best practices for award of such contracts and the same were meant for the purpose of ensuring fairness. From the Instructions to Bidders it is evident that the Implementation Agreement was the most crucial element of the tender documents because it was this agreement which was to govern the contractual relationship between SSGCL and JJVL. The Instructions to Bidders also specifically stated that "failure to furnish all information required or submission of a bid not substantially responsive to the tender documents shall be at the bidder's risk and may result in the rejection of such bid". To ensure openness and equal treatment for all bidders they were instructed to seek any clarifications or to seek a pre- bid meeting with SSGCL for additional information for the preparation of their bids. 26 Bidders were required to prepare their bids "under two separate covers, Technical Proposal and Financial Proposal". The outlines of the requirements of the Technical and Financial Proposals were included in the Instructions to Bidders. The financial proposal was specifically required to include the proposed financing plan. Such financing plan, in order to be responsive to the invitation to bid, was to be put in place by the bidders on the basis of the tender documents at their own responsibility. There was no question of any concessions being sought by a bidder after the conclusion of the bidding process for the purpose of accommodating its lenders/financiers. It was a clear violation of the Instructions to Bidders that the financing plan submitted by JJVL was not in place on the basis of the tender documents and it is for this reason that correspondence (considered Const. P. 05/2011 14 below) relating to clause 18 of the Implementation Agreement was initiated by JJVL to accommodate the requirement and security for financing, sought by JJVL's lenders. The Bid (even though invalid) had been made on 12.9.2001 evidently without a firmed up financing plan or commitment from lenders. As late as 10.6.2003 JJVL wrote to SSGCL that it “is undertaking [the] Project being fully aware of the risks but is only requesting SSGC to provide the minimum level of comfort which will make the Project financeable”. (emphasis added). We find it quite inexplicable that even 21 months after the Bid, JJVL was still unable to raise or firm up its financing and was seeking further indulgence from SSGCL for the comfort of JJVL’s lenders. 27. In this context, we now consider the Letter of Intent (LOI) dated 28.6.2002 issued by SSGCL in favour of JJVL. The two important aspects of this letter which relate directly to clause 18 of the Implementation Agreement need to be spelled out. In para 7 of the LOI, it has been stipulated that “the total cost of the Project shall not exceed US $ 32 million (the ‘Ceiling’) and a term will be included in the Implementation Agreement to reflect the fact that notwithstanding the actual Project cost, for the purpose of Schedule 5 of the Implementation Agreement the maximum liability of SSGC will be restricted to the Ceiling”. Clause 9 of the LOI requires JJVL to provide half yearly and annual audited accounts to SSGCL. It was also submitted therein that “to the extent that the auditor determines that any expense of the Project Company is excessive or has not been incurred on the basis of an arms length transaction or is an expense which is unrelated to or not entirely related to the execution and implementation of the Project, the said expense will be deducted from any calculation of the Acquisition Cost payable by SSGC as set forth in Schedule 5 of the Implementation Agreement”. Another important stipulation in the LOI is that “in the event of any conflict between the Bid and the terms of the Tender Documents or the terms of [the] LOI, the terms of the Tender Document and the LOI will prevail. Any conflicting terms contained in the Bid are deemed to have been withdrawn and cancelled”. 28. We, therefore, find it surprising and quite extraordinary that almost 8 months after the LOI, vide letter dated 24.2.2003, JJVL proposed (contrary to the LOI) that a new clause 18 be substituted for the one included in the original form of the Implementation Agreement. The suggested clause was a major deviation from the draft Implementation Const. P. 05/2011 15 Agreement as it sought deletion of clause 18 in its entirety. A wholly different clause 18 was proposed by JJVL as under: A separate Agreement between the lenders, SSGC and the Company [JJVL] will be signed simultaneously with the signing of the Implementation Agreement to reach a correct understanding between the lenders, SSGC and the Company [JJVL] on all aspects related to the Implementation Agreement.” 29. This major change in the Implementation Agreement was sought for the purpose of accommodating JJVL’s lenders who, as noted above, had reservations about clause 18 ibid. After going through the correspondence placed on record by the parties including the letter dated 24.2.2003, it is not possible to accept the submissions made by learned counsel for JJVL that the deletion was sought by SSGCL. It is also clear from the record that as late as February 2003, JJVL had not been able to arrange financing for the Project and was desperately trying to secure favourable terms from SSGCL which would be acceptable to JJVL’s lenders. Thus, on 24.2.2003, JJVL wrote to SSGCL that “we have had the benefit of discussing the issues with the lenders … [and] in view of the discussions held with them and their guidance, we would like to submit … important issues for your urgent consideration and review.” (emphasis added). That the financing for the Project had not been arranged by JJVL is also apparent from JJVL’s aforesaid letter whereby a meeting was sought for agreeing on the text of a proposed tripartite agreement involving the lenders of JJVL. Importantly, however, from the same letter it is clear that there was no question of deleting clause 18 of the Implementation Agreement because the said clause and Schedule 5 were unquestionably and undisputedly part of the agreed terms. 30. The mysterious and baffling way in which Clause 18 and Schedule 5 suddenly disappeared from the Implementation Agreement is evident from the drafts of the Implementation Agreement that were exchanged between JJVL and SSGCL prior to its final signing. Clause 18 and Schedule 5 were present in the same language as the form of the Implementation Agreement in the first draft of the Implementation Agreement dated 06.11.2002 as well as the “corrected draft” dated 19.05.2003. It is particularly pertinent to note that in both these drafts, Schedule 5 contained the ceiling of US $32 million for acquisition of the plant that was stipulated in the LOI. It must also be borne in mind that Const. P. 05/2011 16 there was a six-month gap between the first draft of 06.11.2002 and the “corrected draft” of 19.05.2003; a gap wherein Clause 18 and Schedule 5 remained unchanged. Inexplicably, after a gap of only 4 days, there appeared a “final Implementation Agreement” dated 23.05.2003 which has been placed on record by JJVL. This contains the meaningless and ineffective substitution to Clause 18 that JJVL had proposed, as detailed above. There is no indication at all of what transpired in these four days to suddenly make Clause 18 and Schedule 5 disappear into thin air. Despite opportunity given by the Court, no documentation has been placed on record by JJVL to throw light on this murky issue. In the circumstances, it is clear that Clause 18 and Schedule 5 have been invalidly removed from the Implementation Agreement to prevent SSGCL from acquiring the plant in the event of JJVL’s default at the option of SSGCL. From the foregoing discussion on royalty, it is already established that JJVL has defaulted in payment of the mandated and agreed basis for calculating royalty. 31. In addition to the changes in the draft Implementation Agreement, noted above, other substantial changes were also made to accommodate JJVL and its lenders. It is not necessary to advert to all such changes because the specific deviations from the draft Implementation Agreement and Instructions to Bidders, noted above, are sufficient for the purpose of demonstrating that the award of the LPG extraction Project to JJVL and the execution of the Implementation Agreement executed on 12.8.2003 were not lawful and were based on considerations meant to benefit JJVL at the expense of the State enterprise SSGCL. We also are left in no doubt inter alia, that: (a) JJVL’s bid was invalid having been submitted without the mandatory Bid Bond and, therefore, could not lawfully have been accepted and was in fact liable to rejection in terms of the Instructions to Bidders; (b) The royalty payments which were pegged to the higher of Saudi Aramco or domestic price of LPG and such basis had been expressly agreed between SSGCL and JJVL was unlawfully and without justification, altered to favour JJVL and as a result JJVL was granted an unearned and wrongful gain; Const. P. 05/2011 17 (c) The terms of the draft Implementation Agreement which were the basis for making bids and for evaluating the same were materially and substantially modified after the bidding process to give undue and illegal favours to JJVL. 32. The foregoing discussion and the circumstances brought on record show gross criminal negligence on the part of functionaries of SSGCL, JJVL and possibly others, or the existence of corruption and/or corrupt practices in the bidding process, award of the LPG extraction project, overruns and delays in implementation of the Project etc. 33. Before parting with this section of our opinion, it may be noted that the Petitioner also made reference to the order of the Competition Commission of Pakistan (Respondent No. 6) dated 15.12.2009 wherein it was held inter alia, that JJVL had abused its dominant position in the market and thus violated section 10 of the Competition Act, 2010. We, however, refrain from dilating on this point as the said order has been challenged by JJVL and the matter is sub-judice before the Lahore High Court. Maintainability. 34. Learned counsel on behalf of JJVL urged and supported his contentions against the maintainability of the Petition by referring to a number of precedents from this Court. He contended inter alia, that since Suit No. 151/2011 and CP No. 270/2007 are pending before the Sindh High Court and CCA No. 2/2010 is pending before the Lahore High Court, the Supreme Court should not entertain a petition under Article 184(3) of the Constitution. According to him, the matters arising in this Constitution Petition are the same as are being agitated in the said pending litigation. This submission is not correct because, firstly; suit No. 151/2011 has been filed by JJVL itself and no questions of public importance in respect of enforcement of fundamental rights arise therein. Moreover, the issues which have been raised by the petitioner and are discussed above are incapable of being made subject matter of the aforesaid civil suit. Secondly, CP 270/2007 has been filed by two shareholders of SSGCL who have an alleged grievance against SSGCL and its management. The present status of CP 270/2007 is that though it has been pending since 2007 no progress has been made therein. Furthermore, important questions which have been raised by the petitioner relating to the enforcement of the Const. P. 05/2011 18 fundamental rights of the People and issues involving the illegalities in the bidding process are not the subject matter of CP 270/2007, and, thirdly; the pending CCA 2/2010 impugns an Order of the Competition Commission of Pakistan imposing a fine on JJVL. It has no nexus with the issues arising before us in this case. 35. It was also urged on behalf of JJVL that the matter involves contractual rights that are not capable of adjudication without the formal recording of evidence; and evidence is generally not recorded in proceedings under Article 184(3). This submission is quite easily addressed by noting that the authenticity of the documents and record on which our opinion is based is not disputed; only the legal effect of the same has been examined by us. Thus no evidence is required to be recorded in these proceedings. Here we may also refer to the order dated 1.6.2009 passed in CP 270/2007 by a learned Division Bench of the Sindh High Court. It has been noted therein that the Supreme Court had asked the Sindh High Court to decide CP 270/2007 and connected cases preferably within a period of one month. Although more than four years have passed since the order of this Court, CP 270/2007 and connected matters, including suit No. 151 of 2011 have still not been decided. It would be quite pointless and a waste of time not to exercise jurisdiction under Article 184(3) which otherwise is clearly attracted. We have discussed below a number of recent judgments wherein the scope of the jurisdiction under Article 184(3) of the Constitution has been elaborately spelt out. The facts and circumstances of the present case clearly fall within such jurisdiction considering that the use and management of valuable natural resources by the State and its instrumentalities such as SSGCL, is involved. 36. Natural gas and LPG extracted therefrom are precious mineral resources vesting in the State and ultimately in the People. SSGCL is a State enterprise in which the majority shareholding is held by the Government. SSGCL is therefore, not free to deal with such assets whimsically or in utter disregard of the fiduciary duty owed to the nation. Nor, we may add, does SSGCL have unfettered discretion to deal with national assets in a manner that does not protect and advance the best interests of SSGCL as a fiduciary and repository of the interest of the people of Pakistan who are, through the Government, beneficial owners, not only of the mineral resources of the country but also Const. P. 05/2011 19 of a majority interest in SSGCL. It is also particularly important to note that LPG is being used in Pakistan by people who, for a variety of reasons either do not have access to, or are unable to obtain natural gas. In our recent judgment in Habibullah Energy v. WAPDA (Civil Appeals 149 and 150 of 2010), it has been explained that “public sector enterprises… are public assets which belong beneficially to the people of Pakistan. While the State is entrusted with the management of such enterprises, the state agencies responsible for management do not thereby become owners of the enterprise and its assets”. We had also emphasised that “[r]ather than being owners of public sector enterprises, state agencies stand in a fiduciary relationship to the people” and also that the “basis of fiduciary relations is the exclusive benefit principle, according to which the fiduciary has a duty to act solely in the interests of the beneficiary”. In another recent judgement in the case titled Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205) we held that “it is a fundamental right of the citizens of Pakistan under Article 9 of the Constitution that the national wealth/resources must remain fully protected whether they are under the control of the banks or the autonomous or semi-autonomous bodies.” We may also have recourse to the decision in Raja Mujahid Muzaffar v. Federation of Pakistan (2012 SCMR 1651); and the judgment reported as Suo Motu Case No. 13 of 2009 (PLD 2011 Supreme Court 619) wherein it was held that “in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied… In such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in [the] larger public interest”. These precedents leave us in no manner of doubt that in the present case we must exercise our jurisdiction under Article 184(3) of the Constitution. 37. Recently we have also dealt with cases and adjudicated issues of corruption, corrupt practices and non-transparency in the award of public contracts. In this regard reference may be made to Raja Muhajid Muzaffar vs. Federation of Pakistan (2012 SCMR 1651), Suo motu action regarding violation of Public Procurement Rules, 2004 in procurement of billions of rupees of exchequer case by National Insurance Co. Ltd. (S.M.C. No. 18 of 2010), Asif Fasihuddin Khan Vardag v. Government of Pakistan (C.P. 33 of 2013) and Habibullah Energy Ltd. Vs. WAPDA etc. (Civil Appeals Nos. 149 & 150 of 2010). The cardinal principle which has been kept in mind by this Court is that waste, plunder or wanton and Const. P. 05/2011 20 heedless use of public resources and funds must be prevented and public wealth wherever squandered must be recovered. The importance of fair, even handed and open competitive bidding has also been repeatedly emphasized by us while exercising our jurisdiction under Article 184(3) of the Constitution. In the matter of Suo Motu Case No.13 of 2009: Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad (PLD 2011 Supreme Court 619), we have emphasized that the Government and its instrumentalities are expected to act fairly, justly and in a transparent manner. Transparency lies at the heart of every transaction entered into by or on behalf of a public entity such as SSGCL. It was also observed by us that “any transaction which is not transparent and goes against the interests of the general public constitutes violation of Article 9 of the Constitution”. This Article guarantees the right to life as defined by this Court starting from the case of Ms. Shehla Zia vs. WAPDA (PLD 1994 SC 693). The jurisdiction under Article 184(3) ibid is meant precisely for the purpose of ensuring that the assets belonging to the People (such as mineral resources) are managed and exploited for the benefit of the People of Pakistan and also for ensuring that waste or abuse of such assets is not allowed to take place or to continue. 38. As noted above, people all over the country who cannot obtain natural gas rely on supply of LPG for many of their needs. The supply of LPG to a very large number of users, including those living in far-flung areas is a matter of public importance impacting their ‘life’ as defined by this Court. Such supply, therefore, needs to continue unabated. This much has been accepted by the parties before us. In fact it was the contention of counsel on behalf of JJVL that the Implementation Agreement should not be terminated because LPG is so important to the people of Pakistan; and that termination of the said agreement would result in a highly detrimental disruption in the supply of LPG to a large body of consumers. Six LPG marketing companies who receive LPG from JJVL were also heard. Their counsel also emphatically stressed the importance of the continued supply of LPG to such consumers. These marketing companies do not have any privity of contract with SSGCL nor can they lawfully insist on supply of LPG to them in the event the Implementation Agreement comes to an end, but their Const. P. 05/2011 21 submissions as to continued delivery of LPG to the end consumer have been taken into account by us. 39. It was also emphasized before us that if LPG extraction is discontinued, the components of LPG i.e. butane and propane will be wasted as these will have to be flared and will no longer remain available for supply to consumers. Although this does not explain the loss (through flaring) on account of the inordinate delays in implementing the Project in 2001-2003 by SSGCL and JJVL, avoidance of wastage through flaring is an important consideration for the purposes of passing an order to ensure that precious and scarce mineral resources of the nation are not frittered away and nor is the majority interest of the Government in SSGCL used for mismanaging and wasting national assets or for exploitatively bestowing undue favours on some at the expense of the People. In this respect, we are guided by the exhortation that “the State shall ensure the elimination of all forms of exploitation …” (Article 3 of the Constitution) and Article 38 of the Constitution which commands that “the State shall … secure the well being of the people … by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest …”. 40. We, therefore, for the reasons recorded above hold, declare and direct as under:- (1) The Implementation Agreement dated 12.08.2003 was awarded to JJVL in gross violation of the bidding process as advertised and as set out in the tender documents, including Instructions to Bidders. (2) The project was awarded by SSGCL in a highly non-transparent manner with the object of giving undue benefit to JJVL. (3) The changes made in the Implementation Agreement which have been noted in paras 16 to 32 above, were made with the object of giving unfair and unlawful benefit to JJVL at the cost of the State, State enterprise SSGCL and ultimately, the People of Pakistan. (4) The deletion of clause 18 of the Implementation Agreement and its substitution by a vague and meaningless clause was at the behest of JJVL and for the benefit of JJVL and its lenders at the expense of the general public interest. (5) The basis for calculating royalty payments which had specifically been agreed was unlawfully altered to provide benefit to JJVL and heavy loss to SSGCL, the State and ultimately to the People of Pakistan. Const. P. 05/2011 22 (6) For the aforesaid reasons, the Implementation Agreement as executed between SSGCL and JJVL cannot be allowed to continue being based on illegalities from its very inception and is accordingly set-aside with all consequential liabilities as are provided in the “corrected draft” Implementation Agreement dated 19.5.2003. All losses caused to and incurred by the State, State enterprise SSGCL and the People arising out of and as a result of the bidding process and during the tenure of Implementation Agreement are to be made good and recovered from JJVL and all persons who had actively participated and had made substantial decisions in the bidding process and making of the Implementation Agreement. (7) A Committee comprising of (i) Mr. M. H. Asif, former Member, OGRA and, (ii) Mr. Shabbar Raza Zaidi, Partner of M/s A.F. Ferguson and Co., Chartered Accountants, is constituted for the following purposes:- (a) to calculate royalty payments (on the LPG extracted to date) on the basis of the Saudi Aramco reference price plus freight, for the full period during which the Implementation Agreement has been operational; this shall be done within 15 days from the date of this Order; an opportunity of hearing shall be afforded to SSGCL and JJVL while making the calculation; (b) to determine an acquisition price for the LPG extraction Plant, as nearly as possible in accordance with the LOI dated 28.6.2002 and clause 18 read with Schedule 5 of the draft Implementation Agreement dated 19.5.2003 relating to a JJVL Event of Default; this shall be done within 15 days from the date of this Order; (c) to suggest a management mechanism to the Court for appropriate orders including, if necessary, for the appointment of an independent manager/receiver; this may be done within 15 days of this Order and until then the Plant shall be managed by two senior persons, one each to be nominated by SSGCL and JJVL respectively; any deadlock between them shall be resolved by a decision of the Committee; (d) to obtain from SSGCL and JJVL such information and data as may be necessary for the Committee to fulfil its responsibilities; (e) to suggest ways in which the supply of LPG to end consumers continues unabated and without disruption; (f) to seek such clarifications or further orders from the Court as may be considered necessary by the Committee. Const. P. 05/2011 23 (8) The Office shall make available copies of the record to the Committee. (9) The fee of the Committee shall be determined on the basis of the extent and nature of the work. (10) The amount already deposited in Court by virtue of our order dated 23.05.2013 shall be paid to the party entitled, after determination of the amount of royalty payments on the basis indicated above. (11) The FIA shall inquire into the matters which have been noted and highlighted in this judgment and submit a report which shall identify all those who are responsible for the failings, including acts of criminal negligence, corruption, corrupt practices or other offences. FIA shall also inquire into and investigate such other matters which may come to light from examination of any documents and records during the course of inquiry/investigation. The report shall be submitted by FIA in Court within 30 days from today. Chief Justice Judge Judge Islamabad A. Rehman Announced on: 04.12.2013. APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain Constitution Petition No.05/2012 and CMA Nos.2382, 2487, 2492, 2876 & 3446/12 Criminal Original Petition Nos.47,54, 65 & 71/2012 Syed Mehmood Akhtar Naqvi … PETITIONER VERSUS Federation of Pakistan thr. Secretary Law and others For the petitioner (s): Patitioner in person (in Const.P.5/2012) For the applicant (s): Malik Waheed Anjum, ASC (in CMA-2382/12) Dr. Tariq Asad, ASC (in CMA-2487/12) Ms. Samira Basharat (in CMA-2876/12) Mr. M. Shoaib Lodhi (absent CMA-2492/12) Mr. Khawar Mahmood Khattana, ASC (in CMA-3446/12) On Court Notice: Mr. Irfan Qadir, Attorney General for Pakistan Assisted by Barrister Shehryar Riaz Sheikh, Advocate For the respondents: Mr. Dil Muhammad Khan Alizai, DAG (1,2,4,6,8,& 10) Raja Abdul Ghafoor, AOR Syed Sher Afghan, D.G. Election Commission For respondent No.3: Mr. Qasim Mir Jat, Addl. A.G. Sindh For respondent No.5: Mr. Jawwad Hassan, Addl. A.G. Punjab For respondent No.7: Mr. Azam Khattak, Addl. A.G. Balochistan For respondent No.9: Syed Arshad Hussain, Addl. A.G. KPK For Ms. Farah Naz Isfahani: Mr. Waseem Sajjad, Sr. ASC (absent) Ch. Akhtar Ali, AOR For Mr. Zahid Iqbal, MNA: Mian Abdul Rauf, ASC & Dr. Ahmad Ali Shah, MPA: Constitution Petition No.05/2012 2 For Mr. A. Rehman Malik: Mr. Anwar Mansoor Khan, Sr. ASC Mr. Muhammad Azhar Ch., ASC Raja Abdul Ghafoor, AOR (in CMA-2382/12): Mr. Muhammad Akhlaq, MPA (Pb) (absent) Mr. Farhat Mehmood Khan, MNA (absent) Dr. Muhammad Ashraf Chohan, MPA (absent) Ms. Nadia Ghabool, MPA (Sindh) (absent) Ch. Waseem Qadir, MPA (Pb) (absent) Ch. Khadim Nadeem, MPA (Pb) (absent) For Mr. Jameel Malik, MNA: Mr. Imtiaz Rashid Siddiqui, ASC (absent) (Res. In CMA 2492/12) For Mr. Shahjehan Yousaf, MNA: Hafiz S. A. Rehman, Sr. ASC (Res. In CMA 2487/12) Mr. Mehmood A. Sheikh, AOR With Sardar Shahjehan Yousaf, MNA Dates of hearing: 17 & 18 September, 2012 O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. — This petition has been filed under Article 184(3) of the Constitution with the prayer that the Parliamentarians having dual citizenship may be declared to be disqualified in terms of Article 63(1)(c) of the Constitution read with section 14 of the Pakistan Citizenship Act, 1951. 2. The matter was taken up on various dates, during course whereof notices were issued to the following Parliamentarians allegedly having dual citizenship: - 1. Mr. A. Rehman Malik, Senator 2. Mr. Abdul Hafeez Sheikh, Senator 3. Mr. Sabir Ali Baloch, Senator 4. Ch. Zahid Iqbal, MNA 5. Ch. Iftikhar Nazir, MNA 6. Ms. Farah Naz Isfahani, MNA 7. Mr. Farhat Mehmood Khan, MNA 8. Khawaja Muhammad Asif, MNA 9. Ms. Anusha Rehman, MNA 10. Mr. Jamil Ahmad Malik, MNA 11. Sardar Shahjehan Yousaf, MNA 12. Mr. Muhammad Akhlaq, MPA 13. Mr. Tariq Mehmood Alloana, MPA 14. Dr. Muhammad Ashraf Chohan, MPA 15. Ms. Nadia Gabol, MPA 16. Ch. Waseem Qadir, MPA 17. Ch. Nadeem Khadim, MPA 18. Ms. Amna Buttar, MPA Constitution Petition No.05/2012 3 19. Dr. Ahmad Ali Shah, MPA 3. Four Parliamentarians, namely, A. Rehman Malik, Senator (Sr.No.1), Ch. Zahid Iqbal, MNA (Sr.No.4), Ms. Farah Naz Isfahani, MNA (Sr.No.6) and Mr. Jamil Ahmad Malik, MNA (Sr.No.10) entered appearance through their counsel and contested the matter. The Parliamentarians at serial Nos.1, 6 and 10 were admittedly holders of dual citizenship, however, the Parliamentarian at serial No.4 against whom sufficient material was placed on record, could not substantiate that he was not in possession of dual citizenship. 4. This Court suspended the membership of some of the Parliamentarians detail of which is mentioned hereinbelow: - Sr.No. Name Date 1. Ms. Farah Naz Isfahani, MNA 25.05.2012 2. A. Rehman Malik, Senator 04.06.2012 3. Dr. Ahmad Ali Shah, MPA 13.06.2012 4. Mr. Muhammad Akhlaq, MPA 13.06.2012 5. Ms. Amna Buttar, MPA 13.06.2012 6. Ch. Zahid Iqbal, MNA 25.06.2012 7. Mr. Jamil Ahmad Malik, MNA 03.07.2012 8. Mr. Farhat Mehmood Khan, MNA 04.07.2012 9. Ms. Nadia Gabol, MPA 04.07.2012 5. M/s Muhammad Ashraf Chohan and Ch. Nadeem Khadim MPAs, after service prayed for adjournment by sending applications, which were allowed vide order of even date, but subsequently they did not deny the factum of having dual citizenship. 6. On the other hand, vide orders dated 13.06.2012 & 4.7.2012 proceedings against the persons at serial No.2, 3, 5, 8, 9, and 13 were dropped as no material was produced against them to show they possessed dual citizenship. Mr. Tariq Asad, ASC through CMA No. 2487 of 2012 claimed that Sardar Shahjehan Yousaf, MNA was the holder of dual citizenship, but when the latter contested the application through his counsel, the former withdrew his application Constitution Petition No.05/2012 4 and also tendered apology for leveling unsubstantiated allegation, therefore, no further proceedings are called for against Sardar Shahjehan Yousaf, MNA. 7. It is to be noted that Mr. A. Rehman Malik vide letter dated 19.4.2012 stated that he had renounced his citizenship of UK on 25.03.2008. Contents of the letter are reproduced herein below: - “MINISTER FOR INTERIOR Government of Pakistan Islamabad SENATOR A. REHMAN MALIK No.I/PS/M/2012 Dated: 19th April, 2012 In Re: CONSTITUTION PETITION NO.5 OF 2012 Syed Mehmood Akhtar Naqvi Petitioner Vs. The Federal Government through Secretary Law and others Respondents Please refer to your letter No.1(3)/2012-AGP dated 31st March 2012, concerning the above cited Constitutional Petition. In this regard, it may be informed that by virtue of my continuous exile in UK for nine years due to political victimization and life threats in Pakistan, which is a matter of public record, I was granted British nationality but I never renounced my Pakistani citizenship as dual nationality is allowed under the Pakistani law. However, I renounced my British nationality on 25.03.2008 before I held public office. I thus do not hold any other citizenship including of British nationality except that of Pakistani citizenship. Yours sincerely -sd- (Senator A. Rehman Malik) 8. It is noteworthy that along with the above letter, no re- enunciation form issued by the UK Border Agency was filed in terms of section 12(1) of the British Nationality Act, 1981 to substantiate the aforesaid claim. However, copy of letter dated 29.05.2012 issued by Constitution Petition No.05/2012 5 UK Border Agency was placed on record subsequently. The same is reproduced herein below: - “Home Office UK Border Agency Mr. A. R. Malik Our Ref M751044 25 Norfolk Crescent your Ref LONDON Date 29 May 2012 W22YS Dear Mr. Malik Renunciation of British Citizenship I am writing to inform you are now registered as having renounced British Citizenship. Enclosed is the Declaration of renunciation bearing a stamp of registration. This confirms the date on which you ceased to be a British Citizen under Section 12(1) of the British Nationality Act, 1981. Yours sincerely, -sd- Mrs CS Hughes Managed Migration, Nationality Group Department 73” 9. Plea on his behalf was that he had applied to renounce his British citizenship on 25.04.2008 before contesting the election of Senate of Pakistan, but the UK Border Agency did not issue certificate of renunciation of citizenship and subsequently when this matter came up before the Court, the Solicitor in UK namely, PHI (Legal) confirmed that he had renounced his British citizenship through his application dated 25.04.2008. Alongwith letter, copies of the application form and cheque of HSBC dated 25.04.2008 in the name of Accounting Officer, Home Office, issued by Dr. Saeed Rehman were also annexed. Whereas according to British Nationality Act, 1981, when a person files application form, declaring that he wishes to renounce his British citizenship or other British status, UK Border Agency returns the copy of application form officially signed and stamped, together with the documents filed with it. Despite repeated directions and opportunities granted to him, Mr. A. Rehman Malik chose not to file these papers in Constitution Petition No.05/2012 6 Court. This aspect of the case, however, shall be discussed in the detailed order. 10. Prima facie, it is apparent that Mr. A. Rehman Malik renounced his citizenship after the institution of the listed petition, as is evident from the contents of the letter dated 29.05.2012 wherein he was informed that he was “… now registered as having renounced British Citizenship”. In addition to it declaration of renunciation bearing stamp of registration was also enclosed in terms of legal provision noted therein. But, surprisingly the copies of this declaration were not placed on record despite the fact that the Court repeatedly directed for filing of the same. His membership as a Senator was suspended on 04.06.2012, therefore, on account of this reason he could not continue as the Interior Minister of the Government of Pakistan. However, he was appointed as Advisor to the Prime Minister. 11. It appears that to overcome the disqualification, he tendered resignation from the seat of Senate, which was accepted vide notification dated 11.07.2012 and against the vacant seat he participated in the fresh elections and was declared successful candidate vide notification dated 24.07.2012. In the meanwhile, he filed CMA No.3467/12 stating therein the following reason to resign from the membership of the Senate and to re-contest the election:- “That serious allegations were leveled by the opposition and carried by various media that laws were being amended for him, therefore, in order to dispel any such perception and in larger interest of democracy the applicant resigned as Member of the Senate of Pakistan under his signature on 9th July, 2012. The Senate has issued a notification of acceptance of resignation on 11th July, 2012. The same are placed on record.” Be that as it may, from the above facts it is established that having renounced the citizenship and upon issuance of letter dated 29.05.2012 by the Home Office, UK Border Agency, he was satisfied Constitution Petition No.05/2012 7 that disqualification proved against him stood removed, therefore, he should occupy his seat in the Senate free from any disqualification. In this behalf, it is to be noted that knowing well that his British Nationality/citizenship did not stand renounced, he made a false statement before the Court and the petitioner filed petitions for initiating proceedings for contempt of Court against him, which shall be considered separately later on. 12. The petitioner who appeared in person prayed to declare all the respondent Senators, MNAs or MPAs to be disqualified as they were holding those offices contrary to the provisions of Article 63(1)(c) of the Constitution. For convenience same is reproduced hereinbelow:- “63(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if - (a) … (b) …. (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State” 13. Mr. Waheed Anjum, ASC has appeared as intervenor and submitted a list of elected representatives, including those who admittedly were not disqualified as they had no dual citizenship, as such proceedings against them were dropped, detail of which has been mentioned hereinabove. It is important to note that in respect of Mr. Tariq Mehmood Alloana, MPA from Punjab, the matter was seriously contested by Mr. Alloana, but Mr. Waheed Anjum, ASC stuck to his stance. But later on, it was found that on the basis of false information supplied by the FIA, he was seeking his disqualification for being an MPA and when the matter was further probed and information was collected from FIA, it transpired that attempt was being made to get him disqualified with ulterior motives. As such directions were given to Constitution Petition No.05/2012 8 the Additional Registrar of this Court to lodge a criminal complaint against the concerned officers of FIA who had supplied incorrect information. Accordingly, on the application of Additional Registrar, Supreme Court, the case was registered on 04.07.2012. Proceedings against Mr. Alloana were, therefore, dropped. 14. Learned Attorney General appeared on Court notice in terms of Order XXVIIA CPC and did not support the contentions of either the petitioner or of the intervenors. 15. It has been emphasized by Mr. Waseem Sajjad, Sr. ASC appearing for Ms. Farah Naz Isfahani and learned Attorney General that under Article 63(1)(c) of the Constitution, the phrases, namely, “… … ceases to be a citizen of Pakistan”, or “acquires the citizenship of a foreign State” are to be read conjunctively and not disjunctively and the word ‘or’ appearing in between those phrases is to be read as ‘and’ because in such a situation, according to them, the Members of Senate, National Assembly and Provincial Assemblies having dual citizenship could continue in their offices without suffering from any such disqualification. 16. After hearing the petitioner, learned Attorney General, learned counsel for the respondents and others, taking into consideration the relevant provisions of the Constitution reproduced hereinabove and the material available on record, we are persuaded to hold that if a candidate suffers from pre or post disqualification under Article 63(1)(c) of the Constitution, no sooner such disqualification as envisaged under the said Article is attracted, becomes and is disqualified from being elected or chosen, and from being a Member of the Malis-e-Shoora (Parliament). These provisions have to be construed strictly by interpreting the same in view of the established Constitution Petition No.05/2012 9 principle of interpretation by assigning plain and simple meanings to the words and phrases used therein and avoiding any substitution thereof as the same is not within the ambit of this Court. 17. It is to be noted that a candidate, while filing nomination papers signs a declaration on oath to the following effect: - “DECLRATION AND OATH BY THE PERSON NOMINATED 1. I, the above mentioned candidate, hereby declare on oath that, — (i) I have consented to the above nomination and that I fulfill the qualifications specified in Article 62 of the Constitution and I am not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly. 18. The above declaration is applicable to the candidates of membership of Parliament and Provincial Assemblies, therefore, whoever signs such a declaration is meant to be fully aware of the constitutional provisions and after signing the said declaration if the same turns out to be false, he makes himself liable to be disqualified from being elected or chosen as Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 197, 198 and 199 PPC. 19. In view of the constitutional provisions under Article 63(1)(c) & (p) of the Constitution read with section 99(1)(f) of the Representation of the People Act, 1976 it is to be seen as to whether their cases are to be dealt with by the Speaker/Chairman under Article 63(2) or by the Election Commission under Article 63(3) or are to be de-notified by the Election Commission after having been declared to Constitution Petition No.05/2012 10 be disqualified from being a member of Majlis-e-Shoora or Provincial Assemblies. This Court has earlier dealt with this matter in the case of Syed Yousaf Raza Gillani in Constitution Petition No. 40 of 2012, etc. He was convicted by a 7-Member Bench vide judgment dated 26.04.2012 for contempt of Court under Article 204(2) of the Constitution read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced under section 5 of the said Ordinance and the reference filed by one Maulvi Iqbal Haider before the Speaker of Assembly to declare him disqualified under Article 63(2) was answered in the negative. Thereafter, the ruling of the Speaker was challenged before this Court through Constitution Petitions which were allowed and while dealing with the similar issue, the Court vide judgment dated 19.06.2012 held as under: - “As a Bench of 7 Hon’ble Judges vide judgment dated 26.04.2012 followed by the detailed reasons released on 08.05.2012 has found Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attained finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament) in terms of Article 63(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment of this Court dated 26.04.2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly; The Election Commission of Pakistan is required to issue notification of disqualification of Syed Yousaf Raza Gillani Constitution Petition No.05/2012 11 from being a member of the Majlis-e-Shoora w.e.f. 26.4.2012.” 20. Thus, for the reasons to be recorded later, we declare that:- (a) Ch. Zahid Iqbal, MNA, Ms. Farah Naz Isfahani, MNA, Mr. Farhat Mehmood Khan, MNA, Mr. Jamil Ahmad Malik, MNA, Mr. Muhammad Akhlaq, MPA(Punjab), Dr. Muhammad Ashraf Chohan, MPA (Punjab), Ms. Nadia Gabol, MPA (Sindh), Ch. Waseem Qadir, MPA (Punjab), Ch. Nadeem Khadim, MPA(Punjab), Ms. Amna Buttar, MPA (Punjab), Dr. Ahmad Ali Shah, MPA (Sindh) have been found disqualified from being members of Majlis-e-Shoora (Parliament) and Provincial Assemblies because of their disqualification under Article 63(1)(c) of the Constitution. (b) The Parliamentarians/Members of Provincial Assemblies, who have been declared to be disqualified, in view of the established fact that they have acquired the citizenship of Foreign States, therefore, no question has arisen, which is to be determined by the Chairman/Speaker. Thus, no reference under Article 63(2) is being made. (c) The Election Commission is directed to de-notify the respective memberships of Parliament/Assemblies of aforesaid persons. (d) All the Members of the Parliament/Provincial Assemblies noted above had made false declarations before the Election Commission while filing their nomination papers and as such appear to be guilty of corrupt practice in terms Constitution Petition No.05/2012 12 of Section 78 of Representation of Peoples Act, 1976, therefore, the Election Commission is directed to institute legal proceedings against them under section 82 of the Act read with sections 193, 196, 197, 198 and 199 PPC in accordance with law. (e) The members of Parliament/Provincial Assemblies noted hereinabove, being disqualified persons are directed to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which shall be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies accordingly. (f) The amount, so recovered from all of them by respective Secretaries shall be deposited in the public exchequer within a period of two weeks and compliance report shall be sent to the Registrar. (g) As regards the case of Senator A. Rehman Malik, it may be noted that at the time of filing of nomination papers for election to the Senate held in the year 2008, he had made a false declaration to the effect that he was not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the Parliament/Provincial Assembly, therefore, reference will be required to be made Constitution Petition No.05/2012 13 to the Chairman Senate under Article 63(2) in view of the provision of section 99(1)(f) of the Act of 1976, which lays down that a person shall not be qualified from being elected or chosen as a member of an Assembly unless he is sagacious, righteous and non-profligate and honest and ameen. Mr. A. Rahman Malik, in view of the false declaration filed by him at the time of contesting the election to the Senate held in the year 2008, wherein he was elected, cannot be considered sagacious, righteous, honest and ameen within the contemplation of section 99(1)(f) of the Act of 1976. Therefore, for such purposes Article 63(p) is to be adhered to because the disqualification incurred by him is envisaged under the law, referred to hereinabove in view of his own statement that he had renounced his citizenship of UK whereas the fact remains that such renunciation along with declaration can only be seen as having been made on 29.05.2012. (h) Senator A. Rehman Malik is directed to refund all monetary benefits drawn by him upto 11.7.2012 for the period during which he occupied the public office in the same manner as directed in the case of other Parliamentarians noted above. (i) As Mr. A. Rehman Malik had made false declarations while filing his nomination papers before the Election Commission in the election held in the year 2008, therefore, the Election Commission is directed to institute Constitution Petition No.05/2012 14 legal proceedings against him as it has been directed in the case of above said parliamentarians. 21. The Election Commission of Pakistan is also directed to examine the cases of the Parliamentarians and the members of Provincial Assemblies, individually, by obtaining fresh declaration on oath from all of them that they are not disqualified under Article 63(1)(c) of the Constitution. 22. The titled Constitution Petition is disposed of in the above terms. However, the Criminal Original Petitions are adjourned to a date in office. Chief Justice Judge Judge Announced on 20th September, 2012 at Islamabad. APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Constitution Petition No.05 of 2013 (Challenging the constitution of Election Commission of Pakistan) Dr. Muhammad Tahir-ul-Qadri ….Petitioner Versus The Federation of Pakistan, thr. Secretary M/O Law, Islamabad & others Respondent Petitioner: In person On Court Notice & For the Federation: (R-1&3) Mr. Irfan Qadir, A. G. for Pakistan For Election Commission: Mr. Muhammad Munir Peracha, Sr. ASC Mr. Mehmood A. Sheikh Mr. Abdul Rehman, Addl.DG. Legal For Parliamentary Committee: Mr. Muhammad Latif Qureshi, Joint Secy. National Assembly Dates of hearing: 11 to 13.02.2013 ORDER Iftikhar Muhammad Chaudhry, CJ.— For reasons to be recorded later it is held that petitioner, Dr. Muhammad Tahir-ul-Qadri has failed to make out a case for exercising the discretionary jurisdiction by this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, for the facts that violation of any of the Fundamental Rights under Chapter 1 of Part II of the Constitution has neither been listed in the petition nor established during course of arguments, despite of insistence by the Bench to do so. The petitioner has also failed to prove his bona fides in view of the facts, which have Constitution.P.5/13 2 been noticed at the hearing of the case, to invoke the jurisdiction of this Court coupled with the fact that under the peculiar circumstances he has no locus standi to claim relief as it has been prayed for in the petition, inter alia, for the reasons that being a holder of dual citizenship, he is not qualified (disqualified) to contest the election to the Parliament in view of the constitutional bar under Article 63(1)(c) of the Constitution, which has been interpreted by this Court in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089). 2. However, it is loudly and clearly observed that as a voter like other overseas Pakistanis, whose names have been incorporated in the Electoral Rolls, he can exercise his right of vote as this right is recognized under the Constitution and has also been held by this Court in the case of Yasmin Khan v. Election Commission of Pakistan (1994 SCMR 113), which was finally disposed of vide judgment in Constitution Petition 26/1993 dated 18.12.1993. Thus, the petition is dismissed. 3. Before parting with the short order, it is essential to note that at the time of concluding his arguments on the points noted hereinabove, he started making uncalled for aspersions against the member of the Bench, which are tantamount prima facie to undermine its authority calling for action against him for Contempt of Court under Article 204(3) of the Constitution read with section 3 of the Contempt of Court Ordinance, 2003. However we, while exercising restraint, have decided not to proceed against him following the principle that such jurisdiction has to be exercised sparingly on case to case basis. Chief Justice Judge Judge Islamabad, the 13th February, 2013

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Amin-ud-Din Khan Mr. Justice Jamal Khan Mandokhail CONSTITUTION PETITION NO.5 OF 2023 (Re: setting aside order dated 22.03.2023 passed by the Election Commission of Pakistan being ultra vires the Constitution) Mohammad Sibtain Khan & others …Petitioner(s) Versus Election Commission of Pakistan thr. Chief Election Commissioner, Islamabad and others …Respondent(s) For the Petitioner(s) : Syed Ali Zafar, ASC. Mr. Gohar Ali Khan, ASC. For the Federation : Ch. Aamir Rehman, Addl. AGP. Date of hearing : 27.03.2023. O R D E R Learned counsel for the petitioners submits that the order dated 22.03.2023 issued by the Election Commission of Pakistan (ECP) annuls the polling date fixed by the President of Pakistan in exercise of his power under Section 57(1) of the Elections Act, 2017 read with Article 112 of the Constitution of Islamic Republic of Const. P. No.5 OF 2023 2 Pakistan, 1973 (Constitution). It is, inter alia, contended that the ECP does not have any power under the law and the Constitution to pass such an order. It appears that the ECP has in the said order taken refuge behind Article 254 of the Constitution. The interpretation of that provision of the Constitution by this Court, inter alia, in Presidential Reference No.1 of 1988 (PLD 1989 SC 75), Rashid Ahmed vs. Government of Punjab (PLD 2010 SC 573) and Pakistan Peoples Party Parliamentarians vs. Federal of Pakistan (PLD 2022 SC 574) envisages post facto protection of the validity of the acts performed beyond the time fixed therefor by the Constitution. The said Article of the Constitution does not confer the prior authorization of delay in the execution of obligations required to be performed within a specified time prescribed by the Constitution. He further urges that the grounds given for extending the date of poll to 08.10.2023 have no backing of law or the Constitution. Such grounds may be available in several situations. In the past General Elections have been held notwithstanding that such factors were present at the time of the elections, for instance in 1988 and 2008. 2. Timely General Elections held “honestly, justly, fairly and in accordance with law” are crucial for the Const. P. No.5 OF 2023 3 democratic system of government mandated by our Constitution. Any flaw, deficiency or failing in the holding of General Elections is, prima facie, a matter of public importance that affects the fundamental rights of the voting public. 3. In the first instance, therefore, notice is issued to the Respondents in this petition. The ECP shall come prepared to assist on the legal questions and the factual points raised in the petition. 4. To come up tomorrow i.e. 28.03.2023 at 11:30 am for further hearing. Sd/- Chief Justice Sd/- Judge Sd- Judge Sd/- Judge Maintainability of this petition also requires consideration. Sd/- Judge Islamabad 27.03.2023.

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Javed Iqbal Mr. Justice Raja Fayyaz Ahmed Mr. Justice Asif Saeed Khan Khosa Constitution Petitions No. 60 and 61 of 2010 1. Shahid Orakzai … Petitioner in Const. P. No. 60/2010 2. Ch. Nisar Ali Khan … Petitioner in Const. P. No. 61/2010 versus 1. Pakistan through Secretary Law, Ministry of Law, Islamabad … Respondent in Const. P. No. 60/2010 2. Federation of Pakistan through Secretary, Ministry of Law, Justice & Parliamentary Affairs, Pakistan Secretariat, Islamabad and two others … Respondents in Const. P. No. 61/2010 For the petitioner: Mr. Shahid Orakzai petitioner in person (in Const. P. No. 60/2010) For the petitioner: Mr. Mohammad Akram Sheikh, Sr. ASC (in Const. P. No. 61/2010) assisted by Barrister Natalya Kamal, Advocate and Syed Riaz Hussain, Advocate For the Federation of Pakistan: Mr. Abdul Hafeez Pirzada, Sr. ASC and Mian Gul Hassan Aurangzeb, ASC assisted by Mr. Hamid Ahmad, Advocate, Ms. Saleha Hayat, Advocate and Mr. Mustafa Aftab Sherpao, Advocate On Court’s notice: Maulvi Anwarul Haq, Attorney-General for Pakistan For respondent No. 3: Dr. Khalid Ranjha, Sr. ASC (in Const. P. No. 61/2010) For the National Accountability Bureau: Mr. Muhammad Akbar Tarar, Acting Prosecutor- General, National Accountability Bureau Mr. Fowzi Zafar, Additional Prosecutor- General, National Accountability Bureau Mr. M. S. Khattak, AOR Dates of hearing: 01.02.2011, 02.02.2011, 08.02.2011, 28.02.2011 & 10.03.2011 JUDGMENT Asif Saeed Khan Khosa, J.: “Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other Constitution Petitions No. 60 & 61 of 2010 2 person for the time being within Pakistan” and this inviolable obligation has been mandated by no less a legal instrument than the Constitution of Pakistan itself through clause (2) of its Article 5. Through the present Constitution Petitions it has been asserted by the petitioners that in the matter of appointment of Mr. Justice (Retired) Syed Deedar Hussain Shah, a former Judge of this Court, as Chairman, National Accountability Bureau both the Constitution as well as the relevant law have been violated. 2. The issue posed by these petitions is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman and, with respect, the only persons utterly at sea are those connected with the law. The basic facts of this case are quite straightforward and uncomplicated and not in dispute but the constitutional and legal position applicable to such facts has been made to appear before this Court as a question of acute difficulty and it has fallen to our lot to state and declare the correct position in that regard. The pangs that a Judge has to go through and endure while adjudicating between fellow human beings are known to many but very few know that the pain is more penetrating when the matter concerns a former colleague in the profession. The case in hand happens to be one of such cases and we have been called upon to adjudicate upon an issue directly concerning appointment of a former Honourable Judge of this Court to a prestigious office in the country and, no matter how acute the pain and agony, judge we must, justly and fairly, as that is what is our vocation and calling. 3. The long and short of the matter is that Mr. Justice (Retired) Syed Deedar Hussain Shah (respondent No. 3 in Constitution Petition No. 61 of 2010, hereinafter referred to as ‘the respondent’) was appointed as Chairman, National Accountability Bureau by the President of Pakistan on 7th October, 2010 and the relevant Notification issued on 8th October, 2010 reads as follows: “Government of Pakistan Ministry of Law, Justice and Parliamentary Affairs ***** Islamabad, the 8th October, 2010. NOTIFICATION No.F.8.(17)/2010-A.I The President of Islamic Republic of Pakistan has been pleased to appoint Mr. Justice (Retd) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau in terms of Section 6(b)(i) of the National Accountability Ordinance, 1999, with immediate effect. (AHMAD ALI TURI) Deputy Secretary (Admn-II)” Constitution Petitions No. 60 & 61 of 2010 3 Within a matter of about one week of issuance of that Notification the appointment of the respondent was challenged before this Court through the present Constitution Petitions filed under Article 184(3) of the Constitution out of which Constitution Petition No. 60 of 2010 has been filed by Mr. Shahid Orakzai, a freelance journalist, and Constitution Petition No. 61 of 2010 has been preferred by Ch. Nisar Ali Khan, the Leader of the Opposition in the National Assembly, who is also a statutory consultee in the matter of appointment of Chairman, National Accountability Bureau in terms of section 6(b)(i) of the National Accountability Ordinance, 1999. 4. During the pendency and hearing of these petitions before this Court the above mentioned order dated 7th October, 2010 passed by the President of Pakistan appointing the respondent as Chairman, National Accountability Bureau was “withdrawn/recalled” on 9th February, 2011, the Notification dated 8th October, 2010 was “rescinded/cancelled” and the respondent was again “appointed” as Chairman, National Accountability Bureau by the President of Pakistan “with immediate effect”, i.e. with effect from 9th February, 2011. The relevant composite Notification issued on 9th February, 2011 reads as under: “Government of Pakistan Ministry of Law, Justice and Parliamentary Affairs *** Islamabad, the 9th February, 2011. NOTIFICATION No.F.8.(17)/2010-A.I The President of Islamic Republic of Pakistan has been pleased to withdraw/recall his order dated 07.10.2010, appointing Mr. Justice (R) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau (NAB). Consequently, notification No.F.8(17)/2010-A.I dated 08.10.2010 is hereby rescinded/cancelled. 2. Further, the President of Islamic Republic of Pakistan has also been pleased to appoint Mr. Justice (R) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau (NAB), in terms of Section 6(b)(i) of the National Accountability Ordinance, 1999 with immediate effect. (AHMAD ALI TURI) Deputy Secretary (Admn-II)” As cancellation of the respondent’s earlier appointment as Chairman, National Accountability Bureau and his fresh appointment as such had come about during the pendency and hearing of the present petitions and as the said development had been brought to the notice of this Court by the Federation of Pakistan itself, therefore, we had decided to treat that development as a part of the pending issue and to determine its effect on the same without requiring the petitioners to amend Constitution Petitions No. 60 & 61 of 2010 4 their petitions qua such development. It is by now settled law that a Court seized of a matter can not only take notice of any relevant development taking place during the pendency of the lis but it can also mould the relief to be granted keeping in view such development and none of the learned counsel representing different parties to the present petitions has disputed that legal position or has objected to the course adopted by us in that regard. 5. Mr. Shahid Orakzai, the petitioner in Constitution Petition No. 60 of 2010, has argued before us in person that appointment of Chairman, National Accountability Bureau is not a discretionary power of the President of Pakistan and in the matter of appointment of the respondent to that office no advice had been tendered to the President by the Prime Minister and, thus, the respondent’s appointment was unconstitutional. He has also argued that the impugned action of the President had been taken under section 6 of the National Accountability Ordinance, 1999 which legal provision had been promulgated and amended during a period when some provisions of the Constitution were held in abeyance but the present interpretation and application of the said law should be in accordance with the Constitution which is presently fully in force. With reference to Articles 182 and 207 of the Constitution he has maintained that a retired Judge of the superior judiciary can be available for some other assignment till two or three years of his retirement and not after that whereas the respondent has been appointed as Chairman, National Accountability Bureau at the age of about seventy years which, according to Mr. Orakzai, amounts to ‘judicial indiscipline’ besides militating against the constitutional mandate regarding separation of the judiciary from the executive. While relying upon the spirit of Article 213 of the Constitution regarding appointment of the Chief Election Commissioner he has further argued that ‘consultation’ between the Leader of the House and the Leader of the Opposition in the National Assembly contemplated by section 6(b)(i) of the National Accountability Ordinance, 1999 should be understood to be aimed at evolving a ‘consensus’ between the said two constitutional functionaries and if they fail to arrive at a consensus then they are to draw out lists of their respective recommendees which lists may then be submitted before the other authority involved in the matter which in the case of section 6(b)(i) of the National Accountability Ordinance, 1999 happens to be the President of Pakistan. Mr. Orakzai has lastly submitted that cancellation of the respondent’s earlier appointment as Chairman, National Accountability Bureau on 8th October, 2010 and his fresh appointment as such on 9th February, 2011 “with immediate effect” Constitution Petitions No. 60 & 61 of 2010 5 meant that the respondent’s earlier term of office for four years commencing on 8th October, 2010 had been terminated and he had been appointed again for another term of four years commencing on 9th February, 2011 which was not permissible under section 6(b)(i) of the National Accountability Ordinance, 1999 which places an embargo upon extension in a four years’ term or reappointment for another term. He has referred in this context to the judgment rendered by this Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (PLD 2010 SC 1109). He has pointed out that the Notification dated 8th October, 2010 as well as the Notification dated 9th February, 2011 carry the same number and that, according to him, was absurd because the President had recalled his order dated 7th October, 2010 on 9th February, 2011 and his recalling of that order could not have retrospective effect as the earlier order dated 7th October, 2010 and the Notification dated 8th October, 2010 had already been acted upon. 6. Mr. Muhammad Akram Sheikh, Sr. ASC appearing for the petitioner in Constitution Petition No. 61 of 2010 has narrated the history of section 6 of the National Accountability Ordinance, 1999 and has highlighted that the President of Pakistan has constantly remained the appointing authority of Chairman, National Accountability Bureau but the persons to be consulted by him before making such an appointment have been changing from time to time. He has pointed out that in the case of Khan Asfandyar Wali and others v. Federation of Pakistan and others (PLD 2001 SC 607) a recommendation had been made by this Court that Chairman, National Accountability Bureau ought to be appointed by the President in consultation with the Chief Justice of Pakistan and that recommendation had been given effect to through the National Accountability Bureau (Amendment) Ordinance XXXV of 2001 but subsequently through the National Accountability Bureau (Amendment) Ordinance CXXXIII of 2002 the Chief Justice of Pakistan had been excluded from the consultees and he was substituted by the Leader of the House and the Leader of the Opposition in the National Assembly who were to be consulted by the President before making an appointment of Chairman, National Accountability Bureau. However, in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265) this Court had reiterated its earlier recommendation and suggestion with regard to consultation with the Chief Justice of Pakistan in the matter of such appointment and that recommendation and suggestion had once again been repeated by this Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra). He has referred to the cases of Irshad Ahmad Shaikh v. The State Constitution Petitions No. 60 & 61 of 2010 6 (2000 SCMR 814) and All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600) to maintain that even an obiter dictum of this Court is worthy of great respect but in the matter of appointment of the respondent as Chairman, National Accountability Bureau no consultation whatsoever was made with the Chief Justice of Pakistan and such omission reflected adversely upon the legality of the appointment so made. 7. It has also been argued by Mr. Sheikh that in terms of section 6(b)(i) of the National Accountability Ordinance, 1999 the President of Pakistan was obliged to personally consult the Leader of the Opposition in the National Assembly (the petitioner in Constitution Petition No. 61 of 2010) before appointing the respondent as Chairman, National Accountability Bureau but admittedly the President had never personally consulted the Leader of the Opposition in the National Assembly in that regard. He has maintained that on account of that omission a mandatory requirement of section 6(b)(i) of the National Accountability Ordinance, 1999 had remained unfulfilled and, thus, the appointment of the respondent was patently illegal. He has referred in this respect to the age old principle of law that when the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. 8. Mr. Sheikh has further argued that in the case in had the purported consultation with the Leader of the Opposition in the National Assembly in the matter of appointment of the respondent as Chairman, National Accountability Bureau had been made by the Prime Minister of Pakistan in his capacity as the Leader of the House in the National Assembly which consultation was not only against the mandate of section 6(b)(i) of the National Accountability Ordinance, 1999 but the same was also not in consonance with the interpretation of the word ‘consultation’ handed down by the superior courts of the country through various judgments. He has pointed out that in the case of Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324) this Court had held that a ‘consultation’ has to be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfairplay” and an identical interpretation of that word had also been advanced in the case of Al-Jehad Trust and another v. Federation of Pakistan and others (PLD 1997 SC 84). He has also highlighted that in the case of Sindh High Court Bar Association v. Federation of Pakistan and 4 others (PLD 2009 Karachi 408) the High Court of Sindh had held that for a consultation to be meaningful and purposive an “attempt should be Constitution Petitions No. 60 & 61 of 2010 7 made to reach at some consensus” and that the required consultative process should be in writing. In this context he has also referred to the case of Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879) wherein this Court had observed that “by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate.” According to Mr. Sheikh the purported consultation made by the Prime Minister of Pakistan with the Leader of the Opposition in the National Assembly vis-à-vis the respondent fell far short of being consensus-oriented because in the solitary telephone call made in that connection by the Prime Minister to the Leader of the Opposition in the National Assembly no serious effort had been made to evolve a consensus on the name of the respondent for the office of Chairman, National Accountability Bureau. Mr. Sheikh has also referred in this respect to a letter written by the Leader of the Opposition in the National Assembly to the Prime Minister on 24th September, 2010, a copy whereof has been appended with Constitution Petition No. 61 of 2010 at page No. 18 thereof. He has maintained that the objections of the Leader of the Opposition in the National Assembly against the respondent’s appointment as Chairman, National Accountability Bureau had been brushed aside by the Prime Minister on the basis of an expression of confidence in the respondent’s integrity and impartiality by Mian Muhammad Nawaz Sharif, the head of the political party to which the Leader of the Opposition in the National Assembly belongs, more than a decade ago when the respondent was serving as the Chief Justice of the High Court of Sindh but that expression of confidence by Mian Muhammad Nawaz Sharif was irrelevant to the issue because Mian Muhammad Nawaz Sharif was not a consultee in terms of section 6(b)(i) of the National Accountability Ordinance, 1999, he was not the Leader of the Opposition in the National Assembly at the time of the purported consultation and he did not represent the entire opposition in the National Assembly. Thus, according to Mr. Sheikh, apart from not being consensus- oriented the purported consultation was also not meaningful because the consideration weighing with the Prime Minister for rejecting the objections and concerns of the Leader of the Opposition in the National Assembly qua the respondent were extraneous and irrelevant. Mr. Sheikh has also maintained that the purported consultation was not even purposive because the purpose of such consultation, on account of our unfortunate history of victimization of the political opposition through the National Accountability Bureau or its predecessor institutions, was to appoint a Chairman, National Accountability Bureau who Constitution Petitions No. 60 & 61 of 2010 8 inspired confidence of the apprehensive potential victim, i.e. the political opposition in the country. 9. Mr. Sheikh has gone on to argue that appointment of Chairman, National Accountability Bureau is not a discretionary power of the President of Pakistan and in making such an appointment the President was, in terms of Article 48(1) of the Constitution, bound to act on the advice of the Prime Minister but in the case of first appointment of the respondent as Chairman, National Accountability Bureau on 8th October, 2010 the Prime Minister had tendered no advice to the President. With reference to some newspaper clippings appended with Constitution Petition No. 61 of 2010 he has pointed out that as a matter of fact the Prime Minister had made a public statement that he had tendered no advice whatsoever to the President for appointment of the respondent as Chairman, National Accountability Bureau. According to Mr. Sheikh, such appointment of the respondent as Chairman, National Accountability Bureau was an act of deliberate defiance of the mandate of Article 48(1) of the Constitution by the President and also an unconstitutional abdication of his constitutional jurisdiction by the Prime Minister in favour of the President and, thus, the impugned appointment of the respondent was not a valid appointment in the eyes of the Constitution. He has maintained that the notion of ‘substantial compliance’ has never been accepted in the matter of constitutional mandates or requirements. He has also referred in this context to Article 74(1) of the Indian Constitution and to the case of Govinddassammy v. The President of India (2001 CTC 423) wherein it had been held that the Indian President could not do anything without the advice of Ministers. 10. With reference to some Articles of the United Nations Convention on Corruption Mr. Sheikh has also argued that establishing independent and impartial anti-corruption bodies in the country is an obligation and commitment of the Government of Pakistan because Pakistan is a signatory to the said Convention and she has also formally ratified it but by appointing the respondent as Chairman, National Accountability Bureau such obligation and commitment have been violated and infringed. 11. As far as the fresh appointment of the respondent on 9th February, 2011 is concerned Mr. Sheikh has contended that undeniably such fresh appointment was made without the President or the Prime Minister consulting the Leader of the Constitution Petitions No. 60 & 61 of 2010 9 Opposition in the National Assembly at all and, therefore, the mandatory requirement in that regard contained in section 6(b)(i) of the National Accountability Ordinance, 1999 had been flagrantly violated and that violation had vitiated the respondent’s fresh appointment. He has further contended that even in the matter of the second appointment of the respondent the Chief Justice of Pakistan had not been consulted rendering such appointment further laconic. He has gone on to submit that only the President and the Prime Minister were involved in the respondent’s second appointment and that appointment was vitiated on account of conflict of interest because the President was personally involved in many criminal cases being pursued by the National Accountability Bureau and the Prime Minister had previously been convicted for an offence under the National Accountability Ordinance, 1999 but he had subsequently been acquitted in appeal. With reference to the case of Alexia Morrison v. Theodore B. Olson (487 US 654) he has maintained that in cases of potential conflict of interest the judicial branch is most suitable to make an appointment to such an office. In the context of conflict of interest he has further referred to the Oaths of Office prescribed by the Constitution for the President of Pakistan and the Prime Minister and has pointed out that before entering upon their respective offices the President and the Prime Minister had both sworn before Almighty Allah “That I will not allow my personal interest to influence my official conduct or my official decisions”. He has also argued that such fresh appointment of the respondent was in fact his second appointment for a fresh term of four years whereas by virtue of the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 the respondent could be appointed only once for a “non-extendable period of four years”. He has maintained that through the fresh appointment of the respondent something has been achieved indirectly which could not have been done directly and this amounted to committing fraud upon the relevant statute. He has pointed out that in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) this Court has already held in most categorical terms that the statutory embargo placed by the use of the words “non-extendable period” of some specified years vis-à-vis an office in the National Accountability Bureau cannot be circumvented or overcome by making a fresh appointment to the relevant office for a fresh term of that office. 12. As regards the maintainability of his client’s Constitution Petition filed before this Court under Article 184(3) of the Constitution Mr. Sheikh has maintained that appointment of Chairman, National Accountability Bureau is Constitution Petitions No. 60 & 61 of 2010 10 inextricably linked with enforcement of many Fundamental Rights of the people of this country including right to life, right to liberty, due process of law, fair trial and access to justice and this Court being the guardian of those rights is under an obligation to ensure that only such person is appointed to that office who can protect such rights and can prosecute the violators. He has highlighted that under the National Accountability Ordinance, 1999 the Chairman, National Accountability Bureau has vast powers regarding initiating or authorizing inquiries, investigations and trials besides the powers of freezing properties and entering into or approving plea-bargains with suspects being inquired into or accused persons being investigated or tried which powers are essentially judicial or quasi-judicial in nature and, thus, the matter of appointment of Chairman, National Accountability Bureau necessarily involves issues concerning access to justice which the jurisprudence of this country now recognizes as issues of basic human rights. As hundreds of inquiries, investigations and trials are to be dealt with by the Chairman, National Accountability Bureau, therefore, he has also maintained that the matter of appointment of Chairman, National Accountability Bureau is a matter or question of public importance within the purview of Article 184(3) of the Constitution. In this connection Mr. Sheikh has also pointed out that the matter of appointment of Chairman, National Accountability Bureau has repeatedly been found by this Court to be of such public importance that in the case of Khan Asfandyar Wali and others v. Federation of Pakistan and others (supra) a recommendation had been made by this Court that Chairman, National Accountability Bureau ought to be appointed by the President in consultation with the Chief Justice of Pakistan and subsequently that recommendation and suggestion had also been repeated and reiterated in the cases of Dr. Mobashir Hassan and others v. Federation of Pakistan and others (supra) and The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra). He has gone on to submit in this regard that the office of an independent investigator or prosecutor is of such great public importance that despite the absence of any express provision regarding an Independent Counsel in the Constitution of the United States of America the power to appoint an Independent Counsel for the purposes of investigation and prosecution of high State functionaries was upheld as constitutionally valid in the case of Alexia Morrison v. Theodore B. Olson (supra). 13. In the end Mr. Sheikh has impassionedly submitted that as the guardian of the people’s Fundamental Rights this Court is under a constitutional obligation to Constitution Petitions No. 60 & 61 of 2010 11 ensure that affirmative or negative investigatorial and prosecutorial jurisdiction and discretionary role of the concerned institutions of the State do not fall in the hands of those the validity of whose appointment or impartiality of their conduct is clouded with doubts of serious nature. 14. As against that Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan has argued that the Constitution Petitions in hand are not maintainable as the requisite requirements of Article 184(3) of the Constitution are not fulfilled by them. He has submitted that although the issue raised in these petitions involves a question of public importance yet that issue is not of enforcement of Fundamental Rights or access to justice. According to him, it is a case of appointment to a public office which is an executive office and not a judicial office and, therefore, such appointment is not relevant to access to justice. He has referred in this respect to the cases of Jamat-e-Islami through Amir and others v. Federation of Pakistan and others (PLD 2009 SC 549) and All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600). 15. Mr. Pirzada has further argued that two Constitution Petitions (Rashid A. Akhund v. President of Pakistan (Constitution Petition No. 2936 of 2010) and Muhammad Siddique Mirza v. Federal Government of Pakistan (Constitution Petition No. 2931 of 2010)) challenging the same appointment of the respondent are presently pending before the High Court of Sindh and in view of pendency of those petitions before the High Court of Sindh this Court may await the decision of those petitions so as to be benefitted by the views of the High Court on the subject. He has maintained that after the recent amendment of Article 186A of the Constitution through the 18th Amendment of the Constitution it is no longer possible for this Court to lift those petitions from the High Court and to hear and decide the same itself. 16. Mr. Pirzada has also argued that the objections raised by the Leader of the Opposition in the National Assembly against the respondent’s appointment as Chairman, National Accountability Bureau are based upon presumptive fears and a prayer based upon a presumptive fear cannot be entertained by this Court. Entertaining such a prayer, according to him, would only call for an “academic exercise in respect of unborn issues” and in support of this argument he has referred to the cases of Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan Constitution Petitions No. 60 & 61 of 2010 12 and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) and Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner and 6 others (PLD 1998 Lahore 461). According to Mr. Pirzada, the objections of the Leader of the Opposition in the National Assembly to the respondent’s appointment as Chairman, National Accountability Bureau are baseless and for such objections some past conduct of the respondent has been relied upon whereas the question regarding the respondent’s impartiality cannot be determined without appreciating severance of his ties with the past on account of his remaining a Judge and Chief Justice of the High Court of Sindh and then a Judge of this Court. He has referred in this context to the case of Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57). 17. As regards the issue of ‘consultation’ provided for by the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 Mr. Pirzada has maintained that the ‘consultation’ contemplated by section 6(b)(i) is a consultation between two political leaders and such political consultation is different from constitutional consultation. He has gone on to submit that in his letters to the Prime Minister the Leader of the Opposition in the National Assembly had never raised the point that the necessary consultation had to be done by the President and not by the Prime Minister and, thus, the Leader of the Opposition in the National Assembly is now estopped from raising such an objection. 18. Mr. Pirzada has emphasized that in the ‘consultation’ contemplated by the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 no primacy is available to the Leader of the Opposition in the National Assembly who is merely a consultee and a consultee’s opinion cannot be accepted as binding and if that were to be so accepted then, according to him, the power of appointment of Chairman, National Accountability Bureau would practically vest in the Leader of the Opposition in the National Assembly which was never the intention of the relevant law. He has submitted that before the respondent’s appointment as Chairman, National Accountability Bureau the Prime Minister had indeed consulted the Leader of the Opposition in the National Assembly and such consultation was sufficient for the purposes of section 6(b)(i) of the National Accountability Ordinance, 1999. Constitution Petitions No. 60 & 61 of 2010 13 19. It has forcefully been argued by Mr. Pirzada that the Chief Justice of Pakistan was not a statutory consultee at the time of appointment of the respondent as Chairman, National Accountability Bureau and, therefore, nothing turns on failure of the President or the Prime Minister to consult him before the respondent’s appointment. He has submitted that on the basis of a recommendation made by this Court in the case of Khan Asfandyar Wali and others v. Federation of Pakistan and others (supra) the relevant law had been amended and the Chief Justice of Pakistan was made a consultee in the matter but subsequently the law was amended again and the provision regarding the Chief Justice of Pakistan being a consultee in the matter was deleted and that amendment in the relevant law has never been challenged by anybody so far. He has further submitted that the above mentioned recommendation made by this Court was merely an obiter dictum which was, at best, entitled only to respect and not enforceability. 20. Mr. Pirzada has not disputed that the power of appointment of Chairman, National Accountability Bureau is not a discretionary power of the President of Pakistan and by virtue of the provisions of Article 48(1) of the Constitution the President is obliged and bound to act on the advice of the Prime Minister in the matter of such appointment. He has also not denied that in the earlier appointment of the respondent as Chairman, National Accountability Bureau on 8th October, 2010 the President had not acted on any advice of the Prime Minister in that regard but he has hastened to add that on that occasion there was a substantial compliance of the spirit of Article 48(1) of the Constitution as well as of section 6(b)(i) of the National Accountability Ordinance, 1999 and the Rules of Business of the Federal Government. He has maintained in this context that for the purposes of coexistence and survival of section 6(b)(i) of the National Accountability Ordinance, 1999 with Article 48(1) of the Constitution section 6(b)(i) of the National Accountability Ordinance, 1999 is to read down so as to adjust with the mandate of Article 48(1) of the Constitution. 21. It has lastly been submitted by Mr. Pirzada that fresh appointment of the respondent as Chairman, National Accountability Bureau on 9th February, 2011 had been made by the President of Pakistan on the advice of the Prime Minister and, therefore, the constitutional lacuna, if any, in his earlier appointment as such on 8th October, 2010 stood properly removed and rectified. He has further maintained that the fresh appointment of the respondent as Chairman, National Constitution Petitions No. 60 & 61 of 2010 14 Accountability Bureau on 9th February, 2011 is to be considered as in continuity of his earlier appointment as such on 8th October, 2010 and such fresh appointment cannot be considered as an appointment for a different and new term of office. 22. Dr. Khalid Ranjha, Sr. ASC appearing for Mr. Justice (Retired) Syed Deedar Hussain Shah has submitted that these Constitution Petitions are in the nature of quo warranto and certiorari and have been filed under Order XXV rule 6 of the Supreme Court Rules, 1980 whereas two Constitution Petitions (Constitution Petition No. 2931 of 2010 and Constitution Petition No. 2936 of 2010) filed by some other persons regarding the same issue are already pending before the High Court of Sindh and, therefore, this Court should await the decision and views of the High Court on the matter before proceeding further with these petitions. 23. Quite contrary to the stand taken by Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan, Dr. Ranjha has maintained that the necessary advice under Article 48(1) of the Constitution had in fact been tendered by the Prime Minister to the President before the respondent’s first appointment as Chairman, National Accountability Bureau on 8th October, 2010 and by virtue of the provisions of Article 48(4) of the Constitution the question whether any, and if so what, advice was tendered to the President by the Prime Minister cannot be inquired into by this Court. He has also submitted that a judgment of facts by a constitutional functionary is not to be gone into by a court of law and in this regard he has referred to the cases of Aftab Ahmad Khan Sherpao v. Sardar Farooq Ahmad Khan Leghari and others (PLD 1997 Peshawar 93) and Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lahore 38). He has further maintained in this context that under Articles 46 and 91 of the Constitution the Prime Minister and the Federal Ministers are required to inform, aid and advise the President and that function had duly been performed by the Prime Minister before the respondent’s first appointment as Chairman, National Accountability Bureau on 8th October, 2010. 24. Dr. Ranjha has also argued that the process of appointment of the respondent as Chairman, National Accountability Bureau had been initiated after the express orders of this Court passed in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and in the judgment delivered in Constitution Petitions No. 60 & 61 of 2010 15 that case this Court had directed that an appointment to the office of Chairman, National Accountability Bureau was to be made in terms of section 6(b)(i) of the National Accountability Ordinance, 1999 and no direction had been made in that judgment for an appointment to be made in terms of the requirements of Article 48(1) of the Constitution. It has been maintained by Dr. Ranjha that the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 had been fully complied with while appointing the respondent as Chairman, National Accountability Bureau for the first time on 8th October, 2010. He has further submitted that in the matter of that appointment the Prime Minister had to walk on a tight rope creating a balance between the above mentioned judgment of this Court, the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 and the mandate of Article 48(1) of the Constitution. 25. While dilating upon the meanings of the word ‘consultation’ used in section 6(b)(i) of the National Accountability Ordinance, 1999 Dr. Ranjha has referred to Black’s Law Dictionary and has maintained that consultation does not mean persuasion or approval of the consultee. 26. Dr. Ranjha has summed up his arguments with a plea that the respondent is a very dignified and honourable man and he is not to be held at fault for others’ lack of correct understanding or application of the Constitution or the law, if any. 27. Maulvi Anwarul Haq, the learned Attorney-General for Pakistan, appearing on the Court’s notice has admitted that the matter of appointment of Chairman, National Accountability Bureau does not fall within the discretionary powers of the President and for such appointment the President has to act upon an advice tendered to him by the Prime Minister in terms of Article 48(1) of the Constitution. He has, however, maintained that the earlier appointment of the respondent as Chairman, National Accountability Bureau on 8th October, 2010 was in consonance with the spirit of Article 48(1) of the Constitution, section 6(b)(i) of the National Accountability Ordinance, 1999 and the Rules of Business of the Federal Government because in the matter of that appointment the Prime Minister was actively involved, he had consulted the Leader of the Opposition in the National Assembly and had then ‘seen’ the summary forwarded to the President for the respondent’s appointment although no formal advice was tendered by him to President in that regard. The learned Attorney-General has gone on to submit that the earlier appointment of the respondent as Chairman, Constitution Petitions No. 60 & 61 of 2010 16 National Accountability Bureau on 8th October, 2010 had subsequently been cancelled and he had again been appointed to that office on 9th February, 2011 after removal of the constitutional defect in his earlier appointment. He has, thus, maintained that the present appointment of the respondent as Chairman, National Accountability Bureau is without any constitutional or legal blemish and, therefore, the petitions in hand should be dismissed. Like Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan, the learned Attorney- General has also maintained that the Chief Justice of Pakistan is not a constitutionally or statutorily recognized consultee in the matter of appointment of Chairman, National Accountability Bureau and, thus, absence of consultation with him in the matter cannot vitiate an appointment made to that office 28. After hearing Mr. Shahid Orakzai petitioner in person and the learned counsel for the other parties as well as the learned counsel for the Federation of Pakistan and the learned Attorney-General for Pakistan at great length on many dates of hearing and after going through the relevant record of this case with their able assistance we have observed that the respondent namely Mr. Justice (Retired) Syed Deedar Hussain Shah was appointed Chairman, National Accountability Bureau not once but twice. Initially he was appointed to that office by the President of Pakistan on 7th October, 2010 in terms of section 6(b)(i) of the National Accountability Ordinance, 1999 (which section specifies a term of four years for that office) and a Notification in that regard was issued on 8th October, 2010. After such appointment the respondent had actually been discharging the duties and performing the functions of that office till 9th February, 2011 when through another Notification of that date the President withdrew/recalled his earlier order dated 7th October, 2010 whereby the respondent had been appointed Chairman, National Accountability Bureau and consequently the earlier Notification dated 8th October, 2010 was rescinded/cancelled. On the same date, i.e. 9th February, 2011 the President, through the same Notification of that date, again appointed the respondent as Chairman, National Accountability Bureau in terms of section 6(b)(i) of the National Accountability Ordinance, 1999, i.e. for a term of four years in office “with immediate effect”. We have already observed above that as cancellation of the respondent’s earlier appointment and his fresh appointment as Chairman, National Accountability Bureau had come about during the pendency and hearing of the present petitions and as the said development had been brought to the notice of this Court by the Federation of Pakistan itself, therefore, we had decided to treat that development as a part of the pending issue Constitution Petitions No. 60 & 61 of 2010 17 and had decided to determine its effect on the same without requiring the petitioners to amend their petitions in respect of such development. There is no gainsaying the fact that the law is by now quite settled that a Court seized of a matter can not only take notice of any relevant development taking place during the pendency of the lis but it can also mould the relief to be granted keeping in view such development and none of the learned counsel representing different parties to the present petitions has disputed that legal position or has objected to the course adopted by us in that regard. Most of the arguments addressed before this Court in connection with the present petitions had been addressed in respect of the first appointment of the respondent on 8th October, 2010 but all such arguments had been reduced to those of academic interest only because during the pendency of these petitions the respondent’s first appointment had been revoked on 9th February, 2011. We have, therefore, decided to, as far as possible, avoid making any comment on the arguments addressed before the Court in respect of the respondent’s first appointment and have further decided to determine the fate of the present petitions mainly on the basis of the arguments addressed before the Court in respect of the second appointment of the respondent which had come about and had commenced on 9th February, 2011. 29. In the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) this Court had made some detailed comments in respect of the reasons behind promulgation of the National Accountability Ordinance, 1999, the qualifications for holding the office of Chairman, National Accountability Bureau, the consultees in the matter of his appointment and the important duties to be discharged and the prestigious functions to be performed by him. It had been observed by this Court in that case as follows: “37. The National Accountability Bureau Ordinance being Ordinance No. XVIII of 1999 was promulgated on 16th November, 1999, inter alia, "to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kick-backs, commissions and for matters connected and ancillary or incidental thereto." And for "recovery of outstanding amounts from those persons who have committed default in re-payment of amounts to banks, financial institutions, government agencies and other agencies." The persons liable to be proceeded against, arrested and prosecuted under the said Ordinance, as per section 9 thereof read with section 5(m), included persons of the level and status of the sitting Prime Minister, the sitting Chairman of the Senate, the sitting Speaker of the National Assembly, Federal Ministers, Attorney General, the sitting Chief Ministers, the sitting Speakers of the Provincial Assemblies, Provincial Ministers, Members of the Parliament and Members of the Provincial Assemblies. And the person empowered to initiate and take such-like steps against such-like accused persons and others, including ordering their arrest, their prosecution and even confiscation of their properties, was the Chairman of the said Bureau. The Constitution Petitions No. 60 & 61 of 2010 18 provisions of section 6(b) of the said Ordinance then talked of the appointment and the terms and conditions of the office of the said Chairman, as originally enacted, was in the following terms:-- "6(b) Chairman National Accountability Bureau: (i) There shall be a Chairman NAB to be appointed by the President for such period as the Chief Executive of Pakistan may determine and consider proper and necessary. (ii) The Chairman NAB shall be appointed on such terms and conditions and shall have the status and privileges as may be determined by the Chief Executive. (iii) The Chairman NAB may resign his office by writing under his hand addressed to the Chief Executive." The matter of accountability under the said Ordinance and the status of the persons charged with the responsibilities envisaged by the said Ordinance came to be examined by this Court in Khan Asfand Yar Wali's case (PLD 2001 SC 607). This Court was appalled to find that no qualifications stood prescribed for persons who could be appointed as officers with the above kind of high obligations nor did such like officers, who stood commanded to proceed even against the sitting Prime Minister, have any security of service or of any terms and conditions of their service. It was, therefore, found imperative by this Court that the office of the Chairman should be made secure and strong and be manned by persons of high qualities to be able to cope with the high degree of responsibilities cast on it. It had consequently been observed through para-288 of the above-mentioned judgment that the Chairman of the NAB should be appointed by the President in consultation with the Chief Justice of Pakistan; that the tenure of his office be secured; that he should also be protected against removal from office and should not be removable from the said office except on grounds on which a Judge of the Supreme Court could be removed and that the salary and allowances etc. to which such a Chairman was entitled should also be fixed and determined and should not be allowed to be varied during the term of his office. 38. It was in view of these recommendations and observations made by this Court through the above-mentioned judgment delivered in April, 2001 that amendments were made in the above-mentioned Ordinance through an Amending Ordinance No. XXXVI of 2001 which was promulgated on August, 10, 2001 and the substituted provisions of section 6(b) above-quoted then read as under:-- "(b) Chairman National Accountability Bureau: (i) there shall be a Chairman NAB to be appointed by the President in consultation with the Chief Justice of Pakistan for a period of three years on such terms and conditions as may be determined by the President and shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan." 39. It may, however, be mentioned that in the month of November, 2002, amongst others, a new subsection (ba) was added to the above-mentioned section 6 through the Amending Ordinance No. CXXXIII of 2002 whereby the qualifications for a person to be appointed as the Chairman NAB were also prescribed which were as under: "6(ba) A person shall not be appointed as Chairman NAB unless he--- (i) is a retired Chief Justice or a Judge of the Supreme Court or a Chief Justice of a High Court; or (ii) is a retired officer of the Armed Forces of Pakistan equivalent to the rank of a Lieutenant General; or Constitution Petitions No. 60 & 61 of 2010 19 (iii) is a retired Federal Government Officer in BPS 22 or equivalent." But in the same breath, an amendment was also made in subsection (b) of the said section 6 whereby consultation with the Chief Justice of Pakistan in the matter of the said appointment was omitted. It may well have been just a coincidence but historically speaking the elimination of the Chief Justice of Pakistan from the said scene coincided with the General Elections in the country in the year 2002 after which elections serious allegations became public regarding the misuse of this NAB Ordinance for political purposes. 40. Be that as it may, what is still strikingly noticeable is that irrespective of the fact whether the said Chairman was appointable with or without the consultation of the Chief Justice of Pakistan, the fact remains that the qualifications prescribed for the said office are a definite indicator of the high status of the said office which is obviously in consonance with the high obligations cast on the incumbent i.e. a Chairman being a person who had held the office of the Chief Justice of Pakistan or of the Judge of the Supreme Court or of the Chief Justice of a High Court or was a retired officer of the Armed Forces of Pakistan of the rank of a Lieutenant General or who was a retired Federal Government Officer in BPS-22. 41. The reason for looking for a person of such an eminence and prestige for appointment as the Chairman of NAB is not far to find. A bare perusal of the provisions of sections 5(m), 7, 8, 12, 16(a), 18, 19, 20, 21, 22, 24, 25, 26 and 28 of the said NAB Ordinance would show the importance and the momentousness of the office of the Chairman under the said Ordinance. He is the person to be consulted by the President of Pakistan for the appointment of a Deputy Chairman of the NAB and for the appointment of the Prosecutor-General Accountability; he appoints all other officers of the NAB; he is the one to decide whether to make or not to make a Reference with respect to corruption or corrupt practices and no Court could take cognizance of any such offence unless such a Reference was made by him or by an officer authorized by him; he is the one who could order initiation of proceedings under this Ordinance or order an inquiry or investigation in the matter; he is one who directs and authorizes arrests of accused persons under the said Ordinance; he is the one who has the power to freeze properties which are the subject matter of an offence under the said Ordinance and who could, in certain cases, even order sale of the said property and he has the authority to call for any record or information with respect to any matter covered by the NAB Ordinance. All Banks and Financial Institutions stand commanded to report all unusual financial transactions to him. It is he who stands authorized to communicate with foreign Governments for their assistance; he is the authority to accept plea-bargains and he is the one who has the power to tender pardon to any person accused of an offence under the said Ordinance. Needless to add that such like orders could be passed by him against any holder of any Public Office including a sitting Prime Minister of the country.” 30. In the above mentioned case assumption of the office of Acting Chairman, National Accountability Bureau by a Deputy Chairman at a time when the office of Chairman was vacant had been declared to be illegal and it was inter alia directed by this Court as under: “(a) that the assumption of the office of Acting Chairman NAB by Javed Qazi, Deputy Chairman is illegal and it is, therefore, directed that a regular appointment to the vacant office of Chairman NAB be made in terms of section 6 of the NAB Ordinance, 1999.” It was in that backdrop that the respondent herein namely Mr. Justice (Retired) Syed Deedar Hussain Shah had firstly been appointed Chairman, National Accountability Bureau on 8th October, 2010 and then upon withdrawal/recall of Constitution Petitions No. 60 & 61 of 2010 20 the order of his appointment dated 07.10.2010 and rescission/cancellation of the Notification dated 8th October, 2010 through the Notification dated 9th February, 2011 he was appointed to that office again with effect from the last mentioned date. It is true that the subsequent appointment of the respondent on 9th February, 2011 had been made by the President of Pakistan upon an advice tendered to him in that regard by the Prime Minister in terms of Article 48(1) of the Constitution but at the same time it is equally true that the said appointment had not been made in terms of section 6(b)(i) of the National Accountability Ordinance, 1999, as directed by this Court. Section 6(b)(i) of the National Accountability Ordinance, 1999, as it stood on 9th February, 2011 and as it stands today, reads as follows: “There shall be a Chairman NAB to be appointed by the President in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly for a non-extendable period of four years on such terms and conditions as may be determined by the President and shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan. -----” It is not disputed that before appointment of the respondent as Chairman, National Accountability Bureau on 9th February, 2011 neither the President of Pakistan nor the Prime Minister had consulted the Leader of the Opposition in the National Assembly in any manner whatsoever and, thus, a mandatory requirement in that regard had remained unfulfilled. The learned counsel for the Federation of Pakistan has vehemently argued that the appointment of the respondent as Chairman, National Accountability Bureau on 9th February, 2011 was in fact in continuation of or in supersession of his appointment as such made on 8th October, 2010 and before the appointment made on 8th October, 2010 the Leader of the Opposition in the National Assembly had indeed been consulted. We have, however, remained unable to subscribe to this argument of the learned counsel for the Federation of Pakistan for the simple reason that the respondent’s appointment made on 9th February, 2011 was made “with immediate effect”, i.e. with effect from 9th February, 2011 and not with effect from 8th October, 2010 and at the time of such appointment it was never made clear either in the order passed by the President or in the Notification issued in that regard that the respondent’s fresh appointment on 9th February, 2011 was in continuation of or in supersession of his earlier appointment made on 8th October, 2010. In this view of the matter the respondent’s appointment as Chairman, National Accountability Bureau on 9th February, 2011 was, for all intents and purposes, a fresh appointment which required fresh mandatory consultation with the Leader of the Opposition in the National Assembly which, admittedly, was never resorted to. It is also not denied that before appointing the respondent for the second time, as in the case of his Constitution Petitions No. 60 & 61 of 2010 21 first appointment, no consultation had been made by the President or the Prime Minister with the Chief Justice of Pakistan as repeatedly recommended and suggested by this Court in the cases mentioned above. 31. Mr. Shahid Orakzai petitioner has pointed out before us, and we have been intrigued to notice, that the Notification dated 8th October, 2010 as well as the Notification dated 9th February, 2011 carry the same number (No.F.8.(17)/2010- A.I) and that surely was an absurdity because the President had recalled his order dated 7th October, 2010 on 9th February, 2011 and his recalling of that order could not have retrospective effect as the earlier order dated 7th October, 2010 and the Notification dated 8th October, 2010 had already been acted upon and during the period between 8th October, 2010 and 9th February, 2011, i.e. for a period of more than four months the respondent had actively been discharging the duties and performing the functions of the relevant office. We are quite sanguine that assigning the same number to two different Notifications issued on two different dates, which dates were months apart from each other, could not establish disappearance or evaporation of the respondent’s first appointment or the period spent by him in the office in that connection. We are of the considered opinion that adoption of such a stratagem or methodology could neither establish continuity in the term of office of the respondent nor could it superimpose the second appointment of the respondent upon his first appointment so as to portray the respondent’s second appointment as practically his first appointment or a continuation of his first appointment. It is noteworthy that the Notification dated 9th February, 2011 withdrawing/recalling the President’s order of the respondent’s first appointment, rescinding/canceling the Notification dated 8th October, 2010 and appointing him to the same office for the second time was not even a Corrigendum Notification seeking to rectify any mistake committed at the time of the respondent’s first appointment because in that case the subsequent Notification would have specified so but it certainly did not say so at all and instead the subsequent Notification categorically and unambiguously recalled and cancelled the respondent’s first appointment. In view of these irrefutable factors we have entertained no manner of doubt that the respondent’s two appointments were, for all intents and purposes as well as for all legal consequences, two distinct and separate appointments. 32. It is of critical importance to mention here that according to section 6(b)(i) of the National Accountability Ordinance, 1999 a Chairman, National Constitution Petitions No. 60 & 61 of 2010 22 Accountability Bureau can be appointed by the President for a “non-extendable period of four years” and, likewise, by virtue of the provisions of section 8(a)(iii) of the same Ordinance a Prosecutor-General Accountability can hold that office for a “non-extendable period of three years”. While interpreting the term “non- extendable period” this Court had observed and concluded in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) as follows: “57. It is a position admitted even by Mr. Irfan Qadir that he had once earlier been appointed as the Prosecutor-General Accountability under section 8 of the said Ordinance of 1999 and that he had held the said office for a full term of three years i.e. from December, 2003 to December, 2006. The case of the petitioner-Bank is that there was a legal bar on his re-appointment to the same office while the case of Mr. Irfan Qadir is that the bar was only on the extension of the tenure and not on a fresh appointment of a person who had earlier held the office for a non-extendable term of three years. The relevant provisions of section 8 of the NAB Ordinance read as under: "8(a)(iii) The Prosecutor-General Accountability shall hold office for a NON-EXTENDABLE PERIOD of three years." (Emphasis and under-lining has been supplied) 58. The provisions of section 8(a) as they existed in the NAB Ordinance of 1999 as originally enacted, read as under: "The Chairman NAB may appoint any person to act as the Prosecutor General Accountability, notwithstanding any other appointment or office the latter may concurrently hold, upon such terms and conditions as may be determined by the Chairman." It was on August 10, 2001 that through the Amending Ordinance No. XXXV of 2001, amongst others, the original provisions of section 8(a) were substituted as under: “(i) The President of Pakistan, in consultation with the Chief Justice of Pakistan and Chairman NAB may appoint any person, who is qualified to be appointed as a Judge of the Supreme Court, as Prosecutor-General Accountability. (ii) The Prosecutor-General Accountability shall hold independent office on whole time basis and shall not hold any other office concurrently. (iii) The Prosecutor-General Accountability shall hold office for a period of three years. (iv) The Prosecutor-General Accountability shall not be removed from office except on the grounds of removal of a Judge of Supreme Court of Pakistan. (v) The Prosecutor-General Accountability may, by writing under his hand addressed to the President of Pakistan, resign his office.” It would be noticed that even through this amendment carried out in the year 2001, no specific provision was made either permitting or prohibiting the extension in the tenure of the Prosecutor-General's term of office. It was, however, on November 23, 2002 that through the Amending Ordinance No. CXXXVIII of 2002, the word "NON-EXTENDABLE" was Constitution Petitions No. 60 & 61 of 2010 23 added before the word "PERIOD" in clause (iii) of subsection (a) of section 8 of the said Ordinance of 1999. 59. It would thus be noticed that making the three years term of the office of Prosecutor-General "NON-EXTENDABLE" was a specific and intentional insertion in the relevant provisions and meanings and effect was accordingly required to be given to the said deliberate and designed inclusion of the said word "NON-EXTENDABLE" in the said provisions. 60. It had been submitted by Khawaja Haris Ahmed, the learned Senior Advocate Supreme Court that the addition of the word "NON- EXTENDABLE" in the said provision was designed to emphasize the clear intention of the law-giver that a person who had once held the said office for a term of three years would not be eligible to hold that office any further either by way of stretching of the said period through extension of tenure or by manipulating the same through a fresh appointment. He had added that prefixing of word i.e. "EXTENDABLE” with a negative word i.e. "NON" was always indicative of the intensity of the command and the insistence on the mandatory nature of the compulsion. In this connection the learned counsel drew our attention to the Principles of STATUTORY INTERPRETATION by Guru Prasanna Singh, Tenth Edition, 2006 (Extensively Revised & Enlarged), where the author deals with the use of negative words in the following terms: "Another mode of showing a clear intention that the provision enacted is mandatory is by clothing the command in a negative form. As stated by CRAWFORD: "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience". As observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily used as legislative device to make a statute imperative." 61. The learned counsel had further argued that it was an age-old principle too well-established by now that what the law did not allow to be achieved directly could never be permitted to be achieved indirectly. Reliance in this connection had been placed on the judgment delivered by this Court in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and on the case of Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979). 62. The word "EXTEND", according to the Oxford English Dictionary, means:-- "to stretch out, to stretch forcibly, to lengthen, to prolong" and the word "EXTENDABLE" means:-- "capable of being extended or stretched and capable of being enlarged in length or duration" "NON" is a Latin word which, again according to the Oxford English Dictionary, crept into the English language around the 14th century which is prefixed to nouns to indicate:-- "a negation or prohibition" 63. The word "NON-EXTENDABLE" would thus mean, in the present context, a duration of time which was incapable of being enlarged or extended or lengthened or prolonged or stretched. And as has been mentioned above prefixing the word "EXTENDABLE" with a negative command only indicates the emphatic, prohibition vis-a-vis the enlargement of the duration of the period in question. The intention of the law-giver by inserting the said word through an amendment in the relevant Constitution Petitions No. 60 & 61 of 2010 24 provision is obvious i.e. that since the Prosecutor-General could be called upon to prosecute the holders of the highest of public offices in the country including the sitting Prime Minister, therefore, he should be a person who should be placed above all kinds of temptations and greed and should not at any time be looking for any favour from any quarter which could become a hindrance in his way of fearlessly discharging his said obligations. Needless to say that the competent authority in the matter of appointment of the Prosecutor-General is the President which President is obliged by the provisions of Article 48 of the Constitution to act in the matter only on the advice of the Prime Minister which Prime Minister, as has been noticed above, fell within the purview of the NAB Ordinance and thus liable to be prosecuted by the Prosecutor-General. This is also a principle too well established that where the intention of the legislature was clear and the object for which a law had been enacted was patent and evident then the Courts were not allowed to interpret such a law in a manner which could impede or defeat the object for which such a law had been enacted. Reference may be made to Mehram Ali's case (PLD 1998 SC 1445) and to Imtiaz Ahmed Lali's case (PLD 2007 SC 369). If the interpretation canvassed by Mr. Irfan Qadir, ASC was to be accepted then the same would not only defeat the clear object of the provision in question but would also lead to a blatant absurdity. It would be preposterous and irrational to declare that once an incumbent of the office of the Prosecutor-General had completed his term of three years then no one had the competence to extend or enlarge the said term even by one day but the same competent authority could instead grant him three years by appointing him afresh to the same office. In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly. And the said principle has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The cases of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (Supra) are evidence to the said effect. 64. Having thus examined all aspects of this legal proposition, we find that in view of the meanings of the words "NON-EXTENDABLE"; in view of all emphatic pre-fixation of a negative before the word "EXTENDABLE"; in view of the fact that the said word "NON-EXTENDABLE" was a considered and a specific insertion in the provision in question through an amendment; in view of the fact that no interpretation was permissible which could have effect of defeating the clear intention and object of legislature and finally in view of the fact that what could not be achieved directly could not be allowed to be accomplished indirectly, the fresh appointment of Mr. Irfan Qadir, Advocate Supreme Court as the Prosecutor-General Accountability could not be sustained on account of section 8(a)(iii) of the NAB Ordinance because he had already held the said office for a "NON-EXTENDABLE" term of three years. 65. Consequently, it is held that the appointment in question of Mr. Irfan Qadir as the Prosecutor-General Accountability was not legally tenable.” The said judgment shows, and shows quite unmistakably, that the words “non- extendable period” used by the relevant law with reference to appointment to an office in the National Accountability Bureau practically mean an appointment of a person for one term of office only and no fresh appointment of the same person can be made to that office whether he completes the original term of office or not. This is so because whether the original term of office is completed by him or not the person concerned would serve in that office for more than the fixed and “non- extendable” period if he is appointed again to that office even after one day of his original appointment. We are conscious of the fact that in the above mentioned precedent case Mr. Irfan Qadir had completed his full term of office before he Constitution Petitions No. 60 & 61 of 2010 25 was appointed afresh for another full term of the relevant office and in the case before us the respondent namely Mr. Justice (Retired) Syed Deedar Hussain Shah had been appointed afresh before completion of his first term of office but we feel convinced that it would be very dangerous to hold that a fresh appointment made before completion of the term of an earlier appointment would not be hit by the negative command of the provision regarding “non-extendable period”. In our considered opinion permitting such a fresh appointment after premature discontinuation of an earlier appointment some time before expiry of the term of the earlier appointment is capable of grave misuse and abuse and would surely have the effect of extending the period of appointment beyond the maximum and “non-extendable” period provided by the law for the office. If such fresh appointment after premature discontinuation of the earlier appointment is made permissible then before the expiry of the first term the appointment would be terminated on the basis of some cooked up pretext, ruse or subterfuge and a favourite incumbent would be appointed afresh for another term of office and that surely would destroy the very spirit and the very object of the law in declaring that an appointment can be made for a “non-extendable period”. We have already observed above that upon his first appointment as Chairman, National Accountability Bureau the respondent had discharged his duties and had performed his functions from 8th October, 2010 to 9th February, 2011, i.e. for a period of more than four months and upon recalling/withdrawing of the order of his earlier appointment on 9th February, 2011 he was appointed again as Chairman, National Accountability Bureau “with immediate effect”, i.e. with effect from 9th February, 2011 “in terms of Section 6(b)(i) of the National Accountability Ordinance, 1999” which terms meant that even his fresh appointment was for a period of four years commencing on 9th February, 2011. We have been informed that after revocation of his first appointment the respondent had never relinquished the charge of his office and upon his second appointment he had never assumed the charge again and he had simply continued to hold that office as if nothing had happened and no break had taken place at all! Such a device adopted in the matter had, thus, unmistakably extended the total period of his appointment as Chairman, National Accountability Bureau beyond the maximum period of four years provided by the law and we are constrained to observe that through adoption of such a maneuver violence, if not fraud, had been committed upon the relevant statute. When confronted with this legal impossibility Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan had very casually maintained that this Court could order reduction of the Constitution Petitions No. 60 & 61 of 2010 26 respondent’s second term of office of four years by deducting from it the period for which he had already served as Chairman, National Accountability Bureau on the basis of his first appointment. With deference to his seniority in the profession and charming mannerism in the Court we could only smile at the said suggestion made by Mr. Pirzada as the period for which a Chairman, National Accountability Bureau is to hold that office has been fixed by the law itself and no Court or authority has the power or jurisdiction to curtail that period as long as he holds that office and also because such power of reduction of his fixed term of office would impinge upon and detract from independence of that high office which independence must jealously be guarded. 33. Mr. Shahid Orakzai’s reliance upon Articles 182 and 207 of the Constitution for maintaining that a retired Judge of the superior judiciary can be available for some other assignment till two or three years of his retirement and not after that and, thus, the respondent’s appointment as Chairman, National Accountability Bureau at the age of about seventy years amounts to ‘judicial indiscipline’ besides militating against the constitutional mandate regarding separation of the judiciary from the executive has been found by us to be inapt, though motivated with the best of intentions. The Constitution itself and many other laws expressly provide for various offices which a retired Judge of the superior judiciary can hold without any restriction regarding age and the National Accountability Ordinance, 1999 is one of such laws. Apart from that Article 4(2)(b) of the Constitution stipulates that “no person shall be prevented from or be hindered in doing that which is not prohibited by law”. Other than raising some issues of propriety in this context Mr. Orakzai has not been able to refer to any law which prevented the respondent’s appointment as Chairman, National Accountability Bureau at the age of three scores and ten and, therefore, this contention of his may not detain us any further. 34. Adverting to the question of maintainability of the present petitions raised by Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan and Dr. Khalid Ranjha, Sr. ASC representing Mr. Justice (Retired) Syed Deedar Hussain Shah we may straightaway observe that the petitions in hand have been filed under Article 184(3) of the Constitution and it has been conceded before us by all concerned that these petitions certainly involve a question of public importance. After all, a Chairman, National Accountability Bureau is to deal with hundreds of inquiries, investigations, arrests and trials and thousands of people Constitution Petitions No. 60 & 61 of 2010 27 are affected by his decisions taken in those respects and those persons may include the serving Prime Minister, Chairman of the Senate, Speaker of the National Assembly, Federal Ministers, Attorney-General, Chief Ministers, Speakers of the Provincial Assemblies, Provincial Ministers, Members of the Parliament and Members of the Provincial Assemblies and, therefore, an appointment to that office is surely a matter of public importance. Mr. Muhammad Akram Sheikh, Sr. ASC has argued that many Fundamental Rights of the people of this country including right to life, right to liberty, due process of law, fair trial and access to justice are directly affected or influenced by a person’s appointment to the office of Chairman, National Accountability Bureau and we have found that the said argument of his finds sufficient support from the following observations made by this Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) which observations have already been reproduced in the earlier part of this judgment but are being reproduced here again due to the necessity of context: “41. The reason for looking for a person of such an eminence and prestige for appointment as the Chairman of NAB is not far to find. A bare perusal of the provisions of sections 5(m), 7, 8, 12, 16(a), 18, 19, 20, 21, 22, 24, 25, 26 and 28 of the said NAB Ordinance would show the importance and the momentousness of the office of the Chairman under the said Ordinance. He is the person to be consulted by the President of Pakistan for the appointment of a Deputy Chairman of the NAB and for the appointment of the Prosecutor-General Accountability; he appoints all other officers of the NAB; he is the one to decide whether to make or not to make a Reference with respect to corruption or corrupt practices and no Court could take cognizance of any such offence unless such a Reference was made by him or by an officer authorized by him; he is the one who could order initiation of proceedings under this Ordinance or order an inquiry or investigation in the matter; he is one who directs and authorizes arrests of accused persons under the said Ordinance; he is the one who has the power to freeze properties which are the subject matter of an offence under the said Ordinance and who could, in certain cases, even order sale of the said property and he has the authority to call for any record or information with respect to any matter covered by the NAB Ordinance. All Banks and Financial Institutions stand commanded to report all unusual financial transactions to him. It is he who stands authorized to communicate with foreign Governments for their assistance; he is the authority to accept plea-bargains and he is the one who has the power to tender pardon to any person accused of an offence under the said Ordinance. Needless to add that such like orders could be passed by him against any holder of any Public Office including a sitting Prime Minister of the country.” The case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) had stemmed from a Constitution Petition filed before this Court under Article 184(3) of the Constitution against assumption of the office of Acting Chairman, National Accountability Bureau by a Deputy Chairman, National Accountability Bureau at a time when the office of Chairman was lying vacant. That Constitution Petition was not only entertained by this Court but after full- dressed hearing the same was allowed and assumption of the office of Acting Constitution Petitions No. 60 & 61 of 2010 28 Chairman by the Deputy Chairman was declared to be illegal. It goes without saying that if a Constitution Petition filed under Article 184(3) of the Constitution is maintainable before this Court against assumption of office of an Acting Chairman, National Accountability Bureau then no serious argument can be advanced against maintainability of such a petition against appointment of a Chairman, National Accountability Bureau. 35. Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan and Dr. Khalid Ranjha, Sr. ASC representing Mr. Justice (Retired) Syed Deedar Hussain Shah have also maintained that two Constitution Petitions (Rashid A. Akhund v. President of Pakistan (Constitution Petition No. 2936 of 2010) and Muhammad Siddique Mirza v. Federal Government of Pakistan (Constitution Petition No. 2931 of 2010)) challenging the self-same appointment of the respondent are presently pending before the High Court of Sindh and in view of pendency of those petitions before the High Court of Sindh this Court may await the decision of those petitions so as to be benefitted by the views of the High Court on the subject. Upon our request Mr. Pirzada has procured and produced before us a copy of the order dated 22.02.2011 passed in those petitions by a learned Division Bench of the High Court of Sindh which shows that the High Court of Sindh has decided to await the decision of this Court in the present petitions. In view of that order passed by the High Court of Sindh the above mentioned submission made by the learned counsel has lost its efficacy, if not its relevance as well. Apart from that, this aspect of the matter pertains only to an issue of propriety and not of jurisdiction as the provisions of Article 184(3) of the Constitution place no such restriction upon this Court in the matter of exercise of its jurisdiction under that provision of the Constitution. As already observed above, even the matter of propriety is no longer in issue in this context as the High Court of Sindh has itself decided to await the decision of these petitions by this Court before proceeding further vis-à-vis the relevant Constitution Petitions pending before it. 36. The scope and interpretation of the word ‘consultation’ used in section 6(b)(i) of the National Accountability Ordinance, 1999 have been intensely debated before us and, therefore, we must clarify the position in that regard. Section 6(b)(i) of the National Accountability Ordinance, 1999 provides for appointment of Chairman, National Accountability Bureau “by the President in consultation with the Leader of the House and the Leader of the Opposition in the Constitution Petitions No. 60 & 61 of 2010 29 National Assembly”. Before passage of the 18th Amendment of the Constitution the word ‘consultation’ had repeatedly been used in the Constitution particularly in the context of appointment of Chief Justices and Judges of the superior judiciary and in the case of Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324) this Court had held that a ‘consultation’ has to be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfairplay” and an identical interpretation of that word had also been advanced in the case of Al-Jehad Trust and another v. Federation of Pakistan and others (PLD 1997 SC 84). Subsequently in the case of Sindh High Court Bar Association v. Federation of Pakistan and 4 others (PLD 2009 Karachi 408) the High Court of Sindh had held that for a consultation to be meaningful and purposive an “attempt should be made to reach at some consensus” and that the required consultative process should be in writing. The last occasion on which this Court had interpreted the word ‘consultation’ was in the case of Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879) wherein this Court had observed that “by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate.” In India it was held in the case of Justice K. P. Mohapatra v. Sri Ram Chandra Nayak and others (AIR 2002 SC 3578) that ‘consultation’ means “meeting of minds”. The context in the case of the National Accountability Ordinance, 1999 and the National Accountability Bureau created and established thereunder has, however, been found by us to be somewhat different from the above mentioned constitutional context. In the past not too distant complaints of persecution of the political opposition in the country by the government of the day through utilization of the National Accountability Bureau or its predecessor institutions had unfortunately been too many and willingness of the heads of such institutions to slavishly carry out and execute the vendetta of the government of the day against its opponents had also been shamefully rampant. It was in that background that at a time when there was no Parliament in existence this Court had recommended in the case of Khan Asfandyar Wali and others v. Federation of Pakistan and others (PLD 2001 SC 607) that in the matter of appointment of Chairman, National Accountability Bureau consultation ought to be made by the President with the Chief Justice of Pakistan and that recommendation had been given effect to through the National Accountability Bureau (Amendment) Ordinance XXXV of 2001 but subsequently through the National Accountability Bureau (Amendment) Ordinance CXXXIII of 2002 the Chief Justice of Pakistan Constitution Petitions No. 60 & 61 of 2010 30 had been excluded from the consultees and he was substituted by the Leader of the House and the Leader of the Opposition in the National Assembly who were to be consulted by the President before making an appointment of Chairman, National Accountability Bureau. That deletion had come about because by that time the Parliament had once again come into existence and consultation with the Leader of the Opposition in the National Assembly was expected to go a long way in allaying fears and apprehensions of the political opposition regarding its possible persecution and victimization by the government of the day through the National Accountability Bureau and its Chairman. The spirit of the amended provisions, thus, was that the Leader of the Opposition in the National Assembly would be taken on board, his opinion would be given due weight and consideration and he would have an effective say in the matter of appointment of Chairman, National Accountability Bureau so that the political opposition in the country may not have an occasion to cry foul in the matter. 37. As time progressed another dimension stood added to the issue when, apart from apprehended persecution of the political opposition, the National Accountability Bureau, which happens to be a premier and high-profile anti- corruption institution of the country, started being perceived as an institution which was possibly being misused for covering up corruption at high places and such cover up was perceived to be controlled and managed through appointment of its handpicked Chairman. It was in that backdrop that in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265) this Court reiterated its earlier recommendation and suggestion with regard to consultation with the Chief Justice of Pakistan in the matter of appointment of Chairman, National Accountability Bureau. That recommendation and suggestion was once again repeated by this Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra). It must be appreciated that consultation with the Leader of the Opposition in the National Assembly and consultation with the Chief Justice of Pakistan are, in the developing scenario, essentially meant for separate noble and laudable purposes which are both directed towards achieving the very objects for which the National Accountability Bureau was established, i.e. elimination of corruption by persons holding public offices and achievement of such objects through a process which is just, fair, impartial and evenhanded. The purpose of consulting the Leader of the Opposition in the National Assembly essentially is to pacify the apprehensions of the political opposition in the country regarding its possible victimization and Constitution Petitions No. 60 & 61 of 2010 31 persecution and that purpose cannot be served if the opinion of the Leader of the Opposition in the National Assembly in respect of a proposed appointment is brushed aside or bulldozed which would surely be incentive-incompatible. The spirit of such consultation appears to be that it should aim at developing a consensus and it should manifestly be shown that a serious, sincere and genuine effort is made towards evolving a consensus because otherwise the consultation would neither be meaningful or purposive nor consensus-oriented. Similarly, corruption being an unfortunate bane of our society in the current phase of our history and even the high public offices being not immune from serious allegations in that regard, leaving the matter of appointment of the head of the most important anti-corruption institution in the country in the hands only of those very persons who could possibly, in future or present, be a subject of inquiries, investigations or trials for corruption would, apart from giving rise to the issue of conflict of interest, defeat the very object of the relevant law and would, thus, also prejudicially affect, directly or indirectly, the Fundamental Rights of the citizens at large. This is where the Chief Justice of Pakistan comes in as a consultee in his capacity as a guardian and defender of the constitutional and legal rights of the people at large. The Chief Justice of Pakistan can also play a salutary role in the matter of such appointment particularly when there is a serious difference of opinion between the other consultees over a proposed appointment of Chairman, National Accountability Bureau. The role of the Chief Justice of Pakistan as a neutral arbiter in disagreements, differences or disputes over matters of national importance already stands recognized by the Constitution itself through Articles 152 and 159(4) thereof. Under Article 152 of the Constitution if there is a disagreement between the Federation and a Province over the terms of acquisition by the Federation of any land belonging to the Province then the terms of that acquisition are to be determined by an arbitrator appointed by the Chief Justice of Pakistan. Likewise, under Article 159(4) of the Constitution if any question arises whether any condition imposed by the Federal Government on any Provincial Government in respect of entrustment of functions with respect to broadcasting and telecasting is lawfully imposed or whether any refusal by the Federal Government to entrust such functions is unreasonable then that question is to be determined by an arbitrator appointed by the Chief Justice of Pakistan. It may advantageously be mentioned here that Mr. Shahid Orakzai petitioner has drawn our attention to the provisions of Article 213 of the Constitution regarding appointment of the Chief Election Commissioner and with reference to the first proviso to clause (2B) of that Article he has pointed out that if the required Constitution Petitions No. 60 & 61 of 2010 32 ‘consultation’ between the Prime Minister and the Leader of the Opposition in the National Assembly in that respect does not result in a ‘consensus’ then the matter is to be referred to a neutral and bipartisan body. We feel that the spirit of that provision of the Constitution can also be pressed into service in the matter of appointment of Chairman, National Accountability Bureau in case of a lack of consensus between the statutory consultees. We, therefore, reiterate the importance of consulting the Chief Justice of Pakistan in the matter of appointment of Chairman, National Accountability Bureau and expect that the recommendations and suggestions repeatedly made by this Court in that regard through different judgments handed down by it from time to time shall be given effect to in all future appointments to that office. We entertain no manner of doubt that anybody interested in making an honest and good appointment to that office would not feel shy of consulting the Chief Justice of Pakistan in that connection. 38. On the basis of the discussion made above we have arrived at an irresistible and inescapable conclusion that the appointment of Mr. Justice (Retired) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau by the President of Pakistan on 9th February, 2011 is ultra vires the letter as well as the spirit of section 6(b)(i) of the National Accountability Ordinance, 1999 and through such illegal appointment the Fundamental Rights of the people of this country including their right to life, right to liberty, due process of law, fair trial and access to justice are adversely affected. Both these Constitution Petitions are, therefore, accepted and the appointment of Mr. Justice (Retired) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau is declared as illegal and ultra vires. He shall cease to hold the said office forthwith. It is directed that a fresh appointment to the vacant office of Chairman, National Accountability Bureau be made without any delay. 39. The above are the reasons for the short order passed by us on 10.03.2011 which read as follows: “For the reasons to be recorded separately, these petitions are accepted and the appointment of Mr. Justice (R) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau (NAB) is hereby declared as illegal and ultra vires and he shall cease to hold that office forthwith.” 40. Before parting with this judgment we are constrained to observe that the matter of appointment of Mr. Justice (Retired) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau has been handled by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan in a manner Constitution Petitions No. 60 & 61 of 2010 33 depicting shallow and perfunctory understanding of the Constitution and the relevant law and in the process the former Honourable Judge of this Court has suffered for no fault of his own. It is because of his two appointments to that office, both botched and messed up by that Ministry’s wrong legal advice to the relevant quarters, that he now stands disqualified to be appointed to that office again on account of the provision regarding “non-extendable period” contained in section 6(b)(i) of the National Accountability Ordinance, 1999, as interpreted through the judgments of this Court handed down in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and in the present case. We also note with some concern that the office of the Prosecutor-General Accountability in the National Accountability Bureau is lying vacant for the last about half a year with no serious effort having been made to fill that important office. It is also directed that a regular appointment to the said office be made without further loss of time. Judge Judge Judge Islamabad 10.03.2011 Approved for reporting. M. Yasin*/

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J. MR. JUSTICE TARIQ PARVEZ MR. JUSTICE AMIR HANI MUSLIM CONSTITUTION PETITION NO. 62 OF 2010 (Marvi Memon Versus Federation of Pakistan, etc.) AND SUO MOTO CASE NO. 17 OF 2010 (Action taken on letter sent by Mr. Fakhruddin G. Ebrahim and Mr. Jan Muhammad Khan Jamali regarding Unauthorized Diversion of Flood Water) AND HUMAN RIGHTS CASE NO. 52220-P OF 2010 (Application by Ghazazfar Ali Khan) AND HUMAN RIGHTS CASE NO. 57247-A OF 2010 (Application by Malik Kausar Abbas, Advocate) AND HUMAN RIGHTS CASE NO. 69622-S OF 2010 (Application by Dr. Abbul Ghaffar Rind) Petitioners/ Applicants With Ms. Marvi Memon (in person) On Court Notice: For the Federation: Mr. Dil Muhammad Alizai, DAG Mr. Khalid Ismail Abbasi, DAG Mr. M. S. Khattak, AOR For Govt. of Balochistan: Mr. Tahir Iqbal, Addl. P.G. For Govt. of KPK Dr. Syed Arshad Hussain Shah, Addl.A.G For Govt. of Punjab Ch. Kadim Hussain Qaiser, Addl. A.G. For Govt. of Sindh Raja Abdul Ghafoor, AOR on behalf of A.G. Sindh Date of hearing 07.06.2011 2 ORDER Iftikhar Muhammad Chaudhry, CJ.:- These petitions have been filed under Article 184(3) of the Constitution and by invoking Suo Moto Jurisdiction of this Court with respective prayers noted therein. The facts of the petitions in a nutshell are that in the month of July/August, 2010 due to unprecedented flood devastation the citizens of the country suffered huge losses against their lives and properties. The flood had commenced from province of Khyber Pakhtunkhwa and flowed upto Arabian Sea at Thatta, as is evident from the following picture:- 2. This Court vide order dated 15.12.2010, constituted a Commission comprising M/s Muhammad Azam Khan, former Chief Secretary, Khyber-Pakhtunkhwa, Fateh Khan Khajjak, former Chief Secretary, Balochistan, A. W. Kazi, former Cabinet Secretary, Government of Pakistan, and Kh. Zaheer Ahmed, former Federal Secretary, Government of Pakistan. The terms of Reference, laid down in the form of formulations / questions were as under:- 1) Whether embankment breaches during the period of high floods in Indus River are subject to any procedure to be 3 followed by the authorities at the relevant time, if so, what is the manner of exercising of such powers and by whom and under what circumstances? 2) Whether in the floods in River Indus in the months of July and August, 2010, procedure for embankment breaches was followed judiciously? 3) Whether before ordering embankment breaches at different places, particularly at Ali Wahn and Tori Bund, no procedure was followed, if so, who is responsible for the same? 4) Whether before embankment breaches at different places, precautionary measures were adopted, particularly in view of warnings issued from time to time by the metrological department of Pakistan? 5) Whether the beneficiaries, if any, responsible for embankment breaches to save their properties / crops etc, are also responsible for the losses sustained by the affectees? 6) What is the approximate volume of losses sustained by the affectees and Government during the floods? 7) Whether relief was extended to the flood affectees on war footings or not? 8) Jacobabad Airport was available for flood relief operations, if so then why the relief goods were not sent to affectees on urgent basis? 9) What is the pace of rehabilitation in the flood devastated areas? 10) Whether flood affectees are entitled for damages and compensation from the Government of Pakistan or from the persons who were benefited from the embankment breaches? 11) Whether administrations of the Provincial Governments in private and official capacity are responsible for failing to manage affairs of flood affectees justly or properly, if so, what action is suggested against them? 4 12) Whether embankment of River Indus was being maintained annually, if not so, who is responsible for the same? 13) Who was responsible for breaches that took place at Tori Bund and Ali Wahn Bund? 3. After hearing all the parties and on the basis of oral and documentary evidence, related information in public domain and its interaction with the affectees, the Commission submitted report, supported by hundreds of documents which have been kept separately in the record and shall always be available for inspection, if need be. The findings of the Commission read as under:- “1. Whether embankment breaches during the period of high floods in Indus River are subject to any procedure to be followed by the authorities at the relevant time, if so, what is the manner of exercising of such powers and by whom and under what circumstances? Findings a. From Diamir-Bhasha downwards upto D.I. Khan, Indus River flows through KP and the Punjab; KP is not threatened by the Indus, nor any SOP for flood embankments was currently in vogue in the Province. b. Jinnah and Taunsa Barrages on the Indus are being maintained by the Punjab and Chashma Barrage is maintained by the WAPDA. c. Pre-designated breaching sections have been earmarked for the Right Guide Bund (RGB), upstream Jinnah Barrage for activation before the water levels threaten the barrage safety; for the purpose, an inter-agency civil-military committee has been notified by the Provincial Government to determine on-spot justification and its precise timing for activation by Army’s Engineers. d. The current SOPs do not authorise breaches in Left Guide Bund (LGB) or Left Marginal Bund (LMB) of Jinnah Barrage in the Punjab or for any other bunds in the Punjab or Sindh, as such. On the contrary, all bunds are required to be maintained for safety of the people, farms and property, as per specified guidelines. 2. Whether in the floods in River Indus in the months of July and August, 2010, procedure for embankment breaches was followed judiciously? Findings a. In the Punjab, pre-designated breaches in RGB upstream Jinnah Barrage were operationalized to save the Barrage by use of explosives through the Army Engineers, on 31st 5 July 2010 after due process and diligence by the notified inter-agency committee. b. Other major breaches, including those in the LGB/LMB of Jinnah Barrage, LMB of Taunsa Barrage and its secondary Sunawan Bund in Muzaffargarh, Jampur Bund and Fakhhar Bund in Kot Mithan, of Rajanpur district were not caused by direct human interventions, nor permissible as such under any SOPs. A host of factors & reasons contributed to these breaches: Pre-flood poor maintenance, existence of private bunds in the river belt, non-observance of barrage gate regulations at critical hours, use of incompatible quality of material for rehabilitation of LMB on Taunsa and conceptual and design issues and motivated considerations of the duty staff, inconsistent with officially approved plans, besides complacency were noted. c. In Sindh also, no breach to any bunds was authorized but these occurred in case of Tori and its loop bunds due to pre-flood negligence,poor maintenance and attempts to remove earth from the crest. In case of MS and PB Bunds in Thatta Sujawal, observed indifference, before and during the flood season and illegal practices in and around the bunds contributed to the breaches. 3. Whether before ordering embankment breaches at different places, particularly at Aliwahan and Tori Bund, no procedure was followed, if so, who is responsible for the same? Findings a. The Tori Bund suffered years of neglected maintenance; its height had eroded substantially, and ‘dangerously’, long before the flood season; last minute, misdirected departmental attempt to remove earth from its crest to fill the ‘Garrahs’ [deep pits] on the riverside of the Bund in wee hours of 6/7th August further reduced its height in gross violation of specified guidelines; the public viewed that as a deliberate attempt to breach. At the relevant time, the Chief Engineer, Guddu, camped at Tori Rest House, and his team, especially the XEN in-charge, failed to take timely remedial measures; they were directly responsible for consequential losses in Sindh and Balochistan. b. The case of Aliwahan Bund was, however, somewhat different; it was not breached during 2010 floods. High level consultations amongst political and civil-military officials including Federal, and Provincial political personages assembled at Sukkar for two days decided against this breach; in fact, the petitioner’s case was that Aliwahan bund should have been breached. 4. Whether before embankment breaches at different places, precautionary measures were adopted, particularly in view of warnings issued from time to time by the meteorological department of Pakistan? Findings a. The bunds are spread over thousands of km and had suffered extensive erosions before and during the 2010 Flood; most vulnerable amongst these had been placed 6 under special focus for precautionary measures against any contingency, too. The pre-flood surveys by civil- military teams to check the status of these structures, as also required by respective District Disaster Plans were treated as a routine. However, specific evidence was not produced to confirm or deny whether these inspections fulfilled the official instructions had been complied in letter, much less the spirit of statutory obligations of the Ordinance LIII of 2007, since converted into an Act of Parliament in December 2010. In many cases, field inspections were claimed, but not even recorded. b. The PMD’s revised forecast was late, but sufficient time was still available, particularly for authorities in southern Punjab and Sindh to take corrective and preventive measures. However, these were not effective, particularly as extremely wide margins were noted in the PMD’s flood predictions and actual flows due to unguaged torrents, streams and rivers. 5. Whether the beneficiaries, if any, responsible for embankment breaches to save their properties/crops etc, are also responsible for the losses sustained by the affectees? Findings In principle, causing wrongful loss to any one is a penal offence, irrespective of whether the perpetrator gains from that act or not? However, in the case under inquiry, though unprecedented losses were inflicted by acts and omissions of concerned officials in the irrigation hierarchies, no specific evidence was produced to establish wrongful gain by any specific individual, except general and at times vague allegations and opinions on management of irrigation works and ways & means to protect the infrastructures: e.g. a. In the Punjab, the CE & SE at Jinnah Barrage did not ensure pre-flood preparations, including mandatory stocking of loose stones to plug the potential breaches or to check non-compliance and report deficiencies in accordance with approved Flood Protection Plan for the 2010 season. b. The CE at Jinnah Barrage and PMO Taunsa Barrage, both failed to ensure observance of barrage regulations, demonstrate effective control or supervision over their subordinates, especially after 21st July PMD warning for acting in accordance with approved Flood Protection Plan for the 2010 season. c. In case of Tori, MS and PB Bunds in two irrigation regions of Sindh, the then Secretary, Irrigation and two Chief Engineers of Guddu and Kotri Barrages, failed to take timely corrective measures to save affectees from the losses to which they were exposed, both in Sindh and Balochistan. d. The then Secretary Irrigation Sindh and CE Guddu not only misrepresented facts before the Commission, at Islamabad and the SE Kotri on site at Thatta, knowing these to be false and deliberately suppressed evidence of their respective culpability. 6. What is the approximate volume of losses sustained by the affectees and Government during the floods? 7 Findings a. Mundane Nationwide Losses of Infrastructure: (i) Rs 855 billion, of which over 65% was by private peoples, excluding complete loss of one additional Rabi crop, in Jaffarabad District of Naseerabad Division in Balochistan. (ii) The gross loss is almost 5.8% of the GDP and at par with debt servicing allocations for fiscal 2010-11. (iii) Public expenses by civil and defence establishments from their own allocations are not reflected in the above losses. b. Indirect Losses: (i) Loss of human lives: 1,600, compensated or to be compensated @ Rs. 500,000/ per death. (ii) Loss of one-half of academic sessions of some 7.0 million school going children. (iii) Loss of jobs: 4.5 million, mostly farm labour. (iv) Exposure to diseases and malnutrition of 20 million people. 7. Whether relief was extended to the flood affectees on war footings or not? Finding Despite glaring cases of inadequate attention in many areas, the magnitude and scale of the disaster and the speed with which it unfolded in first phase during July 27-12th August, the overall rescue and relief operations launched and logistics mobilized at all levels including public responses constituted an impressive chapter of managerial history, particularly, if regard was paid to prevailing organizational erosion since 1969. Both civil and military establishments mobilized whatever they could; the NGOs extended full cooperation to the affectees. The administration in KP and the Punjab remained most visibly active. 8. Jacobabad Airport was available for flood relief operations, if so then why the relief goods were not sent to affectees on urgent basis? Finding Presence of sizeable number of foreign personnel at the Jacobabad Airbase for sometime was confirmed; that may have created a perception of its inaccessibility for relief goods. The foreign nationals were reportedly employed to train and assist PAF staff for upgrading facilities, before arrival of the new batch of F-16 planes, due by December 2010, at that time. However, the number of relief flights, flown in and out of Jacobabad airport, during August and September do not substantiate that it remained inaccessible, except on technical grounds of capacity constraints. The PAF confirmed that the base provided a virtual air-bridge for relief operations, in an area, otherwise cut off from rest of the province for many weeks; that contradicted the assertion of closure of the facility for relief assistance. 8 9. What is the pace of rehabilitation in the flood devastated areas? Findings The Planning Commission has developed a hard core portfolio of priority works for restoration of damaged infrastructure at a cost of Rs. 277 billion, in next 3 years. The program has been designed in consultation with federating units and International Development Partners. It was, however, conditional to part funding by the DFIs. It contains sectoral / regional schemes for immediate to short-term execution. The main component of Rehabilitation programmes include: a. Rehabilitation of Affectees: (i) Most affectees have returned to their native places, except in Sindh and Jaffarabad district of Naseerabad Division of Balochistan where some relief camps are still operating, as pre-conditions conducive to revival of life and living have not been restored. (ii) Compensation of first tranche of Rs.20,000 per household to rebuild/ repair houses, contributed by Federal and Provincial Governments on 50:50 basis has almost been completed, except cases being re- verified for various reasons of imperfect documentation or cases of observed anomalies. (iii) Remaining payment of Rs.80,000/ per household is expected to commence after disbursement of loans from WB/ ADB etc. The Provinces have used this delay for recertification of the contested claims. (iv) Some friendly countries and NGOs have donated / offered construction of model villages following Build Back Better [BBB] policy with necessary civic amenities; the work is steadily progressing on ground. b. Restoration of Irrigation Infrastructure: (i) The Farm sector activity has been revived in the provinces, except directly affected districts of Jaffarabad and Jhal Magsi in Balochistan; for the latter two areas, the Hon’able Court has issued orders for time bound restoration of irrigation supplies in the light of interim recommendations of the Commission. (ii) KP and the Punjab reacted promptly to restore losses to irrigation network from their own resources. (iii) The Sindh Government did not move as promptly as expected; however, it finally prioritized execution of 39 development schemes worth Rs.5,000 million, for rehabilitation of bunds / canals commenced after receipt of 50% federal subvention, in early March 2011. (iv) Balochistan too did not initiate rehabilitation of farm sector in Naseerabad Division, with requisite urgency pending restoration of damaged infrastructure in Sindh due to paucity of funds. 9 10. Whether flood affectees are entitled for damages and compensation from the Government of Pakistan or from the persons who were benefited from the embankment breaches? Findings a. The Calamities Act 1958 did not obligate compensation for losses on account of any natural disaster, much less 1947 type claims. However, as a natural social compassion, ex-gratia ad-hoc compensation is invariably provided to affectees in distress or victims exposed to natural or man-made disasters beyond their bearing capacity. The governments also remit abyana and land revenue in calamity affected areas. With the promulgation of the NDMA Ordinance/Act, however, fixation of an objective scale for compensation has become a statutory duty. For the 2010 Flood, a scale of compensation was approved by the ECC. The ECC approval did not, however, take into account where affectees lost their land to rivers or landslides in mountains. The NDMC or other provincial bodies under the Ordinance LIII of 2007 did not adopt the ECC’s political guidelines, formally. A limited insurance cover by ZTBL window is available to farmers but it was/is not availed by most. b. As noted in the Commissions’ findings under formulation No 5 supra, no proof of wrongful gains was produced, though extensive losses were suffered, as stated above. 11. Whether administrations of the Provincial Governments in private and official capacity are responsible for failing to manage affairs of flood affectees justly or properly, if so, what action is suggested against them? Finding: Primary source of disaster was attributable to the collapse of irrigation structures, new and old, that caused unprecedented damages to rest of the public and private infrastructure and property. However, the magnitude of losses is so large, that no individual or government was in a position to compensate for the losses on stand alone basis, at least immediately. The more so, as for over three decades, Pakistan’s scarce resources have been diverted to unwelcome wars imposed during extra-constitutional regimes, without peoples’ sanction since widened to a three-dimensional security threat, from within and without, under extraordinary conditions. Following measures may be considered: a. The action against officials of the Punjab government held responsible for acts of omission and Commission as identified by the Punjab Judicial Commission be proceeded against in due process. b. The Governments may sensitize the WB about the direct and indirect losses caused by breach in Taunsa’s LMB that had cascading effect on other bunds with request to absorb expenditure on (a) above, plus other compensation for the affectee-farmers in Muzaffargarh District. c. In Sindh also, the then Secretary Irrigation and Chief Engineer Guddu be thoroughly investigated under direct 10 supervision of Sindh High Court, to account for their failure to take timely preventive measures, reasonably predicted in February 2010 and before, with respect to Tori Bund and the acts and omissions leading to its eventual collapse after the onset of heavy rains on 27th July 2010 in KP and G-B and consequent floods. d. Likewise, the CE and SE Kotri be subjected to explain their failures to rectify and repair MS and PB Bunds, despite four-week advance warning. e. Special audit of all the provincial irrigation works executed during last 10 years at least, be conducted. f. Strengthening of Federal Flood Commission and oversight of the NDMA as per law. g. In the immediate to short term Farmers’ association may be encouraged to persuade their members to avail insurance cover through ‘Zarai Taraqiati Bank’ (ZTBL) window. h. Long-term bonds may be issued to farmers having subsistence holdings, through ZTBL, as a token of recognition of their damages suffered due to consistent official neglect. 12. Whether embankment of River Indus was being maintained annually, if not so, who is responsible for the same? Finding: Most embankments were not maintained, as required and specified in SOPs; this also reflected mis-match in resource allocations, except in case of LMB on Taunsa, rehabilitated in 2008-2009 at a considerable cost under a WB funded project. Most breaches also indicated serious organizational and managerial issues impinging upon professionals’ apathy besides being an indicator of widespread corrupt practices in the hierarchy. That is also due to disproportionate commitment to canal water distribution under political influences; local committees and user-charges for recovery of maintenance funds may be considered, as offered by KP farmers to improve communication for timely actions. 13. Who was responsible for breaches that took place at Thori Bund and Ali Wahn Bund? Finding: As noted under TOR no. 3 above, the Tori breach was attributable primarily to negligence of CE Guddu and his team; his immediate supervisor, the then Secretary Irrigation and author of the revised Bund Manual, was equally, if not more, culpable with them, on two counts: Firstly, failure to ensure upgradation of the bund before 2010 Flood as mandated by the IRC on 4th February 2010; and Secondly, for suppressing evidence, with an attempt to mislead the Commission, knowing full well about pre-flood state of Tori Bund; they both committed perjury, knowing it to be such. The last minute shifting of Irrigation’s Minister’s portfolio needs to be explored too, by the political leadership in that context to rule out manipulation or divert the focus of failed bunds from departmental acts and omissions to political leadership, notwithstanding the confusion compounded by his irresponsible statement. The Urdu translation of the said findings is as under:- 11 12 13 14 15 16 17 18 4. The Commission after examination of evidence and the relevant record made the following concluding remarks:- “CONCLUDING REMARKS 67. The adumbration of the above evidence, the information and the Commission’s field visits when related to the relevant official instructions and observed practices established that:- a. The NDMA’s lead role in coordination of rescue and relief phases during and after the floods to save life, if not the property, was outstanding, by any standard. But it did not put in position pre-disaster structural framework or administrative network mandated in 2006 or contemplated by the NDMA Ordinance 2007 (LIII of 2007) or 2009 Ordinance, despite passage of over 42 months till June 2010 or later to-date. b. The PMD’s rain forecasts were timely but its estimations regarding flood discharges were not as accurate as it was generally perceived; the FFD 19 needed to factor in the flows from hill torrents and along other rivers where no gauges are installed; the need to boost its capacity to forecast beyond 4-days advance warning as compared to 10-days international best was also established; during flood season 2010, its 28th June assessment was off the mark within 3-weeks. More than that, scientific simulations and weather modelling approach by highly qualified mathematical models could also generate better outcomes. The PMD should not have ignored international assessments except at a great peril, even if these did not conform to its wildest estimations, knowing in-house technical capacity constraints. c. The KP did not have the occasion or adequate time to plan or act against flash floods, but in terms of response time and actions, it acted fast to restore the damaged irrigation supplies through make-shift arrangements that enabled most farmers to plant a bumper Rabi crop for 2010-11 to help revive life and living of most affected people as many lost their lands to the river action. d. The Punjab had limited but reasonable notice for preventive measures and for issuing warnings to people. While threat to Jinnah Barrage was averted, other breaches including the breaches to LGB/LMB of Jinnah Barrage and those induced by human intervention could have been checked, partly or wholly, to minimize loss of life and property, though these had indirectly but considerably benefited by easing out the pressure on controlled irrigation structures in Sindh. e. Like KP, the Punjab administration in coordination with Armed Forces also led the operations from the front, for rescue and relief inter-alia to restore/ replace two most damaged LMBs within record time and speed, by associating private sector and by invoking emergency codes, designed for such eventualities; that prevented damages from 2nd peak of flood flows. The Provincial administrations led by example. This Commission would not like to make any further observation on that account in view of inherent limitations of subjecting executive judgements in crisis to retroactive wisdom except to ward off future pitfalls. But projects executed under emergency provisions be subjected to special audit, as a policy. f. In view of sharp political divide in the Muzaffargarh and DG Khan, possibility of mischief in inflicting cuts or politically motivated charges could not be conclusively ruled out as besides FIRs, almost 100 writs were filed in LHC from hese Districts. g. The officials in-charge of irrigation structures responsible for inefficiency, negligence or corrupt practices identified in departmental inquiries are expected to be proceeded against under due process. This Commission would not like to make any further observations with respect to officials’ subject matter of inquiry of Punjab Judicial Commission. 20 h. The then Secretary Irrigation, Sindh and the then Chief Engineer Guddu were well aware of the poor state of Tori Bund long before the 2010 Flood; they had adequate time and to attend to that work but failed to move in time. i. The then Chief Engineer Guddu, by his own admission, and his immediate superior, the Secretary Irrigation, had failed to anticipate the expected level of flood waters at Guddu Barrage that inundated Sindh’s three major districts besides Balochistan’s Jaffarabad district. j. Both Chief Engineer Guddu and the then Secretary Irrigation consciously and deliberately, tried to attribute disaster due to inadequate maintenance and funding constraints during yester-years, besides justifying former’s absence from the Tori Bund breach site at the critical time for reasons of heavy rainfall that never was, and the claim that that made vehicular tour of the bund impossible. Especially in view of his own PC-I of 4th February 2010 and Planning Commission’s consensus document that rebut the factum of over-topping. k. The SEs and XENs incharge of the breached bunds in Guddu and Kortri command areas are likewise responsible. l. The 2010 Flood in Sindh was unprecedented to the extent of duration of the peak flows though the discharges were lower than the 1976 Flood. m. The pre and post Flood 2010 IRC proceedings contradicted in material terms Mr. Junejo’s contention, that most bunds other than those directly raised in the subject matter of petitions were maintained at reasonable level of repair. n. The possibility that certain elements within the Irrigation hierarchies mislead its political leadership regarding benefits of creation of additional water storage cannot be ruled out. o. The World Bank programme on drainage in last three decades and Taunsa Rehabilitation project may be reviewed to ensure transparency especially in the context of technology transfer and training of local professionals and Para-technical staff. p. The packages prepared for the restoration of irrigation works and embankments had a cost factor of Rs.61 billion in Sindh alone, and the consensus DNA of Rs.11 billion raises legitimate and serious concerns in respect of departmental practices. q. AGP may also undertake special audit of funds expended in last 10-years for irrigation sector including review of its own reports. 68. It was stated that in many areas people ignored warnings about impending disasters for various reasons. Manifest disconnect at local levels may have made them brush aside implicit or explicit dangers for public infrastructure, large and small, standing agricultural crops by unsuspecting / ill-prepared people, 21 limited access to TV network further impeded by uneven load-shedding in rural areas, pre-occupation with fasting and worship. 69. Given the imperfect nature of observed communication with the affectees and their sympathisers, as water flows increased, perceptions mixed with reality compounded the confusion. Parliamentary debates did not dispel adverse public perceptions, both woven by design or with effort. Meantime, the official credibility touched a new low; numbers were no longer relevant; even one complainant was too many to generate media blitz. The local and national media chased the waters, as brave men and women anchors and public representatives repeatedly flagged to the authorities about areas of default, real or potential, suggesting absence of coordinated response. The HR Petitions filed by two Parliamentarians, one each from both sides of the divide, including the Deputy Chairman, Senate of Pakistan who sent a letter to Hon’ble Court through a leading Jurist, and an energetic lady Member of the National Assembly, amongst others, who chose to travel extensively on the water trail and documented the media coverage, members of the Bar and general public, all opted to invoke Article 184 (3) Jurisdiction of the apex Court. 70. In areas with sharp political divisions, intense public debates focussed on malicious breaches, to allegations of favours to local influentials who manage to secure appointments for their loyal supporters, inadequacy of assistance rendered alongside questions impinging on fairness in distribution and disbursements, both in the context of Federating units and marooned people who awaited rescue operations through transport planes and Heli-lifting relief supplies in many inaccessible areas were voiced by media. Not to be left alone, international communities also voiced their concerns, some indirectly, others were not so subtle. Though it realized the dimension of the fast unfolding disaster a bit late, to offer support, on 18th August 2010, the UN Secretary General convened a special Session in which Foreign Governments, DFIs, UN Specialized Agencies and other International Organizations to made generous pledges for donations and/or loans for the people whose blood and resources had been overstretched by the war imposed on them; rhetoric dominated disbursements. The reports that international community had honoured only 50% of the pledged contributions in the UN sponsored Funding appeal finally led to composition of the NODMC, created with Provincial representation to oversee and guide fairly and justly the Reconstruction and Rehabilitation plans. 71. The processing of loans by DFI’s also took its time and payment of 2nd tranche of Rs.80,000/ household was delayed, leading to frustrated expectations; these multiplied complaints of inaction or negligence. From the material brought on record, it was established that Federal & Provincial Governments and local administrations, supported by general public, political workers, local and international NGOs, all joined hands to launch the humanitarian assistance on 22 unprecedented dimensions, unfamiliar for its management structures eroded systematically and subcutaneously, since 1969. Men & women, civil and military personnel deployed for the purpose rushed with dedication whatever, from wherever and in whatever mode was possible under those conditions. At the initial stages, saving lives of the marooned, provision of essential food, safe drinking water were the obvious priorities; utensils and other voluntary services were trucked and airlifted as Medical professionals including the internees joined. Most people had no idea that weather takes no note of their belief systems. Disaster not only evoked and channelized public sympathy, at home & abroad, some major channels actively conducted awareness programs for private charity, collected and disbursed relief assistance, at times by enlisting feme-fatale celebrities of all hue and shade. Besides saving many precious lives, these agencies had done what was humanly possible, in view of the organizational & logistic constraints. That was, however, not so with respect to many in the Provincial Irrigation hierarchies. 72. Only WAPDA had had the opportunity to review its SOPs in the wake of Ataabad Lake syndrome to alert its senior professional team to explore and examine all options to meet any contingency, in the context of threats to Tarbela and downstream Chashma, should the Attabad Lake burst by any chance. Like NDMA, the KP and the Punjab also acted with utmost dedication in conjunction with armed forces to minimize impact of the disaster, at times beyond the call of duty. These efforts need institutional back up. 73. As public perceptions, at home and abroad, compounded, including those from within the coalition partners, the Provincial Governments of Sindh and the Punjab constituted Judicial Commissions to probe into alleged acts of malfeasance or nonfeasance by the respective administrations. For obvious reasons, their ToRs were focussed to the specific complaints, rather than functionally and spatially integrated dimensions commensurate with scale of the national catastrophe, or redressal of publicly voiced complaints, in their entirety. This Commission benefited from the evidentiary material collected by the two Commissions with due regard to Ordinance II of 1969. 74. A comprehensive Disaster Risk Management plan is required to be developed by the NDMA. To do so it has to take an overview of many factors that impinges on this function under stressful conditions. According to an ADB paper ‘a disaster plan must incorporate measures to reduce exposure. A reliable system must contemplate reducing exposure, early warning and strengthen resilience of the affectees before, during the onset of the calamity, and later in restoration stages. It also identified various elements including but not limited to: a) Acceleration of programs for infrastructure improvements to keep up with ballooning urban population; to develop alternatives to those living in high-risk areas, protection and restoration of ecosystems that buffer the impact of natural 23 hazards; b) ensuring timely warnings to reach individuals, to develop flexible systems ranging from global monitoring, regional, and national preparation to local emergency action; customize wording of warnings and methods used for local communities; to expand income options in rural areas, reducing reliance on a single crop; and c) encouraging regional cooperation that helps stricken economies to recover, protection and restoration of ecosystems that provide and enhance the livelihood of rural populations’ 75. On behalf of civil society, a case was made out for early restoration of LG systems; that was a legitimate suggestion but needs democratic realignment of its design to strengthen management structures for good governance; it is not to be a mutually exclusive system at the cost of good administration by colour blind rule. The 2001 LG system, put on hold in all the Provinces, and not practiced in 44 cantonments administered under a 1924 Act and Islamabad managed under 1960 MA Ordinance, despite two elections in 2001 and 2005 and removal of reasons for not enforcing two Ordinances of 2002 need serious consideration too. 76. Before concluding, the Commission will like to flag its concerns about frequent efforts and attempts to tamper and meddle with tried and tested management and administrative structures of the country, and without any plans for up gradation of essential skills except investing in foreign demand-led areas. Controversial reform packages, at the behest of usurpers who engage ‘fly by night’ consultants with sole and premeditated task of perpetuation of their regimes and wrapped up with their exit from the scene need no more comments. There is no caveat that while changes in all man-made systems are necessary and must be subjected to periodical review, to do so without creating a viable alternate is most unwise. The moreso, as half baked attempts demoralized the key service institutions; e.g. those established by inter-provincial consensus of the founding fathers in December 1949 and sustained by successive constitutions, including 1973 decimated within a few days of commencement of the constitution and despite political accord of October 1972 on which it was founded. Disruption of appropriate training to align the service memberships with growing challenges of the time has taken its own toll. Like the bunds, not kept up as per the Bund Manual, these validly made constitutional institutions suffered erosion from the corroding influences of last 42 years of practices violative of basic law, and without remorse. 77. Last but not the least, extensive encroachments in the flood plain was flagged by most as one of the key factors responsible for obstructing the natural river flows, especially during the flood seasons. The Commission noted enormity of the dimensions of this practice during aerial view along the Indus River in two provinces in the form of vast lush green farms planted and interspersed throughout the reach of the Indus River bed where it flows on the ridge. During its hearings, two more issues were highlighted: Allotments of lands to Sindh “haris” in 24 Katcha area by a previous administration and growth of housing settlements to meet one of the most basic needs of shelter for growing population. (This is not unique to the River plains; mushroom growth of ‘Katchi abadis’ in Islamabad’s most developed urban centre and seat of Federal Government is not free from that malady.) In the Commission’s view this is a symptom of policy failure, not a disease: successive governments have failed to develop and execute town planning as an integral and unavoidable instrument of state policy under which need oriented provision had to be made for meeting the residential requirements of the growing population rather than growth of affordability driven expansions. As a direct result thereof, leaving aside a few developers, this vital state function has been abdicated to real estate agents; the more organised and fortunate amongst the society resorted to housing cooperatives with DHAs in the lead; many proved inadequate in view of the sharp mismatch in supply of and demand for developed housing sites as well as emergence of opportunists and ‘qabza’ groups patronised under local influentials with all the attendant consequences. As ‘Kacthi abadi’ culture flourished as a ‘benign dispensation’ for most vulnerable exposed under the paradigm of ‘affordability’ and allowed to live under ‘hewers of wood and drawers of water’, as a shortcut having no other viable option; be it ad-hoc appointees in education and health sectors, frequently regularized sans due process mandated by articles 4 and 25; in irrigation sector, posting of personnel rendered surplus after abolition of posts/ departments, by absorbing against jobs inconsistent with their professional credentials did not raise any eyebrows. As enforcement lagged in every field, rule of law suffered and corruption multiplied by the hour as an end product to haunt many, so much so that even laws protected under First schedule of the constitution for removal of illegal possessions of state properties and host of other laws listed earlier could not be invoked: routine conversion of plots / estates in residential localities into commercial centres continue to compound the traffic congestion in urban centres besides creating extreme pressure on essential civic infrastructure of schools and hospitals. Recently the CDA has managed to secure thousands of Kanals of its land, worth tens of billions, from unauthorized occupants after the apex Court issued orders under Suo moto jurisdiction. The state needs to revisit its basic responsibilities too. 78. The largest damage to public sector infrastructure was suffered by the Transport and Communication sector. Complaints of human interventions has also been voiced and the NHA was directed to apprise the Commission about such breaches in road network in various provinces and the estimated losses; including the reasons for overtopping of M-I motorway.” The Urdu translation of the said concluding remarks is given below:- 25 26 27 28 29 30 5. In view of the above findings and concluding remarks, the Commission made the following recommendations:- “RECOMMENDATIONS INTRODUCTION 79. As a result of its interaction with the representatives of various federal & provincial governments, ministries and institutions as well as the media, civil society organizations of the general public, the Commission considers it appropriate to include a member of important recommendations in the Report. 80. Although the following recommendations are not directly in response to the formulations contained in the 15th December, 2010 Order of the Hon’ble Supreme Court of Pakistan, these are nevertheless highly relevant to flood 31 control measures for preventing possible damage and devastation in the future. The Hon’ble Supreme Court may like to consider these submissions, for whatever action it deems necessary. I. EXPANSION OF FLOOD EARLY WARNING SYSTEMS (FEWS) 81. The current early warning facilities in the country are of a limited nature. According to Meteorology Department, the range of forecast is barely 3-4 days. Due to limited technical capacity, we are lagging far behind the developed countries. There are only 07 Radars in the whole country. There is no coverage in the northwest of the country and Balochistan, including the coastal belt of 960 km. 82. Although Pakistan is a member of the Word Meteorology Organization (WMO), it is not accessing information from it. Nor is it taking full advantage of information available with it. The Hon’ble Supreme Court may wish to advise the Government of Pakistan for taking the following measures at the earliest: a. Expansion of radar coverage to the whole country. b. Establishing a coordinating mechanism with WMO and the SAARC countries for accessing / sharing information on early weather warning. II. FLOOD MITIGATION 83. During the devastating floods of 2010 which not only caused damage of life and property in the private sector but huge damage also occurred to the public sector infrastructure such as sweeping away of roads, bridges and a large number of schools, colleges and BHU’s etc. 84. In its interaction with public and private sector institutions, the Commission noted with concern that major damage occurred due to lack of maintenance and repair of river embankments, canals, and obstruction by major highways/motorways constructed by the Irrigation department and the National Highway Authority (NHA) and others across the country. 32 A. BARRAGES AND BUNDS 85. Several bunds, canals and barrages experienced breaches as a result. In the case of Jinnah Barrage, the breaching sections were identified before and were breached after proper consultative progress. The water discharged from such pre-designated breaches was channelized and it re-entered the Indus downstream. This was not so in the case of other bunds where no such provision existed and yet these bunds were allowed to be breached. This caused huge damage to life or property besides rendering thousands unemployed and homeless. 86. During its deliberations, the Commission observed that most damages could have been prevented if strategically located escape points, like the Raini Canal, were available at barrages, bunds and motorways/highways. Adequate systems could be put in place providing for a consultative plan for maintenance of bunds through assured funding, if necessary, by generating funds from water users as was offered by formers in KP. Provision for pre-designated breaches at barrages, bunds and motorways/highways could be provided after conducting a detail survey and preparing feasibility reports. B. MOTORWAYS/HIGHWAYS 87. It was brought to the notice of the Commission by representatives of KP that the major reason for inundation of agricultural lands and abadis on the northern side of Peshawar-Islamabad Motorway (M1) was the inadequate capacity of crossing bridges meant for the drainage of flood flows in rivers located between Peshawar and Mardan. The motorway virtually acted like a “bund” obstructing the natural course of water flows in the area. The bed of river Kabul, upstream and downstream of the main Kabul river bridge, has silted up to an alarming level which has decreased the waterway and poses a serious threat of out-flanking and over-topping of this vitally important structure during floods. In fact, this happened during the flood of 2010 near the Jindi River which damaged the M1 resulting in closure of the 33 motorway for several days. Similar concerns were voiced by representatives of civil society organizations and provinces. 88. It is imperative for the NHA and the FFC to carry out a joint survey and study of all its road network in the country to identify areas of possible flooding as a result of obstruction caused by these roads and take remedial measures for provision of designated escape channels to ease the pressure of flood at various potential locations. The provincial highways and irrigation departments may also be associated. The Hon’ble Supreme Court may wish to advise the government to initiate actions, accordingly. III. ENCROACHMENTS 89. The 2010 Flood has fully exposed the illegal encroachments which have been allowed to go unchecked by the concerned authorities due to negligence, corruption and poor managements resulting in massive losses to life and property. 90. Thousands of acres of “Katcha” lands have been illegally encroached upon by local influentials or have been leased out on nominal charges resulting in erection of private bunds. Construction of houses and other built up properties have been allowed along river banks and canals etc. Similarly, there has been a surge of encroachments on acquired lands in pond areas of barrages which has aggravated the flood hazards. The natural flow of water has been blocked as a result of numerous encroachments in most waterways due to unplanned and illegal constructions. 91. Unfortunately, the local and provincial governments have themselves indulged in encouraging illegal acts promoting encroachments. Unauthorized and technically unsound public works have been executed by local authorities. Construction of roads and gas pipelines have been allowed to pass through bunds in contravention of legal provisions. All such encroachments have contributed to obstructions in the flow of water resulting in flooding of many areas. A matter of grave concern which came to the notice of the Commission was that some of the governments are selling acquired lands in pond 34 areas to raise revenues. Under the law, no construction of any infrastructure is allowed to be erected within a distance of 200 feet from banks of the rivers/streams. It should be a matter of serious concern if the government itself indulges in unlawful acts of selling those very lands which it had acquired to protect irrigation infrastructure and property of the citizens. 92. The governments must correct that and ensure that no encroachments are permitted and no acquired lands are sold or leased out. Actions should be initiated by governments to remove all encroachments with a firm hand. It should also ensure that all such illegally constructed structures on government lands which had been destroyed by the recent floods are not allowed to be re-erected. 93. The Hon’ble Supreme Court may wish to consider appropriate directions to the government in this regard. IV. MUNDA DAM 94. The proposed Munda Dam project, 6 km upstream of Munda Headworks, is in an advanced technical engineering stage. When constructed it would provide water storage of 1.3 MAF and produce 740 megawatts of power. More importantly, it would completely control the flows of water in Swat River and its tributaries which eventually flow into the Indus at Khairabad, Attock district. Had Munda Dam been constructed, there would have been minimal damage downstream in Charsadda, Peshawar and Nowshera districts and Munda Headworks. The example of Gomal Zam Dam can be quoted here which is under construction and was responsible for preventing flooding of Dera Ismail Khan district even though it is partially complete. Keeping in view the great benefits of this Dam, the Hon’ble Supreme Court may consider advising the Federal Government to expedite execution of Munda Dam and prioritize work on other potential sites to optimize gains from natural endowments.” The Urdu translation of the above said recommendations is as under:- 35 36 37 38 6. Besides the above findings and recommendations, the Commission, has noted following important impressions:- ‘Pakistan’s current water storage capacity is limited to 10-15% of annual availability, rest flows to the Arabian Sea. With additional storage, the Nature’s free bounty will not only add cheapest electricity and feed up to 500 million people’: Muhammad Shakil Durrani, Chairman WAPDA. In 2006-2007, the NDMA was established under an inter- Provincial Commission headed by the Prime Minister ‘to regulate the national disaster management system to overcome unforeseen situations’ through a network of PDMAs & DDMAs: Presidential Ordinances (XL of 2006, XV & LIII of 2007), enacted in December 2010 as Act XXIV of 2010. Besides 1,600 deaths, the 2010 Flood inflicted an estimated loss of Rs.855 billion of which 65% was on private account; 4.5 million lost jobs, mostly in farm sector besides Rabi crops for 2010-11, unprecedented 20 million people were rendered IDPS and 7.0 million students were deprived of ½ of their academic session: Official Reports. ‘In all, 1,296 rescue and relief flights were handled by the PAF out of which 767 flights were operated from the Shahbaz Airbase, in jacobabad, alonge’:Mr. Rab Nawaz, Secretary, the Punjab I & P Department. ‘….LGB/LMB [of Jinnah Barrage] had already eroded (on 29 July) due to ‘pathetic handling of barrage gates’ by the XEN Incharge of the regulation who apparently left it to the lower staff to decide,and forge the record later’: Mr. Rab Nawaz, Secretary, the Punjab I & P Department. 39 … ‘relevant staff of the Irrigation Department is well trained and capable of dealing with any flood like situation’. Sindh government’s official statement in the NDMA meeting held on 28th June 2010, at Islamabad. ‘…most bunds, including Tori Bund, had lost almost 70 inches or so of their designed heights that contemplated six feet freeboard over 1976 HF Line with additional margin of 1-2 feet’: Statement by Mr. Zafarullah Mehr, Former Chief engineer, Guddu Barrage, on behalf of the Sindh Government. ‘….the sudden build-up at Tarbela and Mangla during next 2-3 days, took every one by surprise…it came down in a relatively shorter period…..As a consequence, the Troi and MC Bunds overtopped by excessive flows’. Statement by Mr. Shuja Junejo, Former Secretary I & P Sindh, ex-officio Vice Chairman, The IRC and Editor Revised Sindh Bund Manual. ‘….no bund was overtopped’: The Draft Flood Rehabilitation Plan, 2010, Planning Commission, dated 15 December, 2010. … that due to heavy downpour during the flood season, deep garrahs occurred which were filled by scraping the top of the bund so that a adequate freeboard was found deficient and water tear had weakened the bund:’ Record of IRC meeting dated 14 October 2010 (Agenda Item no.85, at page 59). ‘Sindh TV’……cameramen were the first to capture the illegal breach of Tori Bund, much before arrival of the high floods’ :Statement by Mr. Javed Ahmed Soomro, Reporter “Sindh TV”. ‘Sindh administration was negligent as it did not take appropriate measures, though the flood waters from Khyber Pakhtunkhwa (KP) took almost 3 weeks to reach Kotri’: Sh. Nisar Hussain, Bureau Chief of ‘Apna TV’. 40 7. Amongst them, one of the most important impressions is mentioned on the top of the list. This statement has been made by a person not less than the status of Chairman WAPDA, denial whereof apparently is not possible, unless rebutted by any other cogent version. How a country like Pakistan, whose economy mainly depends on agricultural growth, can afford that its 85-90% of water flows into the Arabian Sea, thus goes waste, surely due to non effective administrative plans including increasing the current water storage capacity, which is not only the cheapest source of generation of electricity thereby adding the resources for the welfare of the citizens. The Commission in its recommendations has emphasized on the need of completion of construction of Munda Dam. The Federal Government is directed to look into this aspect of the matter seriously. 8. The Inquiry Commission has documented in a comprehensive manner the reasons of unprecedented flood of 2010. No doubt it was a natural calamity, essentially beyond the limits and resources of Federal and Provincial Governments to control the same. As far as extending the relief to the victims is concerned, no stone was left unturned to reach out to them, for which the credit goes to the respective governments, but at the same time had there been a comprehensive management plan to control the same before time by strengthening the embankments (Bands) by the Provincial Governments, particularly encroachment in the river banks on account of which the flow of water was blocked, as it has been pointed out hereinabove, or strengthen the embankments and at the same time ensuring maintenance of same from engineering point of view on annual basis, there was every probability of reducing the quantum of losses, which according to the findings recorded on formulation No.6 comes to Rs. 855 billion, out of which 65% was suffered by private persons, excluding complete loss of one additional Rabi Crop in Jaffarabad District of Naseerabad Division in Balochistan etc. 9. Admittedly, post flood scenario had also not reduced the miseries of the people of Balochistan and Sindh. Inasmuch as, during the inquiry proceedings by the Commission, it had to send an interim report, in pursuance whereof directions were issued by this Court vide 41 order dated 28.03.2011 to the Chief Secretaries of the provinces of Balochistan and Sindh to pool their all resources and ensure without fail to complete the task of supply of water to the farmers in Dera Allah Yar and adjacent areas of province of Sindh so that the farmers/poor affectees may prepare their lands for cultivation of Kharif crop. Compliance report was received from the Chief Secretary Balochistan wherein it was stated that I&P Department, Government of Balochistan would ensure the supply of sufficient irrigation water for Kharif season during 3rd week of May, 2011. 10. It seems that Federal and Provincial Governments had shown interest to extend immediate relief to the flood victims during the time when it was on its peak but subsequent thereto except disbursing an amount of Rs.20,000/- to each family for re-building or repair of houses on 50-50% basis (by the Federal and Provincial Governments) the disbursement of remaining amount has not been commenced so far. The victims, who suffered enormous losses, as is evident from the findings of the Commission, attached their expectations from the executive (Federal and Provincial Governments), and rightly so, as under Article 9 of the Constitution no person shall be deprived of life or liberty save in accordance with law. Therefore, it is duty of the government to protect their lives and properties and also decrease their miseries, which they have suffered during the flood 2010. Needless to observe that due to flood devastation, the rights of the affectees/victims guaranteed by Article 14 of the Constitution which speaks about inviolability of dignity of a man have also been violated. The pictures placed on record along with report by the Commission speak that how their dignity, etc. was compromised. This Court has interpreted the expression “life” being keyword in Article 9 in a number of judgments including the case of Shehla Zia v. WAPDA (PLD 1994 SC 693); therefore, elaborate/detailed discussion on this aspect of the case is not necessary because though on account of the natural disaster the citizens in all the four provinces suffered dreadfully due to which neither their lives nor the property were safe but at the same time the executives could not be excluded from their liabilities to extend the fundamental right of life and liberty to them, for the reasons mentioned in the findings as well as recommendations of the commission, therefore, Government is directed to ensure payment of 42 balance of remaining amount, which is approximately Rs.80000/- per family as early as possible. 11. In this context reference of encroachment in the chapter of recommendations which has already been reproduced hereinabove, may be made. It contains statement of facts because the illegal encroachments have been allowed to go unchecked by the concerned authorities due to negligence, corruption and poor management resulting in massive losses to life and property. It further adds that thousands of acres of “Kachha” lands have illegally been encroached upon by local influential persons or have been leased out on meager charges resulting in erection of private bunds. Construction of house and other built-up properties have been allowed along with river banks and canals, etc. Similarly, there has been a surge of encroachments on acquired land in pond area of barrages which aggravates the flood hazards. The natural flow of water has been blocked as a result of enormous encroachments in most waterways due to unplanned and illegal constructions. The findings of the Commission need no further proof, therefore, the concerned Provincial Governments through their Chief Secretaries, should immediately remove the same; even if need be, by adopting coercive measures through the law enforcing agencies, otherwise responsibility of any loss to life and property of the victim shall rest upon their shoulders with all its consequences. 12. It is pertinent to mention here that how a poor farmer can have the courage to challenge the encroachers or violators of the Constitution and the law, in our society based on the feudal system like in Balochistan and Sindh, however, judicial notice of the same can conveniently be taken. Inasmuch as, such like members of community had no awareness about their rights and obligations, therefore, it becomes the duty of this Court to enforce their fundamental rights considering the same to be of public importance. Otherwise, the powerful and influential persons, with collaboration of the executive, will continue to deny them such rights without realizing that it is the liability of the State towards every citizen. Similarly, obedience to the Constitution and law is inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. Denial of fundamental rights to downtrodden class has 43 become common phenomenon, therefore, the officers representing the respective governments are bound to fulfill their commitments under the Constitution by protecting the fundamental right of such like persons as it has been held in Syed Masroor Ahsan v. Ardeshir Cowasjee (PLD 1998 SC 823), Sardar Farooq Ahmed Leghari v. Federation of Pakistan (PLD 1999 SC 57). 13. It is to be noted that in India as well as in Pakistan the Public Interest Litigation (PIL) was resorted to due to denial of enforcement of fundamental rights to the persons who fall in the category of non-resourceful at the hands of resourceful. Thus, at this stage reference may be made to the case of Behar Legal Support Society v. Chief Justice of India (AIR 1986 SC 38) = [(1986) 4 SCC 767] wherein Justice Bhagwati the great jurist opined as follows:- “The weaker sections of Indian humanity have been deprived of justice for long years; they had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights, and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.” Scope of the public Interest litigation has been explained by Justice Bhagwati in the case of State of Himachal Pradesh v. Student’s Parent Medical College Simla (AIR 1985 SC 910) = [(1985) 3 SCC 169], which reads as under:- “Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the under privileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the Court certainly can and must 684 intervene and compel the Executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economic rights. When the Court passes any orders in public interest litigation, the Court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out 44 faithfully and no one should go away with a feeling that the constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large numbers of half-clad, half-hungry people of this country”. 14. In the instant case as well, no one amongst the sufferer had approached this Court although their miseries are quite evident from the contents of the report but admiration goes to the petitioners out of whom one is Member of Parliament (Ms. Marvi Memon) who filed petition under Article 184(3), whereas, Mr. Jan Muhammad Jamali, Deputy Chairman, Senate, Mr. Fakhruddin G. Ebrahim, Sr. ASC (Jurist) and so many others have invoked the jurisdiction of this Court for the enforcement of fundamental rights of general public of their respective areas. To our understanding the manner in which they cooperated with the Commission could not be else except that they had felt atrocities of farmers, etc. who had suffered and sustained huge losses as noted in the report, therefore, while entertaining these matters this Court is well aware of its constitutional obligation, namely, to ensure enforcement of the fundamental rights of victims and providing relief to them, and secondly, relief should be provided to those who suffered this calamity which was beyond our imagination, thus, we hope that this report will assist the Federal and Provincial Governments in evaluating their losses, as fairly as possible. 15. The Inquiry Commission had compiled the report after having considered minute details and comprehensively recorded findings on all the formulation, which has arisen out of the pleadings of the parties, therefore, representing to all those sufferers whose life and property was not protected for the reasons mentioned hereinabove as well as in the report, which also includes criminal negligence on the part of officers/officials of the Irrigation Department of the respective governments in not maintaining the embankments (bands), etc. and failing to cause the breach of the same on specific places. Like the Ali Wahn Beraj was not breached at the specific places as a result whereof water had over topped and entered into Tehsil Allah Yar of District Naseer Abad, causing tremendous loss. It is not difficult to understand that what was the purpose of not breaching the Beraj from the specific place; obviously, to provide protection to some of the persons who had got vested interests. Had the Irrigation 45 Department fulfilled its duties as per the Irrigation Code, the flow of water towards Tehsil Dera Allah Yar could have been avoided. Be that as it may, as large number of victims in all the provinces are waiting for the findings recorded by the Inquiry Commission and the judgment on the same by this Court, therefore, it is important to note that such findings of the Inquiry Commission are to be implemented by the Federal and Provincial Governments following the codal formalities like registration of the cases of corruption, corrupt practices against the delinquents. 16. With a view to disseminate the contents of the report in recognition of the fundamental rights of the citizens under Article 19-A of the Constitution, findings, concluding remarks and recommendations, simultaneously have been reproduced hereinabove in English and Urdu languages. 17. As a result of above discussion, the findings, concluding remarks and recommendations are endorsed, accepted and hereby made part of this judgment with declaration that it will have binding effect on all concerned and sundry. 18. Thus, accordingly following directions are issued:- (i) The Federal and Provincial Governments through Secretary Cabinet and Secretary Interior Division as well as Chief Secretaries of all the Provinces are hereby directed to implement the findings and recommendations of the report in letter and spirit. (ii) The report so prepared by the Commission shall be supplied, both soft and hard copies, to all concerned immediately. (iii) The Secretary Information of Federal and Provincial Governments are hereby directed to ensure publications of the findings and recommendations of the Commission and the instant order widely in print media as well as in electronic media in all the provinces and Islamabad Capital Territory in national and local languages. 46 (iv) The compliance report for our perusal in Chambers shall be sent fortnightly by the Chief Secretaries. 19. Before parting with the judgment, we would like to express our gratitude to the Flood Inquiry Commission in producing their report in compliance with our order of 15th December, 2010 passed in these petitions brought before us, in the wake of the sufferings of persons who had to endure due to the floods swallowing up major parts of this country, damaging precious lives and valuable property. We would like to thank the Chairman of the Flood Inquiry Commission, Mr. Muhammad Azam Khan for chairing this Commission whose unfettered commitment made this report to see the light of the day, reflecting the colossal damage suffered by this nation. We would also like to thank the other three members of the Commission, including M/s Fateh Khan Khajjak, A.W. Kazi and Kh. Zaheer Ahmed for their determination and perseverance towards the completion of this task with their administrative skills, professionalism, commitment, devotion and dedication in not only unearthing the facts and circumstances surrounding this disaster suffered by the victims but also following the constitutional command that life and property of the citizen must be protected by the executive. We would further like to acknowledge the backing provided by the Federal Government as well as the Provincial Governments by complying with the orders of this Court and assisting in the making of this report. We would also like to thank the Secretary Cabinet Division, Ms. Nargis Sethi for providing her assistance and collaboration in successfully composing this report. We must acknowledge the support provided by Mr. Sajid Mehmood Qazi, Additional Registrar of this Court/ facilitator of the Commission and his staff by assisting the inquiry Commission in accomplishing their task without any hindrance and providing them with all the necessary help required. We also acknowledge and appreciate gestures shown by the petitioners by invoking jurisdiction for the enforcement of the fundamental rights having public importance as discussed hereinabove. We feel that media persons had equally played effective role to unearth the sufferings of the victims of flood, 2010, therefore, we appreciate their efforts in this behalf as well. 47 20. For the foregoing reasons petitions are accordingly accepted. Chief Justice Judge Judge Islamabad,the 7th June, 2011 Nisar/* Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Ghulam Rabbani Constitution Petition No.06 of 2011 Syed Mubashir Razi Jaffri & another …Petitioners Versus EOBI & others …Respondents For the Petitioners: : Mr. Rasheed A. Razvi, Sr. ASC Respondents: : N.R. Date of hearing : 25.3.2011 O R D E R Iftikhar Muhammad Chaudhry, CJ.— Learned counsel contended that respondent EOBI (Employees OLD-Age Benefit Institution) an institution/organization is responsible to receive in shape of contribution from huge number of insured persons and others under the EOB Act, 1976 and to disburse the amount to legitimate beneficiaries of the EOBI Pension Scheme under which more than 3.7 million insured persons/workers are registered. He stated that currently more than 4,00,000.00 pensioners are being paid monthly pension in various categories, therefore, being custodian of the funds on behalf of the workers/labourers, the organization is required to conduct its business in a highly transparent manner instead of wasting the funds on whimsical and subjective considerations. However, according to him presently massive corruption has been noticed by the petitioners of whom one is the member of the Trade Union whereas the other is employee over there. To substantiate his statement, he pointed out that in pursuance of the publication, which appeared in daily ‘Jang’ dated 16th April, 2009, 132 vacancies were announced and applications for the same were called for upto 15th May, 2009, in response whereof applications in thousands were received and later call letters for Const. P.06/2011 2 interview were issued to the candidates alongwith schedule. According to learned counsel the said posts were to be filled in by means of open competition in a transparent manner but surprisingly instead of making recruitments/appointments on merit from amongst the candidates who were issued call letters, consolidated lists were prepared on 16th May, 2010 by Dr. Jummani, PS to the Minister for Labours and Manpower and Imtiaz Ahmad who is D.G. F & A, according to which all these vacancies were filled on the recommendations of high ups/influential persons, names of which have been mentioned in the lists. For convenience sake, extracts from the lists are reproduced hereinbelow: Const. P.06/2011 3 Const. P.06/2011 4 Const. P.06/2011 5 Const. P.06/2011 6 Const. P.06/2011 7 Const. P.06/2011 8 Const. P.06/2011 9 Const. P.06/2011 10 Const. P.06/2011 11 Const. P.06/2011 12 Const. P.06/2011 13 Const. P.06/2011 14 Const. P.06/2011 15 Const. P.06/2011 16 Const. P.06/2011 17 Const. P.06/2011 18 Const. P.06/2011 19 Const. P.06/2011 20 Const. P.06/2011 21 Const. P.06/2011 22 2. Learned counsel further pointed out that the appointments were made in such an unwarranted manner that appointees were directed to submit their documents after their appointments were made. He referred to a copy of such letter reproduced hereinbelow to show that perhaps at the time of their appointment no document i.e. educational testimonial etc. was taken into consideration and appointments took place against the posts simply on the recommendations of the functionaries as is evident from the above lists. Const. P.06/2011 23 3. Learned counsel stated that a good number of people were also appointed on deputation/contract basis and subsequently without following rules and regulations they were regularized. 4. Similarly, learned counsel stated that the investment has been made by the EOBI in the institutions, which are not much profitable and the institutions giving better credit have been intentionally avoided. According to the learned counsel affairs of EOBI are not being run in a transparent manner inasmuch as responsible functionaries have started indulging in businesses, which are not considered assured profitable like the real estate, stock exchange etc. with the result that huge losses to public money have been caused. 5. After having heard the learned counsel and having gone through the relevant record so placed before us, we consider that his case requires to be examined in terms of Article 184(3) of the Constitution as it seems that fundamental rights of Const. P.06/2011 24 huge number of workers and insured persons as per Articles 9, 14 and 25 of the Constitution have been violated. Therefore, we direct that notices be issued to the respondents as well as to the persons, whose appointments have been questioned being non-transparent to provide opportunity of hearing to all of them. However, notices are required to be issued to them through President Board of Governors, EOBI/ Secretary Labour and Manpower with directions to effect service upon all of them wherever they are posted and submit compliance report prior to the next date of hearing. Similarly the President of Board/Secretary Labour is directed to submit complete record of the above persons as well as the persons who have been appointed on deputation/contract basis for the last three years and as to whether they have been regularized or not? He is also directed to place on record as to whether the investment is being made in the profit bearing schemes or otherwise as alleged by the learned counsel. 5. Let the matter be adjourned to a date in office after three weeks. Chief Justice Judge Islamabad, the 25th March, 2011 Nisar/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Mr. Justice Muhammad Ali Mazhar Mrs. Justice Ayesha A. Malik Mr. Justice Syed Hasan Azhar Rizvi Mr. Justice Shahid Waheed CONSTITUTION PETITIONS NO. 6 TO 8 OF 2023 (Setting aside the Supreme Court (Practice and Procedure) Bill, 2023) Raja Amer Khan and another (in Const. P. 6 of 2023) Chaudhry Ghulam Hussain and another (in Const. P. 7 of 2023) Muhammad Shafay Munir, Advocate High Court, Lahore (in Const. P. 8 of 2023) …Petitioner(s) Versus The Federation of Pakistan through the Secretary Law and Justice Division, Ministry of Law and Justice Islamabad and others (in all cases) …Respondent(s) For the petitioner(s) : Mr. Imtiaz Rashid Siddiqui, ASC Mr. Shehryar Kasuri, ASC (in Const.P. 6/23) Mr. M. Azhar Siddiqui, ASC Mr. Tariq Aziz, AOR Kh. Tariq A. Rahim, Sr. ASC (in Const.P. 7/23) Mr. M. Hussain Chotya, ASC (in Const. P. 8/23) Federation : Mr. Mansoor Usman Awan, Attorney General for Pakistan Date of hearing : 13.04.2023. * * * * * * * Const. P. 6 of 2023 etc. 2 O R D E R There are before the Court three petitions under Article 184(3) of the Constitution. They challenge the constitutionality of federal legislation, being the Supreme Court (Practice and Procedure) Bill, 2023 (“Bill”). The Bill is on its way to becoming an Act of Parliament in terms of clause (3) of Article 75 of the Constitution. The legislation is assailed on various grounds. Mr. Imtiaz Rashid Siddiqui, learned counsel appearing in CP 6/2023, led the case for the petitioners. 2. Learned counsel submitted that the independence of the judiciary was a principle of fundamental constitutional importance, deeply grounded in the structures of the Constitution. It was an unassailable fundamental right. Referring in particular to the Supreme Court, learned counsel emphasized the centrality of the position of the Chief Justice of Pakistan to the Court. Referring to the Bill itself learned counsel read out the various clauses thereof. It was submitted that in terms of the legislative process, with particular reference to Article 75(3), the Bill had travelled beyond the stage of being at the legislative stage. It had, rather, taken the position of a proposed Act that was bound to come into being with the efflux of time. Therefore, the Bill itself could be considered and the constitutionality or otherwise of its provisions examined by the Court. The present petitions were maintainable and could not be faulted as premature. It was submitted that the passage of this legislation was defective at both the executive stage, when the Bill was conceived and approved by the Cabinet, and thereafter at the legislative stage in terms of its passage through the two Houses of Parliament and then, after its return by the President, its reconsideration in joint sitting. The reasons given by the President for returning the Bill were not properly considered. It was submitted that the legislation was a fraud on the Constitution. 3. Learned counsel submitted, referring to clauses 2 to 4 of the Bill, that a basic objection to the constitutionality thereof was that it sought to displace the Chief Justice and place the powers that lay with him alone with another body, the committee sought to be set up in terms thereof. It was submitted that the rule making power of the Court under Const. P. 6 of 2023 etc. 3 Article 191 had been exercised and could not now be displaced by legislation of the sort contemplated. In this context learned counsel also referred to the power of each organ of the State, i.e., the legislative, executive and judicial branches, to exclusively regulate its own internal matters and procedures. It was submitted that the Bill was an intrusion into a sphere made exclusive to the Court and hence was ultra vires the Constitution. That field already stood occupied by the Supreme Court Rules, 1980 and therefore could not now be entered into upon by the legislature. As regards the appellate jurisdiction sought to be conferred on the Court, learned counsel submitted that it was beyond the competence of Parliament to do so, either in terms of Article 191 or entry No. 55 of the Federal Legislative List. Learned counsel also prayed for interim relief by way of either the suspension of the Bill, or a direction to the President not to assent to it and/or an order to the Law Ministry not to notify the Act. 4. In order to properly appreciate the issues before the Court, the necessary background may be set out. On or about 29.03.2023, the Federal Cabinet gave its approval for legislation in the shape of the Bill aforementioned. The Bill was swiftly introduced in the National Assembly, and passed the same day. On transmission to the Senate it was passed without amendment the next day, i.e., 30.03.2023. The Bill was then presented to the President for his assent. 5. Article 75 of the Constitution provides in clause (1) that in the case of a Bill other than a Money Bill the President shall, within 10 days of its presentation either assent thereto or return it to Parliament “with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered”. The President, on or about 08.04.2023, returned the Bill to Parliament for it to be reconsidered. The reasons for the request were shared with the nation. 6. Clause (2) of Article 75 provides that if a Bill is returned to Parliament, it shall be reconsidered in joint sitting and if there passed (with or without amendment) by the requisite majority, “it shall be Const. P. 6 of 2023 etc. 4 deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President, and the President shall give his assent within ten days, failing which such assent shall be deemed to have been given”. It appears that Parliament in joint sitting reconsidered the Bill on 10.04.2023 and the same day passed it, it seems with some amendments. The Bill so passed has been or is being presented to the President for his assent. Clause (3) of Article 75 provides as follows: “When the President has assented or is deemed to have assented to a Bill, it shall become law and be called an Act of Majlis-e-Shoora (Parliament)”. 7. The first point to note is that the Bill has, in terms of the legislative processes set out above, reached the stage when it can be said with complete certainty that it reflects in entirety the ensuing Act of Parliament, the short title of which will be the Supreme Court (Practice and Procedure) Act, 2023 (“Act”). The reason is grounded in clauses (2) and (3) of Article 75. The march towards becoming a statute, and the passage from Bill to Act, is (at most) merely a matter of time. Neither the President nor (so it would seem) Parliament itself can change its content in the slightest nor divert this course. 8. It follows that though the Bill is not yet law it is nonetheless, with exactitude, that what will have the force of law, when the Act comes into being. Therefore, it can be considered and examined even at this stage. It is possible even now, as the Bill moves seamlessly through time towards becoming the Act, to consider whether what Parliament seeks to do passes muster constitutionally. We are of the view that such a consideration can be carried out prima facie and tentatively. 9. The Bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, raise issues of a serious nature in relation to the independence of the judiciary. Such independence is deeply rooted in the fabric of the Constitution and forms an integral part of the structure of fundamental rights. Indeed, it is itself one such right. Any legislative effort that interferes with, or impinges on, the same should be subjected to close scrutiny. The Bill on Const. P. 6 of 2023 etc. 5 its face expressly states that it has been enacted in terms of Article 175(2) and Article 191. Article 191 provides as follows: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”. At first impression (subject to what is stated below), it seems that whatever can be done by legislative endeavor under Article 191 is something that the Court can itself do in exercise of the rule-making power conferred by the same Article. This is one of the contexts in which we are called upon to examine various provisions of the Bill. 10. The Bill, in clauses 2 to 4 (set to become correspondingly numbered sections), seeks to regulate the manner in which causes, matters or appeals before the Court are to be heard and, in particular, the Benches that are to hear and decide the same. On first impression the Bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the Court. On this view the Constitution is obviously at the top, followed by “law” and then the rules made by the Court itself. This hierarchical structure prima facie subordinates the rules made by the Court to “law” and therefore, the Supreme Court Rules, 1980 (“Rules”) to the incoming Act. The regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Rules. The Bill seeks to reinforce this in clause 8 (soon to become s. 8) by giving overriding effect to its provisions over not only any “rules” but also any judgment of any court, including this Court. Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary. 11. Prima facie there is another and more fundamental aspect that ought, even at this preliminary stage, be kept in mind for understanding Article 191. The principle involved may be explained by adapting for present purposes a dictum from one of the most famous cases of American constitutional law (McCulloch v Maryland 17 US 316 (1819)): the power to regulate involves the power to destroy. The thing susceptible to destruction here is the independence of the judiciary. Can the legislature, in the shape of a power claimed in terms of Article 191, have any such competence? The very existence of any such power needs Const. P. 6 of 2023 etc. 6 to be determined, and not simply its application to this or that situation. It is not a matter of the power, in a given case, being exercised benignly or for purposes claimed as salutary (as appears to be professed for clauses 2 to 4). That is not the essence of the matter. For the next interference (i.e., regulation) may be less benign, and the next even more removed from benignity, while the next may slip positively into hostility. “A question of constitutional power can hardly be made to depend on a question of more or less.” And this is all the more so when it is a matter of fundamental rights, as it is with the independence of the judiciary. Such an approach would be antithetical to the very concept of the fundamental right, potentially striking at its very root. Interference with fundamental rights is kept beyond legislative and executive incursion unless expressly permissible (in the shape of articulated reasonable restrictions). Any intrusion in the practice and procedure of the Court, even on the most tentative of assessments, would appear to be inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be. Prima facie therefore, when the Bill and the Act that is soon to come into being, is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence. 12. The Bill also (in clause 5, soon to become s. 5) purports to confer a new appellate jurisdiction on the Court in exercise of legislative power under Article 191. However, it is highly doubtful whether Parliament can do this, since a right of appeal is not merely a matter of practice or procedure but is a substantive right. It would therefore seem, at first sight, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Court itself or any “law’’ purported to be made by Parliament. If the conferment of appellate jurisdiction is considered in terms of a legislative competence available otherwise to Parliament one must turn to entry No. 55 of the Federal Legislative List (“List”). On a tentative examination of this constitutional grant it would seem that it, firstly, expressly excludes this Court from the power of Parliament to legislate as regards the “jurisdiction and powers” of courts in relation to the List, and secondly, allows for the enlargement of the jurisdiction of the Court only Const. P. 6 of 2023 etc. 7 if it is “expressly authorized by or under the Constitution”. There appears to be no authorization by or under the Constitution, let alone an express one, as allows Parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created. 13. We are here concerned with the independence of the judiciary, and in particular this Court, in institutional terms and according to the mandate of the Constitution. Issues of public importance with regard to the enforcement of fundamental rights are involved which require consideration and decision by the Court. 14. This brings us to the question whether it would be appropriate to make any interim order in relation to the present matter. In Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 the Full Court (17 member Bench) observed (at para 164, pg. 451) that “ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc….” (emphasis supplied). In our view, the facts and circumstances presented here are extraordinary both in import and effect. Prima facie the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this Court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision. Such intermeddling in the functioning of the Court, even on the most tentative assessment, will commence as soon as the Bill becomes the Act. Accordingly, in our view an interim measure ought to be put in place, in the nature of an anticipatory injunction. The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognized in our jurisprudence and other jurisdictions that follow the same legal principles and laws. It is therefore hereby directed and ordered as follows. The moment that the Bill receives the assent of the President or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner. Const. P. 6 of 2023 etc. 8 15. Notices be issued to the respondents in all three petitions. Notice also to the Attorney General for Pakistan under O. 27A CPC. Notices also to the Supreme Court Bar Association through its President and the Pakistan Bar Council through its Vice Chairman. Notices also be issued to the following political parties who may, if they so desire, appear through duly instructed counsel: Pakistan Muslim League (N) (PML (N)), Pakistan Peoples Party Parliamentarians (PPPP), Pakistan Tehreek e Insaf (PTI), Jamiat Ulema e Islam (JUI), Jamaat e Islami (JI), Awami National Party (ANP), Muttahida Qaumi Movement (MQM), Balochistan Awami Party (BAP) and Pakistan Muslim League (Q) (PML (Q)). 16. To come up on 02.05.2023 at 11:30 a.m. Sd/- Chief Justice Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Islamabad 13.04.2023

IN THE SUPREME COURT OF PAKISTAN (CONSTITUTIONAL JURISDICTION) PRESENT MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE TARIQ PARVEZ CONSTITUTION PETITION NOS. 72 & 73 OF 2015 (Constitutional Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973) Justice Raja Jilal ud Din, Chief Judge Petitioner in Supreme Appellate Court, Gilgit Baltistan (C.P.No.72/2015) Justice Muzaffar Ali, Judge Supreme Petitioner in Appellate Court, Gilgit Balistan (C.P.No.73/2015) Versus Federation of Pakistan through Secretary, Respondents Ministry of Law & Justice, Human Rights, (in both Petitions) Government of Pakistan, Islamabad, etc. For the Petitioners: Mr. Asaf F. Vardag, ASC with Ch. Akhtar Ali, AOR (in both petitions) Respondents: N. R. (in both cases) Date of Hearing: 26.01.2016 JUDGMENT TARIQ PARVEZ, J.- Through this consolidated order we intend to dispose of Constitution Petition Nos. 72 of 2015 titled (Justice Raja Jilal-ud-Din, Chief Judge Supreme Appellate Court, Gilgit-Baltistan) and Constitution Petition Nos. 73 of 2015 titled (Justice Muzaffar Ali, Judge, Supreme Appellate Court, Gilgit). The two petitions have been filed by C. P. Nos.72 & 73 of 2015 2 the two Hon’ble Judges of Supreme Appellate Court of Gilgit- Baltistan with the intent to seek indulgence of this Court by exercising jurisdiction vested in it under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. 2. Concise facts relevant for the decision of these two petitions on merits but for providing of background on which these petitions have been instituted are that the two Hon’ble Petitioners were elevated as Judges of the Supreme Appellate Court of Gilgit-Baltistan with effect from the date they entered the offices vide Notification of January 28, 2013. Justice Raja Jalal-ud-Din as per documents attached and recorded in the petitions is holding the office of Chief Justice whereas Justice Muzaffar Ali as Judge of the said Court. 3. The learned counsel appearing for the two petitioners referred to Article 60(8) of the Gilgit-Baltistan (Empowerment and Self-Governance Order, 2009) (hereinafter referred to as the “Order”). He submits that under Clause (8) of the Article the Chief Judge and Judges of the Supreme Appellate Court of Gilgit-Baltistan shall be appointed for a term not exceeding three years and may be appointed for such further term as the Government of Pakistan may determine. He further submits that such fixation of tenure as a Chief Judge and the Judge is contrary to provision of the Constitution of the Islamic Republic of Pakistan and thus C. P. Nos.72 & 73 of 2015 3 ultravires. He argued that the tenure fixed for the office of Chief Judge and Judge of the Supreme Appellate Court adversely affect the independence of the judiciary which is the fundamental right of each citizen of the State to have the cover and protection of an independent judiciary whereas if a Judge of the Superior Court is appointed on tenure basis and on expiry of the tenure his appointment is at the discretion of the Government for further extension of term, shall militate against the concept of independence of judiciary which goes to the very route of the administration of justice. 4. The learned counsel went on to argue that it is within the domain of this Court to be watchful regarding rights of all citizens. He has referred to notification dated 13.09.1981 issued by the Government of Pakistan, Kashmir Affairs and Northern Affairs Division whereby the Citizenship Act, 1951 has been enforced and adopted within the Northern Areas as such the people living in Northern Areas are entitled to all and same protection of the fundamental rights guaranteed in the Constitution of the Islamic Republic of Pakistan as any other citizen living within Pakistan. He submits that the Hon’ble Chief Judge of the Supreme Appellate Court and a Judge of the said Court are having similar jurisdiction in their respective territorial limits as the Hon’ble Judges of this Court. He has also referred to Article C. P. Nos.72 & 73 of 2015 4 179 of the Constitution where-under a Judge of the Supreme Court of Pakistan shall hold office until he attains the age of 65 years. He further argued that the petitioner in Constitution Petition No. 73 of 2015 will retire on completion of his term of three years when he will not be even 62 years of age and that the two petitioners would be at the mercy and discretion of the Government of Pakistan which may determine for their appointment for further term. The crux of his submission is that the service tenure of the Chief Justice and Judges of the Supreme Appellate Court of Gilgit-Balistan shall be brought at par with that of the Judges of the Supreme Court of Pakistan and the Chief Judge and Judge of the Azad Jammu & Kashmir. 5. We have all and every respect for the hon’ble two petitioners who are Chief Judge and Judge of the Supreme Appellate Court of Gilgit-Balistan and in that we have refrained ourselves not to make any observation regarding merits or demerits of the case to avoid any aspersion on their person. 6. We posed a question to the learned counsel regarding exercise of jurisdiction by this Court in terms of Article 184(3) of the Constitution which provides as under:- “(3) Without prejudice to the provisions of Article 199, the supreme Court shall, if it C. P. Nos.72 & 73 of 2015 5 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.” 7. The significant words and the language used has been considered by this Court in a number of judgments which shall be cited and referred in the following lines but for the present, emphasis is placed on “a question of public importance” and “with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved”. 8. In the instant case the two petitioners were incumbent of hon’ble office holders as detailed above have sought indulgence by this Court in respect of tenure of the Chief Judge and a Judge of the Supreme Appellate Court as envisaged and fixed under Article 60 Sub Article (8) of the Order. To us the issue relates to the personal rights of the two petitioners in respect of office they are holding at present. The petitioners have sought to be treated in similar way as Judges of the Supreme Court of Pakistan in terms of Article 179 of the Constitution or as the Judge of the Supreme Court of Azad Jammu & Kashmir. C. P. Nos.72 & 73 of 2015 6 9. The Judges of this Court including the Hon’ble Chief Justice of Pakistan are appointed through a procedure now envisaged i.e. Article 175(a) of the Constitution whereas the mode of appointment of the Chief Judge and a Judge of the Supreme Appellate Court of Gilgit-Baltistan is provided under Article 60(5) of the Order where the powers of appointment of the Chief Judge or a Judge of the Supreme Appellate Court are vested with the Chairman of the Council on the advice of the Governor Gilgit-Baltistan and other Judges shall be appointed by the chairman on the advice of Governor after seeking views of the Chief Judge. The plain reading of the above two Articles reveals that Article 175(9) of the Constitution and Article 60(5) of the Order are differently framed and constituted. A person who has been appointed as Chief Judge and Judge of the Supreme Appellate Court of Gilgit-Baltistan in terms of Sub-article (5) of Article 60, his term of office has to be governed under Sub-article (8) of Article 60. In no manner such appointment would attract the original jurisdiction of this Court under Article 184(3) because no question of public importance in the first instance and that too with reference to enforcement of any of the fundamental right conferred by Chapter I of Part II is involved. The condition precedent for invoking original jurisdiction under the above referred Article presupposes that C. P. Nos.72 & 73 of 2015 7 a question has arisen which is of public importance at large, affecting each and every individual/person and that too anyone or more than one fundamental right as given and protected under the Constitution which in any manner is violated but has caused any damage or created hurdle in enforcement of fundamental right of public at large. 10. Regarding securing the independence of judiciary with reference to Hon’ble Judge may it be the Chief Judge or a Judge of the Supreme Appellate Court, the Order has itself provided protection by providing Article 66 regarding establishment of Supreme Judicial Council. Sub-article (3) of Article 66 provides that a Judge of the Supreme Appellate Court or of the Chief Court shall not to be removed from office except as provided by this Article i.e. special procedure has been prescribed there-under which is akin to that as given under Article 209 of the Constitution, thus, the security of the office of a serving Judge in Gilgit-Baltistan is at par with the Hon’ble Judge of the Superior Courts in Pakistan. 11. This Court has been always very careful while invoking its jurisdiction under Article 184(3) of the Constitution both ways i.e. efforts are made to exercise its jurisdiction wherever it finds that a question of law of public importance with reference to the enforcement of any of the Fundamental Rights under the Constitution but also C. P. Nos.72 & 73 of 2015 8 remained careful not to exercise such jurisdiction where it finds that either the question involved is not a public importance or it has no reference to the enforcement of any of the Fundamental Rights. 12. It was therefore that it was ruled by this court in “Al-Jehad Trust v President of Pakistan (PLD 2000 SC 84)” that “If the petitioner succeeds in establishing breach of any of the Fundamental Rights involving a question of “public importance”, he is entitled to the appropriate relief.” In case reported as “Anwar Aziz v Federation of Pakistan (PLD 2001 SC 549)” it was held that “cases must be such as give rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who was the subject-matter of the case, might be of no particular consequence.”,. Rule was reframed in “Al-Jehad Trust v Lahore High Court (2011 SCMR 1688)” as follow:- “A bare perusal of Article 184(3) of the Constitution would reveal that it has been couched in a very simple and plain language, thus, it hardly needs any scholarly interpretation. The jurisdiction as conferred upon Supreme Court under Article 184(3) of the constitution can be exercised only where a question of public importance with reference to the enforcement of any of the fundamental rights is involved, meaning C. P. Nos.72 & 73 of 2015 9 thereby that the question of public importance is sine qua non for exercise of jurisdiction under Article 184(3) of the Constitution.” 13. Conscious of the special jurisdiction and of the fact that a case may not brought before this court for invoking its original jurisdiction under Article 184(3) it was ruled in Dr. Muhammad Tahir-ul-Qadri v Federation of Pakistan (PLD 2013 SC 413) that “Burden of proof was upon the petitioner to demonstrate as to which of his Fundamental Rights had been infringed upon but he failed to point out an infraction of any of his Fundamental Rights”. It was also concluded by a larger Bench of this Court in Abdul Wahab v HBL (2013 SCMR 1383) that “For the purpose of qualifying the test of “question of public importance”, the issue involved in a matter before the Supreme Court under Article 184(3) of the Constitution must belong and should concern the public at large, the State or the nation…if the proposition/matter involved the alleged violation of the Fundamental rights of an individual or a group of individuals, how so large it might be, but had no concern and effect on the public, then it could not be termed as “question of public importance.” 14. Considering the case law given above and very brief facts regarding the appointment of the two hon’ble C. P. Nos.72 & 73 of 2015 10 petitioners we find that the cause of grievance if any cannot be specifically highlighted and brought into the purview of anyone of the fundamental rights of any of the petitioner and even if so is not a question of public importance because it will be touching upon as to terms of office of the two hon’ble individuals holding prestigious offices under the Order. We, thus, find no force in these petitions for invoking our jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. The same are, therefore, dismissed. Judge Judge Judge Islamabad January 26, 2016 Shirazi/* “NOT APPROVED FOR REPORTING”

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE MUHAMMAD ATHER SAEED CONSTITUTION PETITION NO. 73 OF 2011 (Constitution petition under Article 184 of the Constitution against the appointment of incumbent chairman NAB) Ch. Nisar Ali Khan … Petitioner VERSUS Federation of Pakistan etc … Respondents For the Petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Arshad Ali Chaudhry, AOR Assisted by Barrister Sharjeel Adnan Sh, Advocate and Syed Faraz Raza, Advocate For Respondent No. 3: Sardar Muhammad Latif Khan Khosa, Sr. ASC Ch. Akhtar Ali, AOR On Court Notice: Mr. Irfan Qadir, Attorney General for Pakistan Barrister Sheryar Riaz, Advocate. Date of Hearing: 28.05.2013 ORDER TASSADUQ HUSSAIN JILLANI, J.- For the reasons to be recorded later in the detailed judgment, we hold and declare that consultation in the appointment of Chairman NAB was not made in accordance with Section 6 of the National Accountability Bureau Ordinance, 1999 and the law declared by this Court. Consequently, this Constitution petition is allowed, the impugned appointment of respondent No. 3 is declared to be without lawful authority and is set aside with immediate effect. The Federal Government is directed to make fresh appointment without further loss of time. JUDGE JUDGE JUDGE JUDGE JUDGE Islamabad, the 28th of May, 2013 Riaz

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CONSTITUTION PETITIONS NO.74 TO 79 OF 2015, 49 TO 56 OF 2016 AND 2 OF 2018 AND CIVIL MISC. APPLICATIONS NO.4292 OF 2017 AND 162 OF 2018 (Under Article 184 of the Constitution) Dr. Farhat Javed Siddique In Const.P.74/2015 Mujahid Ali Khan In Const.P.75/2015 Zakir Hussain Naseem In Const.P.76/2015 Muhammad Zakir Ali Siddiqui In Const.P.77/2015 Muhammad Asif Chaudhry In Const.P.78/2015 Solicitor Muhammad Dawood Ghaznavi In Const.P.79/2015 Kiran Zar In Const.P.49/2016 Tauheed Ahmed Khan In Const.P.50/2016 Ghazala Kanwal Asim In Const.P.51/2016 Asif Malik In Const.P.52/2016 Junaid Bari Dar In Const.P.53/2016 Owais Fareed Pirzada In Const.P.54/2016 Shahryar Jahangir In Const.P.55/2016 Dure Shehwar Hanif In Const.P.56/2016 Imran Khan and others In Const.P.2/2018 Impleadment application by Dr. Arif Alvi In C.M.A.4292/2017 Impleadment application by Imran Khan Niazi etc. In C.M.A.162/2018 …Petitioner(s) VERSUS Government of Pakistan etc. …Respondent(s) (In all cases) For the petitioner(s): Mr. Anwar Mansoor Khan, Sr. ASC Mr. Faisal Fareed Hussain, ASC (In Const.P.2/2018) Syed Rifaqat Hussain Shah, AOR (In Const.P.74-78/15, 49-56 of 2016) Solicitor Mr. Daud Ghaznavi, Petitioner in person in Const.P.79/15) For the respondent(s)/on notice: Mr. Khalid Jawed Khan, Attorney General for Pakistan. Syed Nayyar Abbas Rizvi, Addl. Attorney General assisted by Barrister Asad Rahim Mr. Zikriya Sheikh, DAG For ECP: Mr. Babar Yaqoob Fateh, Secy. ECP Mr. M. Arshad, D.G. Law Constitution Petition No.74/2015 etc. -: 2 :- For NADRA: Mr. Usman Yousaf Mobeen, Chairman. Mr. Zulfiqar Ali, D.G. Projects Mr. Saqib Jamal, Director, Legal Mr. M. Ali D.G. Legal Dates of hearing: 15.8.2018 (Islamabad) & 17.8.2018 (Lahore) ORDER MIAN SAQIB NISAR CJ.- The present petitions were filed by, inter alia, certain Overseas Pakistanis prior to the General Elections held on 25.07.2018 with the prayer that they (Overseas Pakistanis) be entitled to vote in the General as well as Local Bodies Elections. Pursuant to the order dated 29.01.2018 whereby this Court directed the National Database & Registration Authority (NADRA) with the assistance of the Election Commission of Pakistan (ECP) to develop a system to provide Overseas Pakistanis with an effective right to vote, an extensive exercise was undertaken. As a result Overseas Voting Solution (Internet Voting) (I- voting) was developed. Various presentations were given to this Court to seek validation of the said system. A third party technical audit of the I- voting system was also sought and a report was produced in this regard. While there were certain technical and security apprehensions about allowing Overseas Pakistanis to vote via the internet, the said report was generally positive and encouraging. Be that as it may, in order to ensure that no disruption of any kind was caused to the General Elections 2018, particularly by an overseas voting mechanism which had never been tried or tested before, this matter was postponed to after the said elections. The instant matter has now been revived by this Court. 2. Learned counsel for the petitioners argued that on account of the provisions of Section 94 of the Election Act, 2017 (the Act), it is obligatory for ECP to enable Overseas Pakistanis to exercise their right to vote. It can discharge such obligation by framing the necessary rules under Section 239 of the Act. In response, ECP filed its para-wise comments along with the proposed rules for enabling Overseas Constitution Petition No.74/2015 etc. -: 3 :- Pakistanis to cast their votes through internet. The learned Additional Attorney General for Pakistan has candidly stated that the right to vote of Overseas Pakistanis is enshrined in Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It has been spelt out very clearly in the judgment of this Court reported as Ch. Nasir Iqbal and others Vs. Federation of Pakistan thr. Secy. Law and others (PLD 2014 SC 72). According to him, it is only an appropriate mechanism system and procedure which needs to be put in place by ECP in exercise of its rule making power to determine how this right to vote shall be exercised in practical terms. 3. There are no two opinions about the fact that a citizen’s right to vote is sacrosanct and paramount. Article 17 of the Constitution reads as under:- “17. Freedom of association. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. (2) 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 such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Every political party shall account for the source of its funds in accordance with law.” Constitution Petition No.74/2015 etc. -: 4 :- In Ch. Nasir Iqbal’s case (supra) this Court interpreted Article 17 ibid and held that:- “6. Under Article 17 of the Constitution every citizen has the right to vote to participate in the governance of the country through their chosen representatives… 8. It is to be noted that there is no distinction between the citizens living within Pakistan or outside the country, with regard to the right to vote in terms of the Article 17 of the Constitution…It warrants to mention that the right to vote has not been denied to the overseas Pakistanis, who are as much important as those living inside the country, but only the facilities to vote, which provides the sense of ownership and participation in the governance of the country, has not been extended to them… 9. It must be clarified here that the overseas Pakistanis, as noted hereinabove, enjoy the right to participate in the election process in terms of Article 17 of the Constitution being dignified citizens of the country, though residing outside its territory, as such they cannot be denied the same rights on technical grounds, i.e. logistic arrangements made outside the country for casting their votes. 13. …Article 17 of the Constitution continues to insist upon the Federal Government to extend the facility of voting to overseas Pakistani in the election of the Parliament as well as Local Bodies.” [Emphasis supplied] It is pertinent to note that after the aforementioned judgment was passed, no concrete steps were taken to actualize this right to vote for Overseas Pakistanis and enable them to participate in the electoral process while working/residing outside the territorial boundaries of Pakistan. However, subsequently the Act was promulgated on Constitution Petition No.74/2015 etc. -: 5 :- 02.10.2017. Section 94 whereof deals with voting by Overseas Pakistanis as follows:- “94. Voting by Overseas Pakistanis.—(1) The Commission may conduct pilot projects for voting by Overseas Pakistanis in bye-elections to ascertain the technical efficacy, secrecy, security and financial feasibility of such voting and shall share the results with the Government, which shall, within fifteen days from the commencement of a session of a House after the receipt of the report, lay the same before both Houses of Majlis-e- Shoora (Parliament). (2) In this section, ‘Overseas Pakistani’ means a citizen of Pakistan under the Pakistan Citizenship Act, 1951 (II of 1951) or holder of National Identity Card for Overseas Pakistanis under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000) who is working or residing abroad permanently or temporarily for not less than six months.” [Emphasis supplied] The rulemaking power in this regard is vested with the ECP as contemplated by Section 239 of the Act which is reproduced as under:- “239. Power to make rules.—(1) The Commission may, by notification in the official Gazette and publication on the website of the Commission, make rules for carrying out the purposes of this Act. (2) The Commission shall make the Rules under sub- section (1) subject to prior publication and after hearing and deciding objections or suggestions filed within fifteen days of the publication.” [Emphasis supplied] 4. Overseas Pakistanis have been conferred with the right to vote as per the interpretation of Article 17 of the Constitution undertaken Constitution Petition No.74/2015 etc. -: 6 :- by this Court in Ch. Nasir Iqbal’s case (supra). Thus where the right of Overseas Pakistanis to vote already exists as per the law and is duly recognized, it must necessarily be given due effect. For this reason, the word ‘may’ appearing in Section 94 of the Act is to be read as ‘shall’ and to this end, the only step which the ECP has to take is with regard to adoption of a suitable and effective mechanism and procedure by making appropriate rules under Section 239 of the Act. Accordingly, Section 94 of the Act makes it mandatory for ECP to conduct pilot projects enabling Overseas Pakistanis to vote in the upcoming bye-elections. It is worth mentioning that the phrase ‘pilot projects’ in terms of Section 94 supra does not mean that the votes cast by Overseas Pakistanis through i- voting in the bye-elections, would be treated as mock votes in mock elections, or that the votes cast under such pilot projects would be invalid, rather they are to serve as a sample and if successfully accomplished, or if some technical problems or issues come to fore after removing the same, that this exercise of enabling Overseas Pakistanis to vote may then be replicated on a larger scale, i.e. for future General Elections. Besides, there is a safety net contained in the proviso to Rule 84-C(2) of the proposed rules for overseas voting. This allows ECP to direct exclusion of overseas votes from the final count if it is of the opinion that the technical efficacy, secrecy and security of voting has not been maintained or has for any reason been compromised. This clearly suggests that overseas votes are to be included in the result of the bye- elections unless excluded by the ECP for valid reasons. The purpose of such ‘pilot projects’, as has been made clear by Section 94 supra, is to ascertain the technical efficacy, secrecy, security and financial feasibility of such voting after which the ECP is required to prepare a report and submit it to the Government which in turn shall lay it (report) before both Constitution Petition No.74/2015 etc. -: 7 :- the Houses of Parliament within fifteen days from the commencement of a session of a House after the receipt of the report. 5. According to the notification dated 17.08.2018 issued by the ECP regarding the programme of the next bye-elections for 2018, it is declared that bye-elections for 37 constituencies (both National and Provincial) are to take place on 14.10.2018. To our mind, undoubtedly these and subsequent bye-elections (if any) are visualized, and fall within the meaning of, ‘bye-elections’ as contemplated by Section 94 of the Act for the pilot projects that ECP has to conduct in order to enable Overseas Pakistanis to exercise their right to vote. As already observed Overseas Pakistanis are clearly entitled to vote in the General Elections; they are therefore equally entitled to vote in bye-elections that are held to fill vacancies which have or will occur. The system so tried, tested and perfected can then be deployed in the next General Elections. 6. To the aforementioned end, Rules 84-A, 84-B and 84-C of the Election Rules have been framed. According to the Secretary ECP, they provide for a computerized mechanism, i.e. I-voting, to enable Overseas Pakistanis to exercise their right to vote. The proposed rules are reproduced below for ease of reference:- “84-A. Registration procedure for voting by Overseas Pakistanis.–(1) Where the Commission decides in terms of sub- section (1) of section 94 to make arrangements for voting by Overseas Pakistanis living abroad, it shall hold such voting through internet (I-voting). (2) Only those Overseas Pakistani voters shall be eligible for voting who possess: (a) valid National Identity Card for Overseas Pakistanis (NICOP); (b) valid Machine Readable passport (MRP); and (c) valid E-mail address. Constitution Petition No.74/2015 etc. -: 8 :- (3) The Overseas Pakistani voter, desirous to cast his vote through I-voting from abroad, during registration time-period as may be fixed by the Commission, shall access the Overseas Voting System through the internet and shall create an account using following credentials: (a) Name; (b) Email address; (c) Generating password of his choice; (d) Mobile Phone Number (optional); and (e) Country of Stay. (4) A confirmation email of account so created shall be forwarded by the system to the applicant at his given email address and by clicking on the link therein the voter shall be prompted to provide the number of his Machine Readable Passport with its tracking identity and NICOP number along with date of issuance thereof. (5) Upon completion of proceedings under sub-rule (4), a verification process will be initiated wherein random questions regarding voter’s identity information shall be asked by the System and upon correct reply, a message of “Successfully verified” shall be displayed by the system: Provided that a confirmation email of account verification shall also be forwarded by the system to the applicant. (6) In case the voter could not correctly reply first set of questions mentioned in sub-rule (5), the system will allow multiple attempts to correctly reply failing which that NICOP number shall be restricted for further attempts: Provided that upon successful verification, a unique passcode shall be forwarded to the applicant by the system through email before the polling day: Provided further that on receipt of list, from the Commission, in respect of Overseas Pakistani voters registered as such, the Returning Officer shall take necessary steps to make sure that no overseas voter so registered for overseas voting is allowed to cast his vote at the polling station in person. Constitution Petition No.74/2015 etc. -: 9 :- 84-B. Voting procedure for Overseas Pakistanis.– On polling day, the voter shall log in to the overseas voting system using his username and password and shall avail the voting option from the system for casting his vote in respect of his National Assembly, or, as the case may be, Provincial Assembly Constituency by entering unique passcode: Provided that by going through designated list of candidates of selected constituency, the voter shall cast his vote by selecting his desired candidate: Provided further that upon successful submission of vote, a “confirmation” message shall be displayed on the screen. 84-C. Preparation of results in respect of Overseas voting.–(1) After the polling hours are over, the Commission shall generate the Form-45 (Result of the Count) in respect of the constituency by using Reporting Portal of the Overseas Voting System and send the same to the Returning Officer concerned immediately through quickest means as are available for the purpose. (2) On receipt of Form-45 (Result of the Count) from the Commission under sub-rule (1), the Returning Officer shall include the results contained therein in the consolidated results of the count as furnished by the presiding officer to be prepared by him under section 95 in such manner as the Commission may determine: Provided that the Commission may direct for non- inclusion of the result in respect of the Overseas voting during consolidation of results under section 95, if in its opinion, the technical efficacy, secrecy and security of the voting has not been maintained during the said voting.” The ECP and NADRA had given presentations to this Court in the foregoing regard and about third party validation that has also been received from independent experts, regarding the safety, integrity and workability of the system. Based on these representations we prima facie find the mechanism of I-voting to be safe, reliable and effective for being utilized in a pilot project. We are sanguine that the aforesaid proposed Constitution Petition No.74/2015 etc. -: 10 :- rules shall be incorporated in the Election Rules, 2017 to enable Overseas Pakistanis to exercise their right to vote in the forthcoming bye- elections. However, we direct the results of the bye-elections and the vote count of the votes cast by the Overseas Pakistanis through the I-voting mechanism shall be kept separately and also secret till the time that ECP is satisfied about the technical efficacy, secrecy and security of the votes cast by Overseas Pakistanis through the I-voting system. In case such determination, made on the basis of reasons, is in the negative and the ECP is not satisfied about the integrity, safety and reliability of the systems and the votes cast through the same; ECP shall exclude the segregated votes cast by Overseas Pakistanis from the official result of the bye-elections in accordance with the proviso to Rule 84-C(2) supra. This safety feature shall ensure that the elections are founded upon verified and authenticated votes only. 7. Before parting we would like to express our appreciation for the dedicated efforts of NADRA and ECP undertaken for this noble purpose of great constitutional importance. The petitions are allowed in the aforementioned terms. CHIEF JUSTICE JUDGE JUDGE Lahore, the 17th of August, 2018 Not approved for reporting M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CONSTITUTION PETITION NO.77 OF 2010 (President Balochistan High Court Bar Association vs. Federation of Pakistan, etc. AND H.R.C. NO.13124-P/2011 (Application by Altaf Hassan Qureshi) AND H.R.C. No. 40403-P/2011 (Application by Syed Majeed Zaidi) AND H.R.C. No. 40220-G/2011 (News clipping) AND H. R. C. No. 43103-B/2011 (Application by Haji Abdul Qayyum) AND H. R. C. No. 17712-B/2012 (Application by Misbah Batool for recovery of her husband, Asif, FC Personnel) AND H.R.C. 27045-K & 27619-G/12 (Abduction of Dr. Ghulam Rasool) Const.P.77/2010 2 AND H. R. C. No. 30044-B/2012 (Anonymous application against Police Officers) AND H. R. C. No. 30047-G/2012 (Application of Ms Zuhra Yousif, Chairperson HRCP) AND H. R. C. No. 30711-B/2012 (Application for recovery of Habibullah Mujahid) AND H. R. C. No. 30713-B/2012 (Application of Syed Mumtaz Ahmed Shah, Chief Editor, Daily Mashriq) AND C.M.A. No. 42-43 OF 2012. (Enquiry report of Kharootabad Incident) AND C.M.A. NO.178-Q OF 2012 (Appeal for missing persons cases of Balochistan) AND C.M.A. NO. 219-Q OF 2012. (Application by Maj. (R) Nadir Ali) AND C.M.A. NO. 431-Q OF 2012. (Target Killing of Mr. Zulfiqar Naqvi, ASJ) AND Const.P.77/2010 3 CMA 516-Q/2012 (Application by Mr. Nasrullah Baloch) ------- For the petitioner(s) Malik Zahoor Shahwani, ASC/ President Balochistan High Court Bar. Mr. Ayaz Sawati, Sr. ASC For SCBAP: Nemo For the Applicants/: Nemo Complainants: For Fed. of Pakistan: Mr. Sajid Ilyas Bhatti, DAG For M/o Interior: Nemo For M/o Defence: Nemo For Govt. of Balochistan: Mr. Shakeel Ahmed Baloch, AG Balochistan Mr. Shahid Hamid, Sr. ASC Mr. Babar Yaqool Fateh Muhammad, Chief Secretary, Balochistan Mr. Mushtaq Ahmed Sukhera, IGP Mr. Akbar Durrani, Home Secretary Mr. Saqib Javed, Additional Secretary, Mr. Rehmatullah Niazi, DIG (CID) Mr. Bashir Ahmed Buzdar, DSP For IG FC: Nemo For FBR: Nemo For Mobile Operators: Nemo. For PTA : Nemo On Court notice: For Government of Punjab. Mr. Mustafa Ramday, AG Mr. Hanif Khatana, Add. A. G Const.P.77/2010 4 For Government of KPK: Syed Arshad Hussain, Addl. A. G For Government of Sindh: Nemo Dates of hearing : 17.7.2013 O R D E R Mr. Shahid Hamid, learned Sr. ASC has placed on record details-progress so far made for effecting the recovery of missing persons i.e. 1) Month wise break up of target and sectarian killings, 2013; 2) Year wise breakup of target and sectarian killings since 2007; 3) Summary of kidnapping for ransom in Balochistan from 1-12013 to 30.6.2013 4) Overall achievements made from time to time to improve the law and order situation and to address the other relevant issues in the province Balochistan 5) Actions taken to enhance the Capacity of Balochistan Police to Fight Terrorism. 2. We heard the case at a considerable length and have drawn his attention towards the earlier order passed by this Court reported as President Balochistan High Court Bar Association v. Federation of Pakistan (2012 SCMR 1958). The learned counsel for the Petitioner, President, High Court of Balochistan Bar Const.P.77/2010 5 Association, expressed his dissatisfaction with the lack of improvement in the law and order situation particularly, the increasing trend of target killings for allegedly sectarian reasons. He stated that within a few days a number of persons belonging to the Hazara Community have been killed including in the recent incident, which took place on 15.7.2013 and prior thereto the incidents which took place in Hazara Town as well as attack upon the buses of Women University at Brury Road, Quetta and also the carnage at the Bolan Medical Complex, Quetta. Besides, the above, some other incidents took place thereafter. It was also one of his grievance that no effective efforts so far have been made for the recovery of the missing persons, although with the intervention of the Court, the evidence had been furnished. So much so Mr. Munir Ahmed, Advocate, who was picked up from the area of Khuzdar has not been returned nor any serious efforts are being made by any of the Agencies for effecting of his recovery. 3. We may agree with the learned counsel and the learned Advocate General that some steps have been taken as a way forwarded to provide protection and security to the citizens of Balochistan, particularly in Quetta, Khuzdar, Panjgur etc but so far the target killings may be for the sectarian reasons or otherwise, have created uncertainty and the people are not feeling themselves secure. Const.P.77/2010 6 4. We may observe hat it is the State, which is responsible to protect the lives and properties of its citizens. The incidents of target killings on the sectarian basis etc are not controlled, it would be very difficult to provide a free atmosphere to the residents to run the affairs of the lives liberally and independently, therefore, in this behalf, the Provincial Government as well as the Federal Government both are required immediately to take effective steps to ensure protection to the lives and properties of the citizens. 5. The learned DAG is present. He is directed to take up this matter with the Federation and submit a report by tomorrow pointing out as to how the Federal Government will provide assistance to the Provincial Government for the purpose of maintaining the law and order as well as ensuring that the lives and the properties of all the citizens notwithstanding whether he belongs to which Ethnic Group or Sect is protected and sectarian killings, which are increasing day by day, are stopped and similarly the people of Quetta and throughout in the Province of the Balochistan feel secure about their lives and property. 6. We are, prima facie, of the opinion that for want of a network at grass root level available to be Provincial Government, it is difficult to establish contact with the citizens living in the far flung areas, it was need of the hour as well as constitutional commitment in terms of Article 32 and 140-A of the Constitution of Const.P.77/2010 7 the Islamic Republic of Pakistan to hold the elections for the Local Government. 7. We have been led to understand by the Chief Secretary that on completion of preliminary issues i.e. delimitation etc, the Provincial Government is contemplating to hold the Local Bodies Elections but unfortunately so far nothing has been done. No doubt newly elected Government has taken over but nothing has been done not only in the Province of Balochistan but also in the other Provinces as well to fulfill the command and the commitment of the Constitution. It is necessary to fulfill the elections of Local Government in order to ensure the participation of the general public in the good governance and also to fulfill the command of the Constitution noted hereinabove, therefore we had issued notices to all the Advocate Generals of Provinces and in response thereto Mr. Shakil Baloch, learned Advocate General, Balochistan stated that the Government is ready to hold the Elections of Local Government but he is not in a position to give a date because a request has to be made to the Election Commission of Pakistan (ECP) under Article 140-A(2) of the Constitution of the Islamic Republic of Pakistan, 1973 8. Mr. Mustafa Ramday, learned Advocate General, Punjab states that he needs a day’s time to make a statement. However, on behalf of Government of Khyber Pakhunkhawa, Syed Const.P.77/2010 8 Arshad Hussain, learned Additional Advocate General has filed as statement duly signed by the Chief Secretary stating that the Government is ready and willing to hold the Elections of the Local Government no sooner the date is given by the ECP. 9. The learned DAG has placed on record a statement on behalf of ICT and stated that ICT Administration is in favour of holding Elections of the Local Government in the Rural Areas under the Capital Territory Local Government Ordinance, 1979 as has announced by the Government but we have pointed out to him that the Elections have to be held both in Rural as well as Urban areas and there should not be any distinction between both the areas for holding elections. 10. No one has appeared on behalf of Advocate General, Sindh. Issue notice to him during the course of day enabling him to appear and make the statement. 11. Let the case be adjourned for tomorrow for filing of the statement by the DAG on behalf of the Federal Government to ensure the maintenance of law and order situation and providing assistance to the Provincial Government. Dates shall also be given by all the Provinces after consulting the concerned functionaries for holding the Elections of Local Government. 12. Notice to the Election Commission of Pakistan be also issued to make representation and submit that for fulfillment of the Const.P.77/2010 9 Constitutional duties when the Commission will be in a position to hold the Elections of the Local Government. It may not be out of the context to note that for the Cantonment Boards, a date has already been fixed for holding Elections i.e. 15th September, 2013, therefore, it would be appreciated if all the Provincial Governments as well as the ICT and ECP mange to hold such elections within the same period or with a slight change because the Elections of Local Government are to be held throughout in the country. To come up tomorrow (18.7.2013). Chief Justice Islamabad Judge 17.7.2013 *M. Safdar Mahmood* Judge

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE IJAZ AHMED CHAUDHRY CONSTITUTION PETITIONS NO. 77 TO 85 OF 2011 [Constitution Petition under Article 184(3) of the Constitution regarding alleged Memorandum to Admiral Mike Mullen by Mr. Hussain Haqqani, former Ambassador of Pakistan to the United States of America] Watan Party … PETITIONER [CP 77/2011] M. Tariq Asad Advocate Supreme Court … PETITIONER [CP 78/2011] Muhammad Nawaz Sharif … PETITIONER [CP 79/2011] Senator Muhammad Ishaq Dar & another … PETITIONERS [CP 80/2011] Iqbal Zafar Jhagra & another … PETITIONERS [CP 81/2011] Lt. General ® Abdul Qadir Baloch & 2 others … PETITIONERS [CP 82/2011] Raja Muhammad Farooq Haider Khan & another… PETITIONERS [CP 83/2011] Syed Ghous Ali Shah & 2 others … PETITIONERS [CP 84/2011] Hafeez Ur Rahman … PETITIONER [CP 85/2011] VERSUS Federation of Pakistan & others … RESPONDENTS CONST P 77-2011/2010, etc. 2 For the petitioners: Barrister Zafarullah Khan, ASC in person Mr. Tariq Asad, ASC in person Mr. Muhammad Nawaz Sharif in person Senator Muhammad Ishaq Dar & Khawaja Muhammad Asif, MNA in person Mr. Attique Shah, ASC Dr. M. Salahuddin Mengal, ASC Sardar Asmatullah Khan, ASC Syed Ghous Ali Shah, ASC Ch. Naseer Ahmad Bhutta, ASC With Mr. M.S. Khattak, AOR On Court notice: Maulvi Anwar-ul-Haq Attorney General for Pakistan Respondents: Not represented. Date of hearing: 01.12.2011 … O R D E R IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - These petitions under Article 184(3) of the Constitution of the Islamic Republic of Pakistan have been instituted on behalf of the petitioners belonging to political parties and others hailing from all the federating units of Pakistan including Azad Jammu & Kashmir and Gilgit & Baltistan, in the wake of the confidential memorandum of 10th May, 2011, which was handed over by one Mansoor Ijaz, an American businessman of Pakistani origin to Admiral Mike Mullen, the then Chairman, Joint Chiefs of Staff of the United States through former US National Security Advisor James John. Mansoor Ijaz disclosed in an article published in the Financial Times London on 10th October, 2011. He claimed that the memorandum containing message from the Pakistan Government was handed over to him by the then Pakistan Ambassador Hussain Haqqani. According to him, both Mike Mullen and James John confirmed the contents of the memorandum. Upon such disclosure, there was unrest amongst the political government and the defence agencies as according to the contents of the memorandum, CONST P 77-2011/2010, etc. 3 which has now been published in the foreign as well as local media, prima facie, there was highly objectionable material relating to compromising the sovereignty, security and independence of Pakistan. The contents of the memorandum, which have been incorporated in most of the petitions, are reproduced hereinbelow: - “CONFIDENTIAL MEMORANDUM BRIEFING FOR ADM. MIKE MULLEN, CHAIRMAN, JOINT CHIEFS OF STAFF During the past 72 hours since a meeting was held between the president, the prime minister and the chief of army staff, there has seen a significant deterioration in Pakistan’s political atmosphere. Increasingly desperate efforts by the various agencies and factions within the government to find a home – ISI and/or Army, or the civilian government – for assigning blame over the UBL raid now dominate the tug of war between military and civilian sectors. Subsequent tit-for-tat reactions, including outing of the CIA station chief’s name in Islamabad by ISI officials, demonstrates a dangerous devolution of the ground situation in Islamabad where no central control appears to be in place. Civilians cannot withstand much more of the hard pressure being delivered from the Army to succumb to wholesale changes. If civilians are forced from power, Pakistan becomes a sanctuary for UBL’s legacy and potentially the platform for far more rapid spread of al Qaeda’s brand of fanaticism and terror. A unique window of opportunity exists for the civilians to gain the upper hand over army and intelligence directorates due to their complicity in the UBL matter. Request your direct intervention in conveying a strong, urgent and direct message to Gen Kayani that delivers Washington’s demand for him and Gen Pasha to end their brinkmanship aimed at bringing down the civilian apparatus – that this is a 1971 moment in Pakistan’s history. Should you be willing to do so, Washington’s political/military backing would result in a revamp of the civilian government that, while weak at the top echelon in terms of strategic direction and implementation (even though mandated by domestic political forces), in a wholesale manner replaces the national security adviser and other national security officials with trusted advisers that include ex-military and civilian leaders favorably viewed by Washington, each of whom have long and historical ties to the US military, political and intelligence communities. Names will be provided to you in a face-to-face meeting with the person delivering this message. In the event Washington’s direct intervention behind the scenes can be secured through your personal communication with Kayani (he will likely listen only to you at this moment) to stand down the Pakistani military-intelligence establishment, the new national security team is prepared, with full backing of the civilian apparatus, to do the following: 1. President of Pakistan will order an independent inquiry into the allegations that Pakistan harbored and offered assistance to UBL and other senior Qaeda operatives. The White House can suggest names of independent investigators to CONST P 77-2011/2010, etc. 4 populate the panel, along the lines of the bipartisan 9-11 Commission, for example. 2. The inquiry will be accountable and independent, and result in findings of tangible value to the US government and the American people that identify with exacting detail those elements responsible for harboring and aiding UBL inside and close to the inner ring of influence in Pakistan’s Government (civilian, intelligence directorates and military). It is certain that the UBL Commission will result in immediate termination of active service officers in the appropriate government offices and agencies found responsible for complicity in assisting UBL. 3. The new national security team will implement a policy of either handing over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil, including Ayman Al Zawahiri, Mullah Omar and Sirajuddin Haqqani, or giving US military forces a “green light” to conduct the necessary operations to capture or kill them on Pakistani soil. This “carte blanche” guarantee is not without political risks, but should demonstrate the new group’s commitment to rooting out bad elements on our soil. This commitment has the backing of the top echelon on the civilian side of our house, and we will insure necessary collateral support. 4. One of the great fears of the military-intelligence establishment is that with your stealth capabilities to enter and exit Pakistani airspace at will, Pakistan’s nuclear assets are now legitimate targets. The new national security team is prepared, with full backing of the Pakistani government – initially civilian but eventually all three power centers – to develop an acceptable framework of discipline for the nuclear program. This effort was begun under the previous military regime, with acceptable results. We are prepared to reactivate those ideas and build on them in a way that brings Pakistan’s nuclear assets under a more verifiable, transparent regime. 5. The new national security team will eliminate Section S of the ISI charged with maintaining relations to the Taliban, Haqqani network, etc. This will dramatically improve relations with Afghanistan. 6. We are prepared to cooperate fully under the new national security team’s guidance with the Indian government on bringing all perpetrators of Pakistani origin to account for the 2008 Mumbai attacks, whether outside government or inside any part of the government, including its intelligence agencies. This includes handing over those against whom sufficient evidence exists of guilt to the Indian security services. Pakistan faces a decision point of unprecedented importance. We, who believe in democratic governance and building a much better structural relationship in the region with India AND Afghanistan, seek US assistance to help us pigeon-hole the forces lined up against your interests and ours, including containment of certain elements inside our country that require appropriate re-sets and re-tasking in terms of direction and extent of responsibility after the UBL affair. We submit this memorandum for your consideration collectively as the members of the new national security team who will be inducted by the President of Pakistan with your support in this undertaking.” CONST P 77-2011/2010, etc. 5 2. It is significant to note that the issue of confidential memorandum was highlighted after 21st November, 2011. In the meanwhile, the then Ambassador of Pakistan to the USA, was summoned who tendered his resignation as per undisputed reports aired on electronic media. It may not be out of context to observe here that as per media reports, the ISI had also collected SMS messages exchanged between the former Ambassador of Pakistan and Mr. Mansoor Ijaz, extracts of which have been incorporated in the petitions. 3. It is to be noted that not only in the publication of the ‘Financial Times’ of 10th October, 2011, but subsequent thereto, material was published in the print media on behalf of Mr. Mansoor Ijaz, who emphasized that “Mr. Mullen insisted on having the Ambassador’s offers to be put in writing because the US Government had been repeatedly deceived by Pakistan’s verbal offers of action in the recent past.” “He also insisted that I obtain the Ambassador’s assurance that President Zardari had approved the offers contained in the memorandum. I did exactly those two things,” he told The News. Speaking after Admiral Mullen confirmed the Memo, Mansoor said at 09:06:16 hours, “I spoke to Amb Haqqani at his London hotel (Park Lane Intercontinental Room 430) in a call lasting 11:16 minutes.” “During this call, he confessed that the final text of the memo was OK and that he had ‘the boss’ approval’ that the memorandum could be sent to Admiral Mullen. The boss was an obvious reference to President Zardari,” Mansoor insisted.” 4. We note that exchange of messages has also been admitted as is reported in the UK Financial Times of 10th October, 2011. The Federal Interior Minister Mr. Rahman Malik had, however, CONST P 77-2011/2010, etc. 6 admitted that Mr. Hussain Haqqani was involved in communication of voice/text messages with an American national, but there was no written letter, either from the Presidency or from any other agency of the Government. Mr. Malik is reported to have said that no doubt Mr. Haqqani was a close aide of the President, but this communication through SMS (text message) was between two individuals – one American national and the second was our Ambassador. 5. The material available was exchange of SMS messages and blackberry messages and we have to examine as to who had initiated these messages. It is clear that the matter is open for investigation. 6. All the petitioners were asked their opinion as to the objects and purposes for which the confidential memorandum in question attributed to the then Ambassador of Pakistan was sent to the US Chairman, Joint Chiefs of Staff by handing it over to James John and also utilizing the services of a businessman Mansoor Ijaz, particularly in the wake of the incident of Abbottabad of 2nd May, 2011. According to them, if the allegations contained hereinabove are established, then the culprits whosoever are involved, should be held liable for action and a Commission be constituted to probe into the memorandum scandal. Whereas the learned Attorney General for Pakistan stated that he is not against the probe, but as the matter is pending before the Parliamentary Committee on National Security, therefore, we should wait for the result of the Committee’s proceedings. In our opinion, both the forums are not against probe into the matter and subject to constitutionality of the Committee, proceeding can be taken up simultaneously. 7. It may be observed that under Article 5 of the Constitution, it is the basic duty of every citizen to be loyal to the CONST P 77-2011/2010, etc. 7 State and to be obedient to the Constitution and law, being inviolable obligation wherever he may be and of every other person for the time being within Pakistan. 8. The memorandum, issuance whereof, prima facie, seems to be established, has posed immediately two questions – one with regard to civil/constitutional liability with its consequences as envisaged by Article 6 of the Constitution, and the second, the criminal liability as well. We are conscious of the fact that the respondents who include the President of Pakistan, the Army Chief, ISI, etc., have to file their replies to explain their position. However, we may, at this stage, refer to the case of United States v. Richard M. Nixon, President of the United States [418 US 683] wherein the then President of the United States was facing proceedings before the Committee of the Senate, and at the same time, pretrial evidence was being collected by a special prosecutor general, which was objected to by him and the matter went up to the US Supreme Court and ultimately it was resolved that such pretrial evidence could be collected. Similarly, there are so many other cases, including the case of Imtiaz Ahmad v. Government of Pakistan (1994 SC 2142) wherein collection of pretrial evidence against persons who are found guilty ultimately is not prohibited. 9. We are told that the Prime Minister of Pakistan has also announced that the Parliamentary Committee on National Security will probe into the matter. We do not know the mandate of the Committee. However, we have been informed that as far as this Committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution. Be that as it may, if any incriminating evidence is collected by the Committee both for CONST P 77-2011/2010, etc. 8 civil and criminal action by probing into the matter, we would welcome the same. During the pendency of the proceedings, we would appreciate if the outcome of the proposed inquiry by the Committee is shared with us, if possible. Similarly, if the local Commission, which we are contemplating to constitute, succeeds in collecting forensic or other physical evidence, we would also be sharing the same with the Parliamentary Committee because the object and purpose both of the Parliament and of this Court is that there should not be any compromise on the sovereignty, security and independence of the country. 10. The petitioners, however, undoubtedly had to discharge their burden while arguing their cases with regard to the remedy, which they have invoked under Article 184(3) of the Constitution, however, it is considered appropriate that in the meantime, the respondents may file their replies to all the petitions within 15 days of the passing of this order. To protect and preserve the evidence, we would like to appoint a Commission comprising a competent officer for the purpose of collecting evidence on the issues, which have been highlighted hereinabove, including the question of authenticity of the memorandum, and the circumstances under which it was sent and the object behind addressing such memorandum to the high ups of a foreign country, and whether such an act is tantamount to compromising the sovereignty, security and independence of Pakistan. 11. The Registrar of the Court is directed to address a letter on behalf of the Court to Mr. Tariq Khosa, a former PSP officer, who had worked as Secretary Norcotics, DG, FIA as well as Inspector General/PPO, Balochistan to obtain his consent whether he agrees to perform this national duty. On receipt of his consent, the matter shall CONST P 77-2011/2010, etc. 9 be handed over to him. The Commission shall be entitled to the remuneration, TA/DA and other perks, which Mr. Tariq Khosa was receiving at the time of his retirement. If need be, Mr. Tariq Khosa may travel outside Pakistan for the purposes of collecting evidence as this Court had allowed such practice in the case of Benazir Bhutto v. State (PLD 1999 SC 937). As far as the expenditures of the Commission are concerned, those shall be borne by the Foreign Affairs, Interior, Cabinet and Defence Divisions. 12. In the meanwhile, we direct that all the concerned authorities of the Federal and the Provincial Governments shall extend their full cooperation to Mr. Tariq Khosa in collecting evidence. He would be free to associate with him any other sitting and/or retired officer of the police or any other technical person to collect evidence. He would be holding the probe in the Cabinet Division. The Cabinet Secretary shall provide him all logistic support for the purpose of performing the function on behalf of the Court. He is required to complete this task as early as possible, preferably within a period of three weeks from the receipt of this order. It is to be noted that in case Mr. Tariq Khosa declines to act as the Commission, he may inform the Registrar who shall place the matter in Chambers for passing of appropriate order for taking up the matter either in the Court or holding proceedings in the Chambers. 13. We may also observe here that no sooner the issue of memorandum came to limelight, the former Ambassador of Pakistan tendered his resignation. We do not want to attribute to him anything adverse about his involvement and he is entitled to due respect. But, we desire that he should fully cooperate with the Commission and during the pendency of the cases before this Court, he would not be CONST P 77-2011/2010, etc. 10 leaving the country without prior permission of this Court. This order should be communicated to the Secretaries of the Ministries of Interior and Foreign Affairs with the direction that if Mr. Hussain Haqqani violates the terms of this order and goes abroad, they shall be held personally responsible. At this juncture, we would expect from all the foreign agencies that they will extend full cooperation to the Commission as it is an issue of utmost importance for the sovereignty, security and independence of the country. 14. Adjourned to a date in office. Sd/- IFTIKHAR MUHAMMAD CHAUDHRY, CJ Sd/- Sd/- MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. Sd/- Sd/- JAWWAD S. KHAWAJA, J. TARIQ PARVEZ, J. Sd/- Sd/- MAIN SAQIB NISAR, J. AMIR HANI MUSLIM, J. Sd/- Sd/- EJAZ AFZAL KHAN, J. IJAZ AHMED CHAUDHRY, J. Islamabad, the 1st December, 2011 APPROVED FOR REPORTING

                                      2                                                (Common Law)    204                       2                                                  2                                                                                1 ( j u d i c i a l                      restraint)                                  3                    131        2009                         130      2010          129      1102011                                             2                    2012                       SCMR 424)      4                                                                                                                    (Common Law)    5 3                                       equity            (in personam)                                                                                                                                   4                                                                                                                                                                                                           6       5                              ]              [                                       [Hal]                                                               (Gascoigne)                                                 6                                                                                                                                                                                               7         7                 (Louis Louaillier)    1814                                                                                                                                                                                8          8                                                                                                                                  9 184(3),         63 (1) (g)    187, 190, 204          9                                                                                    10                                                             11       judicial restraint                 10           judicial restraint                           judicial restraint                                   restraint                     12                  R v. Metropolitan Police           Commissioner         restraint                                                         11                                                                                                                                        13 PLD 1998 SC                           823                                                                                                                                                           12                                                                         14      2012                            13

IN THE SUPREME COURT OF PAKISTAN [Original Jurisdiction] PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ Constitution Petition NO.87 of 2011 [Constitution Petition challenging election campaigns expenses regulation case] Workers Party Pakistan through Mr. Akhtar Hussain Advocate, General Secretary, 5 McLeod Road, Lahore & 6 others … PETITIONERS VERSUS Federation of Pakistan & 2 others … RESPONDENTS For the petitioners : Mr. Abid Hassan Minto, Sr. ASC. Mr. Bilal Hassan Minto, ASC. Mr. Mehmood A. Sheikh, AOR. For Election Commission : Mr. Dil Muhammad Alizai, DAG. of Pakistan Syed Safdar Hussain Shah, AOR. Syed Sher Afgan, DG (Elections) Mr. M. Nawaz, Director. For ANP : Mr. Khalid Khan, ASC. For MQM : Dr. Farogh Naseem, Sr. ASC. For PML (Q) : Dr. Khalid Ranjha, Sr. ASC. Syed Nayab H. Gardezi, ASC. For PML (N) : Mr. M. Rafique Rajwana, ASC. Mr. Naseer Ahmed Bhutta, ASC. For PTI : Mr. Hamid Khan, Sr. ASC. Mr. Waqar Rana, ASC. Mr. M.S. Khattak, AOR. For JI : Mr. Taufique Asif, ASC. For APP : Mr. Salman Akram Raja, ASC. Const. P. No.87/2011 2 assisted by M/s Malik Ghulam Sabir, Barrister Sahar Asif and Malik Ahsan Mehmood, Advocates. For SUP : Mr. Abdul Wahab Baloch, ASC. Syed Jalal Shah, ASC. Raja Abdul Ghafoor, AOR. Other Political Parties : Nemo. On Court notice : Mr. Amir Ahmed Ali, DC, Ibd. Syed Muzaffar Ali, Manager (L) NADRA Dates of hearing : 9, 10, 11, 12, 16, 17, 18, 19 & 20th April, 2012 … J U D G M E N T IFTIKHAR MUHAMMAD CHAUDHRY, CJ – The titled petition has been instituted under Article 184(3) of the Constitution of the Islamic Republic of Pakistan on behalf of different segments of the society, which include, inter alia, certain political parties, representatives of the civil society and academicians with the following prayers: - (a) Declaration that the prevailing electioneering practices involving wealth, power and influence are against the mandate of the Constitution regarding free, fair, just and honest elections on a level playing field and need to be remedied. (b) Declaration that there cannot be a true and honest implementation of Article 218(3) if the current electioneering practices are not remedied in accordance with the mandate of the constitution. (c) Declaration that implementation of the mandate of the Constitution for choosing true representatives of the people is the function of the Election Commission as mandated by Article 218(3) and that the Election Commission has the power, under the Constitution and the law to do all that is necessary in this regard including the powers of making rules, issuing orders and giving directions and that the powers of the Election Commission Const. P. No.87/2011 3 extend even to stopping an election if it is satisfied that due to the violation of the law including Section 49 it will not be possible to hold elections under the mandate of Article 218(3). (d) Declare that the Constitution mandates compulsory voting. (e) Declaration that the rule making powers as contained in section 107 of Representation of People Act, 1976 and section 9E of the Election Commission Order, 2002 are to be exercised by the Election Commission alone and the said sections are ultra vires to the extent that they require the approval of the President. (f) Declaration that sections 41 and 71 regarding drawing of lots between candidates with equal votes are ultra vires the constitutional mandate and that section 20 providing for the election of an uncontested candidate without enabling the voters to reject that candidate at polls is also ultra vires the mandate of the Constitution requiring that true representatives of the people may be elected/chosen. (g) Declaration that Section 83A (3) of the RPA in that it impliedly permits use of megaphones, loudspeakers, etc., on election day is ultra vires the mandate of the Constitution regarding free and fair elections and a level playing filed. (h) Direction to the Election Commission to make rules and do other necessary acts for implementation of the principles and mandate of the Constitution as determined by this Court and the parameters and guidelines set by this Court, in particular regarding: - (i) Matters relating to election expenses. (ii) Maintenance of separate bank accounts by candidates and political parties with proper audit of expenses incurred therefrom. (iii) Regulation of election campaign activities in the context of expenses and in the light of the principles laid down by this Court as regards the purpose of elections and the purpose of an election campaign. (iv) Appointment of Election Tribunals and prescription of their procedure in order to ensure that election disputes are decided expeditiously (Sections 57 and 62 of RPA). (v) Complete ban on all modes of canvassing in the 48 hour period prior to polls including ban on election Const. P. No.87/2011 4 camps of candidates as well as removal of all hoardings, posters and banners. (vi) Ban on private transport on election day except in respect of the disabled with prior permission and through a procedure devised for this purpose and also to requisition government transport, if necessary, for this purpose as well as increase in the number of polling under a rational formula sections to enable voters to walk to polls. (vii) Supply of voting information to voters through the assistance of NADRA. (viii) Take steps to implement Electronic Balloting (Para 31 of the Petition) (ix) Improve voter awareness especially in regard to confidentiality and the procedure of voting (Para 33 of the Petition) (x) Insistence by the Commission for proper disclosure regarding compliance of Section 8 of the Political Parties Order 2002.) (j) Declaration that an election that does not provide the right to choose “None of the above” (NOTA) candidates is ultra vires, inter alia, sections 17, 51 (6), 106 (3) and 218 (3). Or in the alternative, hold as per prayers ‘d’ and ‘e’ in C.P.87 of 2011. (k) Direction that the Election Commission may take appropriate steps by framing rules, etc., to enable voters to use the NOTA option. (l) Recommendations regarding following legislative changes:- (i) Provision of procedure to implement the constitutionally mandated system of minimum threshold and 2nd Round/Run Off as opposed to the First Past the Post principle. (ii) Provision of consequences for not voting in elections. (iii) Provision of criteria for fixing a ceiling for expenses (Section 49 RPA). (iv) To review and enhance punishments for offences contained in the RPA in order for them to act as deterrents. 2. After a preliminary hearing, notices were issued to the respondents to file replies to the petition. Accordingly, respondents No. 1 to 3, namely, Federation of Pakistan, Ministry of Law & Justice and the Election Commission of Pakistan filed their replies. Subsequently, vide order dated 13.02.2012, Awami National Party, Balochistan National Party, Jamhoori Watan Party, Labour Party Pakistan, Markazi Const. P. No.87/2011 5 Jamaat Ahle Hadieth (Zubair), Mohajir Qaumi Movement Pakistan, Muttahida Qaumi Movement Pakistan, Pakistan Awami tehreek, Pakistan Muslim League (N), Pashtoonkhwa Milli Awami Party, Pakistan Peoples Party (Shaheed Bhutto), Pakistan Peoples Party (Sherpao), Pakistan Peoples Party Parliamentarians, Pakistan Tehreek-e-Insaf, Jamiat Ulama-e-Islam (F), Jamiat Ulema-e-Pakistan (N), Jamat-e- Islami Pakistan, Markazi Jamiat Ahl-Hadith (Sajid Mir), Pakistan Muslim League (Q), Pakistan Muslim League (J), Pakistan Muslim League (F), Pakistan Muslim League (Z), National Party, Sindh United Party, Awami Party Pakistan and Sindh Taraqi Pasand Party were ordered to be impleaded as parties subject to all just exceptions. In pursuance of the said order, Awami National Party [ANP], Muttahida Qaumi Movement Pakistan [MQM], Pakistan Muslim League (N) [PML(N)], Pakistan Tehreek-e-Insaf [PTI], Jamat-e-Islami Pakistan [JIP], Pakistan Muslim League (Q) [PML(Q)], Sindh United Party [SUP] and Awami Party Pakistan [APP] appeared and filed concise statements. While the respondents concurred in principle with the petitioners’ concerns, they differed in their approach to the issues highlighted by the petitioners. 3. Mr. Abid Hassan Minto, Sr. ASC appeared on behalf of the petitioners and argued that existing practices and processes of electioneering and campaigning deter the ordinary citizens from partaking in the political process on account of massive use of wealth by larger and wealthier political parties, and violate their fundamental rights enshrined in Articles 17 and 25 of the Constitution. The learned counsel has placed reliance on the judgments of this Court in Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) Const. P. No.87/2011 6 and contended that their right to form a political party includes the right to participate in free and fair election and to form government if such party is successful because ‘participation’ in the electioneering process necessarily implies that “every person and every group in society can genuinely take part in the process of elections, as voter and candidate, without constraint coercion and subjugation”. Consequently, any unconstitutional curtailment of their right to participate, and to form government, is tantamount to an abridgement of their right under Article 17(2) of the Constitution. Secondly, a combined reading of Article 17(2) and Article 25 of the Constitution mandates a ‘level playing field’ for electioneering purposes. It is argued that the impugned practices, and broadly speaking, the existing political culture further negates Article 51(6)(a), which mandates that members shall be elected by a ‘free’, and ‘fair’ vote ‘in accordance with the law’ because these practices do not permit the vote cast to be a ‘free vote’, as mandated by Article 106(3)(a) either. The petitioners have identified following specific practices that they believe violate the Constitution and Representation of Peoples Act, 1976 (hereinafter referred to as ‘ROPA): - (i) Jalsa or political Rally and Jaloos or procession (ii) Banners/posters/billboards/stickers (iii) Use of loudspeakers (iv) Car rallies Pamphleteering (v) Setting up Camps (vi) Newspaper, TV or radio advertisements, press coverage and programs & surveys These practices, according to the learned counsel, are carried out in blatant disregard of provisions of the ROPA, namely, section 48, 49 and 84. He has concurrently submitted that certain provisions of ROPA create a political arena that is structurally designed to guarantee the Const. P. No.87/2011 7 success of only the wealthier political parties and, by necessary implication, destroy the petitioners’ prospects of success in the election. 4. The learned counsel for the petitioners has challenged the vires of section 49 of ROPA on the ground that the permissible ceiling of election expenses, i.e. 1.5 million for a National Assembly seat and 1 million for a Provincial Assembly seat creates an uneven playing field between moneyed people vis-à-vis persons with scant resources with the result that the latter are alienated from the political system and deprived of their right to participate in the governance of the country. The learned counsel has submitted that most parties and candidates fail to observe the said ceiling and incur election expenses far above the prescribed limit. He has further argued in favour of a broader interpretation of section 48 of ROPA so as to construe the word ‘election’ to begin from the time that the President fixes a date for election. To support such a reading, he has argued that the rule that the relevant time period ‘for the purposes of elections’ commences from the date of notification of the elections, as laid out in the Javaid Hashmi’s case (PLD 1989 SC 396) is not applicable to ‘campaign finance’ activities. It is further argued that the word ‘before’ mentioned in the section, ought to be read to include the period before the commencement of the election. This, according to the learned counsel, would have the effect of including those electioneering expenses that would have otherwise escaped the ceiling expense prescribed by section 49. Since ROPA does not define the word ‘person’, it is argued that it ought to be defined to include political party. It has been submitted that such a reading is in consonance with the spirit of the provision, which is to regulate and restrict election expenditure. Const. P. No.87/2011 8 Furthermore, such a reading of this provision would also ensure that candidates do not use their parties as a tool to exploit the spirit of this provision and that the election meets the requirements of Article 218(3) of the Constitution of Pakistan. 5. In the same line, the learned counsel for the petitioners argued that the punishment for violating section 49, should be levied against the candidate even when the party, and not the candidate, has exceeded the prescribed ceiling. This, it is argued, is possible if the phrase ‘consent or connivance of that candidate’ in the section is interpreted to mean that the candidate connived or consented to a section 49 violation, even if it was the party and not the candidate who violated it. This, according to him, would shift the burden onto the candidate to take into account his party’s election expenses as well and ensure that no violation of section 49 takes place. 6. Mr. Minto has vehemently contended that section 49 of ROPA, which prescribes a limit on election expenses, is liable to be declared arbitrary and discriminatory in terms of Article 25, particularly, in view of the Election Commission’s recommendation for enhancing it without considering the economic conditions of the overwhelming majority of the people who have a Fundamental Right to participate in the election process on a level playing field. Regardless of the fact whether the ceiling is high or low, the petitioner’s have contended that it is arbitrary in nature and impossible to enforce, therefore, all elections must be regulated in a way that all election practices based on massive spending of money are banned. 7. The Election Commission of Pakistan (ECP), in its reply, raised a preliminary objection regarding maintainability of the petition Const. P. No.87/2011 9 on the ground that the conduct of election to the National Assembly and Provincial Assemblies is the exclusive jurisdiction of the Election Commission of Pakistan as mandated by the Constitution and the law. On merits, it was stated that the Election Commission is an independent constitutional body comprising a retired Judge of the Supreme Court of Pakistan as Chief Election Commissioner, who is Chairman of the Commission and four Members, who are retired Judges of the High Courts. The Election Commission has been constituted in accordance with the provisions of the Constitution and it is charged with the duty of organizing and conducting elections and to make such arrangements as are necessary to ensure that the elections are conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. It is also the duty of the Election Commission to prepare electoral rolls for elections to the National and Provincial Assemblies and to revise such rolls annually; organize and conduct election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; appoint Election Tribunals; hold local governments' elections and such other functions as may be specified by an Act of the Parliament. The Election Commission is not a law making body, rather it works within the limits of legal framework provided by the Parliament. 8. As regards the assertion of the petitioners relating to the huge expenditure incurred by a candidate in his election campaign and its overall impact on the electoral processes, it is pleaded on behalf of the Election Commission that the issue is required to be seen in the context of the existing provisions of the law. It is submitted that all electoral practices and processes currently employed by the Election Commission for the conduct of an election are based on constitutional Const. P. No.87/2011 10 or legal provisions, therefore, such practices and processes cannot be termed as ‘unconstitutional’ or ‘unlawful’ as asserted by the petitioners. It is further submitted that a provision of the Constitution or the law may be deficient, ineffective or susceptible to more than one interpretation or there may be some practical problems hindering its execution. It, however, cannot be termed as ‘unlawful’ as the same has been validly passed by the Legislature. It is also submitted that these provisions prescribe a ceiling, and spending money beyond the ceiling by a candidate on his election campaign would be an illegality, which would attract the penal provisions of the law. It is pleaded that these provisions, by restraining the richer people from spending money on their election campaigns beyond a certain limit, tend to provide a level playing field to all citizens of Pakistan rather than favouring a particular class of people. Similarly, the Election Commission states that the security deposit required to be made by a prospective candidate at the time of filing of his nomination papers is a nominal amount of Rs.2000/- for a National Assembly seat and Rs.1000/- for a Provincial Assembly or Senate seat, which is well within the reach of common citizens. 9. Mr. Khalid Khan, ASC has appeared on behalf of Awami National Party (ANP) and submitted that the goal of the ANP is to ensure the betterment and welfare of poor people of Pakistan representing their interests in all elected bodies. Therefore their party would welcome any change that advances the same whole-heartedly. ANP agrees with most of the submissions and suggestions made by the petitioners. 10. Dr. Muhammad Farogh Naseem, ASC has appeared on Const. P. No.87/2011 11 behalf of MQM and submitted that MQM, in principle, does not oppose the basis of the petition and fully subscribes to the idea that wealthier candidates and political parties may not be permitted to create an uneven playing fields. However, according to him some of the suggestions made by the petitioners were either too academic, or were incompatible with the ground realities. The learned counsel submitted that an almost similar legal framework is provided in India to regulate election expenses. Section 77 of the Representation of People Act, 1951 (hereinafter referred to as the Act, 1951) provides for keeping an account of election expenses whereas section 123 enumerates the acts and actions, which are to be deemed to be corrupt practices. However, subsection (7) of section 123 explains that in order to qualify as a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and the employment of extra persons must likewise be by a candidate or his agent. He referred to the case of Rananjaya Singh v. Baijnath Singh (AIR 1954 SC 749), wherein it was held that the expenses incurred by the father in connection with the election of his son without his consent were not to be included in the election expenses unless the employment of extra persons and the incurring or authorising of extra-expenditure is by the candidate or his agent. He also referred, concurrently with the learned counsel for the petitioners, to the case of Kanwar Lal Gupta v. Amar Nath Chawla (AIR 1975 SC 308) = [1975 SCR (2) 269], wherein it was held as under: - (1) The total expenditure proved to have been incurred or authorised by the first respondent exceeded the prescribed limit and therefore his election should be set aside on the ground of corrupt practice defined in section 123(6). (2) It is not uncommon to find that during elections, posters and handbills are printed without complying with Const. P. No.87/2011 12 the requirement of section 127A, and sometimes containing scandalous material about rival candidates. There should therefore be some independent semi-judicial instrumentality set up by law, which would immediately investigate, even while the election fever is on and propaganda and canvassing are in progress and the evidence is raw and fresh, how the offending handbills and posters have come into existence. It was also observed that:- It should be open to any individual or to any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. The democratic process can function efficiently and effectively, for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever low or humble he may be, should be able to participate on a footing of equality with others. Now money plays an important part in the successful prosecution of an election campaign by buying advertisement and canvassing facilities, by providing the means for quick and speedy communications and movements and sophisticated campaign techniques, and also by the employment of paid workers where volunteers are found to be insufficient. Therefore, if one political party or individual has larger resources available to it than another the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The other objective of limiting expenditure is to eliminate, as far as possible, the influence of big money in electoral process. If there were no limit on expenditure political parties would go all out for collecting contributions and obviously the largest contributions would be from the rich and the affluent who constitute but a fraction of the electorate. It is likely that some elected representatives would tend to share the views of the wealthy supporters of their political party, either because of shared background and association, increased access or subtle influences which condition their thinking. In such an event, the result Const. P. No.87/2011 13 would be that though ostensibly the political parties which receive such contributions may profess an ideology acceptable to the common man, they would in effect and substance be the representatives of a certain economic class, and their policies and decisions would be shaped by the interests of that economic class. Persons of a particular class who have exclusive governmental power, even if they tried to act objectively, would tend to overlook the interests of other classes or view those interests differently. To this natural tendency may be added the fact that office bearers and elected representatives may quite possibly be inclined, though unconsciously and imperceptibly, to espouse the policies and decisions that will attract campaign contributions from affluent individuals and groups. Pre-election donations would be Rely to operate as post-election promises resulting ultimately in the casualty of the interest of the common man. The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process. Under s, 123(6) not only is the incurring of expenditure in excess of the prescribed limit a corrupt practice but also the authorising of such expenditure. Authorising may be implied or express, and whether a particular expenditure wag impliedly authorised by the candidate would depend upon the facts and circumstances of each case as appearing from the evidence adduced before the court. The reasonable interpretation of the provision, which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying the election process and ridding it of the pernicious and baneful influence of big money, is, that the legislature could never have intended that what the individual candidate cannot do the political parties sponsoring him, or his friends and supporters, should be free to do. When a political party sponsoring a candidate incurs expenditure specifically in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure; and he cannot escape the rigors of the ceiling by saying that he has not Const. P. No.87/2011 14 incurred expenditure but big political party has done so. The party candidate does not stand apart from his political party and if the political party does not want its candidate to incur the disqualification it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. If a candidate were to be subject to the limitation of the ceiling but the political party sponsoring him or his friends' and supporters were to be free to spend as much as they like in connection with his election, the object of imposing a ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. 11. Mr. Muhammad Rafiq Rajwana, ASC appeared on behalf of Pakistan Muslim League (Nawaz) and submitted that PML(N) agrees, in principle, with various points raised in the tilted petition especially towards the reduction of expenses and bringing further reforms to enable a common citizen to contest an election and to become a member of the Parliament. PML(N) does not challenge the maintainability or otherwise of the petition since a vocal deliberation on the subject of election in the country will bring about positive radical changes in the election culture and create a level playing field for the voters, supporters and electors for electing true representatives. However, PML(N) has following reservations on certain averments in the petition: - (i) The petitioners instead of criticizing the duly elected representatives should strive hard to create awareness amongst the people for election purpose and to fully participate in the elections; and (ii) The elections were neither unconstitutional nor unlawful and, in any case, the returned candidates were duly elected. Const. P. No.87/2011 15 12. Mr. Rajwana submitted that the constitutionality or otherwise of the election laws is not required to be gone into in these proceedings, rather strict implementation and reforms of the present laws is need of the hour. According to him, the existing laws, rules and orders have been promulgated to ensure a free and fair election, but the same have not been implemented in letter and in spirit. Therefore, it is emphasized that these laws be strictly enforced by the Election Commission in performing its constitutional duty under Article 218(3) of the Constitution, the Act, 1976 and other laws/rules. The Fundamental Rights cannot be denied to anybody subject to law and reasonable restrictions. An independent and authoritative Election Commission is necessary to hold elections justly, fairly, in a transparent manner and in accordance with the provisions of Constitution and the law. As such, the Election Commission is to be made fully empowered to actuate and effectuate the true sprit of the laws. In this regard, some of the initiatives have been taken in the 18th & 20th Constitutional Amendments. 13. The learned counsel has further submitted that the democratic culture has not taken roots in the society due to successive disruptions in the constitutional order, and there was no cavil with the propositions qua education of voters, the measures aimed at enhancing the turn out, and minimizing of election expenses. He has added that the present elected representatives enjoy the confidence of the people, but they will have to work harder to perform their responsibilities which they owe towards the people. 14. Dr. Khalid Ranjha, Sr. ASC appeared on behalf of Pakistan Muslim League (Quaid-e-Azam) [PML(Q)] and submitted Const. P. No.87/2011 16 that the Constitution of Pakistan and the election laws (viz. sections 48 to 51 of ROPA) provide an adequate mechanism for restricting election expenses. According to the learned counsel, Chapter VIII of ROPA provides for offences, penalties and procedure in case of breach of conditions relating to election expenses. It is further submitted that the primary problem with the electoral process is the lack of capacity of the Election Commission to attend to the same. As is the case in the neighbouring country, the Election Commission needs to undertake monitoring of the election expenses from the day the holding of election is notified. An election expenditure mechanism ought to be put in place in each constituency to monitor day-to-day election expenditure incurred by the candidate,. Maintenance of day-to-day account of election expenditure by the candidate is required to be made mandatory. Though the account of election expenditure is required to be submitted within 30 days of the declaration of the result, the monitoring has to be done on a regular basis during the campaign period because after the campaign is over, it becomes difficult to get any evidence of election expenditure. 15. Mr. Hamid Khan, Sr. ASC appeared on behalf of Pakistan Tehreek-e-Insaf. He submitted that the PTI more or less agrees with the contents of paragraphs 1 to 23 of the petition, which takes into account various legal issues pertaining to the need to set a level playing field for all political parties during the elections, and promote democratic values and culture. The learned counsel submitted that PTI entirely agrees with the petitioners that there is a dire need to formulate and establish general principles for regulating the conduct of elections and for ensuring that the Election Commission and the Const. P. No.87/2011 17 Caretaker Government strictly abide by the same. He agreed with the petitioners that the Election Commission has failed to regulate expenditures made by the candidates on their election campaigns. According to him, the ceiling placed on election expenses under the election laws has become meaningless over the years because nobody abides by it and the Election Commission never enforced it. It is also the endeavor of PTI that huge expenditures incurred by the members of established political parties in Pakistan be somehow rendered ineffective and such electoral system be devised in which members of middle and working classes have a fair chance to compete against the moneyed people having large land holdings and other resources. PTI is of the opinion that a change in the political culture of electioneering will immensely help in reducing corruption and promoting competence and honesty in public affairs. The PTI has given following proposals to ensure free, fair and transparent elections: - (i) The District Returning Officers (DROs) and Returning Officers (ROs) of each constituency should be drawn from amongst the members of subordinate judiciary. If the DROs and ROs are nominated by the Government in office, the whole election process will be polluted and the Government in power, even if it is a caretaker one, would manipulate the results of the elections in favour of the parties that they, directly or indirectly, support. The persons drawn from the executive as DROs and ROs cannot be deemed to be neutral and there will be no free, fair and credible elections under their supervision. (ii) The Governments in the past had recruited their party members and favourites in the police force. They cannot be entrusted with maintaining law and order even handedly. It is, therefore, imperative that armed forces should be made responsible for maintaining law and order throughout the country during the general elections. (iii) The personnel belonging to armed forces should be Const. P. No.87/2011 18 stationed inside and outside every polling station to ensure maintenance of peace, avoidance of violence and holding of fair elections. (iv) The permanent polling scheme throughout the country should be formulated and circulated and be given wide publicity. Permanent polling stations should be notified throughout the country and no changes in the location of polling stations should ever be made. The polling scheme and permanent polling stations should be notified at least two months before the elections so that the candidates and voters may file objections well in advance. (v) The Presiding Officers and their assistants in the polling stations should preferably be drawn from federal rather than provincial government departments. The experience shows that the provincial government servants are more susceptible to the influence of the local Zamindars, feudals and men of influence. In the end, it has been prayed that in addition to the grant of reliefs prayed for by the Petitioners in the petition, the above mentioned steps and reforms proposed by them for holding of free, fair and transparent elections be also considered and that directions to the Election Commission and other authorities concerned be issued throughout the country. 16. Mr. Taufique Asif, ASC has appeared on behalf of Jama'at- e-Islami Pakistan (JIP). He opened his arguments with the following verse of the Holy Quran: - “A party amongst you must be there to promote the good and suppress the evil” [Surah Aal-e-Imran: 104] He submitted that the Muslims of the Sub-Continent dreamt of a separate independent state, which came true in 1947 with the creation of Pakistan in pursuance of their continued struggle and sacrifices. Therefore, it is the duty of every Pakistani citizen, especially Muslims, Const. P. No.87/2011 19 to pursue the path of their ancestors and carry on the struggle to transform the state of Pakistan into a truly Muslim country to ensure peace and prosperity, development and stability, welfare and responsibility. The learned counsel has submitted that JIP agrees with the petitioners on main issues. JIP has given following further proposals to ensure free, fair and transparent elections:- (i) Fair and transparent elections are not possible without genuine electoral lists; (ii) Voters must be enlisted at their present residential addresses; (iii) Preparation of electoral lists afresh on the basis of NADRA's lists; and (iv) Voter lists be placed on the internet and the SMS service recently introduced by the Election Commission for verification of votes be made toll-free. 17. Mr. Abdul Wahab Baloch, ASC appeared on behalf of Sindh United Party (SUP). He has vehemently supported the petition on maintainability as well as on merits and prayed that the same may be allowed in the interest of justice. SUP has made the following suggestions: - (i) Before the filing of nomination paper of the candidate, place of polling station must be finalized and published in a polling station manual. (ii) On each census block number, name of Deh/village/ward should be clearly printed. (iii) To ensure transparency in the process of casting of votes, signature/initial of the polling officer on the voters’ list should be compulsorily affixed. (iv) For the identification of the candidate, specimen signature of the candidate should be supplied by Returning Officer to the Presiding Officer along with the other polling material. Specimen signature of candidate verified by the returning Const. P. No.87/2011 20 officer must be filed on the day of candidature/ final list of candidates. (v) The candidature card should be issued by the Returning Officer with photograph and also card of Chief Polling Agent issued by the Returning Officer with photograph. (vi) The unidentified person should not be allowed to enter the premises of the Polling Station. (vii) For the reduction of expenses of the candidate, the total number of voters of a polling station should be between 700 and 1100 and the number of the voters at one polling booth should be 400 to 500 each. If the number of the voters is above 1100, polling station should be divided into two polling stations. (viii) The fee for Nomination Form should not be more than Rs. 1,000/-. The voters’ list should be provided by the Election Commission. (ix) The polling station of a census block should be on the basis of boundary wall and other utilities without any shortage of polling staff and polling material, there should be proper training of the polling staff for conducting the poll, the polling material should be evenly distributed polling stations wise, and the polling staff of each polling station must reach at least 12 hours before the election day and time. (x) The payment for election duty to the returning officer should be made on daily basis from the day the procedural work starts. (xi) Before poll/election, it is necessary to complete voters’ list, which should be published according to new census block- wise of each year, e.g., 2011/2012 because the present constituencies are based upon the old census of 1998. (x) The Government has completed one phase of census of the house counting, but public counting has not been completed as yet. It is necessary to complete the same. The new census number has been given to the voters in the voters’ list. Now the population has increased. Therefore, the constituencies should be increased in Const. P. No.87/2011 21 accordance with law and regulations for the representation of the people. (xi) To increase the turnout, the Polling Stations should be enhanced so that the voters can easily approach the same to cast votes. (xii) In the year 2004, several Districts were bifurcated and new Districts created in various Provinces. As a result, many constituencies fall within different Districts, which is a violation of rules. Therefore, Election Commission should ensure that constituencies of both the National as well as Provincial Assemblies are in one district. (xiii) Each party as well as each candidate should be provided equal time on media, particularly on the National TV Channel to express his view and manifesto. 18. Mr. Salman Akram Raja, ASC appeared on behalf of Awami Party Pakistan (APP). He submitted that the electoral process is integral to the discharge of the sacred trust reposed by the people of Pakistan in their representatives, as envisaged by Article 2A of the Constitution. This trust is to be discharged in a manner that fully observes the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. Therefore, all actions and practices that interfere with, or distort the electoral exercise are to be seen as subversion of the sacred trust enshrined in the Constitution of Pakistan. All constituents of the State of Pakistan, including the judiciary, in the discharge of the sacred trust, are under an obligation to implement and interpret the Constitution and all other laws in a manner conducive to the freest and fairest conduct of the electoral exercise. The existing political culture is defeating the essence of Articles 17 and 25 of the Constitution. As a consequence, it is compromising the legitimate expectations of a vast majority of citizens by curtailing their social, economic and political rights guaranteed in Const. P. No.87/2011 22 the Constitution. The prevalent culture of election campaigning and electioneering has created hegemony of a few elite families over the politics of the country and has denied a majority of the people their right to meaningfully participate in election process. The learned counsel has made the following suggestions: - (i) The Constitution of Pakistan provides guarantee of dignity, freedom and equality to all citizens and forbid discrimination on the basis of sex etc. despite Article 34 as given in principles of policy that steps shall be taken to ensure full participation of women in all spheres of national life. Women and other marginalized segments of society are barred to meaningfully participate in election process. Women are under registered in electoral rolls, face opposition when going to vote and are often turned away from polling stations. In some constituencies, especially in Khyber Pakhtunkhwa and Balochistan, rival candidates and political parties entered into agreements to restrain women from casting votes. Election officials are also found being insensitive to the values, e.g., polling officers insist on veiled women showing their faces for identifications to male polling staff, which discourages some women from voting. Election Commission should be held accountable for ensuring political participation of women. (ii) Women turnout in each constituency must not be less than 25% of total votes cast otherwise results may be declared void and re-poll ordered. In addition, Election Commission, before every election, must conduct voters’ education programmes, particularly for women and minorities. Finally, it is prayed on behalf of APP that the influence of money and administrative power in any manner whatsoever on election process is unlawful, thus, the same be declared unconstitutional, and Election Commission may be directed to make arrangements in this regard. Const. P. No.87/2011 23 19. Another grievance of the petitioners pertains to existing election practices involving massive use of wealth by the bigger political parties as manifested by enormous ‘Jalsa/political rallies’ and ‘Jaloos/processions’, advertisements via banners, posters, billboards, stickers and other forms of media, use of loudspeakers, setting up election camps, and processions of car rallies, which deprive the ordinary citizens from partaking in the political process. It is argued that because only well-established and affluent political parties and politicians can afford to undertake such practices, a Jalsa and Jaloos has the effect of inhibiting ordinary persons from exercising their right under Article 17(2) of the Constitution. The petitioners have sought a complete ban on all these activities. Most of the respondent political parties have differed with the stance taken by the petitioners. 20. It is contended on behalf of the petitioners that Jalsas or political rallies and Jaloos or processions are not an effective means of communication for the purposes of campaigning. They have alleged that an election campaign is intended to educate the voters and share the manifesto and policies of the party or the candidate with the electorate. This object, it is argued, cannot be achieved by the aforesaid means. It is further argued that these practices are exorbitantly expensive and unfortunately have become the norm in the domestic political arena. Because only well-established and affluent political parties and politicians can afford to undertake such practices, a Jalsa and Jaloos has the effect of inhibiting ordinary persons from exercising their right under Article 17(2) of the Constitution. Because these practices are expensive and an unnecessary extravagance that serve to distort the political arena, the petitioners argue that these should be banned. On the other hand, it is argued by the learned Const. P. No.87/2011 24 counsel for MQM that MQM do not agree that all “Jalsa” or Political Rally and “Jaloos” or “Procession” should be prohibited during the election campaign, inasmuch as it would militate against Articles 16, 17 and 25 of the Constitution. It is submitted that a distinction is required to be drawn where the procession/jaloos takes the shape of a car rally as opposed to where people in a city are using vehicles to reach a particular place earmarked/notified for a procession. There would be a problem in stopping a car rally, per se, as this would be used to prevent people approaching a particular site meant for the procession. It is suggested that it would be better to regulate such rallies so that they do not take place on a random basis. Learned counsel appearing on behalf of Jamat-e-Islami Pakistan has also made a similar suggestion to avoid disturbance and inconvenience to the general public. 21. It is submitted on behalf of PML(N) that “Jalsas” or political rallies should be allowed insofar as they comply with the election laws. According to the learned counsel, public meetings, rallies or processions are the best modes of approaching the people, conveying to them the party manifesto and the party program for the betterment of the people, introducing the candidates, etc. According to him, political processes cannot take effect sitting in a room with the candidates, announcing their candidature and expecting voters to come at their own to cast votes. The scope of Article 17 has already been expanded by various judgments of this Court. 22. Mr. Hamid Khan, ASC has submitted that PTI is of the opinion that Jalsas, political rallies and Jaloos/processions are necessary part of election campaigns and integral to the creation of Const. P. No.87/2011 25 political awareness amongst the people at large. It is a right, which every political party enjoys under Article 17 of the Constitution. On the other hand, it is submitted by Mr. Salman Akram Raja, ASC, on behalf of APP that Jalsas, Jaloos or processions may be completely banned during the 60 days of election campaign. According to them, the Election Commission should designate a suitable place in each constituency where all candidates address the public at large and also hold discussion on their respective manifestos. 23. The petitioners have submitted that the practice of advertising candidates and/or party via banners, posters, billboards and stickers is an ‘utter waste of time and resources’. They have argued that these practices are not an important and effective means of communication, are aesthetically unpleasant and extremely costly. In light of these assertions, the petitioners have argued that because such practices have become a norm in election campaigns, in order to secure any chance of winning, most candidates end up employing these practices and consequently exceeding the ceiling amount prescribed for election expenditure by section 49 of ROPA. Therefore, the petitioners have submitted that in light of their arguments, these and other practices, like wall-chalking, etc., ought to be banned. Dr. Farogh Naseem has recommended that provisions should be made to ban the pasting of banners, posters or stickers on private or governmental properties. Mr. Muhammad Rafique Rajwana has, however, submitted that the billboards, banners, etc., should be permitted to be displayed within the four corners of the law. Similarly, Mr. Hamid Khan submitted that banners/posters/stickers are not necessarily expensive and are meant to spread the message of political parties during the election campaigns and to introduce the Const. P. No.87/2011 26 candidates to their electorate. However, he has argued that billboards are very expensive, which should be done away with in order to reduce election expenses. Mr. Salman Akram Raja submitted that display of banners, posters, billboards, stickers, etc., must be completely banned during 60 days of election campaign. 24. The petitioners have submitted that the purpose of an election campaign is not to overwhelm people by employing such means that have nothing to do with the actual dissemination of ideas. It is argued that the use of loudspeakers only serves the aforesaid purpose. Furthermore, it is contended that in addition to the abovementioned effect, the use of loudspeakers causes aural aggression and intrusion of privacy, and intimidates and imposes ideas on voters without their consent. Such means of overpowering and intimidating voters, which have the effect of curtailing their right to make a free choice, should be banned. On the contrary, Dr. Farogh Naseem has submitted that loudspeakers are not expensive and in fact constitute an important aid in the dissemination of information, especially with respect to the sharing of manifestoes of political parties and candidates. Political parties which are popular amongst the people at large are able to attract very large crowds. Therefore, any prohibition on loudspeakers, amplifiers or other such modern devices would be counter-productive. Mr. Muhammad Rafiq Rajwana has submitted that the use of loudspeakers in big gatherings and rallies is necessary to enable the people to hear the speakers, and to know the candidates, political parties and their manifestoes. Mr. Hamid Khan has submitted that PTI is not opposed to the use of loudspeakers and other amplifiers, which are not expensive instruments. Rather, these facilitate the reaching out to a large audience by the party candidates Const. P. No.87/2011 27 and the generation of healthy discussion and political activity. On the other hand, Mr. Salman Akram Raja, ASC, on behalf of APP has submitted that use of loudspeakers (otherwise permitted by law) may also be completely banned during 60 days of election campaign. 25. The petitioners have also argued that car rallies also qualify as displays of wealth, which have the effect of ‘overawing’ and consequently exploiting the voters. It is submitted that car rallies, and in particular those comprising of expensive cars cultivate a “mentality of supporting the perceived stronger or winning side regardless of what that side has to say on real issues.” Since such a practice undermines the essence of voting, i.e. making an informed choice, the petitioners have sought that these car rallies be banned completely. In the context of car rallies, the viewpoint presented on behalf of PML(N) is that these rallies should be made subject to reform , but before that existing election laws are to be strictly implemented. Mr. Hamid Khan has submitted that PTI does not oppose car rallies, but agrees with the petitioners that the political parties should not use expensive cars, which qualify as display of wealth and substantially enhance the expenditure incurred by the candidates. 26. It is submitted on behalf of the petitioners that pamphleteering, as it is presently practiced, suffers from the same defects as the other impugned practices mentioned above. However, it has been argued that pamphleteering may be used for productive ends as well. The petitioners do not find issue with pamphleteering, so long as the distributed pamphlets contain the candidate’s manifesto and concurrently seek a ban on all other forms of pamphleteering. Dr. Farogh Naseem has submitted that the distribution of pamphlets aids Const. P. No.87/2011 28 the dissemination of information regarding political parties and their candidates, but pamphlets should not serve to incite racial, ethnic, religious, parochial, provincial or even political hatred. Mr. Rafiq Rajwana has submitted that pamphlets containing unobjectionable contents for election purposes are the best and cheapest mode of communicating with the voters. Mr. Hamid Khan does not oppose the use of pamphlets during the election campaign provided the contents of the pamphlet are not inflammatory and do not promote hatred or prejudice in the society. However, pamphlets can be used to distribute manifestos of the political parties or to introduce candidates in their respective constituencies. Mr. Taufique Asif, learned counsel for JIP, has submitted that JIP does not agree with the petitioners. 27. The petitioners have contended that State and private TV channels must not televise or broadcast programs mentioning specific candidates and should not give coverage, negative or favourable, to any of the candidates by names or by obvious reference. This privilege, they believe, can only be availed by wealthier political parties and candidates, and is an advantage that compromises the rights of the petitioners. It is further argued that surveys carried out and published in newspapers declaring the rising or declining popularity of candidates or parties should also be disallowed during the relevant period since these tend to unreasonably influence and consequently sway voters’ opinion. It is submitted that these surveys condition the electorate and compromise the objectivity with which they ought to cast their vote. Dr. Farogh Naseem has submitted that a complete ban in this regard would violate the freedom of press, which is also a fundamental right. According to him, the suggestion that the electronic and print media should not charge political parties or their Const. P. No.87/2011 29 candidates is too wide and blanket in nature. Firstly, the press/media cannot be stopped from charging for the advertisement, as this would violate the fundamental right of freedom of business of the media. Secondly, the prospects of propagating information using modern devices shall stand completely precluded in case any blanket order of the nature sought by the petitioners is passed. The correct approach, therefore, would be to opt for the regulation thereof. It is suggested that the Ministry of Communication may be directed to prescribe a cap/upper restriction on the size and frequency of such advertisements. Further, a code of conduct may be devised so that the information sought to be advertised is put through a system of preliminary checking to avoid disinformation. Mr. Hamid Khan has stated that PTI agrees with the petitioners that expensive newspaper, TV or Radio advertisements should not be allowed because it would substantially enhance the election expenses of the candidates. However, there will be no problem if the newspapers, TV or Radio programmes give coverage to activities of political parties and their candidates. Similarly, he has not taken any issue with the media carrying out surveys that project the popularity and acceptability of various political parties and their political leaders. Mr. Taufique Asif has submitted that JIP does not agree with the petitioners on this issue. Mr. Abdul Wahab Baloch, ASC, learned counsel for Sindh United Party has submitted that each party as well as each candidate should be provided equal time on the media, particularly on the National TV Channel to express their views and share their manifestos. Mr. Salman Akram Raja has submitted that the Election Commission should ensure that no candidate or political party reserves time on private TV Const. P. No.87/2011 30 channels and that adequate time should be given to each party to present their programme on State TV. 28. Learned counsel for the petitioners has submitted that there should be complete ban on the use of private vehicles for the purpose of transporting the voters to the polling station. The Election Commission should be ordered to increase the number of polling stations to enable the voters to cast their votes at shorter distances. A procedure should be devised for this purpose, by making regulations and issuing necessary orders, including requisitioning of government transport, if necessary, to carry the elderly or disabled persons to the polling stations, or to meet any other emergency needs. Mr. Salman Akram Raja, ASC has submitted that transportation of voters on the polling day may be completely banned. However, the Election Commission may collect funds from political parties in accordance with their number of candidates participating in elections and make arrangements for transportation of voters, but in no case should the candidates be allowed to hire/use private transport on election day. The routes of such transport should be widely advertised in the print and electronic media for information of the general public. Mr. Hamid Khan has submitted that it is well settled that the candidates are not allowed to transport voters to the polling stations on the election day. However, this principle and provision is openly flouted by political parties. Thousands of vehicles are deployed on the election day by the candidates to pick the voters from their homes to the polling stations. This exercise entails expenditure of millions of rupees that is incurred in one day. Such practices minimize the winning prospects of the political parties and candidates of modest means. It is submitted that a direction be issued that all private transport should cease to operate Const. P. No.87/2011 31 on election day so that the voters can reach the polling stations by themselves on foot, bicycles or motorbikes. He submitted that in India four-wheeler vehicles are not allowed to transport voters on the day of elections and the voters reach the polling stations on their own. This would ensure truly free and fair elections. However, to facilitate the voters, the number of polling stations ought to be raised by at least 50% throughout the country so that the polling stations are not at a distance of more than two kilometres from the place of residence of voters. 29. Learned counsel for the petitioners has submitted that the supply of Perchi containing particulars of voters, including name, parentage, polling station/booth, serial number of the voter in the electoral roll should be banned. These Perchis are tantamount to canvassing and, therefore, allegedly influence the mind of the voter. The respondent-political parties agree that the issuance of Perchi should be banned and arrangements made by the Election Commission in consultation with NADRA to provide said information to the voters by incorporating the same in NIC. It was informed that the Election Commission has started the service of providing information to the voters through SMS message service. For this purpose, a voter has to make a phone call or send an SMS on a given number and the relevant information is provided to him. A suggestion was made during hearing of the case that Election Commission should prepare a Perchi/card containing all the necessary information such as serial number, name of polling station, number of polling both, etc. In response, it was submitted on behalf of NADRA that voters card can be issued by the Authority at an approximate cost of Rs.100/- per card. It was further submitted that the card would contain an electronic chip having Const. P. No.87/2011 32 space/memory of 1 kb, which could be enhanced to 27 kb. Another suggestion was that the Election Commission may generate funds by allowing private/public companies to print these cards/Perchis with their monograms, logos, product signs or names, etc., for advertisement purposes on commercial basis. Such information can also be provided in the utility bills, bank accounts cards, etc. 30. The petitioners have submitted that the activities carried out at election camps are intended to, and have the effect of, overawing the electorate and breeding the impugned political culture. These activities reduce, what would otherwise serve as an occasion to educate the electorate, into a funfair, carnival or picnic. The “setting up of picnic opportunities and doling out free food to workers hardly corresponds to the idea of a serious office”. The petitioners have, therefore, submitted that the setting up of camps ought to be regulated. Their number, purpose, timing, their manner of conduct and the activities permitted to be carried out therein during the campaign and on election day ought to be monitored. It is only in such a setting that the petitioners believe, election camps would serve their required purpose. Dr. Farogh Naseem has submitted that camps should not be used as picnic spots, but can be used effectively to disseminate relevant information. Mr. Hamid Khan has stated that PTI agrees with the petitioners that election camps should not be set up to host extravagant indulgences. Activities conducted in these camps should be limited to distributing party manifestos and introducing candidates to their electorate. JIP, however, does not agree with the petitioners on this issue. Const. P. No.87/2011 33 31. We have heard at length the learned counsel for the petitioners, learned Deputy Attorney General on behalf of the official respondents, namely, Federation of Pakistan, Ministry of Law, Justice & Parliamentary Affairs and the Election Commission and the learned counsel appearing for the respondent political parties, and have gone through the documents placed on record by the Election Commission as well as the case-law cited at the bar. 32. To begin with, the petitioners have invoked this Court’s jurisdiction under Article 184(3) of the Constitution. In this behalf, the Federation of Pakistan through Ministry of Law and Justice Division and Election Commission have raised objection with respect to the maintainability of the instant petition. However, during arguments, none of the parties pressed the said objection, rather they requested the Court to issue certain directions to the concerned authorities. The Learned Deputy Attorney General, appearing on behalf of Federation, Ministry of Law & Justice and the Election Commission also prayed that appropriate orders may be passed on certain issues raised in the petition. 33. The scope of jurisdiction of this Court under Article 184(3) of the Constitution by now is fairly settled in a plethora of case law, therefore, there is no necessity to recapitulate the constitutional provision or to refer to the entire case-law for the purpose of deciding the question of maintainability of the instant petition. This Court, in the cases of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Haji Muhammad Saifullah Khan v. Federation of Pakistan (PLD 1989 SC 166) and Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) has already held that the right to form, or Const. P. No.87/2011 34 be a member of a political party guaranteed under Article 17 of the Constitution subsumes the right to participate or contest in the election, and to form government if successful. The petitioners have vehemently averred that the impugned practices violate the fundamental right of the citizenry at large guaranteed by Article 17 read with Article 25 of the Constitution. None of the respondents has rebutted the above assertion of the petitioners. Accordingly, the instant petition is held to be maintainable. 34. It may be mentioned here that the instant petition falls in the public interest litigation, which is not adversarial but inquisitorial in nature. In the cases of Watan Party v. Federation of Pakistan (PLD 2011 SC 997) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1) referred to by Mr. Farogh Naseem, ASC, this Court has held that it has the jurisdiction to adjudicate upon a case if it falls within the ambit of inquisitorial proceedings. It is also well settled that while entertaining a direct petition under Article 184(3), this Court has ample power to examine the vires of laws, rules or regulations. Reference in this regard has been made to the cases of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263), Farooq Ahmad Khan Laghari v. Federation of Pakistan (PLD 1999 SC 57), Jalal Mehmood Shah v. Federation of Pakistan (PLD 1999 SC 395), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Muhammad Mubeen-us-Salaam v. Federation of Pakistan (PLD 2006 SC 602). 35. Before dilating upon the issues agitated in this petition, it may be observed that the 1973 constitutional Order is a living Const. P. No.87/2011 35 manifestation of the will of the people of Pakistan. In this Order, the people have made clear that all authority to govern shall be exercised “within the limits prescribed by (Allah)”, and only by or on behalf of the people of Pakistan. This Order, therefore, rests on two fundamental precepts. Firstly, that the exercise of this authority shall be informed and circumscribed by the principles of Islam, and secondly, that the people of Pakistan shall play an integral role in the exercise thereof. Any action or inaction that contravenes these instructions is ultra vires of this authority, unconstitutional and void. 36. All constitutional mandates and prescriptions are deemed to have been issued in furtherance of these Islamic principles and within these prescribed parameters. Article 2A, therefore, expressly instructs that “...principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed” in the State of Pakistan. The protection and advancement of these principles is an integral objective and an essential feature of the Pakistani constitutional Order. In appreciation of the value accorded to Fundamental Rights by Islam, the same Article mandates that the State shall guarantee “fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”. The entire set of Chapter II of the constitution further reiterates the constitutional importance and manifests the realization of this objective. To that end, Article 8(1) enunciates the significance of these rights and the principles that they embody, by declaring, “all law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such Const. P. No.87/2011 36 inconsistency, be void”. In effect these rights, as enunciated by Islam, have been placed on a higher pedestal and enshrined as a central feature of our constitutional framework. 37. This constitutional Order declares that “the authority (is) to be exercised by the people of Pakistan”. The vesting of this authority and entrusting the exercise thereof to the people, emphasizes the principle of self-government as the bedrock of our constitutional framework. By guaranteeing the observance of ‘principles of democracy’ in Pakistan and mandating that the “State shall exercise its powers and authority through the chosen representatives of the people” the Constitution instructs that this authority be exercised by and through a representative and democratic government. This constitutional order was framed with an ardent dedication ‘to the preservation of democracy’ and therefore encapsulates it as one of its core values. Furthermore, by establishing and enumerating the powers and manner in which the legislature is to function, Part II and III of the constitution cement ‘democracy’ as the chosen system of the people and a fundamental constitutional dictate. Therefore, it is patently clear that the constitutional imperative of ‘advancing and protecting Fundamental Rights, as enunciated by Islam, through a democratic system of government’ underpins the operation of our constitutional Order. This symbiotic relationship between ‘democracy’ as a governing system and the objective of ‘advancing and protecting Fundamental Rights, as enunciated by Islam’ preserves and reinforces both these constitutional dictates as cardinal features of our constitution. Various provisions of the constitution have been drafted to effectuate this imperative. The freedom of association, as enunciated by Article 17 of the constitution, confers a Fundamental Const. P. No.87/2011 37 right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic state. Furthermore, the ‘freedom of assembly’ (Article 16) and ‘freedom of speech’ (Article 19) also serve to realize this constitutional imperative. 38. The Constitution provides a comprehensive mechanism to ensure minimal deviation from these dictates. It identifies and regulates one of the key aspects of democracy, the election process. In Article 218, the Constitution constitutes the Election Commission and empowers it to organize and oversee the election process and to ensure, inter alia, that it is conducted “honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against”. Article 218(3) of the Constitution enumerates the broad and overarching responsibility of the Election Commission and declares that: - “218. Election Commission. (1) For the purpose of election to both Houses of Majlis- e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article. (2) The Election Commission shall consist of- (a) The Commissioner who shall be the Chairman of the Commission; and (b) four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213. (3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted Const. P. No.87/2011 38 honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.” 39. The phrase “the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against” as used in Article 218(3) of the Constitution informs the content and scope of powers conferred by it on the Election Commission. It may be advantageous to refer to the meanings of the terms “honestly”, “justly” and “fairly” as given in various legal instruments, which read as under: - “Honestly”: (i) ‘honest’ means full of honour: just: fair dealing: upright: the opposite of thievish: free from fraud: candid: truthful: ingenious: seemly: respectable: chaste: honourable; ‘honestly’ means in an honest way: in truth; ‘honesty’ is the state of being honest: integrity: candour. [Chambers, 20th Century Dictionary, New Edition 1983 at page 601] (ii) ‘honesty’ – “according to the best lexicographers the words ‘truth’ ‘veracity’ and ‘honesty’ are almost synonymous, very nearly the same definitions being given to each of the words”. [P. Ramanatha Aiyar’s “Advanced Law Lexicon”, 2005 Edition, Vol. 2, at page 2153] (iii) Honesty is a thing deemed to be done in good faith, where it is infact done honestly, whether it is done negligently or not. [Fakhruddin v. A. Shah (PLD 1982 Kar 790)] (iv) Honestly is state of mind which is psychological factor capable to prove or disprove only by a evidence or conduct. [Amjad Khan v. Marium (1993 CLC 175)] “Justly” (i) ‘just’ means “conforming to or consonant with, what is legal or lawful, legally right, lawful”; … “The words ‘just’ and ‘justly’ do not always mean ‘just’ and ‘justly’ in a moral sense, but they not unfrequently, in their connection with other words in a sentence, where a very different signification. It is evident, however, that the word ‘just’ in the statute [requiring an affidavit for an attachment to State that Plaintiff’s claim is just] means ‘just ‘ in a moral sense; and from its isolation, being made a separate sub- division of the section, it is intended to mean ‘morally just’ in the most emphatic terms. The claim must be morally just as well as the legally just in order to entitle a party to Const. P. No.87/2011 39 an attachment.” Robinson v. Burton (5 Kan. 300.) [ Black’s Law Dictionary, Revised 4th Edition of 1968, at page 1001] (ii) ‘just’ means righteous: fair: impartial: according to justice: due: in accordance with facts: well-grounded: accurately true: exact: normal: close-fitting: precisely: exactly: so much and no more: barely: only: merely: quite; ‘justly’ means in a just manner: equitably: accurately: by right; ‘justness’ means equity: fittingness: exactness. [Chambers, 20th Century Dictionary, New Edition 1983 at page 686] (iii) ‘just’. As an adjective, fair; adequate; reasonable; probable; right in accordance with law and justice right in law or ethics; rightful; legitimate, well founded; conformable to laws; conforming to the requirements of right or positive law; conformed to rules or principle of justice. 2 Bom LR 845. As an adverb of time the word ‘just’ is equivalent to “at this moment,” of the least possible time since” (Ame. Cyc.). The word ‘just’ is derived from the Latin ‘justus’ which is from the Latin ‘jus’ which means a right, and more technically a legal right--- a law. The world ‘just’ is defined by the Century Dictionary as conforming to the requirements of right or of positive law, and in Anderson’s Law Dictionary as probable, reasonable. Kinney’s Law Dictionary defines ‘just’ as fair, adequate, reasonable, probable, and justa causa as a just case, a lawful ground. Being in conformity with justice [S.191, Expln. 2, ill. (a) IPC (45 of 1860) and Art 42, Const]; fair. An allegation is an indictment that an offence has ‘just’ come to the knowledge of an officer having authority to prosecute is, by implication, a sufficient allegation that the offence had not previously come to the knowledge of any other public officer having authority to prosecute. ‘JUST’ as sued in Laws providing that an affidavit for attachment shall show the nature of the plaintiffs claim, and that it is just, etc., should be construed to mean just in a moral sense. The claim must be morally just, as well as legally just in order to entitle a party to an attachment. “Shall have the power, if he shall think just, to order a new trial.” in the County Courts Act, 1888 (51 & 52 Vict. c. 43), S.93. These words do not give a County court judge an absolute power of granting new trials. His power under the section is subject to the rules and limitations as to the granting of new trials which are binding upon the High Court, the Court of Appeal, and the House of Lords. Murtagh v. Barry (1890) 44 Ch D 632 (LORD COLERIDGE, C.J.). The crucial word in the phrase is “just” which imparts a judicial, and not an absolute power. (Craies St. Law). The term ‘just’ is derived from the Latin word ‘justus’. The word, ‘just’ connotes reasonableness and something conforming to rectitude and justice something requirable Const. P. No.87/2011 40 and fair. M.A. Rahim and Another v. Sayari Bai, AIR 1973 Mad 83,87. The world ‘just’ denotes equitability, fairness and reasonableness having a large peripheral field. Helen C. Rebellor v. Maharashtra S.R.T.C., (1999) 1 SCC 90, para 28: AIR 1998 SC 3191. The world ‘just’ occurring in Section 168 of the Act means that the compensation must be just and it cannot be a bonanza; not a source of profit but same should not be a pittance. The expression ‘just’ denotes equitability, fairness and reasonableness and non- arbitrariness. Divisional Controller KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, para 15. [Motor Vehicles Act (59 of 1988), S. 168]. Reasonableness may be ‘good cause’ but it is not necessarily ‘just cause’. If a person voluntarily retires on pension, he is getting a substantial financial benefit for himself, and it is not fair or just to the unemployment fund that he should also get unemployment benefit for the six weeks under the act. Crewe v. Social Security Commissioner, (1982) 2 All ER 745, 749. [Social Security Act, 1975, S.20(1)(a)]. The words ‘just cause’ in S. 263 are exhaustive and not merely illustrative. Merely the failure to fill an inventory or the account within the specified time is not sufficient. It must be established that the person to whom the grant has been made willfully and without reasonable cause omitted to exhibit them. In Re. T. Arumuga Mudaliar, AIR 1955 Mad 622. [Indian Succession Act (39 of 1925), S.263]. [P. Ramanatha Aiyar’s “Advanced Law Lexicon”, 2005 Edition, Vol. 3, at pages 2539 and 2540:] (iv) ‘just’ means according to law. [Utility Stores Corporation of Pakistan Ltd v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447) and Shahi Bottlers (Pvt) Ltd v. Punjab Appellate Tribunal (1993 SCMR 1370)] “Fairly” (i) ‘fairly’ means “equitably, honestly, impartially…. Justly, rightly, with substantial correctness, reasonably…”. [Black’s Law Dictionary, Revised 4th Edition of 1968, at page 719] (ii) ‘fairly’ means beautifully: neatly: justly: reasonably: plainly: gently: fully: quite: tolerably. [Chambers, 20th Century Dictionary, New Edition 1983 at page 452] (iii) ‘fair’ --“the world conveys some idea of justice or equity in partial free from suspicion or bias; equitable; reasonable; honest; upright; and as applied to the weather, a fair weather is one free from clouds; not obscure”—‘FAIR, HONEST, EQUITABLE, REASONABLE’ – ‘fairness” enters into every minute circumstance connected with the interest of the parties, and weights them alike for both; honestly is contended with a literal conformity to the law, it consults the interest of one party. An estimate is fair in which profit and loss, merit and demerit with every Const. P. No.87/2011 41 collateral circumstances is duly weighed; a judgment is equitable which decides suitably and advantageously for both parties; a price is reasonable which does not exceed the limits of reason or propriety. A decision may be either fair or equitable; but the former is said mostly in regard to trifling matters, and the latter in regard to the important rights of mankind. It is the business of the umpire to decide fairly between the combatants, it is the business of the Judge to decide equitably between men whose property is at issue.” [P. Ramanatha Aiyar’s “Advanced Law Lexicon”, 2005 Edition, Vol. 2, at page 1761 and 1762] A perusal of the above shows that the words “justly”, “fairly” and “honestly” have similar shades of meaning. As has been rightly submitted by Mr. Farogh Naseem, these words imply that the Election Commission is under a direct constitutional obligation to exercise all powers invested in it in a bona fide manner , meeting the highest of standards and norms. As a natural corollary, therefore, all discretionary power is also to be exercised and tested against these standards. 40. A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to ‘organize’ and ‘conduct the election’. The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others.(PLD 1989 SC 396), observed that “(g)enerally speaking election is a process which starts with the issuance of the election Const. P. No.87/2011 42 programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, their scrutiny, the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election”. It interpreted that the phrase ‘conduct the election’ as having “wide import” and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election Commission under Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively, against the standards enumerated therein 41. The Election Commission may also exercise its powers in anticipation of an ill that may have the effect of rendering the election unfair. In the case titled as In Re: Petition filed by Syed Qaim Ali Shah Jellani (PLD 1991 Jour. 41) the Elections Commission exercised its powers under Article 218(3) pre-emptively, by making all necessary arrangements to ensure that a certain class of people would be allowed to vote. This case implies that where a violation of the standards mentioned in Article 218(3) has not as yet taken place, the Election Commission is legally empowered under Article 218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards. Furthermore, Mst. Qamar Sultana v. Public at Large (1989 MLD 360) and In Re: Complaint of Malpractices in Constituency No. NA-57, Sargodha-V (supra) both reinforce the argument that the Election Commission is fully empowered by Article 218(3) to make ‘such orders as may in its opinion be necessary for ensuring that the Const. P. No.87/2011 43 election is fair, honest etc’. These decisions recognize that the Election Commission enjoys broad powers not only to take pre-emptive action but also to pass any and all orders necessary to ensure that the standards of ‘honesty, justness and fairness’ mentioned in Article 218(3) are met. 42. The Parliament has framed different laws to effectuate the above constitutional provision and to regulate elections to the National and Provincial Assemblies. ROPA reiterates and further vests the Election Commission with the responsibilities and powers to, inter alia, regulate and check intra-party affairs and actions taken by candidates and parties in anticipation of and on Election Day, resolve all election disputes, declare the election void and to award punishments for violating relevant election laws. In appreciation of the arduousness of its task, section 5(2) of ROPA further empowers the Election Commission to “require any person or authority to perform such functions or render such assistance for the purposes of this Act as…it may direct”. The Election Commission may, under section 103(c) of ROPA also “issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act and the rules”. Article 220 of the Constitution also directs the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities. The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process. Const. P. No.87/2011 44 43. Article 218(3) also empowers the Election Commission to ensure that the election process does not suffer from any corrupt and/or illegal practices. Sections 78, 79, 80, 80-A, 81 and 83 of ROPA comprehensively define the terms “corrupt practices” and “illegal practices”. ROPA in sections 82, 99 and 100 further elaborates the consequences of such practices and enunciate that the same form a sufficient basis for the Election Commission to, inter alia, imprison, fine and disqualify those who violate them. These provisions, therefore, subsume all those impugned activities as cognizable by the Election Commission. Similarly, Section 103(a) of ROPA instructs the Election Commission to ensure a “fair election”. In doing so it implies that “large scale malpractices including coercion, intimidation and pressures, prevailing at the election” would negate the ‘fairness’ elections are to embody. While sections 78, 79, 80, 80-A, 81 and 83 specify activities that the Election Commission can regulate and check under Article 218(3), section 103(a), substantially enhances this defined spectrum of cognizable activities and reinforces the obligation to check them. In section 103(c) section it empowers the Election Commission to issue instructions, exercise its powers and make orders to effectuate the said standard 44. While there is no cavil with the proposition that the Election Commission stands as an independent and fully empowered constitutional body, the 18th and 20th Constitutional Amendments, have substantially enhanced the degree of independence and the scope of powers enjoyed by the Election Commission. Prior to 18th Constitutional Amendment, the Commission comprised the Chief Election Commissioner and two retired Judges as members thereof. Vide the 18th Amendment, the strength of the members has been Const. P. No.87/2011 45 increased from two to four, with the additional requirement that each of the members be a Judge of High Court of each Province, duly appointed by the President as per prescribed procedure provided for appointment of the Commissioner in clauses (2)(a) & (b) of Article 218(1) of the Constitution. The entrustment of greater responsibility and the enhancement of its strength are part of an effort fully to equip the Commission to discharge its broad set of responsibilities. These also reflect a growing trust in the Commission to act independently and without influence in conducting and organizing elections “fairly, honestly, justly and in accordance with law”. In the parliamentary system of government a constitutionally independent and empowered Election Commission rests as one of the foundational stones of a democratic setup. In the past, the Election Commission has succumbed to external influence and failed to discharge its responsibilities successfully. The inadequacy of the Commission’s effort in organizing and conducting the election to the above standards, has had detrimental repercussions for the democratic system in Pakistan. Not only has it undermined the legitimacy of the elections and the claim of the winning party to form government, but has also, by disregarding express constitutional dictates regulating the same, devastated the trust and faith reposed by the citizenry in the rule of law and supremacy of the Constitution. This is why Pakistan has witnessed political parties, individual candidates, as well as the citizenry, reject and denounce some of the election results. The rigging of elections was cited as a major ground for the imposition of martial law in the country in 1977, which was unfortunately validated by the Supreme Court. Consequently, an unconstitutional order was imposed on the people of Pakistan with the false hope of holding fair and free Const. P. No.87/2011 46 elections within 90 days. The solemn commitment made by General Ziaul Haq, Chief Martial Law Administrator, however, was never honoured and the people of Pakistan remained subject to an unconstitutional regime for nearly 11 years. In light of the powers and independence that the Election Commission enjoys today, such an unfortunate abuse of power and disregard of the constitutional dictate to establish and preserve democracy seems impossible. 45. Furthermore, under Article 221 of the Constitution, the Commission, with the approval of the President, is empowered to make rules providing for the appointment of its officers and servants. Similarly, under section 107 of ROPA, the Commission may, with the approval of the President, make rules for carrying out the purposes of this Act. These powers further reinforce the independence with which the Commission is to exercise its powers. Such conclusions have already been drawn and find support in the case of Sh. Rashid Ahmed v. Federation of Pakistan (PLD 2010 SC 573) relevant paragraph there from is reproduced hereunder: - 9. We have considered the above submissions and have also gone through the material placed before us and the relevant constitutional provisions. Part VIII of the Constitution comprising Articles 213 to 226 related to "Elections". Article 213 reflects that Chief Election Commissioner in this part shall be referred to as the Commissioner; whereas, Article 219(b) provides that "the Commissioner shall be charged with the duty of organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly". Thus it is quite evident that the Constitution places upon the Chief Election Commissioner an obligation to organize the election. Article 220 of the Constitution provides that "it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions; conceptually placing the position of Commissioner and Election Commission upper most while discharge their functions requiring the executive authority to assist; in other words "to aid" the Commissioner and the Election Commission. In that course, the executive Const. P. No.87/2011 47 authority shall have no option but, to offer, unhesitatingly, its assistance to make the way for the Commissioner or the Election Commission smoother rather than to make it difficult; either to stop, postpone or slow down their pace in the discharge of duties, in this case holding election for seat to question. The provision of Article 220 of the Constitution also reflects to be in pari materia with the provision of Article 190 of the Constitution according to which "all executive and judicial authorities throughout Pakistan shall act in aid of Supreme Court"; which hold the Supreme Court upper most in the hierarchy of the judiciary for which the Constitution envisages that its independence shall be fully secured. Thus, to sum up, testing on the touchstone of afore-referred provisions of Constitution, the net result that comes out is that the Chief Election Commissioner and the Election Commission are absolutely independent with exclusive jurisdiction while performing duties within terms of Part-VIII of the Constitution in which no interference is allowable by any of the parties interested by resorting to any manner and mode, as was done in the present case. All the concerned quarters, namely Federal and Provincial Governments, the Law Enforcing Agencies as well, are under an obligation to ensure that Chief Election Commissioner/Election Commission function independently; and see that they are properly strengthened enabling them to discharge their constitutional commitments fairly, freely and without any hindrance and pressure of whatsoever nature. It may therefore be said that there is no restriction on the Commission to frame rules with the approval of President, to ensure that the elections are conducted fairly, honestly, justly and in accordance with law and that corrupt practices are guarded against. Under Article 222, Majlis-e-Shoora (Parliament), subject to the Constitution, is authorized to promulgate laws for following purposes: - (a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51; (b) the delimitation of constituencies by the Election Commission; (c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls; (d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections; (e) matters relating to corrupt practices and other offences in connection with elections; and (f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies; Const. P. No.87/2011 48 While the Majlis-e-Shoora may promulgate law to regulate the same, any law which has the effect of abridging any of the powers of the Commissioner or the Commission would not find support in the law. 46. It is of utmost importance that the Election Commission executes its functions and discharges its responsibilities effectively, efficiently and in letter and in spirit. By declaring that the representatives of the people “shall be elected by direct and free vote, in accordance with law” in Article 51(6)(a), the Constitution identifies ‘elections’ as the first and an integral step in effectuating the aforesaid constitutional dictates. At page 254 of the judgement given in the Al- Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), this Court commented on the important role of the Election Commission and observed that by fulfilling its mandated duties and responsibilities, the Election Commission essentially “give(s) birth to a body/institution of the nation, called Parliament”. The effective fulfilment and honest discharge of this tremendous responsibility would lend greater legitimacy to an elected democratic government and give effect to its constitutional mandate. It is, therefore, imperative that the Election Commission employs its extensive powers to regulate the election process. Any shortfall in the discharge of its responsibilities would violate express dictates of our Constitution, devastate the efficacy of our constitutional order and the envisioned operation of the State. Therefore, in appropriate circumstances, the Election Commission may be directed to fulfil its constitutional and legislative dictates by inter alia bringing all relevant political practices into conformity with the Constitution and the law. Const. P. No.87/2011 49 47. We have examined this issue in the light of the provision of Article 218(3) as well as the relevant provisions of ROPA. It may be noted that all parties to the instant case concur that the law regulating election expenses and other election related activities is already present on the statute book. This mechanism of regulation finds meaning through the relevant Articles and provisions of the Constitution, ROPA as well as other laws for example, the Senate (Election) Act, 1975. It may be noted here that section 48 of ROPA defines ‘election expenses’ whereas section 49 ibid caps the campaign expenditure of the contesting candidate to one and a half million rupees for a seat in the Senate and a National Assembly seat and one million rupees for a Provincial Assembly seat. Section 68 of ROPA provides that the Tribunal shall declare the election of the returned candidate to be void if, inter alia, a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. Subsection (2) of section 68 provides that the election of a returned candidate shall not be declared void on the ground that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission. Section 70 of the Act provides that the Tribunal shall declare the election as a whole to be void if, inter alia, it is satisfied that the result of the election has been materially affected by reason of the prevalence of extensive corrupt or illegal practice at the election. Section 78 of the Act, 1796 defines the corrupt practices which, inter alia, include contravention of the provisions of section 49. Const. P. No.87/2011 50 Section 82 provides that any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both. Section 99(1A) provides that a person shall be disqualified from being elected as, and from being, a member of an Assembly, if, inter alia, has been convicted by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or illegal practice. Considering the above provisions, we agree with the submission of Mr. Rafiq Rajwana, ASC that the strict implementation of the existing election laws is the need of the hour. We are also in agreement with the submission made by Dr. Khalid Ranjha, Sr.ASC that the Constitution and the election laws of Pakistan provide a comprehensive and adequate mechanism for regulating election expenses by enumerating different offences, penalties and procedures for a breach thereof. It is a matter of fact that the provisions and articles regulating the same are not adhered to, both in letter and in spirit. It is therefore emphasized that all these laws be strictly complied with by all relevant parties. It is also true that this mechanism for regulating the election process is concurrently, inadequately enforced. Poor enforcement thereof stems from a misconception regarding the capacity of the Election Commission to attend to the same. At this juncture, we reiterate that the Election Commission is fully empowered and independent to do all that is necessary to fulfil its constitutional mandate and instruct that it do so. Const. P. No.87/2011 51 48. We would now propose to deal with specific practices identified by the petitioners. With respect to the financial accountability of the candidate, Section 50 of ROPA provides that every contesting candidate, other than the returned candidate, shall submit the return of his election expenses within thirty days of the publication of the name of the returned candidate. As per subsection (2) of section 50, the return of election expenses of the returned candidate and of every contesting candidate shall be submitted to the Returning Officer in the prescribed form containing (a) a statement of all payments made by him together with all bills and receipts; (b) a statement of all disputed claims; (c) a statement of all unpaid claims, if any; and (d) a statement of all moneys, securities or equivalent of money received from, or spent, by any person for the benefit of the candidate, specifying the name of every such person. As per subsection (3), the returns submitted under sub-section (2) shall be accompanied by an affidavit of the candidate in the prescribed form. As per section 51 of ROPA, the Returning Officer is bound to keep the returns and documents submitted under section 50 and to allow any person to inspect the same on payment of the prescribed fee, during a period of one year from the date of their receipt, or provide the copies if the same. Though the account of election expenditure is required to be submitted within 30 days of the declaration of the result, the monitoring has to be done on a regular basis during the campaign period because after the campaign is over, it becomes difficult to get any evidence of election expenditure. 49. Ch. Shujat Hussain and Mr. Mushahid Hussain Syed, President and Secretary General of PML(Q) appeared in Court on Const. P. No.87/2011 52 28.03.2012, and submitted that the elected representatives of the people, immediately after taking oath, file false returns of election expenses before the Election. To overcome this phenomenon, in our view, the Election Commission must monitor election expenses from the day the holding of election is notified. All expenses incurred in carrying out any election related activity, are legally required to be accounted for. It is precisely because of the failure to account for the same that election expenses incurred by each candidate run into millions of rupees and exceed the prescribed ceiling. We reiterate that all expenditure over and above the prescribed ceiling qualifies as corrupt practice and direct the Election Commission to exercise its rule making power to formulate procedures to monitor election expenses and deal with the corrupt practices committed in the election process in accordance with law and ensure that the election is held justly, honestly and in accordance with law. An expenditure monitoring mechanism, i.e. monitoring cell, surveillance system, media certification, etc., should be devised to monitor the election expenses, be they for the National Assembly, Senate, Provincial Assemblies or the Local Bodies. The Election Commission must hold meetings with the candidates and apprise them of the relevant laws/rules, receive from them statements of expenses on weekly basis by engaging election staff, carry out inspection at random at different places. All transactions relating to election expenses should be entered into with GST registered firms/persons. Furthermore, a candidate must account for all the expenses immediately after the election is over. The Declaration Form should include the following further declarations: -  To meet election expenses, I have opened account No.________________ with _____________________ Const. P. No.87/2011 53 [name & branch of a scheduled bank] and the amount permissible for election expenses deposited therein.  All election expenditure shall be made out of the money already deposited in the aforesaid account.  No transaction towards the election expenses shall be made through an account other than the above account. [Copy of bank statement will be annexed with the Return.] Maintenance of day-to-day account of election expenditure by the candidate ought to be mandatory. In order to monitor day-to-day election expenditure incurred by the candidate, election expenditure monitoring centres/teams ought to be constituted in each constituency. The services of Returning Officers can also be availed in this regard. It is only through such a rigorous mechanism that the necessary culture of accountability within the political sphere. 50. In the course of electioneering and campaigning, most candidates and their supporters take out massive car rallies and use expensive vehicles for transporting the voters to and from the polling stations. In doing so these candidates and parties end up incurring exorbitant expenses and exceed the ceiling prescribed to section 49. This practice also creates a nuisance for the ordinary citizens and causes discomfort to the sick and students. Such rallies ought not to be allowed to travel long distances except if they have pre-arranged corner meetings at specific designated places. These meetings should be notified to the ordinary public by the local administration. The local administration must also ensure that all candidates are accommodated. Secondly, the substantial expenditure incurred in hiring and using transport has never been adequately monitored by the Election Commission. We, therefore, direct the Election Commission to take account of all expenditures incurred in the course Const. P. No.87/2011 54 of campaigning for activities that are directly and indirectly related and ancillary to the election process. Furthermore, to facilitate the voters, the number of polling stations may be increased appropriately throughout the country so that the polling stations are not at a distance of more than two kilometres from the place of residence of voters. In this regard, the Election Commission may take into consideration the suggestions made at the bar and ban all private transport on Election Day. Alternatively, the voters may be transported by vehicles, owned, rented or affiliated with the Election Commission. The routes of such vehicles should be widely advertised in the print and electronic media for information of the general public. 51. During hearing, vide order dated 17.04.2012, we instructed the relevant authority to submit a report regarding the sufficiency of the existing Polling Scheme and the number of Polling stations. The relevant portion wherefrom is reproduced hereunder: - “In compliance of directions of this Court, Syed Sher Afgan, DG (Elections), Election Commission of Pakistan has placed on record Election/Polling Scheme prepared in the year 2007 for the Elections of 2008 (33 books); he is directed to handover copy of this Election/Polling Scheme (33 books) for record of the Court; he is further directed to deliver a copy of the notification of the polling/election scheme for constituency of NA-49 to the Commissioner and Deputy Commissioner ICT, who on receipt of the same shall submit a report to the following effect:- i) whether the polling/election scheme prevailing for the last many years is sufficient to cater the requirement of the voters, so they may conveniently exercise their right of franchise without depending upon the arrangements made by the candidates contesting the elections qua transporting them from one place to another, etc.; and ii) whether the number of polling stations are to be increased according to the latest electoral list.” Const. P. No.87/2011 55 Relevant Paras from the report received in pursuance of the aforesaid order read as follows: - “3. Polling Scheme is prepared under Section 8 of the Representation of the People Act, 1976. Polling Stations established for General Elections-2008 relating to Constituency NA-49 were 197 while total registered voters were 242877. In line with the relevant law, all polling stations were set up in the government buildings. Each polling station covered radius of about 03 kilometer. At an average, 1500 to 2500 voters were facilitated to cast their vote in each polling station. And every polling station comprised of about 2 to 4 polling booths each. 4. In pursuance of the Supreme Court Order and subsequent to the meeting presided over by the Acting Chief Election Commissioner of Pakistan consultations were held in the Deputy Commissioner's Office with the Federal Directorate of Education, District Election Commissioner Islamabad and the concerned Sub Divisional Magistrates. It has transpired that in comparison to year 2008, a total of 56,723 additional voters have been registered so far thereby increasing the total number of voters in NA-49 to low as compared to 242877. Thus there is a requirement to enhance the number of Polling Stations so that they are commensurate with the population/voters increased. In this proposed draft it is recommended that 50 new Polling Stations should be introduced thus raising the number to 247 as compared to 197 in the year 2008. By increasing the number of Polling Stations it is expected that twofold benefits will be accrued that is:- (i) More Polling Stations will reduce the distance covered by the voters to cast their vote. (ii) Pressure on Polling Stations will be eased thus resulting in quick turn over at each Polling Station. 5. As a result of this exercise, the average number of voters per Polling Station is 1212 which is a manageable number. While determining the additional Polling Stations, the distance that a voter has to travel has been kept into Const. P. No.87/2011 56 consideration. There are 847 census blocks in NA 49 now. The polling stations have been established in such a way that a radius of 1.5 kilometers is covered compared to 3 kilometers of the scheme of general election of 2008. 7. The addition of Polling Stations will require increased manpower and deployment of security apparatus. Islamabad has sufficient staff available, in the Federal Directorate of Education and the Capital Development Authority, which can perform such duties.” 52. Other electioneering practices like camping in the vicinity of the polling station and the handing over of Perchis to the voters are a cause of concern. By camping in the vicinity of the polling station and handing over of Perchis to the voters, the candidates, through their polling agents and supporters, influence the voters and compromise the objectivity with which they are to cast their vote. On polling day candidates establish their camps near the polling stations and spend substantial amounts to canvass the voters to vote for a particular candidate. Such action on the part of the candidates/supporters is clear violation of section 84 of ROPA. Section 84 of ROPA imposes restriction on election activity 48 hours before the polling. and specifically prohibits public meetings and promotion or participation in any procession . It clearly stipulates that the election campaign in all respects has come to an end 48 hours before the polling in order to enable the electorate to exercise their right of franchise freely and without influence. Similarly, section 85 prohibits canvassing for votes, soliciting of votes, persuading any elector not to vote at the election or for a particular candidate, or exhibiting any notice, sign, banner or flag designed to encourage the electors to vote or discourage the electors from voting for any contesting candidate within a radius of 400 yards of the polling station. It is common Const. P. No.87/2011 57 knowledge that different forms of electioneering activities continue through the prohibited period. Therefore, to ensure strict compliance with section 84 of ROPA, the Election Commission may manage to dispatch extracts from the voters’ list in the name of one or more persons living in a house much before the polling day by post, or to save the postage by annexing such extracts with any of the utility bills. It is also suggested that NADRA may be deputed to furnish details of the voters at their residences. This exercise is required to be completed at least 7 days before the polling day, and this would facilitate a voter to exercise his right of franchise independently with full application of mind and without influence from the candidate or his supporters. A fair and transparent election rests at the heart of a democratic system. Therefore, any effort which cultivates a complimentary political culture should be encouraged. If need be, instead of involving the employees of the Provincial Governments, the employees of Federal Government/autonomous organizations/ agencies, including the armed and para-armed forces may be instructed to carry out stipulated functions at the polling stations. 53. Section 83A provides that no person or political party shall affix posters, hoardings or banners larger than the size prescribed by the Election Commission. It further provides that wall-chalking as part of an election campaign is prohibited in all forms and that loudspeakers shall not be used for election campaign except at the election meetings. Contravening these provisions is punishable with imprisonment up to one year or fine, or both. The Zila Nazim and the Returning Officer ought to ensure the effective implementation of these provisions. Section 83A(1) provides that the prescribed posters, Const. P. No.87/2011 58 hoardings or banners shall not be affixed nor parties’ flags shall be hoisted on any public property or at any public place, except with the permission in writing from, and on payment of such fee or charges, as may be chargeable by the concerned local government or authorities. However, strangely, the concerned authorities have never taken any steps to enforce these provisions. The Election Commission should take all necessary steps to ensure compliance and enforcement thereof. 54. The petitioners have also recommended that certain election activities be introduced and actively encouraged – activities that, on the one hand, fulfil the purpose of the election campaign, and on the other, which a common man is able to engage in. The petitioners have identified door-to-door campaigning, formation and distribution of manifestos, equal opportunity to canvas on State television and radio, and candidate – voter interaction/debates, etc. The following details the petitioner’s position on each of their recommendations and the respondents response to them It subsequently records our observations on the matter. 55. Door-to-door campaigning is an effective means of establishing communication between the candidate and the voter. Such a campaign strategy demonstrates the candidate's “resolve, commitment and level of interest in his/her community”. According to the petitioners, door-to-door campaigning is the cheapest and most convenient method of communication for persons of modest means. The provisions of Articles 17, 25, 51 and 218(3) of the Constitution which mandate a fair and level playing field and require that the interests of persons of modest means be protected. The petitioners Const. P. No.87/2011 59 have also submitted that this method of communication is the least intrusive method of communication, since it involves direct contact between the candidate and the voter and leaves the decision to interact and receive information entirely on the voter. Finally, the petitioners have submitted that this recommendation, supplemented with a ban on political rallies, big luxurious vehicles, loudspeakers, banners, etc., would be the most effective way of reaching out to the electorate and creating a political culture, which is fair and open to individuals from all walks of life. Almost all of the respondents concur with this proposal of the petitioners. Dr. Farogh Naseem, on behalf of MQM, and Mr. Hamid Khan, on behalf of PTI have submitted that door- to-door campaigning is an effective means of communicating with the electorate. The political culture in developed countries also encourages door-to-door campaigning and other forms of personalized voter- candidate interaction. 56. The petitioners have submitted that it should be mandatory for every political party and/or candidate to publish and distribute a manifesto containing a candidate's election promises and program. The petitioners believe that manifestoes are an essential component of an election campaign since they bind a candidate to his/her promises and the governing mandate enumerated therein. Furthermore, the publication and distribution of manifestos is a relatively cheap yet effective means of communication, especially in situations where mobility is limited. They have, therefore, argued that through a published manifesto, a new candidate has the opportunity of indirectly reaching out to voters, without having to expend too much on travel. The petitioners have also argued that the publication and distribution of the manifesto is a necessary expense that, owing to its Const. P. No.87/2011 60 utility, ought to be supported by the government. They have, however, conceded that strict conditions as to expenses relating to the publication, including those relating to the quality of paper and printing be employed. This initiative would, in the opinion of the petitioners, allow even those less advantaged individuals to participate in politics, who do not have the financial means to publish and distribute their manifestoes themselves. Such an initiative would pave way for free and fair elections and consequently towards progress and welfare via a true democracy. Dr Farogh Naseem, on behalf of MQM, agrees with the proposal of the petitioner. He has submitted that publishing and disseminating a party’s manifesto is integral to any election campaign. Consequently, the State may assist in this regard by bearing the expense of publishing it. Advocate Hamid Khan has also submitted that PTI fully supports the initiative of the petitioners. He has submitted that the cost of printing a manifesto and supply of party flags is generally borne by political parties and not individual candidates. He has further submitted publishing of manifesto and disseminating it amongst the voters is a relatively less expensive method of campaigning and should be encouraged. 57. The petitioners have proposed that the State should provide a schedule delegating airtime to candidates on state television and radio. This facility, in their opinion, would serve as a unique opportunity for the candidate to share their election programs and manifestoes with the electorate. The petitioners have further reiterated their condemnation of the practice of allowing candidates airtime on private television channels to advertise their candidature as part of their election campaign. Mr. Rafique Rajwana has submitted on behalf of PML(N) that the State should not be seen discriminating against any Const. P. No.87/2011 61 candidate and/or any political party. Consequently, it should be duty of the government to provide air time for equal duration to all political parties and their candidates. Mr. Hamid Khan has concurred with the proposal of the petitioners. He has submitted that equal air time should be given to political parties that have fielded a large number of candidates in the general elections, on the State Television and Radio. Mr. Salman Raja, on behalf of APP, has submitted that the Election Commission should ensure that no candidate or political party should be allowed to reserve time on private TV channels and that adequate time should be given to each party to present their programme on State Television. 58. The petitioners have also proposed setting up forums that encourage candidate-voter interaction by allowing the voters the opportunity to put forward their questions to the candidates. An election campaign is a means for the candidate to communicate with the voters. The petitioners have proposed that the State should encourage candidates to present themselves to their voters and to actively address their questions and concerns through a direct platform. In this regard, they submit that the State should designate indoor venues according to a preplanned schedule duly published in and disseminated through newspapers. Dr Farogh Naseem has submitted that MQM has developed a detailed strategy for increasing interaction with voters, both at the party and the candidate level. They have submitted that the petitioners’ proposal would have the effect of increasing the desired interaction between the electorate and the voter. Furthermore, Mr. Hamid Khan has also submitted that the voters should have an equal opportunity to reach the candidate during the election campaign. There should be debates between the Const. P. No.87/2011 62 candidates and voters which would enable them to understand one and another better. Appreciating the practical implications of such a proposal, Mr. Hamid Khan has observed that considering the large number of voters per constituency, there may be practical difficulties for the State to arrange such gathering, and fulfil the purpose of these gatherings. 59. The petitioners have submitted that voter awareness regarding his legal and constitutional rights and duties, is integral to the election process and, therefore, to the functioning of democracy. According to the petitioners, the prevalent political culture in Pakistan perpetuates power on the basis of feudal land holdings and other disenfranchising power centres. This is grossly apparent in the electioneering culture in such areas. Consequently, according to the petitioners, the ordinary voter is not always entirely aware of his/her rights and duties regarding the process of voting itself. They have, therefore, submitted that this Court may issue appropriate directions to the Election Commission to undertake an extensive and effective campaign through the media to educate voters about, inter alia, the necessity to vote and the procedure of voting. Furthermore, the petitioners have proposed that the Election Commission must concurrently assure the voters that their choice on the ballot would remain completely anonymous and that the exercise of their right of franchise should be carried out without fear. The Election Commission may designate an official at each polling station in order to ensure such a commitment is met and to provide guidance regarding voting procedure. Upon implementation, such a proposal would curtail the number of invalid votes. They have further argued that section 103 of the ROPA, imputes responsibility to ensure that the elections are Const. P. No.87/2011 63 conducted honestly, justly and fairly, squarely on the Election Commission. They have argued that by educating the voter about the procedure and importance of voting, the Election Commission would only be fulfilling its responsibility mandated by section 103 of ROPA. Dr. Farogh Naseem has submitted on behalf of MQM, that voter education can be undertaken effectively by political parties themselves. He has submitted that political parties, therefore, may be directed to conduct such seminars and others related activities. He has also suggested that necessary changes should be made to incorporate the said seminars as part of the secondary school curricula. He has further submitted that the government may also be directed to allocate funds for education of the voter. Mr. Rajwana, on behalf of PML(N), has expressed a similar concern regarding the need to educate the voter. This, he has observed may be achieved either through the parties or the government, or both. Mr. Hamid Khan has expressed PTI’s support for this proposal. He has submitted that political parties should undertake the responsibility to educate the voters. It is one of the basic duties and obligations of the political parties to create voter awareness so that the voters can make intelligent and informed choice when casting their votes. 60. The petitioners have argued that sections 38 & 39 of ROPA read with Articles 17, 19-A and 51 of the Constitution mandate that the results of each polling station be announced at that polling station after a first count and a recount in the presence of the representatives of each candidate and by law consolidation of results be done on the basis of that count/recount. Dr. Farogh Naseem has not expressed any issue with the proposal of the petitioners. He has submitted on behalf of MQM that the results should be immediately Const. P. No.87/2011 64 announced in Form 14, which should contain the signatures and thumb impression of the Presiding Officer. He has argued that instead of involving government servants or bureaucrats, who allegedly act upon and are subservient to the dictates of the incumbent government, members of the lower judiciary and teachers should be involved in the process of tabulation as well as announcement. Mr Hamid Khan has submitted on behalf of PTI that, the results should be announced immediately after the count of votes at the end 'of the poll that day at each polling station. The results should be declared immediately and their certified copies should be supplied to the polling agents of all candidates after the count. He has further submitted that the result should also be affixed outside the polling station after due certification by the Presiding/Polling Officers at the polling station. This should be strictly enforced since it would minimize interference with the election process and the counting of votes. 61. We have considered the above suggestions of the petitioners as amplified by the submissions made on behalf of the respondent political parties. There is unanimity of view on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide legal sanction to these measures, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate – voter interaction/debates, etc. as appropriate and implement the same to achieve the ultimate objective of fair, free, just and honest election. 62. There is divergence of opinion among the petitioners and the respondent political parties on the issue of computerized balloting. It is submitted on behalf of the petitioners that the existing system of Const. P. No.87/2011 65 balloting via paper votes is antiquated and suffers from severe defects. First and foremost, the petitioners have argued that this system is susceptible to rigging. They have further submitted that because of the system of casting votes by paper, most election disputes pertaining to balloting require a full-fledged trial for a resolution. They have submitted that India, with has a much larger voting population, has a computerized balloting system. In this regard, they have submitted a report drafted by PILDAT (Pakistan Institute of Legislative Development and Transparency) that has identified and recommended the relevant authorities to implement the system of computerized balloting in Pakistan. The petitioners have therefore sought “appropriate directions from this Honourable Court to the Election Commission to take urgent steps to implement the; method of balloting as speedily as possible.” Dr. Farogh Naseem has, however, submitted that the masses have not been sufficiently educated to deal with the complexities of a completely computerized overhaul. He has submitted that this suggestion is not suited to the present times. He has further argued that if computer balloting is introduced, there is a possibility that feudal lords may amass computer devices and use them to cast votes themselves to the complete exclusion of the voters. In this regard, he has submitted that political parties may be instructed to conduct seminars and other activities to educate the voters. He has also submitted that this education may be introduced at the secondary education level and taught as part of the syllabus to inculcate a sense of responsibility in the citizenry to cast votes. This process however, requires long term planning and should not be on the agenda of the Election Commission in the short run. Mr. Hamid Khan has, on behalf of PTI submitted that electronic voting should be Const. P. No.87/2011 66 introduced through Electronic Voting Machines (EVMs). He has however pointed out that the upcoming general elections may be too soon for this overhaul. Prior to the adoption of EVMs various laws need to be introduced in order to safeguard the system against electoral fraud. Furthermore, according to Mr. Hamid Khan, the system cannot work without the introduction of biometric voter identification system, which would indentify the voters at the polling stations. Since such pre-requisites are not in place, Mr. Hamid Khan has submitted that introducing electronic voting for the upcoming general elections would have the effect of throwing the entire vote-counting process into disarray. Mr. Taufique Asif has submitted that the JIP agrees in principle with the introduction of electronic voting and fully appreciates the merits of it. He has however submitted that the system must be fool-proof and should be introduced gradually on an experimental basis, and all the stake-holders must be consulted before finalizing this system. It was also submitted that the citizens must be provided with the facility to register, correct or transmit their votes through internet or telephone and system may also be installed (in due course of time) in the relevant government departments for the said purpose. The Federation has submitted that the Election Commission is in the process of introducing computerized balloting in the country. 63. Having considered the pros and cons of computerized balloting as highlighted by the petitioners as well as the respondents, we expect that the Election Commission, which has already commenced work on this issue, will take effective steps to introduce computerized balloting at an appropriate time. 64. The petitioners have raised another plea relating to intra- Const. P. No.87/2011 67 party elections. Dr. Farogh Naseem has submitted that a pertinent concern is the fact that the Election Tribunals fail to decide election disputes efficiently and at times with such time delay that election petitions become infructuous in the course of hearing. Mr. Hamid Khan has submitted that intra-party elections should be held at every level to promote democratic culture within the party. Such elections should be held with secret ballot and the political parties should not be fiefdoms of their leaders. By introducing electoral process within the political parties the democratic culture will be promoted. There will be greater opportunity for the parties to grow and develop leadership within their own ranks. The existing ruling elite has deliberately avoided holding of internal elections of their political parties and is running them arbitrarily at the will and whims of their leaders. 65. We have considered the issue in the light of the arguments made at the bar. The issue at hand, however, does not relate to this plea. We, therefore leave it to be taken up at the appropriate forum. 66. Article 222 of the Constitution provides that the Parliament may, by law, provide for allocation of seats in the National Assembly, delimitation of constituencies, preparation of electoral rolls, requirements as to residence in a constituency, determination of objections pertaining to and the commencement of electoral rolls, conduct of elections and election petitions, matters relating to corrupt practices and other offences, and all other matters necessary for the due Constitution of the two Houses and the Provincial Assemblies. Article 219(a) of the Constitution specifically provides that the Election Commission is charged with the duty of preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and Const. P. No.87/2011 68 revising such rolls annually. However, there have been widespread complaints that the electoral rolls are not revised annually and that they contain hundreds of thousands of bogus entries. It has been submitted that not only the General Elections of 2002, but also those of 2008 were held on the basis of electoral rolls based on the 1998 Census. In this behalf, Mr. Farogh Naseem, ASC has referred to the case of Imran Khan v. Election Commission of Pakistan (Constitution Petition No. 31 of 2011) and Ms. Benazir Bhutto v. Federation of Pakistan (Constitution Petition No. 45 of 2007) wherein the authenticity of electoral rolls has been questioned. In the said case, this Court has already taken certain corrective steps. In this behalf, it has been pleaded on behalf of the Awami Party Pakistan that women are under-registered in electoral rolls and the Election Commission has failed to ensure the political participation of the same in the electoral process. As a solution to the issue of bogus entries in the electoral rolls, Mr. Hamid khan, Sr. ASC has suggested that the Army and Frontier Corps be instructed to be present not only at the stage of polling, but also at the time of preparation/revision of electoral rolls. 67. Fair, free, honest and just elections are sine qua non for strengthening of democracy. To achieve this goal, accurate preparation/revision of electoral roll is immediately required to be undertaken by the Election Commission through credible and independent agencies. In so doing, the conventional ways and means of merely depending upon NADRA alone or other similar bodies must be discontinued forthwith. Accordingly, we direct the Election Commission to undertake door-to-door checking of voters’ lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps, if need be. This exercise should Const. P. No.87/2011 69 be undertaken as early as possible and in accordance with the time limit fixed in Imran Khans’ case (supra). 68. It is submitted on behalf of the petitioners that the election tribunals, which are mandated to resolve all election disputes, are over worked and cause severe delays in resolving disputes. It is submitted that “the number of tribunals appointed should have a fair co-relation with the number and volume of disputes raised or petitions filed, and procedures ensuring speedy disposal, therefore, this Court may issue appropriate directions to the Election Commission so that the election disputes are decided expeditiously. Such directions would ensure the speedy removal of an illegal office bearer and would avoid the situation wherein such an individual continues to hold the office illegally despite serious challenges to his election solely because the tribunals are overworked or existing procedures allow lingering of trials. On behalf of MQM, it is submitted that the Election Tribunals do not speedily decide election disputes and at times election petitions become infructuous due to efflux of time as they are not decided during the time in which an office is occupied by a candidate. Similar concerns have been agitated on behalf of PTI and APP and it has been submitted that the election tribunals keep delaying the disposal of petitions until the next elections so as not to get into “bad books” of winning candidates, who more often than not belong to the party in power. Section 67(1A) of ROPA mandates that a Tribunal must adjudicate a petition within 3 months. Unfortunately this provision is violated more often than not. Reliance has been placed on a report by European Union 2008 EOM on the 2008 elections, which found that 39 out of 221 petitions from 2002 elections remained unresolved after the Parliament’s five-year term had expired. The petitioners have Const. P. No.87/2011 70 requested that while issuing the requisite directions, the following factors may be kept in mind: - (i) deeming an election petition and its reply to be the examination in chief of the parties; (ii) examination in chief of witnesses by affidavit; (iii) recording of evidence on commission; and (iv) heavy costs for adjournments sought without good cause. It is submitted on behalf of PTI that the procedure for resolving election disputes expeditiously should be provided under the law. There should be more election tribunals, which should speedily decide the cases of election disputes. 69. We have given anxious consideration to this issue. Since the purpose of this petition is to allow vast majority of Pakistani citizens to meaningfully participate in the election process, there is a need to adhere to the procedure laid down for resolving election disputes expeditiously and ensure completion of whole process including appeals within 120 days. Section 57 of ROPA empowers the Chief Election Commissioner to appoint as many Tribunals as may be necessary. Thus, corrective measures are required to be taken at their end to ensure that the election disputes are resolved at the earliest. The Election Commission may also consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to the marginalized segments of society and take other steps it considers appropriate. 70. As it has been pointed out hereinabove that under the constitutional dispensation, Article 2A, etc., the country is to be governed by the chosen representatives of the people of Pakistan. There have been debates at different forums that, in view of the low Const. P. No.87/2011 71 turn out of the voters at election, a winning candidate does not qualify as a representative of the majority of the electorate of a constituency. There are cases in which a candidate has been returned despite the fact that the number of votes polled in his favour had not been more than 10 to 15 percent. These statistics and the phenomenon of low voter turn-out raise pertinent questions regarding the ownership of the winning candidates claim. They also shed light on a dire need to identify and address the key causes thereof. 71. Article 51 is an embodiment of the democratic spirit of our Constitution, wherein it prescribes the mechanism for the selection and establishment of a democratically elected government. This Article entitles every person to cast their vote if they meet the requirement mentioned therein. It therefore, enables all eligible individuals to participate in the political process of the country and to thereby, select as well as set a democratic government in motion. The aforementioned discussion has sufficiently addressed the Constitutional importance of democracy as a cardinal feature of our Constitutional Order and a prescribed system of government. Indeed, it is only through the operation of Article 51 that the Constitutional dictate of establishing a democratic government is realized. A failure or any shortfall in the operation thereof would substantially undermine the legitimacy of an elected democratic government. Furthermore, this would also have the effect of isolating the electorate from the democratic process and rendering the elected government, democratic in form, but not in spirit. Such a compromise, and especially of a fundamental tenet of our Constitution must be avoided. The parties have submitted that the electorate in Pakistan has, in almost all elections, failed to implement Article 51. They have submitted statistics which indicate that Pakistan Const. P. No.87/2011 72 has suffered from a glaringly low voter turnout in almost all national elections. In the National Elections of 2008, the total voter turnout, as recorded by the Election Commission, was 44.11 percent of the total registered voters. A meager 31.32 percent, 31.05 percent and 33.54 percent of to total registered voters cast their votes in Balochistan, FATA and Khyber Pakhtunkhwa respectively. In Punjab and Sindh, 48.18 percent and 44.16 percent of the registered voters voted at the elections. During hearing of the case, the representatives of Election Commission were asked to share figures that demonstrated the percentage of votes secured by the winning candidate in a particular constituency. The results were perplexing. In NA-I, Peshawar, against total votes of 387083 only 88954 votes were polled (22.98% of the total votes). The candidate who secured 49.70% of the votes polled and a meager 11.42% of the total votes cast, was declared successful,. It is to be noted that the individuals who stand elected by securing an insignificant majority of the votes cast, cannot legitimately claim to be the representative of the people. Furthermore, an election that suffers from such a poor voter turnout could not be said to be effectuating the true spirit of democracy, as envisioned by the Constitution. All necessary steps must be taken to ensure that this Constitutional dictate of nurturing and being governed by democratic ethos is honured in letter and spirit. 72. Many countries have enacted laws, which make it compulsory for the electorate to participate in the election process. Compulsory voting is an age old practice that was adopted to counter anti-democratic practices and presently twenty three countries have adopted compulsory voting in their respective jurisdictions. In 1777, the State of Georgia enacted legislation to make voting compulsory Const. P. No.87/2011 73 and directed that “every person absenting himself from an election, and shall neglect to give in his or their ballot at such election, shall be subject to a penalty not exceeding five pounds; the mode of recovery and also the appropriation thereof, to be pointed out and directed by act of the legislature: Provided, nevertheless, that a reasonable excuse shall be admitted”. In Austria, compulsory voting was partially introduced in 1929 but extended to parliamentary elections in 1949. Netherlands also introduced compulsory voting in 1917 along with in Spain, Venezuela and Chile. Congo, Brazil and Argentina have also made voting compulsory for citizens between 18 and 70 years old. In primaries, the citizens under 70 years of age may refuse to vote, if they formally express their decision to the electoral authorities, at least 48 hours before the election. Ecuador has adopted a form of compulsory voting, which makes its obligatory on citizens between 18 and 65 years to vote in elections. It is, however, not compulsory for citizens aged 16–18, illiterate people, and those older than 65. In Singapore, voting is compulsory for citizens aged above 21 years on the 1st of January of the year of election. Non-voters are removed from the electoral register until they reapply, providing a reason for their abstention. Peru and Urugay have also adopted compulsory voting to ensure that their democratic mandate is sufficiently and successfully met. 73. Some jurisdictions impose sanctions against individuals who violate the law by failing to vote. They, however, before levying a sanction, require the non-voting citizen to provide legitimate reasons for his/her abstention from voting, if any exist. These sanctions have taken different forms. Countries have also impressed fines against non-voters. The amount varies in different countries, e.g., 3 Swiss Const. P. No.87/2011 74 Francs in Switzerland, between 300 and 3000 ATS in Austria, 200 Cyprus Pounds in Cyprus, 10-20 Argentinean Pesos in Argentina, 20 Soles in Peru, etc. A non-voting citizen may also face imprisonment as a sanction. In cases where such a person refuses to pay the fine despite being reminded to do so, the courts impose a prison sentence. Countries like Belgium disenfranchise voters who fail to vote in elections consecutively for 15 years. In Singapore the voter is removed from the voter register until he/she reapplies to be included and submits a legitimate reason for not having voted. In Peru the voter has to carry a stamped voting card for a number of months after the election as a proof of having voted. This stamp is required in order to obtain some services and goods from some public offices. In Bolivia the voter is given a card when he/she has voted so that he/she can proof the participation. The voter would not be able to receive his/her salary from the bank if he/she cannot show the proof of voting during three months after the election. Australia introduced compulsory enrollment and voting in 1924, for both state and national elections. Some states have made voting in local council elections compulsory as well. Eligible voters who remain absent from the polling stations are liable to pay fines of 20-50 Australian Dollars and may also face imprisonment in case of non-payment of fines. 74. For reference, the relevant provisions of the Commonwealth Electoral Act 1924, whereby certain amendments were made in the Commonwealth Electoral Act 1918-1922 for the purpose of making provision for Compulsory Voting, are reproduced hereinbelow: - Compulsory voting. 128A. (1.) It shall be the duty of every elector to record his vote at each election. Const. P. No.87/2011 75 (2.) It shall be the duty of each Divisional Returning Officer at the close of each election to prepare a list (in duplicate) of the names and descriptions of the electors enrolled for his Division who have not voted at the election, and to certify the list by statutory declaration under his hand. (3.) The list so certified shall in all proceedings be prima facie evidence of the contents thereof and of the fact that the electors whose names appear therein did not vote at the election. (4.) Within the prescribed period after the close of each election the Divisional Returning Officer shall send by post to each elector whose name appears on the list prepared in accordance with sub-sections (1.) and (2.) of this section, at the address mentioned in that list, a notice, in the prescribed form, notifying the elector that he appears to have failed to vote at the election, and calling upon him to give a valid truthful and sufficient reason why he failed so to vote. (5.) Before sending any such notice, the Divisional Returning Officer shall insert therein a date, not being less than twenty-one days after the date of posting of the notice, on which the form attached to the notice, duly filled up and signed by the elector, is to be in the hands of the Divisional Returning Officer. (6.) Every elector to whom a notice under this section has been sent shall fill up the form at the foot of the notice by stating in it the true reason why he failed so to vote, sign the form, and post it so as to reach the Divisional Returning Officer not later than the date inserted in the notice. (7.) If any elector is unable, by reason of absence from his place of living or physical incapacity, to fill up, sign, and post the form, within the time allowed under sub- section (5.) of this section, any other elector who has personal knowledge of the facts may, subject to the regulations, fill up, sign, and post the form, duly witnessed within that time, and the filling up, signing, and posting of the form may be treated as compliance by the firstmentioned elector with the provisions of sub-section (6.) of this section. (8.) Upon receipt of a form referred to in either of the last two preceding sub-sections, the Divisional Returning Officer shall indorse on both copies of the list prepared in accordance with sub-section (2.) of this section, opposite the name of the elector, his opinion whether or not the reason contained in the form is a valid and sufficient reason for the failure of the elector to vote. (9.) The Divisional Returning Officer shall also indorse on both copies of the list, opposite the name of each elector to whom a notice under this section has been sent and from or on behalf of whom a form properly filled up signed and witnessed has not been received by him, a note to that effect. (10.) Within two months after the expiration of the period prescribed under sub-section (4.) of this section, the Const. P. No.87/2011 76 Divisional Returning Officer shall send to the Commonwealth Electoral Officer for the State one copy of the list, with his endorsements thereon, certified by statutory declaration under his hand. Each copy of the list prepared and indorsed by the Divisional Returning Officer, indicating (a) the names of the electors who did not vote at the election; (b) the names of the electors from whom or on whose behalf the Divisional Returning Officer received, within the time allowed under sub-section (5.) of this section, forms properly filled up and signed; and (c) the names of the electors who failed to reply within that time, and any extract therefrom, certified by the Divisional Returning Officer under his hand, shall in all proceedings be prima facie evidence of the contents of such list or extract, and of the fact that the electors whose names appear therein did not vote at the election, and that the notice specified in sub-section (4.) of this section was received by those electors, and that those electors did, or did not (as the case may be), comply with the requisitions contained in the notice within the time allowed under sub-section (5.) of this section. (12.) Every elector who— (a) fails to vote at an election without a valid and sufficient reason for such failure; or (b) on receipt of a notice in accordance with sub-section (4.) of this section, fails to fill up, sign, and post within the time allowed under sub-section (5.) of this section the form (duly witnessed) which is attached to the notice; or (c) states in such form a false reason for not having voted, or, in the case of an elector filling up or purporting to fill up a form on behalf of any other elector, in pursuance of sub-section (7.) of this section, states in such a form a false reason why that other elector did not vote, shall be guilty of an offence. Penalty: Two pounds. (13.) Proceedings for an offence against this section shall not be instituted except by the Chief Electoral Officer or an officer thereto authorized in writing by the Chief Electoral Officer. 75. As has been discussed above, it is a constitutional imperative that a democratic government be established and nurtured in Pakistan and an obligation of all functionaries of the State, including the Election Commission, to ensure adherence thereto. Various provisions of the Constitution and other laws have fully empowered and legally equipped the Election Commission to ensure that the Const. P. No.87/2011 77 election, it is responsible to “organize and conduct”, establishes and achieves a true democratic government as envisioned by the Constitution. Therefore, the Election Commission is obliged to ensure that all elections witness a substantial participation of the electorate. By making voting compulsory and attaching sanctions for its violation, the Election Commission and/or the appropriate body can resolve a long standing problem, and bring existing election-related processes in line with the dictates of the Constitution. Therefore, all necessary steps must be taken to make voting compulsory in Pakistan as early as possible. This initiative would have the effect of strengthening democracy by giving effect to the constitutional mandate that the Government shall be run by the chosen representatives. 76. The petitioners have also proposed that the existing ‘First Past the Post’ (FPTP) system be scrutinized for its viability as an election system. They have questioned whether FPTP fulfills the constitutional mandate of ensuring true representation and free, fair and just elections and proposed that other systems be tested for their viability and considered as possible alternatives. They have argued that since the Constitution does not specifically endorse this particular system, it is permissible to consider and adopt an alternative system, that is better attuned to the spirit of democracy envisioned by the Constitution is permissible. Mr. Salman Akram Raja has submitted that to ensure meaningful participation and representation of all shades of classes and groups, it should be made mandatory that there should be mixed electoral system based on first-past-the-post and proportional representation as is prevalent in majority of countries. At least 10% of seats should be reserved for parties on proportional representation basis, if they obtain more than 2% of the total votes polled. The list of Const. P. No.87/2011 78 such candidates may be given in advance to Election Commission. 77. It may be noted that according to FPTP system of election, the candidate securing the highest number of votes is the winner. The winning candidate, however, does not necessarily receive an absolute majority of all votes cast. Thus, according to this voting system, the members of the Parliament who claim themselves to be representatives of people, may not command the majority of the votes registered and polled. Therefore, they may not genuinely represent their electorate. Such phenomenon is perpetuated by defective electoral laws, especially section 42 of the ROPA, which is based on FPTP. The said section provides that any contesting candidate who has secured the highest number of votes (not more than 50% of the polled votes) is declared to be elected. At this stage, reference may be made to the definition of the expression “majority votes” given in Black's Law Dictionary, 6th Edition, p. 955, which reads as under: - “Majority votes: Votes by more than half of votes for candidates or other matter on ballot. When there are only two candidates, he who receives the greater number of the votes cast is said to have a majority; when there are more than two competitors for the same office, the person who receives the greatest number of votes has a plurality, but he has not a majority unless he receives a greater number of votes than those cast for all his competitors combined." 78. In the elections of 2008, the members of the Parliament/Assemblies were elected on the basis of system of ‘first past the post’. In light of the above, most of them could not claim to be true representatives of the people of their respective constituencies, as they did not secure more than 50% of the votes polled. For example, in the case of the National Assembly out of 268 contested seats the winners in 108 seats secured less than 50% of the polled votes. Thus, more than 40% of the National Assembly seats Const. P. No.87/2011 79 lacked majority representation. In certain cases, it was even less than 30%. In order to make the electoral system democratic and representative the only remedy lies in the adoption of re-polling (runoff) in those electoral constituencies where there is no clear winner who has secured at least or more than 50% of the votes polled. In the fresh polling between the two leading candidates anybody who secures majority votes should be declared successful. This system is prevalent in many democratic countries. The same has been adopted in the Local Government Elections in Pakistan. This question arose especially on the observation of this Court that the 18th amendment to the Constitution has brought about a change in Article 91(4) and introduced a second round/runoff election, if the candidate for Prime Minister is unable to secure a certain threshold number of votes from the total of the membership of the National Assembly, in the first round of voting. The said provision violates the principle of majority. Professor Bernard Chrick, Emeritus professor of Politics, Birkbeck College, London, in his famous book ‘Democracy’, describes the FPTP as undemocratic and certainly unrepresentative. In the case of Mir Salim Khan Khosa v. Chief Election Commissioner (2002 SCMR 109) it was held that under the unamended provisions [section 16(3) read with section 37 Balochistan Local Government Election Ordinance, 2000] the panel of candidates securing even a single vote more than the other contesting panel or panels of candidates was entitled to be declared elected but under the amended provisions securing of more than 50% of the total votes of the members of the Unions Councils in the District is mandatory and the candidates who fail to achieve the target are not to be notified as returned candidates even if they secure highest number of votes. The rationale and object of the amendment Const. P. No.87/2011 80 appears to be to ensure that the winning panel of candidates virtually represents the majority of the voters of the district and a panel of candidates out of three or four contesting panels does not win the election by securing 25% or 30% of votes. The amendments have redressed the possible anomaly under majority or plurality system where in the event of an election being contested by a large number of candidates one of them wins the election with a few votes and thereby represents only a small and not a large segment or the constituency. However, as the respondents therein had secured more than 50% of total votes, the appeal was dismissed. 79. The petitioners have proposed that the electorate should be given the option of refusing to vote for candidates they do not support. It is for this reason that they have proposed that the ballot paper should have a ‘none of the above’ option. This option would, according to the petitioners, lend voice to those members of the electorate who do not support any of the candidates for the political office/seat. The fact that Pakistan suffers from a low voter turnout in elections, means that those who stand elected may not truly be the ‘representative’ of the people of Pakistan. If the vote is an expression of the electorate’s choice, then the electorate ought to be given the option to express their dissatisfaction with the candidates, as well. A ‘None of the above’ option, therefore, would serve to give effect to this purpose. Furthermore, with this option, the electorate would be in a position to claim greater ownership of their constituencies and would be able to exercise their own decision-making powers by nominating appropriate candidates. To reinforce their point, the petitioners have also submitted that such a practice also exists in some parts of the world and has been proposed in others. They have sought a Const. P. No.87/2011 81 declaration that an election that does not provide the right to choose “None of the above Candidates” is ultra vires, inter alia, Articles 17, 51 (6), 106 (3) and 218 (3). Or in the alternative, hold as per prayers ‘d’ and ‘e’ in C.P.87 of 2011. On behalf of the Federation, it was stated that the said runs contrary to the electoral laws in force. Mr. Salman Raja, ASC, on behalf of the APP agrees with the proposal of the petitioners. He has further submitted that if the number of votes casted in the ‘None of the above’ category are more than those casted in favour of other candidates, than those elections must be declared void and re-polling should be ordered. Mr. Taufique Asif has submitted that the JIP agrees in principle with the petitioners, but have alternatively proposed that proportional system should be considered as a viable alternative for the existing system of elections, which is better suited to attaining electoral justice and national harmony – a primary goal of the society that the majority system (presently prevalent in Pakistan) is incapable of attaining. It has been submitted that the proportional system has the following merits: - (a) Wider Representation; (b) Political Institutionalization; (c) Political Education; (d) Fair Elections; (e) Crystallization of Ideology; (f) Political Equations; (g) Sense of Participation and Confidence; (h) Tolerance for Disagreements; and (i) An Islamic Perspective. In certain jurisdictions, voters have the option to vote ‘none of the above’ if they do not want to vote for any of the candidates to show dissatisfaction with the certain candidates instead of whole process. The same is, therefore, recommended to be considered for adoption Const. P. No.87/2011 82 by the concerned authority. 80. In the light of the above discussion, the titled petition is disposed of with the following observations, declarations and directions: - (1) The freedom of association, as enunciated by Article 17 of the Constitution, confers a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic system. The ‘freedom of assembly’ (Article 16) and ‘freedom of speech’ (Article 19) also serve to realize this constitutional imperative; (2) By guaranteeing the observance of ‘principles of democracy’ in Pakistan and mandating that the “State shall exercise its powers and authority through the chosen representatives of the people”, the Constitution of Pakistan instructs that the authority to govern be exercised by and through a representative and democratic government. The conferment of this authority has been framed with an ardent dedication ‘to the preservation of democracy’ and, therefore, encapsulates it as one of its core values. By establishing and enumerating the powers and manner in which the legislature is to function, Part II and III of the Constitution cement ‘democracy’ as the chosen system of the people and a fundamental constitutional dictate; (3) The Constitution of Pakistan mandates the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against, but unfortunately the said mandate has not been properly fulfilled in the past; (4) The Representation of the People Act, 1976 vests the Election Commission with the responsibilities and powers to, inter alia, regulate election expenses, provide for offences, penalties and procedures in case of breach of Const. P. No.87/2011 83 conditions relating thereto, resolve all election disputes, declare the election void, etc. The constitutional requirement to hold elections fairly, freely, honestly, justly and in accordance with law obligates the Election Commission to exercise all powers vested in it to the best of standards and norms; (5) All public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law; and wherever any discretionary power is vested in a public authority or functionary, that too, is to be exercised to achieve the goal of fair, free, honest and just discharge of this sacred trust; and (6) The impugned election practices and processes are cognizable by the Election Commission and are required to be dealt with in accordance with the Constitution and the law; therefore, the constitutionality or otherwise of the election laws is not a relevant question in the present proceedings, rather strict implementation is called for. 81. In pursuance of the above, we hold and direct as under: - (a) All the election laws be strictly implemented by the Election Commission in the discharge of its constitutional mandate under Article 218(3) of the Constitution, Representation of the People Act and other laws/rules; (b) The Election Commission is empowered to check not just illegal actions relating to the election (violating the limits set for campaign finance, etc.) or corrupt practices (bribery, etc.), but is also empowered to review all election activities, including Jalsas, Jaloos, use of loudspeakers, etc. for their effects on the standards of ‘fairness, justness and honesty’ that elections are expected to meet. The Election Commission is also empowered to take pre- emptive measures to ensure that the spirit of democracy and ‘fairness, justness and honesty’ of elections is fully observed. The Election Commission is, therefore, directed to take all necessary steps to ensure the same; Const. P. No.87/2011 84 (c) The Election Commission must undertake monitoring of the election expenses from the day the holding of election is notified. A candidate must account for all the expenses immediately after the election is over. The Declaration Form should include the following further declarations: - (i) To meet election expenses, I have opened account No.______________ with _____________________ [name & branch of a scheduled bank] and deposited therein the amount permissible for election expenses. (ii) All election expenditure shall be made out of the money already deposited in the aforesaid account. (iii) No transaction towards the election expenses shall be made through an account other than the above account. [Copy of bank statement will be annexed with the Return.]; (d) The Election Commission must hold meetings with the candidates and apprise them of the relevant laws/rules, receive from them statements of expenses on weekly basis by engaging election staff and carry out inspection at random at different places. All transactions relating to election expenses should be entered into with GST registered firms/persons; (e) To facilitate the voters, the number of polling stations may be increased appropriately throughout the country so that the polling stations are not at a distance of more than two kilometres from the place of residence of voters. In this behalf, the Election Commission may take into consideration the suggestions made at the bar, including the provision of official transport to the voters, but in no case, shall it allow the candidates to hire/use private transport on election day. Where arrangement for transport is made by the Election Commission, the routes of such transport should be widely advertised in the print and electronic media for information of the general public; (f) As regards the handing over of Perchis to the voters at election camps, the Election Commission must take steps Const. P. No.87/2011 85 to provide the requisite information to the voters by other means as discussed hereinabove. Therefore, to ensure strict compliance with section 84 of Representation of the People Act, 1976 in letter and in spirit, establishing of camps near the polling stations should be banned forthwith. The Election Commission may manage to dispatch extracts from the voters’ list in the name of one or more persons living in a house at least 7 days before the polling day by post, or to save the postage by annexing such extracts with any of the utility bill; (g) Only such election campaign activities ought to be permitted, which on the one hand fulfil the purpose of the election campaign, and on the other are within the reach of the common man. The petitioners have recommended certain activities, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate – voter interaction/debates, etc. ROPA and other relevant laws have held these activities to be permissible in the eyes of the law. These, therefore, ought to be encouraged by Election Commission on the basis of their merit; (h) To ensure fair and transparent election, if need be, instead of involving the employees of the Provincial Governments, the employees of Federal Government/autonomous organizations/agencies, including the armed and para- armed forces may be instructed to carry out stipulated functions at the polling stations; (i) As regards the introduction of computerized balloting, it is informed that the Election Commission has already undertaken work on it. We, therefore, expect that effective steps will be taken in this regard at an appropriate time; (j) To achieve the goal of fair, free, honest and just elections, accurate preparation/revision of electoral roll is immediately required to be undertaken by the Election Commission through credible and independent agencies. Const. P. No.87/2011 86 Accordingly, we direct the Election Commission to undertake door-to-door checking of voters’ lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps to ensure transparency, if need be; (k) Corrective measures are required to be taken by the Election Commission to ensure that the election disputes are resolved at the earliest. The Election Commission may also consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to marginalized segments of society; (l) The Election Commission is obliged to ensure that all elections witness a substantial participation of the electorate, therefore, all necessary steps must be taken to make voting compulsory in Pakistan as early as possible; (m) In the ‘First Past the Post’ system of election, the winning candidate does not necessarily receive an absolute majority of all votes cast, therefore, such a candidate does not command the majority of the votes polled. As such, the system of ‘First Past the Post’ violates the principle of majority. The Election Commission may explore ways and means to introduce appropriate system of election including ‘run off election’ and ‘none of the above options’, in the light of the discussion made hereinabove, to ensure true representation of the people and rule of the majority; and (n) The Election Commission is empowered to frame rules to ensure that the elections are conducted justly, fairly, honestly and in accordance with law and that corrupt practices are guarded against. There is unanimity of views on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide legal sanction Const. P. No.87/2011 87 to these measures and implement the same to achieve the ultimate objective of fair, free, just and honest election. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 8th June, 2012 at Islamabad. CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: MR. JUSTICE NASIR-UL-MULK MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SH. AZMAT SAEED CONSTITUTIONAL PETITION NO.91 OF 2011 & CMA NO.2624 OF 2011 AND CONSTITUTIONAL PETITION NO.57 OF 2012. CP.No.91/2011 & Raja Mujahid Muzaffar Vs. CMA No.2624/2011: Federation of Pakistan and others. CP.No.57/2012: Babar Sattar Vs. Federation of Pakistan, etc. ********** For the petitioner: Mr. Athar Minallah, ASC (in CP.91/2011) For the petitioner: Mr. Babar Sattar, Advocate, (in CP.57/2012) In person For the Federation/ Mr. Irfan Qadir, AGP State: Mr. Babar Ali, DAG Mr. M. S. Khattak, AOR Raja Abdul Ghafoor, AOR For the NADRA: Mr. Raza Kazim, Sr. ASC Mr. Mehmood A. Sheikh, AOR Dr. Tahir Akram, Chief Administrative Officer For M/s Hauwei Mr. Afnan Karim Kundi, ASC Technology Company: Mr. Mehmood A. Sheikh, AOR Dates of hearing: 25, 26, 28 & 29.06.2012. JUDGMENT SH. AZMAT SAEED, J.- This judgment will dispose of Constitutional Petition No.91 of 2011 & CMA No.2624 of 2011 and Constitutional Petition Const.P.91/2011, etc. 2 No.57 of 2012, as common questions of facts and law are involved therein. 2. The instant constitutional petitions have been filed to call into question the award of the Contract dated 29.12.2009. It appears that a Supply and Implementation Contract was executed inter-se the Government of Pakistan through the Secretary, Ministry of Interior and M/s Hauwei Technology Company Limited (respondent No.8). The said Contract was for the procurement of goods, equipment and services for the purpose of establishing a Command Center and Network, initially at Islamabad for the total cost of US$ 124,719,018. The said Project is referred to as Islamabad Safe City Project. 3. The essential factual background of the lis at hand, which can be gleaned from the record made available by the parties, is that apparently in the summer of 2009, respondent-M/s Hauwei Technology Company Limited a Chinese Company approached the respondent-National Database and Registration Authority (NADRA) offering to implement and execute Const.P.91/2011, etc. 3 a comprehensive surveillance and monitoring system for security primarily at Islamabad i.e. the Safe City Project in question. Respondent-NADRA claims to have informed its parent Ministry i.e. Ministry of Interior regarding the offer made by respondent-M/s Hauwei Technology Company Limited, whereafter a meeting was convened, chaired by the Secretary, Ministry of Interior on 29.08.2009 of the various governmental stakeholders concerned, wherein it was decided that a ground-check may be carried out involving the end user. In the meanwhile, it was decided that a Memorandum of Understanding (MOU) be executed inter-se NADRA and M/s Hauwei Technology Company Limited with the Ministry of Interior not being made responsible for any contractual obligations. It was also decided that the said MOU may be presented to the Ministry of Law & Justice Division for their formal vetting. 4. In the above backdrop, a draft MOU was prepared and exchanged between the parties, however, such MOU does not appear to have been formally executed. Subsequently, vide a letter dated Const.P.91/2011, etc. 4 01.10.2009, the Chairman-NADRA indicated to the Secretary, Ministry of Interior of the possibility of obtaining a long term concessional loan from the Chinese Government/the Export-Import Bank of China whereupon Economic Affairs Division was activated by the Ministry of Interior inter alia for the allocation of the concessional loan from China. Various communications in this behalf were exchanged and meetings held, including of the Central Development Working Party (CDWP) on the 19th of November, 2009 and 19th of December, 2009. In the latter meeting, it was inter alia decided that: “i. The Interior Division will submit a summary to the Prime Minister for seeking decision regarding sponsoring and execution of the said project as the Prime Minister has already issued a directive to Ministry of Information Technology for execution of a similar project in 10 to 12 cities. ii. Procurement of equipments should be done through international competitive bidding (ICB) as envisaged in the PPRA’s rules. In case of a tide loan, the competition should be within atleast Chinese Companies for Chinese equipment. If not possible, the Interior Division should seek special exemption from the Prime Minister. iii. ………....………………………..……….. Const.P.91/2011, etc. 5 iv. A feasibility study of the project and a quality assurance certificate of proposed equipments must be attached with modified PC-I.” 5. Subsequently, a summery was submitted to the Prime Minister by the Secretary, M/o Interior, seeking approval for inter alia the following: “i. The Ministry of Interior be approved as sponsor of this security related project instead of Ministry of Science & Technology and to execute it. The Ministry of Information Technology be required to extend due technical support to Ministry of Interior in expeditious completion of the project. ii. Exemption of PPRA’s Rules 2004 regarding international competitive bidding (Annex-B). iii. The sponsoring agencies i.e. Ministry of Interior through (NADRA) to negotiate prices with Hawai Company of China a reputed firm in manufacturing and supply of equipments/gadgets at lowest rates. iv. Approval to enter into negotiation with concerned Chinese authorities for extension of loan to finance “Safe City” Project for Islamabad and Peshawar valuing US $ 124.7 million and US $ 110 million respectively.” 6. The Ministry of Finance, vide its communication, dated 23rd of December, 2009, made the following proposals: “9. The proposals at para 7 (ii) & (iv) relate to the Finance Division. Const.P.91/2011, etc. 6 10. Regarding para 7 (ii) relating to exemption from PPRA Rules, 2004, since the project is yet to be approved by the competent forum, a decision on exemption or otherwise from PPRA Rules may be taken after approval of the project, in the prescribed manner. 11. Regarding para 7 (iv) relating to entering into negotiations with Chinese authorities for extending loan to finance the project, the proposal is supported as it would save valuable time to organize financing for the project.” 7. Approval was accorded by the Prime Minister, as is mentioned in the letter, dated 24th of December, 2009, in the following terms: “12. The Prime Minister has been pleased to approve the recommendations of the Finance Division contained in paras 10-11 of the Summary. 13. The Prime Minister has further desired that the Ministry of Information Technology may be kept on board on all issues related to this project and the formal approval of the project may also be obtained from the competent authority/Cabinet, as per prescribed procedure.” 8. It appears that thereafter the Contract in dispute was executed on 29.12.2009. 9. It appears that contemporaneously, another project with more or less the same objective was being sponsored by Ministry of Information Technology with the involvement of another Chinese Company. The Const.P.91/2011, etc. 7 said Project was referred to as GOTA to which reference has been made in the Minutes of Meeting of the CDWP, dated 19.12.2010. It appears from the record that the Ministry of Interior and the Ministry of Information Technology were canvassing for the respective projects sponsored by them. Both the Projects i.e. Islamabad Safe City Project and GOTA were competitive and obviously overlapping and only one of the two projects could go through. Apparently, the matter was brought to the notice of the then Prime Minister, who chaired a meeting in this behalf. It appears that in order to evaluate the two projects a Technical Committee was formed. 10 The Technical Committee formed a Sub Committee. The Sub Committee held its meeting on 26.03.2010, the minutes whereof are placed on the record in CP.No.91 of 2011. In the said Minutes with reference to the cost of the Project, it was observed, as follows: “As far as the cost of equipment is concerned the cost of most equipment mentioned in the PC-1 is almost three times the cost of comparable equipment available in the market. (NADRA rep, are not a party to this comment). It is pointed Const.P.91/2011, etc. 8 out that all the equipment could not be companied because of their providing nature and absence of detailed specifications. The cost of Shell Software quoted was also higher in the same range (1:3) and it was informed that the vendor had quoted the Chinese prices. Also the cost of proprietary software could not be determined and assumed to be similarly highly priced. In addition, the cost of customization, integration, and consultancy are included as 10.5% of total cost of the project which is quite high.” The said Committee made the following recommendations: “5. It is therefore recommended that we may indicate our requirements in the shape of a Request for Proposal (RFP) providing details of our requirements of a pro-active and effective “Security System” along with a “Surveillance” and “Traffic Management System” and indicating our performance requirements e.g. response times. The vendors may also be provided with design parameters _____________ (e.g. the nos. of exit/entry points, the types of detectors, cameras or various types, vehicle RFID readers, fingerprint, scanners etc. we wish to install) and the details of telecom infrastructure already available in Islamabad and these details and specifications were required by the sub-committee of Technical Committee have been included in a specimen RFP (copy enclosed) which is proposed to be handed over to the vendors for proposing an optimum solution. A PC-1 has also been prepared (copy enclosed as Annex-B) based upon the realistic costs of various items included in the PC-1. The total cost of PC-1 is rupee equivalent of USD 78 million Based upon the lowest bid. PC-1 may be provided to the Planning Commission for approval.” Const.P.91/2011, etc. 9 11. Pursuant to the said meeting, a note was put up to the Prime Minister of Pakistan by the Deputy Chairman of the Planning Commission, copy whereof is available with the paper book of CP.No.91 of 2011, wherein, it was observed inter alia as follows: “v. The project will be executed as a pilot project in Islamabad or in any city to be identified by the Ministry of Interior. After its successful implementation, similar projects will be implemented in other important cities of the country benefiting from the lessons learnt. x. Ideally, the work should have been done after the proper feasibility study, but in view of the urgency of security requirements, the work already carried out by the Ministry of Interior is proposed to be accepted.” The final recommendations were made as under: “xi. Final recommendation: a. Ministry of Interior may indicate their requirements in the shape of a Request for Proposal (RFP) providing details for a pro-active and effective “Security System” along with a “Surveillance” and “Traffic Management System” indicating performance requirements e.g. response times of computing equipment and resolution of cameras etc. b. The vendors may also be provided with design parameters along with generic specifications (e.g. the nos. of exit/entry points, the types of detectors, cameras of various types, Const.P.91/2011, etc. 10 vehicle RFID readers, fingerprint scanners, etc.) and the details of telecom infrastructure already available in Islamabad. c. All these details and the recommendations of the Technical Committee may be included in a RFP which is proposed to be handed over to the vendors for proposing an optimum solution. d. Based upon the above recommendations a revised PC-1 may be prepared by the Ministry of Interior.” 12. On 07.06.2010, a Summary was prepared by the Ministry of Interior for the Prime Minister of Pakistan regarding the said Project, which reads as follows: “Prime Minister was pleased to chair two presentations regarding the above subject. Ministry of Interior’s presentation dealt with “Safe City Project” and Ministry of Information & Technology explained the GOTA Project. The Prime Minister was pleased to constitute a Committee headed by Deputy Chairman Planning Commission with Secretary Ministry of IT, Secretary Finance and Secretary Interior as members, to look into the possibility of integration and rationalization of the two projects (Annex-A). Deputy Chairman, Planning Commission vide P&D Division’s U.O. No.3(101) ICT/PC/2010 dated 15th April, 2010 (Copy enclosed as Annexed-B) has submitted the recommendations of the committee to the Prime Minister. In the light of the said recommendations, NADRA has improved the project proposal with proactive and effective security system alongwith a surveillance and Const.P.91/2011, etc. 11 traffic management system based on performance requirements. 2. NADRA is of the view that the technically approved solution with afore- mentioned features, offered by M/s Huawei Technologies Co. China, is of propriety nature. The Company has a vast experience of installing such systems in China and a number of other countries. However, the Planning Commission Committee has advised Ministry of Interior to prepare a new PC-I and a request for proposal (RFP) which should be based on generic specifications for greater transparency. 3. NADRA as project executing agency has shown reservations on this approach. It was explained to the Committee that the Safe City Project is not merely a purchase of equipment and its assembly, it also envisages integration of various subsystems on a unified platform. NADRA is of the view that project components acquired through generic specifications would be hard to integrate and there were high chances of integration failure. It is also apprehended that preparation of new PC-I would delay the project as there was no assurance of foreign funding, particularly of Chinese concessional loan, for a new PC-I based on the generic specifications. 4. It is a recognized fact that complex security projects worldwide are mostly awarded through direct contracting. This is also permissible under PPRA Rules, 2004. Open tendering through generic specifications is preferable as long as it does not put the project itself in jeopardy. In the present case, this option may lead to technical difficulties and delays. 5. Ministry of Interior has been endeavouring to install safe city technology for the past more than three years, without success, mainly due to non availability of funds. The Chinese Const.P.91/2011, etc. 12 assurance of availability of concessional loan for security related projects has led to the formulation of safe city Islamabad and Peshawar projects. The real cost of safe city Islamabad project expressed in Planning Commission’s standard criterion i.e. Net Present Value (NPV) terms is competitive prices @ $ 72 million, instead of the nominal amount of $ 124.7 million. (Detailed calculations are attached) (Annex-C). 6. Central Development Working Party (CDWP) in its meeting on 19th November, 2009 had supported to arrange financing for the propriety solution proposed in the PC-I. Ministry of Interior on the recommendation of the CDWP and Finance Division was authorized by the Prime Minister to raise Chinese concessional financing. Proposals were accordingly submitted to the Chinese authorities. Ministry of Commerce, Government of China has formally recommended for inclusion of the project in the list of Pak China 5 years development program. This indicates that the load request is favourably being considered. 7. In view of the forgoing, approval of Prime Minister is solicited: a. To implement Safe City Islamabad and Peshawar Projects through Huawei Technology Co. Solution for which Chinese concessional financing is being arranged, and b. To permit direct contracting with M/s Huawei Technology Co. in terms of Rule 42 (c)(v) read with Rule 2 (g) of PPRA Rules 2004. (Annex-D). c. To authorize Planning Commission and Finance Division to assess price reasonability and negotiate with Huawei Technology Co. Const.P.91/2011, etc. 13 8. Minister for Interior has seen and authorized submission of the summary.” 13. Subsequently, another Summary dated 02.07.2010 was sent by the Ministry of Interior to the Prime Minister of Pakistan, which reads as follows: “12. The committee constituted by the Prime Minister headed by Deputy Chairman Planning Commission with Secretary Ministry of IT, Secretary Finance and Secretary Interior as members reviewed the Safe City Projects and was satisfied with the technical aspects of the projects. It however recommended converting the propriety technology solution into generic specifications and awarding the project on the basis of open tender. It is apprehended that if we go for such generic tendering, the project may be indefinitely delayed. 13. Based upon the above the following submissions are made: (a) Security projects worldwide are mostly awarded through direct contracting. It is never advisable to publicize security project’s capabilities. China wants such projects to be done in low profile. (b) Safe city proposal is based on Huawei Technology Co propriety solution. They are a leading company in China with proven ability. Open tendering on the basis of generic specifications and award of work to unproven multiple vendors is likely to create integration and technical problems. Const.P.91/2011, etc. 14 (c) M/s Huawei Technology Co. has been greatly instrumental in arranging soft loan. The soft loan request is tied to M/s Huawei Technology co proposal. The loan offer is likely to be diverted to other countries (Sri Lanka) if not availed in time. 14. There are many instances where tender waiver for acquisition of technology in sensitive areas has been granted. The case of Strategic Plans Division is cited. Tender waiver was granted for PAKSAT-IR and Pakistan Remote Sensing Satellite (PRSS) Project. Permission was accorded by the office of the Prime Minister on 19th November, 2007. 15. Safe city technology is essential to effectively combat terrorist threat. We cannot afford to delay acquisition of this capability. 16. In view of the forgoing, Ministry of Interior seeks approval for the following: a. Permission for direct contracting with M/s Huawei Technology Co in terms of Rule 42(c)(v) read with Rule 2(g) of PPRA Rules 2004. b. To authorize Planning Commission and Finance Division to assess price reasonability and negotiation with Huawei Technology Co. 17. Minister for Interior has seen and directed for submission of the summary.” 14. The main thrust of the Summary appeared to be for seeking exemption from the operation and application of Public Procurement Regulatory Const.P.91/2011, etc. 15 Authority Ordinance, 2002 (PPRA Ordinance) and the Public Procurement Rules, 2004 (PPRA Rules). The request for such exemption was endorsed by the Secretary, Ministry of Finance and granted by the Prime Minister, as is apparent from the communication issued by the Principal Secretary to the Prime Minister on 05.07.2010, however, in the context of the Summary, Ministry of Interior, dated 07.06.2010, referred to above, further discussions were called for. 15. On 17.12.2010, a Framework Agreement was executed inter-se the Government of the Islamic Republic of Pakistan and the Government of the People’s Republic of China, whereby the Government of the People’s Republic of China agreed that the Export-Import Bank of China would provide a concessional loan not exceeding Renminbi 850 million Yuan for the purpose of implementing “Safe City Islamabad Project”. It is further agreed by the Chinese Government that it would pay interest subsidies for the Project Loan and the maturity period of the Loan would not exceed twenty years, including grace period Const.P.91/2011, etc. 16 of five years. It was also perceived that a separate loan agreement would be executed inter-se Export-Import Bank of China and the Government of Pakistan. Consequently, on the same day i.e. 17.12.2010, a Concessional Loan Agreement was executed inter-se the Government of the Islamic Republic of Pakistan and the Export-Import Bank of China. The said Agreement envisaged a loan facility up to Renminbi 850 million Yuan for funding the said “Safe City Islamabad Project”. 16. That in January, 2011, the Contract in question, dated 29.12.2009, was called into question, before this Court vide Constitutional Petition No.11 of 2011, filed by a citizen making allegations inter alia of lack of transparency and loss to the public exchequer by way of award of the said Contract. A Human Rights Application was also filed leveling similar allegations. Vide order dated 18.02.2011, this Court directed that both the Constitutional Petition No.11 of 2011 as well as the above-mentioned Human Rights Application be clubbed and heard together. The said matter was heard by this Court, notices were issued to the Const.P.91/2011, etc. 17 respondents therein and response solicited from the Government. Eventually, after several dates of hearing, upon an application of the petitioner in Constitutional Petition No.11 of 2011, the proceedings were withdrawn, vide Order dated 02.12.2011. Whereafter, the instant CP.No.91 of 2011 was filed also on behalf of citizens through an ASC whereupon proceedings commenced. Subsequently, CP.No.57 of 2012 was filed also challenging the award and implementation of the Contract dated 29.12.2009, wherein the petitioner a citizen is appearing in person. 17. In pith and substance, it is case of the petitioners that the entire transaction has been carried out in an illegal and unlawful manner causing a huge loss to the public exchequer. It was contended that a similar project was undertaken for the City of Karachi in the year 2008-2009 at a total cost of US$ 8 million. Furthermore, even as per the report of Planning Commission referred to in the Summary to the Prime Minister dated 07.06.2010, the net present value of the Project was @ US$ 72 million, while the Contract has been awarded for a total amount of US$ Const.P.91/2011, etc. 18 124.7 million. Furthermore, all Government Departments and concerned authorities other than the Ministry of Interior repeatedly indicated the cost of the project is atleast three times higher than the value of the equipment being supplied. It is added that the Contract in question was executed on 29.12.2009 when the PC-I had not even been prepared. 18. It is further contended that the Contract in question dated 29.12.2009 has been executed with a Foreign Company in the name of the President of Pakistan purportedly in terms of Article 173 of the Constitution of the Islamic Republic of Pakistan, 1973 without fulfilling the necessary requirements contemplated by the Rules of Business, 1974. It is submitted that the Contract has executed without consultation with the Ministry of Finance as required by Rule 12 of the Rules of Business, 1974, and also no approval by the Ministry of Law & Justice was obtained, as required by Rule 14 of Rules, 1974. 19. It is added that the entire exercise was carried out in a nontransparent manner without soliciting any proposal or issuing any tender for the Const.P.91/2011, etc. 19 Project in question. And in this behalf, the provisions of Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 were violated. It is submitted that there was no legal or factual basis for exempting the transaction from the provisions of the said law. Reference to Rule 42(c)(v) of PPRA Rules, 2004, in the Summary to the Prime Minister, is wholly misconceived, firstly, as there was no Emergency as defined in Rule 2(g) of the Public Procurement Rules, 2004, and secondly, admittedly, no declaration in this behalf by the necessary authority was ever made, as required by the proviso to Rule 42(c)(v) of the said Rules. Further contended that term “Emergency” is not even mentioned in the Summary and the allied documents. The learned counsels further submitted that there was no desperate urgency in the matter as the project had been conceived at least 3½ years prior to the execution of the Contract in question as has been mentioned in the Summary of Ministry of Interior dated 07.06.2010. Furthermore, an almost identical project in the City of Karachi has been executed after Const.P.91/2011, etc. 20 issuance of tender and following the procedure as has been laid down by the PPRA Ordinance and the Rules framed thereunder. 20. It is added that the entire exercise of the evaluation of the Project and the exemption of the PPRA Rules was mala fide inasmuch as the process was undertaken after the award of the Contract; that too without making any reference to the fact that the Contract in question had already been executed. 21. Mr. Raza Kazim, Sr. ASC, learned counsel for the respondent-NADRA, controverted the contentions raised on behalf of the petitioners. At the very out set, the learned counsel raised a preliminary objection as to the very maintainability of the instant Constitutional Petitions. It is the case of the said respondent that through the captioned petitions, no issue of public importance has been raised nor the enforcement of any fundamental right of the petitioners is involved. Consequently, the provisions of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, are not attracted. In this behalf, he further added that the petitioners are not Const.P.91/2011, etc. 21 aggrieved persons, hence, have no locus standi to maintain the instant constitutional petitions. 22. On merits, it is contended by the learned counsel that the Safe City Project was conceived as a consequence of a spate of terrorists attacks carried out across the Country in general and in and around Islamabad in particular. The Capital is replete with sensitive places and buildings, which are obviously on the hit list of the terrorists and therefore the city requires special security measures. In view of the sensitive nature of the equipment, services and software required, the Countries from which the same could be procured was limited with the People’s Republic of China, as the most obvious option. The details of the equipment and software could not be made public as in such an eventuality the terrorists could be enabled to adopt counter measures for evading detection. Thus, public tender soliciting bids would be a self defeating exercise. It is further added that the paucity of funds and limited available lines of credit did not help matters. And the funding for the Project was obtained from Export-Import Bank of Const.P.91/2011, etc. 22 China through a tied loan. The learned counsel by relying upon the statutes of the said Bank contended that the line of credit was only available for purchases from a Chinese company that too after a contract in this behalf had been executed in its favour. In the above circumstances, an open bidding process was an impossibility, consequently, exemption from the PPRA Rules was not only necessary but duly obtained from the competent authority in the best interest of the country. It is added that even after the execution of the Contract in question, the price was renegotiated and reduced. The suitability of the equipment and its value has been thoroughly examined at every level by the various officers of all the Departments concerned and found to be both appropriate and cost effective. It is added that the petitioners have failed to bring on record any material that similar equipment and software was available at a lesser price. The learned counsel strongly contested the comparison with the system installed at Karachi, as it was his case that the equipment and software to be procured through the Contract in question is far superior, more elaborate Const.P.91/2011, etc. 23 and sophisticated. It is added that an amount of over US$ 68 million has already been drawn by respondent-M/s Hauwei Technology Company Limited in terms of the Contract from the Export-Import Bank of China and if the Contract in question is struck down, and the transaction reversed, as is prayed for by the petitioners, a huge loss would be occasioned to the Government of Pakistan and the public exchequer. 23. The Attorney General appearing on behalf of the Federation of Pakistan has also controverted the contentions raised on behalf of the petitioners. He has, however, not disputed the jurisdiction of this Court nor supported the preliminary objection qua the maintainability of the petition raised on behalf of respondent-NADRA. He has, however, contended that the exemption from the PPRA Rules was rightly granted by the competent authority but unfortunately, the wrong provision of the law was quoted. In fact the matter is covered by Rule 42(c)(ii) of the Public Procurement Rules, 2004. It is added that the best possible equipment and software at the best possible price has been obtained in a transparent manner and Const.P.91/2011, etc. 24 this Court should not interfere therewith. It is further submitted that the transaction and Contract was critically examined by the various concerned departments of the Government and found to be in order. So much so the Contract was also sent to National Accountability Bureau (NAB) for its input in terms of Section 33 of the NAB Ordinance. And prays that the petitions be dismissed. In support of his contentions, learned Attorney General relied upon the judgment reported as Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116). 24. The learned counsel for respondent-M/s Hauwei Technology Company Limited has also vehemently controverted the contentions of the petitioners. It is his case that the instant petitions are mala fide and have been filed on the instigation of competitors of respondent-Hauwei Technology Company Limited. It is added that the said respondent was instrumental in facilitating the financing for the project through a concessional loan from Export-Import Bank of China. The said financial Const.P.91/2011, etc. 25 facility was project specific, hence, Rule 5 of the PPRA Rules was attracted, therefore, procurement through an open bidding process was neither permissible nor possible. The only course of action available for the consummation of the transaction was through direct contracting as has happened in the instant case. 25. The learned counsel has further contended that the best equipment and software at the most competitive price is being made available. And in view of the long term concessional loan facility, the cost of the project in real terms is even lower and it is this fact, which has been alluded to, while referring to the net present value of the Project. It is further contended that the implementation of the Contract is at an advanced stage with an amount of over US$ 68 million having already been drawn from Export- Import Bank by respondent-Hauwei Technology Company Limited and disbursed to third parties, therefore, recision of the Contract at this stage would cause grave inconvenience resulting in multiplicity of legal proceedings involving not only the respondents but also third parties. Const.P.91/2011, etc. 26 In support of his contentions, Mr. Afnan Karim Kundi, learned counsel for respondent-M/s Hauwei Technology Company has placed reliance on the judgment reported as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). 26. In rebuttal the counsel for the petitioner in CP.No.91 of 2011 and the petitioner in CP.No.57 of 2012 have submitted that the instant petitions have been filed by way of Public Interest Litigation by citizens of Pakistan. The matter involves public funds, which are in the process of being wasted so as to benefit a selected few at the expense of the public at large in a nontransparent and illegal manner. In such eventuality, it is contended, this Court is vested with the jurisdiction to entertain and adjudicate upon petitions under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, as has been consistently and repeatedly held by this Court. Furthermore, it is contended, that the PPRA Rules were squarely applicable and exemption therefrom has been obtained for extraneous reasons in a mala Const.P.91/2011, etc. 27 fide manner and violation of the said Rules is fatal for the Contract in question, which in law, is liable to be struck down and the transaction reversed. It is added that the payments allegedly drawn by respondent- Hauwei Technology Company Limited from the Export-Import Bank of China is or atleast should have been secured by a bank guarantee made available by the said respondent-Hauwei Technology Company Limited in terms of the Contract, therefore, nullifying the transaction would not result in any loss to the public exchequer. 27. Mr. Ather Minallah, learned ASC for the petitioner in CP.No.91 of 2011, in support of his contentions, placed reliance on the cases as: (1) Federation of Pakistan, etc. v. Province of Baluchistan, etc. (PLD 1975 SC 66), (2) The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), (3) Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632), (4) Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Const.P.91/2011, etc. 28 Executive/President of Pakistan and another (PLD 2003 SC 74), (5) Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others (PLD 2004 SC 583), (6) All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600), (7) Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697), (8) Jamat- e-Islami through Amir and others v. Federation of Pakistan and others (PLD 2008 SC 30), (9) Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61*), (10) Suo Motu Case No.5 of 2010, action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract (PLD 2010 SC 731), (11) Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010, action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad (PLD 2010 SC Const.P.91/2011, etc. 29 759), (12) Bank of Punjab and another v. Haris Steel Industries (Pvt) Ltd. and others (PLD 2010 SC 1109), (13) Suo Motu Case No.13 of 2009, action on press clipping from the Daily “Patriot”, Islamabad dated 4-7- 2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E- 11 Islamabad (PLD 2011 SC 619), (14) Corruption in Hajj arrangements in 2010, in the matter of Suo Motu Case No.24 of 2010 and Human Rights Cases (PLD 2011 SC 963), (15) Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), (16) Syed Zulfiqar Mehdi and others v. Pakistan International Airlines Corporation through M.D., Karachi and others (1998 SCMR 793), (17) Non-Transparent Procedure of Purchase of 150 Locomotives by Ministry of Railways Resultantly Causing 40 Billion Losses to the National Exchequer, Suo Motu Case No.7 of 2011 (2012 SCMR 226), (18) Alleged Corruption in Rental Power Plants etc, Human Rights Case (2012 SCMR Const.P.91/2011, etc. 30 773), and (19) Kedar Nath Motani and others v. Prahlad Rai and others (AIR 1960 SC 213). 28. Mr. Babar Sattar, Advocate-petitioner-in- person in support of his arguments placed reliance on the cases of (1) Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), (2) Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394), (3) Suo Motu Case No.5 of 2010, action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract (PLD 2010 SC 731), (4) Human Rights Cases regarding action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad (PLD 2010 SC 759), (5) PAKCOM Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44), (6) Suo Motu Case No.13 of 2009, action on press clipping from the Daily “Patriot”, Islamabad dated 4-7-2009 regarding Joint Venture Agreement between CDA and Multi- Professional Cooperative Housing Society (MPCHS) for Const.P.91/2011, etc. 31 development of land in Sector E-11 Islamabad (PLD 2011 SC 619), (7) Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), (8) Alleged Corruption in Rental Power Plants etc, Human Rights Cases (2012 SCMR 773), (9) Ramana Dayaram Shetty v. The International Airport Authority of India and others (AIR 1979 SC 1628), (10) Ajay Hasia etc v. Khalid Mujib Sehravardi and others (AIR 1981 SC 487), (11) Tariq Aziz-ud-Din and others, in Human Rights Cases [2011 PLC (CS) 1130], (12) Reliance Energy Ltd. and another v. Maharashtra State Road Development Corpn. Ltd. and others [(2007) 8 SCC 1]. 29. Adverting first to the preliminary objection raised by the learned counsel for the respondent- NADRA as to the maintainability of the petitions under Article 184(3) of the Constitution as in his view no issue regarding enforcement of the fundamental rights of the petitioners is involved nor any question of public importance has been raised. 30. With the passage of time, the scope of jurisdiction of this Court under Article 184(3) of the Const.P.91/2011, etc. 32 Constitution has steadily evolved and expanded with its contours now well established through the successive judgments handed down by this Court. It has been declared that such jurisdiction is not a closed shop limited to adversarial proceedings to be initiated by a wronged litigant seeking redressal of his individual grievance. The rule of locus standi has gradually been relaxed so as to include enforcement of the Constitutional rights of groups or class of persons, and public at large especially in the domain of Public Interest Litigation to ensure a meaningful protection of the Rule of Law to all citizens, as has been laid down in judgments reported as Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455) and Muhammad Yaseen v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132)]. Const.P.91/2011, etc. 33 31. Public funds, public property, licenses, jobs or any other government largesse is to be dealt with by public functionaries on behalf of and for the benefit of the people. Public authority must necessarily be examined in accordance with law keeping in view the Constitutional Rights of the citizens. Thus, this Court has not hesitated in the exercise of its jurisdiction of judicial review conferred by Article 184(3) of the Constitution to scrutinize matters where public money is being expended through procurement or public property is being sold, so as to ensure that transactions are undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality. In this behalf, this Court in a judgment reported as Suo Motu Case No.13 of 2009 (PLD 2011 SC 619), held as follows: “24. It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review Const.P.91/2011, etc. 34 the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. …” 32. It was further held as follows: “… The Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory.” 33. This jurisdiction has been exercised consistently and repeatedly by this Court to scrutinize transactions undertaken by the Government so as to ensure that public money and public property is not squandered or stolen. Reference in this regard may be Const.P.91/2011, etc. 35 made to Suo Motu Case, action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract (PLD 2010 SC 731), Human Rights Cases, action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad (PLD 2010 SC 759), Non-Transparent Procedure of Purchase of 150 Locomotives by Ministry of Railways Resultantly Causing 40 Billion Losses to the National Exchequer, Suo Motu Case (2012 SCMR 226), Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455), and Alleged Corruption in Rental Power Plants etc, Human Rights Case (2012 SCMR 773). 34. In the above circumstances, the objection raised by the counsel for the respondent-NADRA regarding the maintainability of the instant petitions is misconceived and overruled. 35. The matter at hand pertains to the procurement of goods and services, in the public sector, by way of the Contract in question, by the Ministry of Interior, for a rather large sum of money, Const.P.91/2011, etc. 36 to be paid by the public exchequer. In order to ensure transparency and accountability, the Public Procurement Regulatory Authority Ordinance, 2002, have been promulgated whereunder the Public Procurement Rules, 2004, have been made, which are admittedly applicable to the transaction in question. Rule 3 specifically provides that the same are applicable to procurements by all procuring agencies of the Federal Government made whether within or outside Pakistan. Thus, obviously, the rules apply to Contracts for the procurement of good and services from outside the country, as is proposed to be done through Contract in issue. The method of procurement has been spelt out in great detail including through the issuance of public advertisement and envisaging an open bidding process. It is an admitted fact that such procedure of an open bidding was not employed by invoking the exemption therefrom in terms of Rule 42(c)(v) ibid. A summary in this behalf mentioning the aforesaid provision was submitted by the Ministry of Interior and reportedly approved by the Prime Minister. It is Const.P.91/2011, etc. 37 the case of the petitioners that Rule 42(c)(v) ibid was inapplicable to the facts of the case, hence, the exemption granted is illegal. 36. Rule 42(c)(v) of the Public Procurement Rules, 2004, reads as follows: “42(c):- Alternative methods of procurements. - A procuring agency may utilize the following alternative methods of procurement of goods, services and works, namely:- …” “(v) in case of an emergency : Provided that the procuring agencies shall specify appropriate fora vested with necessary authority to declare an emergency.” 37. The word “emergency” has been defined in Rule 2 (1)(g) of the Rules, 2004, which is as under: “2(1)(g):- “emergency” means natural calamites, disasters, accidents, war and operational emergency which may give rise to abnormal situation requiring prompt and immediate action to limit or avoid damage to person, property or the environment.” 38. The summary in question dated 02.07.2010 as well as the communications, minutes of meetings, preceding the same and the approval that followed has been examined. No reference whatsoever has been made to any natural calamity, disaster, accident, war Const.P.91/2011, etc. 38 or operational emergency whatsoever. It has also been noticed that the procuring agency i.e. Ministry of Interior did not specify the appropriate fora vested with the necessary authority to declare emergency nor it is the case of the respondents that any such declaration has been made. Incidentally the word “emergency” is conspicuous by its absence in the said summary and the other allied documents. In fact, it has been specifically mentioned that the project had been conceived about 3 and half years ago, thereby excluding the possibility of an emergent situation. Thus, by no stretch of the imagination were the provisions of Rule 42(c)(v) ibid attracted to the facts and circumstances of the case. It has also been noticed that the Contract in question had already been executed on the 29th of December, 2009, while the summary in question is dated 2nd of July, 2010 i.e. after the event, without even mentioning the aforesaid fact. The entire exercise appears to be farcical. It is a classic case of pleading the law to defeat the law. In fact the invoking of Rule 42(c)(v) ibid was so divorced from reality that the learned Attorney Const.P.91/2011, etc. 39 General and learned counsels for the respondents found themselves unable to defend the same and attempted to seek refuge under various other provisions of the PPRA Ordinance, 2002, and PPRA Rules, 2004, thereby tacitly conceding that the exemption has been granted for extraneous reasons as no other provision of the law finds mention in the summary and allied documents or the approval. 39. The learned Attorney General has referred to Rule 42(c)(ii) of Public Procurement Rules, 2004, which reads as follows: “42(c)(ii):- only one manufacturer or supplier exists for the required procurement : Provided that the procuring agencies shall specify the appropriate fora, which may authorize procurement of proprietary object after due diligence.” There is nothing on the record to indicate that M/s Hauwei Technology Company Limited has a worldwide monopoly of the surveillance equipment and software, subject-matter of the Contract in dispute. In fact, it is not even the case of the respondent-M/s Hauwei Technology Company Limited that they have any such monopoly or exclusivity. In fact, it has been indicated Const.P.91/2011, etc. 40 to us that various other Chinese companies were in a position to offer similar goods and services. The entire market, both national and international, was never taped. There is also no reference to such exclusivity or monopoly in the context of the requirement of NADRA/Ministry of Interior or mentioned in the summary nor such assertion have been made by the learned counsel for the respondent-NADRA before us. 40. The learned counsel for the respondents NADRA and M/s Hauwei Technology Company Limited variously contended that the equipment and the software subject matter of the Contract in issue pertains to matters of internal security, therefore, public advertisement was not possible or permissible in view of Rule 14(a) of the PPRA Rules, 2004. And the financing for the project was to be provided through a tied concessional loan by the Export-Import Bank of China, which was project specific, hence, the Rules were not applicable in view of Rule 5 of the PPRA Rules, 2004, which state that in case of International Contract the same shall prevail in case of any conflict with the Rules. Const.P.91/2011, etc. 41 41. The contentions of the learned counsel do not appear to be well-founded, firstly, it was never the case of the sponsoring agency i.e. Ministry of Interior that exemption may be granted from the Rules in question in view of the provisions of Rule 5 or 14 of the PPRA Rules, 2004, which find no mention in the summary dated 2nd of July, 2010 or any allied document or the eventual approval. There was admittedly no conscious application of mind at the time of the grant of the approval by the Prime Minister that Rule 5 or 14 ibid or both were applicable to the transaction in question. 42. This Court is not insensitive to the fact that we live in difficult times, when compulsions of State Security may require to be taken into account. It is to safeguard the said compelling interest of the State that Rule 14(a) of the Public Procurement Rules, 2004 has been framed, which reads as under:- 14. Exceptions.- It shall be mandatory for all procuring agencies to advertise all procurement requirements exceeding [prescribed financial limit which is applicable under sub-clause (i) of clause (b) of rule 42]. However under following circumstances deviation from the requirement is permissible with the prior approval of the Authority,- Const.P.91/2011, etc. 42 (a) the proposed procurement is related to national security and its publication could jeopardize national security objectives; 43. An analysis of the aforesaid Rule reveals that it commences with a declaration that it is mandatory to advertise all procurement requirements exceeding a specified amount, whereafter an exception has been created permitting a deviation. It has been noted that the said Rule does not perceive of an exemption from the Rules and the necessity of public advertisement but only a deviation. Like all exceptions, it must be construed strictly keeping in view the proportionality of the requirement for such deviation. 44. It has also been noticed that the Government of the Province of Sindh undertook a project of the surveillance system through an open bidding process. Requests For Proposals (RFPs) for such surveillance system for project for various cities are regularly posted on the internet soliciting interested parties to submit their proposals. Such Request for Proposals in respect of City of Mumbai, City of Oakland - USA, City of Chattanooga - USA, City of Minneapolis - USA and Const.P.91/2011, etc. 43 St. Louis - USA have been placed on the record by the petitioner in CP.No.57 of 2012. The learned counsel for the respondents have been unable to persuade us that it was impossible to ensure transparency and competitiveness through an open bidding process by inviting proposals publicly as was done in the case of Karachi and as is the common practice followed internationally as is evident from the Requests For Proposals solicited by various cities in India and the United States of America referred to by the petitioner. A public advertisement could have been tailored so as not to compromise security consideration. 45. Rule 14 of the PPRA Rules, 2004, also requires that such deviation is permissible only with the prior approval of the Authority i.e. the Authority constituted under Section 3 of the Public Procurement Regulatory Authority Ordinance, 2002. In the instant case, no such approval later or prior was ever obtained from the Authority with regards to the Contract in question. Needless to say that grant of such approval by the Authority would obviously be justiceable. Similarly, the mere raising of a specter of Internal Const.P.91/2011, etc. 44 Security would not curtail the jurisdiction of this Court to insist on the implementation of the PPRA Rules, 2004, as an assertion in this behalf is always subject to judicial review. 46. Similarly, reference to Rule 5 of the PPRA Rules, 2004, also does not appear to be relevant. An attempt has been made by the learned counsel for the respondents to show that the Contract in dispute comes within the purview of Rule 5 ibid as it is an “international” Contract in between the Government of Pakistan and a Chinese Company. Rule 5 ibid reads as follows: “5. International and inter- governmental commitments of the Federal Government.- Whenever these rules are in conflict with an obligation or commitment of the Federal Government arising out of an international treaty or an agreement with a State or States, or any international financial institution the provisions of such international treaty or agreement shall prevail to the extent of such conflict.” 47. The examination of the aforesaid Rule in juxtaposition with Rule 4 of the PPRA Ordinance, 2002, makes it clear and obvious that the same does not apply to a Contract entered into by the Const.P.91/2011, etc. 45 Government of Pakistan and the manufacturer or provider of goods and services based outsides the country as Rule 4 ibid clearly provides that the said rules apply to all procurement by the Federal Government whether from within or outside Pakistan. Furthermore, on the date of the execution of the Contract in dispute i.e. 29th of December, 2009, no other agreement was in the field. 48. The Loan Agreement dated 17.12.2010 also does not attract Rule 5 ibid as the Export-Import Bank of China is not an international financial institution. The latter term has not been defined in the Rules of 2004 or the Ordinance, 2002 whereunder the same were framed and therefore must be given its ordinary meaning as used in common parlance. The term refers to an International Organization and not a commercial bank based abroad. Reference is perhaps being made to the World Bank, the Asian Development Bank, International Monetary Fund and International Finance Corporation, etc. 49. The only agreement that too executed after the event to which Rule 5 of the PPRA Rules, 2004, Const.P.91/2011, etc. 46 may apply is the Framework Agreement dated 17.12.2010 executed inter-se the Government of Pakistan and the Government of the People’s Republic of China. A scrutiny of the said Framework Agreement reveals that there is no obligation or commitment cast upon the Government of Pakistan pertaining to procurement from the proceeds of the concessional loans to be granted. There is nothing inconsistent in the said Framework Agreement with Rule 5 ibid so as to prohibit issuance of a public advertisement inviting bids for the project in hand. In fact, there is no reference in the said Framework Agreement to the respondent-M/s Hauwei Technology Company Limited or the Contract dated 29th of December, 2009. 50. Even otherwise, it has not been disputed by the learned counsels for the respondents that the concessional loan facility would have been made available to any other Chinese company and was not specific to the respondent-M/s Hauwei Technology Company Limited. 51. There is yet another aspect of the matter. The Contract in question was executed without any Const.P.91/2011, etc. 47 feasibility study as is obvious from the Report dated 26.03.2010 of the Technical Sub-Committee, whereby in paragraph (iv) thereof it has been stated that the work should have been done after a proper feasibility study. 52. It has also been mentioned in the minutes of the meeting of the above-said Technical Sub- Committee dated 26.03.2010 that the cost of the equipment is almost three times the cost of the comparable equipment available in the market. Similarly, the cost of the software quoted was also higher in the same range of 1:3. The said Sub- Committee estimated the cost of the project to be US$ 78 million. Thus, the cost of the project appears to be atleast suspicious if not inflated especially in the absence of any due diligence conducted by the Ministry of Interior or any other Government Department so as to ascertain the competitiveness of the offer qua the cost of the equipment and software in the open market. No material has been made available by the respondents in this behalf to this Court, even during the course of the proceedings. Const.P.91/2011, etc. 48 53. The constant refrain of the Planning Commission and the Ministry of Information Technology that Request For Proposal (RFP) be issued and bidding be effected at least inter-se Chinese companies, which finds mentioned in the documents, was ignored and eventually silenced. Thus, not only the Contract dated 29.12.2009 was entered into in violation of the law in a nontransparent manner but was also at a cost which to say the least is suspicious if not vastly inflated. 54. The learned counsel for the respondents as well as the Attorney General for Pakistan have laid great emphasis on the fact that allegedly a sum of over US$ 68 million has already been disbursed and interference by this Court may have serious pecuniary consequences for the Government and also result in exposure to multiple litigation. We are afraid, if the contentions of the learned counsels are accepted, we would open the door to illegalities, arbitrariness and the squandering of public wealth. Public functionaries merely by making a large upfront payment on the execution of an agreement would present this Court Const.P.91/2011, etc. 49 with a fait accompli perpetuating an illegality which cannot be countenanced. 55. The upshot of the above discussion is that the Contract dated 29.12.2009 is illegal and invalid having been executed in violation of the mandatory provisions of the Public Procurement Rules, 2004, as the exemption therefrom purportedly granted under Rule 42 (c)(v) ibid was based on extraneous and irrelevant reasons and therefore of no legal effect or consequence. The entire transaction was carried out in a nontransparent manner and for a cost which appears to be inflated. Consequently, the respondent- Government is directed to reinitiate the process for the procurement of the required equipment, software and services in a fair, just, rational and transparent manner, strictly in accordance with the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 and the law. Needless to say that the respondent-Company would be at liberty to participate in such de novo process of procurement. Const.P.91/2011, etc. 50 The respondent-Government shall also take all necessary steps permitted by law to safeguard and protect itself from any liability under the Contract dated 29.12.2009. 56. Constitutional Petitions No.91 of 2011 and 57 of 2012 are allowed in the above terms. Consequently, the CMA No.2624 of 2011 is disposed of accordingly. 57. Let a copy of this judgment be sent to the Chairman, National Accountability Bureau, who shall ensure that appropriate proceedings are initiated in accordance with law. Judge Judge Judge Islamabad, Announced on the _______ day of August, 2012. ‘Approved for Reporting’ *Mahtab* Judge

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZEHEER JAMALI, CJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE KHILJI ARIF HUSSAIN CONSTITUTION PETITION NO.97 of 2014. Ishtiaq Ahmed. …..Petitioner Versus Hon’ble Competent Authority thr. Its Registrar, Supreme Court of Pakistan …Respondent For the petitioner(s): Mr. Hamid Khan, ASC. Mr. M .S.Khattak, AOR. On Court’s notice: For the Federation: Mr. Sohail Mehmood, DAG For the Balochistan: Mr. Ayaz Khan Swati, Addl. A.G. For the KPK: Mr. Abdul Latif Yousafzai, A.G. For the Punjab: Mr. Muddassar Khalid Abbasi, Asstt.AG For the Sindh: Mr. Sheryar Qazi, Addl. A.G. Date of hearing: 13.01.2016. JUDGMENT Khilji Arif Hussain, J. The petitioner served as Private Secretary in the Supreme Court of Pakistan. Through this Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 he prayed that Rule 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules 1982 (hereinafter referred to as the Rules, 1982) and Rule 17 of the Supreme Court Establishment Service Rules, 2015 (hereinafter referred to as the Rules, 2015) be declared ultra vires and the appeal of the petitioner (DSA No. 1 of 2011) may kindly be allowed to engage a counsel of his own choice. 2. Brief facts to decide this petition are that the petitioner while serving as Private Secretary of this Court at his own request was sent on deputation to the Office of the Federal Tax Ombudsman on 10.6.2005. His deputation period was extended from time (Const.P.No.97/14) 2 to time and was eventually expired on 9.6.2010. While he was posted in the Regional Office of Federal Tax Ombudsman at Lahore, he was temporarily attached with the Regional Office at Quetta vide order dated 13th January, 2010 and was relieved from Lahore on 16.1.2010 to join his new place of posting at Quetta. However, he did not report for duty rather submitted application for leave on the ground of his illness. On 10.6.2010 he submitted joining report to this Court but he was not allowed to join this Court and was directed by Memorandum dated 26.6.2010 to obtain relieving order from borrowing department (FTO). The Federal Tax Ombudsman by his report dated 13.7.2010 stated that the petitioner had remained absent from duty since 16.1.2010 and the medical certificates submitted by him for grant of leave were not valid and were not accepted by the Office necessitating disciplinary action against him by the parent department for misconduct, insubordination and obstruction of public work. It appears from the record that Hon’ble Chief Justice of Pakistan directed that as the alleged misconduct had been committed during the deputation period, therefore, the borrowing department shall initiate disciplinary action and shall report its findings to this Court. Accordingly the Inquiry was conducted against the petitioner by the borrowing authorities. He was found guilty of misconduct on the basis of said report, therefore, Show Cause Notice was issued and eventually the petitioner was dismissed from service with effect from 7.3.2011 vide order dated 8.3.2011. The petitioner filed departmental appeal which was heard and dismissed on 19.2.2014 by three senior most Judges of this Court. 3. Through this petition the petitioner questioned Rule 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules 1982 and Rule 17 of the Supreme Court Establishment Service Rules, 2015 being violative of fair trial. 4. Mr. Hamid Khan, learned ASC for the petitioner contended that Rule 13 of the Rules, 1982 and Rule 17 of the Rules, 2015 are ultra vires to principle of fair trial and violative of Article 10-A of the Constitution of Islamic Republic of Pakistan and as such liable to be declared ultra vires and order passed by the Appellate Forum constituted under Rule 17 of the Rules, 2015 may be set-aside and petitioner may be allowed to appear (Const.P.No.97/14) 3 before the said forum through his counsel. In support of his contention, the learned counsel for the petitioner relied upon Aslam Ali Shah vs. Collector of Central Excise and Land Customs (1983 PLC [CS] 498), Collector Excise and Land Customs vs. Aslam Ali Shah (PLD 1985 SC 82), Muhammad Saeed Ahmed Khan vs. Secy. to Govt. of Pb., Housing & Planning Deptt. (PLD 1983 Lahore 206), Faisal vs. State (PLD 2007 Karachi 544), Baz Muhammad Kakar vs. Federation of Pakistan (PLD 2012 SC 923), Pett vs. Greyhound Racing Assocn., Ltd. (1968 [2] AER 545) and Board of Trustees, Port of Bombay vs. Dilipkumar (AIR 1983 SC 109). 5. Learned Deputy Attorney General, Additional Advocate General, KPK, Assistant Advocate General, Punjab and Additional Advocate General Sindh opposed the petition and contended that the Rule framed by this Court is not violative under Article 10A of the Constitution and Constitution Petition merits dismissal. 6. We have taken into consideration the arguments so raised by the parties and perused the record. From the perusal of the record it appears that the petitioner while serving as Private Secretary of this Court, at his own request, was sent on deputation to the Office of Federal Tax Ombudsman on 10.6.2005 which period was extended from time to time. On 13.1.2010 Federal Tax Ombudsman ordered his temporarily attachment with the Regional Office, Quetta. He was relieved from his office at Lahore on 16.1.2010 to join his new place of posting. However, he did not report for duty rather submitted applications for leave on the ground of illness. On 10.6.2010 eventually his deputation period expired and he submitted joining report to this Court. Petitioner was not allowed to join and was directed to obtain his relieving order from the borrowing department. Since the alleged misconduct had been committed during the deputation period, the Hon’ble Chief Justice of Pakistan directed that the borrowing department shall initiate disciplinary action and report his findings to this Court. The inquiry was directed against the petitioner by the borrowing authorities and found guilty of misconduct and report was submitted to this Court. After he joined this Court a final Show Cause Notice under Rule 4-5 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 was served upon the petitioner on 20.1.2011. He was required to explain his position (Const.P.No.97/14) 4 within 14 days from the date of issue of notice and to show cause why major penalty of dismissal from service under rule 4(1)(b)(d)(b)(iv) of the Rules, 1982 may not be imposed upon him. The petitioner submitted his reply to show cause notice and requested that the departmental proceeding initiated against him by the Federal Tax Ombudsman Secretariat may be dropped and show cause notice issued on the basis of the same may be withdrawn. On 7.3.2011 the competent authority after taking into consideration all aspects of the matter awarded major penalty under Rule 4(1)(b)(d)(b)(iv) of the Rules, 1982 and dismissed the petitioner from service as the charges of remaining absent from the duty were fully established. The petitioner being aggrieved by the order filed Appeal under Section 11 of the Rules, 1982 and prayed that the impugned order of dismissal from service of the petitioner may be set-aside and petitioner may be reinstated into service with all consequential benefits. It appears that the petitioner also filed an application that he may be allowed to represent through counsel. 7. The appeal filed by the petitioner came up for hearing before a Bench of three available senior most Judges of this Court in terms of Rule 11 of Rules, 1982. His request that permission to be represented through counsel was declined in view of bar contained under Rule 13 of the Rules, 1982. After hearing the petitioner and taking into consideration his submissions relating to his illness, his appeal was dismissed vide order dated 19.2.2014. The petitioner filed Review petition against the said Order. In order to appreciate contentions of learned counsel for the petitioner that Rule 13 of the Rules, 1982 and Rule17 of the Rules, 2015 are ultra vires of the Constitution, we will like first to reproduce Rules 8, 11, 12 and 13 of the Rules, 1982 and Rules 13,14 and 17 of the Rules, 2015:- “Rule 8 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982.- To impose penalty on the Registrar. The Chief Justice alone shall have power to impose a penalty on the Registrar of the Court and where an inquiry is held against him the Inquiry Officer shall submit his findings to the Chief Justice. Rule 11. Appeal. Where any penalty is imposed by the Registrar, an appeal shall lie from his order to the Chief Justice, and where any penalty is imposed by the (Const.P.No.97/14) 5 Chief Justice, otherwise than on appeal from an order of the Registrar, an appeal shall lie from his order to a Bench of three available senior most Judges of the Court. Rule 12. Limitation. An appeal under rule 11 shall be filed within thirty days from the date of the order complained of. Rule 13. Advocates Bar to appear. At no stage of the proceedings under these Rules, the person concerned shall be represented by an Advocate.” AND Rule 13 of the Supreme Court Establishment Service Rules, 2015.- Imposition of penalty on the Registrar.- The Chief Justice alone shall have power to impose a penalty on the Registrar of the Court and where an inquiry is held against him, the Inquiry officer shall submit his findings to the Chief Justice. Rule 14 Appeal.- Where any penalty is imposed by the Registrar, an appeal shall lie from his order to the Chief Justice, and where any penalty is imposed by the Chief Justice, otherwise than on appeal from an order of the Registrar, an appeal shall lie from his order to a Bench of three available senior most Judges of the Court. Rule 17. Bar against appearance of counsel. At no stage of the proceedings under these Rules, the person concerned shall be represented by an Advocate”. 8. The above noted rules are in line with Rule 10A of the Government Servant (Efficiency and Discipline) Rules, 1973 and Rule 18 of Punjab Employees Efficiency, Discipline and Accountability Rules, 2006 which, for ease of reference, are reproduced as under: “Rule 10A of the Government Servants E&D Rules, 1973. Appearance of Counsel.- No party to any proceedings under these rules before the authority, the authorized officer, and Inquiry Officer or an Inquiry Committee shall be represented by an advocate. Rule 18. The Punjab Employees Efficiency, Discipline and Accountability Act, 2006. Appearance of Counsel.- The accused, at no stage of the proceedings under this Act, except proceedings under section 19, shall be represented by an advocate”. 9. It is, by now, well settled that in domestic inquiries employees of the respective organizations are not allowed to be represented through their counsel except where the Inquiry Officer appointed by the competent authority is a legally trained person (Const.P.No.97/14) 6 as held in the case of Board of Trustees, Port of Bombay vs. Dilipkumar (AIR 1983 SC 109). The question which needs to address, because in domestic inquiries petitioner has been denied to represent through counsel amount to denial of fair trial. 10. In the year 1993, an employee of the Supreme Court was removed from service by the then Hon’ble Chief Justice of Pakistan by order dated 1.9.1993 as a result of disciplinary proceedings initiated against him under Rule 4 of the Supreme Court Rules, 1982. He filed a review petition against the order dated 1.9.1993 before the Hon’ble Chief Justice of Pakistan, under Rule 11 of the Rules but the same was rejected on 9.11.1993. He thereafter preferred a service appeal before Federal Service Tribunal, Islamabad, under section 4 of the Service Tribunals Act, 1973 which was allowed on merits after overruling the preliminary objection raised in the appeal to the jurisdiction of the Tribunal to entertain appeal in respect of the employees of the Supreme Court of Pakistan, by order dated 10.7.1994. Leave was granted in the above appeal to consider the question, whether the view taken by the Federal Service Tribunal that persons serving in the Supreme Court of Pakistan are ‘Civil Servants’ and thus a dispute relating to the terms and conditions of service of such persons is amenable to the jurisdiction of Service Tribunal, is in consonance with law. The Court ultimately held as under:- “In the case before us, it is not disputed that the Supreme Court of Pakistan has framed the Rules under Article 208 of the Constitution which governed the terms and conditions of appointment of officers and servants of the Supreme Court of Pakistan. It is also not disputed that the respondent in the case was appointed as Research and Reference Officer in the Supreme Court of Pakistan under these Rules. Since the service of the respondent was not governed under any Act of Majilis-e- Shoora passed under Article 240 of the Constitution and terms and conditions of his service were regulated under the Rules directly framed in pursuance of Article 208 of the Constitution, he could not fall in the category of a civil servant as defined in the Civil Servants Act, 1973 in view of the rule laid down in the case of Government of Punjab v. Mubarik Ali Khan supra. Consequently, the appeal of respondent which related to the terms and conditions of his service was not cognizable by the Federal Service Tribunal. The appeal is, accordingly, accepted and (Const.P.No.97/14) 7 the order passed by the Service Tribunal is set aside. Before parting with the case, we would however, like to mention here that Rule 11 of the Rules bars any appeal against the penalty which may be imposed by the Hon’ble Chief Justice of Pakistan on the employees of the Supreme Court. This rule, in our view, does not conform to the law laid down by the Shariat Appellate Bench of this Court in the case of Federation of Pakistan v Public at Large (PLD 1988 SC 202) and Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) wherein it was declared that under the Islamic dispensation of justice at least one right of appeal must be provided to an aggrieved person and that the law barring such right to an aggrieved person is repugnant to the injunctions of Islam. We would accordingly, recommend that the provisions of Rule 11 of the Rules may be amended suitably to bring it in accordance with the aforesaid decision. The appeal stands disposed of with those observations.” 11. In the light of the directions/observations made in the said case, the Rule 11 was amended to the following effect:- “11. Where any penalty is imposed by the Registrar, an appeal shall lie from his order to the Chief Justice, and where any penalty is imposed by the Chief Justice, otherwise than on appeal from an order of the Registrar, an appeal shall lie from his order to the Bench of three available senior most judges of the Court.” 12. Access to justice has been defined as an equal right to participate in every institution where law is debated, created, found, organized, administered interpreted and applied. Broadly it has been described as “an integral part of the rule of law in constitutional democracies and is a hallmark of civilized society”. There can be no analytical, all comprehensive or exhaustive definition in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said deprived the quality of fairness to a decree where a miscarriage of justice has resulted. In the instant Constitution Petition the petitioner has failed to address our intention that how a prejudice has been caused by the Appellate Forum constituting of three senior most available Judges of this Court merely because he has been denied the right of representation through a counsel. The issue before the forum was whether there was any (Const.P.No.97/14) 8 justification available for his long absence from the duty against the documents produced by the parties and after taking into consideration the order of the dismissal passed by the Hon’ble Chief Justice of Pakistan imposing major penalty, the petitioner has not alleged any basis, prejudicial or partisan against any member of the Bench who heard the appeal. 13. The order passed by a three Member bench of this Court, while exercising power under rule 11 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 and rule 17 of the Supreme Court Establishment Service Rules, 2015 as domestic Tribunal, is not and cannot be equated to an order passed by this Court under Article 184 of the Constitution of Pakistan and an aggrieved person, if so advice, can question the same before the competent forum. 14. In this view of the matter this Constitution Petition has no merits and is accordingly dismissed. Sd/- Chief Justice I respectfully concur with the conclusion arrived by my learned brother Khilji Arif Hussain, J., in terms of my additional note. Sd/- Judge Sd/- Judge Announced in open Court at Islamabad, On 14.03.2016. NOT APPROVED FOR REPORTING. Saeed Aslam (Const.P.No.97/14) 9 Umar Ata Bandial, J. – I have had the privilege of reading the opinion rendered by my learned brother Khilji Arif Hussain, J. which cogently sets out the grounds for declining the relief prayed by the petitioner. In this behalf, I may respectfully record my agreement with the conclusion arrived by my learned brother. Notwithstanding that, it may be useful to briefly consider the limitations imposed, upon disciplinary proceedings initiated under statutory rules and procedure, by the constitutional rights of an accused to be given due process and fair trial conferred by Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”) and his right of access to justice emanating from Article 9 of the Constitution. These rights are invoked by the petitioner as a basis to challenge the bar contained in the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 (“the SC Rules, 1982”) preventing his representation through counsel before the appellate forum adjudicating his appeal against the order of his dismissal from service passed on 08.03.2011 by the competent authority under the said rules. 2. The SC Rules, 1982 have recently been repealed and replaced by the Supreme Court Establishment Rules, 2015 (“the SC Rules, 2015”). Both sets of Rules, however, make identical provision with regard to the remedy of appeal against an order imposing a disciplinary penalty; and also for imposing an embargo on an accused officer or staff member from being represented by counsel at any stage of the proceedings under the respective Rules. The relevant provisions of the SC Rules, 1982 which are germane to the facts of the petitioner’s case are reproduced herein below for facility of reference: “Rule 11. Appeal. Where any penalty is imposed by the Registrar, an appeal shall lie from his order to the Chief Justice, and where any penalty is imposed by the Chief Justice, otherwise than on appeal from an order of the Registrar, an appeal shall lie from his order to a Bench of three available senior most Judges of the Court. Rule 13. Advocate Bar to appear. At no stage of the proceedings under these Rules, the person concerned shall be represented by an Advocate.” (Const.P.No.97/14) 10 The remedy of appeal against an order of dismissal from service provided under the SC Rules, 1982 to an officer of the Supreme Court lies before a forum comprising three senior Judges of the Court. Appellate fora that are constituted by disciplinary rules are often described as ‘domestic’ tribunals. The civil servants working in the Federal Government and the Provincial Governments are by their corresponding disciplinary laws also provided a remedy of appeal against imposition of penalty before domestic appellate fora. This is plain from the provisions of Rule 10 of the Government Servants (Efficiency & Discipline) Rules, 1973 (“E&D Rules”) and also from Section 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (“PEEDA”) which shows consistency of the SC Rules, 1982 with corresponding laws providing the disciplinary legal framework for civil servants. 3. Another common feature of the proceedings under the SC Rules, 1982, the E&D Rules and PEEDA is that each of these laws bars an accused officer from being represented by an advocate at any stage of the proceedings taken under the aforementioned laws. Thus the aforesaid bar contained in Rule 13 of the SC Rules, 1982, is also mirrored in Rule 10A of the E&D Rules and Section 18 of the PEEDA. It may also be noted that the domestic appellate proceedings under the said laws are not governed by the procedural laws that relate to the proceedings of Courts of law in the holding of trials or for the exercise of their jurisdictions. In this sense, the proceedings of a domestic forum of appeal are intended to be less formal, flexible and quicker. Nevertheless, the mode and manner of proceedings of these fora are not entirely discretionary but are regulated, in the first instance, by the rules laid down in or referred by the enabling law. It is settled generally that such rules must conform the substantive and procedural safeguards mandated by the constitutional rights of due process, fair trial and access to justice. These rights stand incorporated into the applicable rules by constitutional command and through judicial decree specifying the requirements prescribed for the enforcement of these rights of a citizen who is facing allegations about his service record before fact finding or resolutory fora governed by disciplinary rules. It remains to be seen whether the above said regulatory legal framework for disciplinary proceedings also entitles an accused officer (Const.P.No.97/14) 11 to be represented through a counsel, inter alia, before a domestic appellate forum established by the applicable enabling law. 4. The right of due process is not new to our jurisprudence and finds expression in the provisions of Article 4 of the Constitution. This right has been interpreted by this Court in several pronouncements. The case of New Jubilee Insurance Company vs. National Bank of Pakistan (PLD 1999 SC 1126) summarizes the features of that right very aptly. It is held that the right of due process requires that a person shall have notice of proceedings which affect his rights; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess competent jurisdiction. Insofar as the right of fair trial under Article 10A of the Constitution is concerned, in Suo Moto Case No.4 of 2010 (PLD 2012 SC 553) that right has been interpreted to ensure the grant of a proper hearing to an accused person by an unbiased competent forum; that justice should not only be done but be seen to be done. The above noted features of this right share attributes associated with the fundamental right of access to justice enunciated by this Court in Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416 at page-489), Al-Jehad Trust vs. Federation of Pakistan (PLD 1996 SC 324) and reiterated in Liaquat Hussain vs. Federation of Pakistan (PLD 1999 SC 405 at page-562). This right casts on an adjudicatory tribunal or forum a duty to treat a person in accordance with law, to grant him a fair hearing and for itself to be an impartial and a fair tribunal. Upon comparison, the said constitutional conditions requirements expand the principles of natural justice which according to our jurisprudence are treated as inherent rights that underlie the elements of fairness, both in terms of hearing as well as impartiality of the forum. 5. None of the above said constitutional rights or inherent rights that predicate every proceeding that may conclude in a penalty being imposed on an accused person, lay down any requirement that an affected accused officer before any domestic fora in disciplinary proceedings must be represented by counsel. In the present context the term (Const.P.No.97/14) 12 ‘domestic fora’ is used to depict the domestic appellate forum or for that matter any other proceedings under the enabling disciplinary law. On the other hand, it may be pointed out that where the Constitution so intends, it has in Article 10(1) specifically commanded representation of an accused through counsel in the following situation: “10. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.” Clearly, the constitutional right of consultation with and defence by a counsel under Article 10(1) ibid, in other words the right of representation which is presently desired by the petitioner for himself, is limited to cases involving arrest, detention and confinement under the law of the land whether it is criminal law, a detention law or any other law imposing penalty of confinement upon an offending person. None of the penalties that can be imposed under the SC Rules, 1982 inflict the personal restraints on the liberty of an accused person that are envisaged by Article 10(1) of the Constitution. It is therefore clear that the express exclusion of the right of representation of an accused by counsel under rule 13 of the SC Rules, 1982 (now Rule 17 of the SC Rules, 2015) does not violate any of his rights conferred by the Constitution or the law. Equally, the fact that procedural statutes which regulate the Court proceedings and grant the right of representation to an accused or a defendant, do not apply to the proceedings of a domestic appellate forum in disciplinary proceedings also becomes plausible. These statutes are the Code of Criminal Procedure, 1898 and the Code of Civil Procedure, 1908. Their exclusion does not offend or violate any higher right conferred on an accused person in disciplinary proceedings by the law or the Constitution. 6. The difference between the proceedings of a disciplinary Tribunal from the proceedings of a Court of law extends beyond the absence of checks imposed by the procedural statutes governing the Court proceedings. It is a well settled proposition of law that the result of disciplinary proceedings is not bound by or dependent upon the outcome of criminal proceedings initiated for the same wrongful act against the same accused (Const.P.No.97/14) 13 officer. Reference may be made to Nawaz Khan vs. Federal Government (1996 SCMR 315), Arif Ghafoor vs. Managing Director, HMC (PLD 2002 SC 13). The rationale for this rule is founded upon the subjective element present in disciplinary proceedings that concerns the suitability and the fitness of an accused officer to remain in government service when he has not been acquitted on the merits of the charge alleged against him. The distinction between disciplinary fora and Courts of law is highlighted again by the rule of law that the burden of proof in disciplinary proceedings is lighter than it is in criminal proceedings for the same wrong and against the same accused. 7. There is a significant difference between the substantive nature of trial by a Court of law as against the proceedings in a domestic disciplinary forum. Consequently, the entitlement of representation of an accused by counsel before a trial Court cannot by analogy be imported for the proceedings of a domestic appellate disciplinary forum constituted by Rule 11 of the SC Rules, 1982. The relief claimed by the petitioner is neither apt nor appropriate for the fora established under disciplinary laws governing the service rights of officers and staff that are governed by rules having the force of law. It may also be kept in mind that the rights assured to such officers and staff under the applicable statutory rules, constitutional principles and inherent legal rights are available as an exception to the rule of master and servant. This is because an employment governed by statutory instrument assures rights conferred by law as opposed to contract. This Court has held that the violation of such rights of an accused officer to be justiciable in the constitutional jurisdiction of the superior Courts of the country. Reference is made to Pakistan Defence Officers’ Housing Authority vs. Jawaid Ahmed (2013 SCMR 1707). The SC Rules, 1982 (now the SC Rules, 2015) that govern the discipline of officers and staff of the Supreme Court, including in the present case the petitioner, rest on the secure foundation of Article 208 of the Constitution. Such legal backing makes an accused officer eligible for relief by a competent Court of law to be granted in accordance with settled legal parameters governing exercise of its jurisdiction in relation to substantive rights appurtenant to disciplinary proceedings conducted under rules that have the force of law. (Const.P.No.97/14) 14 8. The foregoing points are intended to merely supplement the grounds for the conclusion given by my learned brother Khilji Arif Hussain, J., which I endorse fully to dismiss the petition. Sd/- Umar Ata Bandial, J.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE SYED JAMSHED ALI Constitution Petition No. 9 of 2005 Pakistan Bar Council Petitioner VERSUS The Federal Government & others Respondents For the Petitioner: Mr. Rasheed A. Rizvi, ASC. Mr. Muhammad Arshad, Secy, Pakistan Bar Council. Mr. M.A. Zaidi, A.O.R. For respondent No.1: Ms. Nahida Mehboob Elahi, DAG. For respondent No.2: Mr. Muhammad Javed Khan, D.G. Higher Education Commission. For respondent No.3: Mr. Aftab Iqbal Ch, Advocate General Punjab. Ch Muhammad Hussain, Addl. A.G. Punjab. Raja Saeed Akram, AAG, Punjab. For Respondent No.4 Mr. Abbas Ali, Addl. A.G. Sindh. For Respondent No.5 Sardar Shoukat Hayat, Addl. A.G. NWFP. For Respondent No.6 Mr. Mehmood Raza, AAG, Balochistan. For Respondent No.7 Mr. M. Farooq Qureshi Chishti, ASC. For Respondent No.8 Mr. Muhammad Rafique Rajwara, ASC. For Respondent No.9 Mr. Wasim ud Din Khattak, ASC. For Respondent No.10-11 Nemo For Supreme Court Bar Association: Mr. Hashmat Ali Habib, ASC. Date of hearing: 16.11.2006 Constitution Petition No.9 of 2005 2 JUDGMENT Tassaduq Hussain Jillani, J.- Through this petition under Article 184 (3) of the Constitution of Islamic Republic of Pakistan, the Pakistan Bar Council has sought a direction that the respondents Federal Government, the Higher Education Commission, all the Provincial Governments and the universities be directed to adopt and implement the “Affiliation of Law Colleges Rules”, framed by the Pakistan Bar Council and further that no Charter or N.O.C. be issued to any institution, college or individual to establish law college without compliance of the afore-referred Rules. 2. The learned counsel for the petitioner, Mr. Rasheed A. Rizvi, who was the Vice Chairman of the Pakistan Bar Council when this petition was filed, in support of this petition, submitted that there has been a steady decline in the quality of legal education in Pakistan on account of mushroom growth of law colleges, lack of adequate facilities, absence of qualified faculty and absence of regulatory authority to ensure a certain qualitative standard. He contended that the goal of access to justice and its dispensation cannot be realized without a proper and organized legal education system. With a view to ensuring a quality legal education and to discourage the growth of substandard law colleges, the Pakistan Bar Council called upon its Legal Education Committee to draft Rules for granting recognition and affiliation to the law colleges by the universities. The Legal Education Committee, after thorough deliberations, submitted its recommendations which were approved by the Pakistan Bar Council Constitution Petition No.9 of 2005 3 in its 147th meeting held on 26.06.2004 a copy of which has been attached with this petition. Before approval by the Pakistan Bar Council, he added, the Legal Education Committee had a joint sitting with the representatives of the Provincial Bar Councils, several universities imparting legal education and the officials of the Higher Education Commission on 19.06.2004 who unanimously approved these rules. The elaborate exercise carried out for framing these Rules reflects a concerted effort of all the stakeholders of the legal education system to revamp the system to ensure qualitative improvement. The objective being onerous and the issue being of general public interest, he lastly submitted, warrants this Court’s indulgence under Article 184(3) of the Constitution. 3. Mrs. Nahida Mehboob Elahi, Deputy Attorney General, submitted on behalf of learned Attorney General for Pakistan that the Federal Government has examined the Rules framed by the Pakistan Bar Council and is of the view that those are beneficial and have been framed with a view to improving the standards of legal education. In these circumstances, the Federal Government not only supports the petition but would ensure that universities and its affiliated colleges falling within the domain of the Federal Government adhere to these Rules while granting recognition to law colleges. 4. The learned Advocate General Punjab also supported the petition and submitted that all the universities should bring their Affiliation Rules in conformity with these Rules. He stated that the Government of Punjab would ensure that the universities, while dealing with law colleges, strictly adhere to these Rules. Constitution Petition No.9 of 2005 4 5. The learned Additional Advocates General N.W.F.P., Sindh and Balochistan also supported the petition. 6. The learned counsel appearing for the University of Punjab submitted that the Affiliation Rules of the University of Punjab are similar to the one framed by the Pakistan Bar Council. He added that the University shall adopt these Rules in addition to the existing Affiliation Rules insofar as law colleges are concerned. 7. The Additional Registrar appearing for the University of Balochistan submitted that the University has no objection if this petition is allowed. The Bahauddin Zikriya University, Multan also filed a conceding statement and did not join issue to the acceptance of this petition. 8. We have heard the learned counsel for the parties and have given anxious consideration to the submissions made. 9. Pakistan Bar Council, the petitioner, is the apex professional elected body of lawyers established under the Legal Practitioners & Bar Councils Act, 1973 [hereinafter referred to as “Act”]. One of its primary functions under this Act is “to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils”. [Section 13(j)] It has been empowered to make rules to carry out its functions which include rules to provide for, “the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for that purpose.” [Section 55(q)]. In the exercise of its function, the Pakistan Bar Council did frame the Bar Council Legal Education Rules, 1978, wherein it issued guidelines to Constitution Petition No.9 of 2005 5 law universities and law colleges for admission in LL.B course, for student-teacher ratio in law colleges, for duration of the LL.B. courses, for qualification of a part time teacher, for provision of library in a law college, the criterion of pass percentage in the law examination, for adequate representation of the Pakistan Bar Council on the Board of Studies, Faculties of Law, Board of Governors and other organizations set up for governing the law colleges and other institutions of law and for a provision of inspection of law colleges by a team to be appointed by the Pakistan Bar Council. The framing of “Affiliation of Law Colleges Rules” and the prayer that the respondents be directed to adhere to those rules is an exercise of a similar kind. 10. The concern expressed by the Pakistan Bar Council about the declining standards of legal education is a matter of serious consideration. The petitioner-Council laments that, “there is no check either from the Government or HEC to put restrain on the growth of substandard law colleges with no facilities of good Lecturers, Professors and Libraries. It has been noted with serious concern that for the last 4/5 years, respondent No.1, the Federal Government as well as Provincial Governments have granted Charters to individuals for establishing colleges and Universities, in private sector, who have also entered in the field of legal education with no experience of legal education.” Contending that the issue mooted in the petition is “a question of public importance”, the petitioner implored this Court to intervene as according to it, “this is causing deterioration in the legal profession and at the same time adversely affecting Judicial System Constitution Petition No.9 of 2005 6 of this country, it will be in the public interest that a guideline should be provided by this Hon’ble Court to various institutions including Universities imparting legal education in the country to improve their system and to put restrain on establishing law colleges without proper infrastructure.” 11. The twin objectives of dispensation of justice and enforcement of fundamental rights enshrined in the Constitution cannot be achieved without a strong and conscientious judiciary and independent and competent Bar. No wonder the United Nations Instrument on Legal Profession stipulates that, “independent legal profession is a sine qua non for any system of protection of human rights and fundamental freedoms.” The Bar brings issues to the Court and the quality of justice delivered partly depends upon the quality of assistance rendered. Besides that while rendering advice to his client, a lawyer has not only to keep the relevant law in mind but also other considerations such as moral, economic, social or political, as the case may be, and then it is from the Bar that the Bench is constituted. The Bar and the process of dispensation of justice have a symbiotic relationship. Justice V.R. Krishna Iyer aptly observed while speaking on the responsibility of the Bar that, “Lawyering like justicing rises and falls in reputation and esteem according as they serve the great purpose of delivering justice to the people. When they fail what befalls them i.e. best expressed in Shakespeare’s words ‘Dick, the first thing we do. Let’s kill all the lawyers.” The quality of the Bar and the assistance it renders to the courts to a great extent depends on the legal education. The Bar in general and the Pakistan Bar Council in particular therefore have awesome Constitution Petition No.9 of 2005 7 responsibility to improve the quality of legal education because it is the possession of a degree of law which is a sufficient academic qualification for entering the Bar. The petition in hand therefore raises a question of public importance which has a great bearing on the justice system and the enforcement of fundamental rights in the country. 12. It is a matter of common knowledge that there has been a mushroom growth of substandard law colleges lacking in infrastructural facilities and quality legal education. There is no eligibility criteria for admission and any person having done his graduation with minimum marks required for passing can get admission in those colleges. Dropouts from other courses find it easier to join a law course. The quality of faculty in most of the law colleges leaves much to be desired. These colleges have only part time lecturers and barring a few honourable exceptions, most of them do not have any commitment to the cause of legal education. Without a proper faculty, quality legal education is not possible. The law teachers should be well-trained, well-paid and committed to the cause. It has also been noted that colleges enroll students in great numbers but do not provide for adequate class rooms and even the student-teacher ratio tends to be imbalanced. This is so because the colleges are established more for commercial considerations rather than academic or to impart genuine legal education. The lack of commitment, loose administration and lack of requisite facilities has led to absenteeism in law colleges. Students get themselves enrolled, do not attend classes, at times they live or work at miles away from Constitution Petition No.9 of 2005 8 their respective colleges where they are formally enrolled. They get themselves marked present through proxies. The colleges do not discourage this because it brings them money. Courses of study prescribed by the university are paid lip service. Neither there is any indepth study of the subjects included in the curriculum nor any stress is laid on moral issues and professional ethics. Such students have hardly any commitment to scholaristic pursuits and when the exams approach, they prepare for the same through get-through guides. Law examinations held by universities are mere test of memory and students manage to pass by cramming. Colleges mostly have become business centres and in the name of legal education, it is a profit making industry that they are running. It is these centres which produce law graduates, who are called to the Bar, some practice, some join judiciary at the district level, some adorn the constitutional courts and some become law-makers. 13. The poor quality of legal education in the country is taking its toll on the Bench, the Bar and ultimately the quality of justice. The Provincial Public Service Commissions, while engaged in recruitment to the posts of civil judges have frequently regretted the deteriorating academic standards of law graduates competing for the posts. Every year thousands of law graduates are getting added to the Bar. Some are products of colleges, having a certain credibility of imparting quality education whereas many come from colleges where the standard is below average. The products of the latter kind neither have the requisite knowledge of law nor any commitment to professional ethics. The apprenticeship training, prescribed under the Constitution Petition No.9 of 2005 9 Bar Council Rules is taken as a formality. The good old tradition of a senior training the junior in court room skills and ethics has given way to a new culture, where a young entrant is on his own sooner than is appropriate i.e. before he has legal skills or is fully equipped to properly advice the client and assist the Court. This results in situations which do not bring good name to the profession. There is a tendency to get engaged in non-professional pursuits. Bar has a proud legacy of promoting rule of law, fundamental rights, democracy and of standing up for just causes. But sometimes local Bars go on strike over issues which are hardly institutional. This disturbs the working of courts and adversely affects the administration of justice. Courts cannot function, cases are adjourned to dates which are fixed after months and the clients go back home frustrated. Taking a collective stand over just causes is one thing but going on a strike is something else. The latter course paralyzes the administration of justice. Bar is a global fraternity. There is no concept of self employed professionals going on strike in most countries of the world. 14. Legal education should not only cater for those students who study to pursue law as a career but should also provide instructional and research facilities to those who aim at becoming researchers, academicians or critics in domain of law. The discipline of law encompasses almost every dimension of social life. Before students join a professional law course, they need to have a multidisciplinary academic base. They got to have sound language skills for reading, writing and communication. The study of English language is of particular importance. Because it is predominantly the Constitution Petition No.9 of 2005 10 court language in the country and is the most widely spoken language in the world. Being rich in content, it determines the frontiers of one’s knowledge. Unfortunately over the last few decades the quality of education in colleges has also declined. To strengthen the academic base of a potential law graduate, there is a dire need to improve the standard and quality of the qualifying degree for admission in the Bachelor’s law course. The scheme to make the law degree a five year course after intermediate is step in the right direction. Those entrusted with framing the law degree course may examine its desirability. 15. There is by now a broad consensus among those concerned with legal education around the world that the issue needs to be tackled at three stages. Those are:- (i) The academic stage. (ii) The professional stage comprising both institutional training and practical training. (iii) Continuing legal education. 16. While dilating on the academic stage in the legal education, law as subject has to be comprehended in proper perspective with particular reference to socio-economic and political dynamics which play a role in the evolution of law. Law is not merely a set of enactments churned out by the Legislature or study of a professional skills limited to courts and lawyers. Law is a social science of a wider canvas. It is a study of the relationship between the individual and society, between the individual and an institution, between the State and the institution, the interaction between the Constitution Petition No.9 of 2005 11 institutions and the State and at a global level inter se relationship between the States. The discipline of law reflects the societal conflicts, the societal hopes and the social ethos. Law is a social organism which has to keep pace with the socio-economic, political and technological changes. The contemporary age has witnessed unprecedented advancement in science and technology which has affected human lives at individual, national and transnational domains. We live in an age of globalization---an age where distances have shrunk, International trade has multiplied manifold, multinationals impinge on state sovereignty, wonders of information technology have engendered hypes and hope, pleasure and pain, where on account of the paradoxical potential of nuclear technology, the non-State actors are brandishing weapons of mass destruction and the humankind is threatened by the use of some of its own inventions. The ever-increasing global warming poses a serious threat to ecosystem. These concerns among others call for a deeper, compassionate and purposive study of the charter and the law which regulate the affairs of the individuals and the institutions and the States inter se. 17. At the national level, the country has waded through vicissitudes---the geographical contours are no longer the ones that were carved out in 1947. We have had periods of constitutional deviation and more than one constitutional dispensations. These developments have affected the institutional growth and the constitutional law in the country. The year 2006 has been the 50th anniversary year of the Supreme Court of Pakistan. The Court Constitution Petition No.9 of 2005 12 including the High Courts have contributed their bit towards the promotion of fundamental rights through the exercise of constitutional jurisdiction. The Supreme Court in its attempt to ensure substantive justice have given an extended meaning to the fundamental right of right to life (Article 9 of the Constitution). The Court held that “life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights.” [The Employees of the Pakistan Law Commission Islamabad v. Ministry of Works (1994 SCMR 1548)]. To ensure pollution free environment, the court declared that any action which may create hazards of life will be encroachment on personal rights to enjoy the life according to law. [Ms. Shehla Zia v. WAPDA (PLD 1994 SC 693)]. The conviction by a military court not empowered to try under the law was held to be violative of Article 9 of the Constitution. [Sh Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504)]. The Court annulled the privatization of Pakistan Steel Mills Corporation as the process lacked transparency and was found to be against public policy and national interest. [Watan Party v. Federation of Pakistan (PLD 2006 SC 697)]. In yet another case, the Court upheld the institutional authority, “……..Because institutions play a vital role in civilizing a people and in their onward march towards socio-economic and political progress. In the comity of nations the credibility and progress of a country is measured by the strength of its institutions. A nation which fails to respect the institutions falls in grace, decays, splits and is condemned in history. A society bereft of stable institutions would be at odds with itself.” Constitution Petition No.9 of 2005 13 [Pakistan Medical & Dental Council v. Ziauddin Medical University & others (Civil Appeal No. 2206/2005). 18. The Court by invoking the concept of public interest litigation has brought solace to the under privileged strata of the society. Reiterating the concept of the basic structure doctrine, it attempted to lay down foundations of constitutional and political stability. While some of the judgments have been landmarks, others have been subject of critical comment. The courts after all are man made institutions and are therefore fallible. The constitutional challenges faced by the country, the issues brought before the courts and judicial activism reflected in the judgments have increased the challenge both of the Bench and the Bar manifolds. The challenges are both moral and intellectual. They call for a deeper study of the issues, various dimensions, able assistance by the Bar and qualitative and bold handling by the Bench. These objectives can only be achieved if the study of law at our law schools is rich in content, more ethical and purposive in approach and caters for providing institutional and practical training as well. 19. A graduate joining the law professional course should have an objective world view which can only be realized if the course content is revamped both at the graduate and L.L.B levels. The issues confronting the people at national level and the humankind at large warrant serious thought on what to study to attain a dignified place in the comity of nations, to develop and to live in peace in a world characterized by multifaceted diversities. Towards that end many questions need to be addressed. Some of those could be: are the Constitution Petition No.9 of 2005 14 colleges offering courses to prepare the Graduates to comprehend, confront and resolve the issues of contemporary age? Is the course content wide enough to include the social sciences which have a bearing on the socio-political dynamics or have the courses been suitably amended in response to the growing interdependence of States in the wake of globalization? Does it include the recent developments in International Law of Arbitration, Alternate Dispute Resolution Mechanisms, Intellectual Property and computer technology? Has the concept of sustainable development based on the intragenerational, intergenerational and inter-species justice spelt out in the “Earth Chapter”, been introduced in courses on environmental law? In a world divided by faiths and in the wake of growing misconception of Islam, does the study of Islamic Law include its pluralistic dimension? Has the institution of “Ijtihad” been accorded a dynamic construction to play its role in the evolution of law in modern age? Has the study of law been made as comprehensive and multi-disciplinary as has been done in some of the renowned universities and law schools abroad? These questions may not be exhaustive. The aim should be to revise the courses in accord with our domestic requirements and international obligations. 20. The need for professional and continuing legal education cannot be over-emphasized. Lawyers’ education is a continuing process. Be it through law colleges, academic pursuits, trial practice/clinical courts, training for young lawyers through apprenticeship or other modes adopted in this regard. The Chief Justice of U.S.A. was highlighting this aspect of the legal education Constitution Petition No.9 of 2005 15 when while addressing the American College of Trial Lawyers, District of Columbia, he said, “………in some jurisdictions up to half of the lawyers who appear in courts are so poorly trained that they are not properly performing their job and that their manners and their professional performance, their professional ethics offend a great many people. They are engaging in on-the-job training at the expense of their clients’ interests and the public.” 21. For what has been discussed above and on account of the fair stand taken by the respondents, we are persuaded to allow this petition and direct as under:- (i) The Pakistan Bar Council, is the apex professional elected body of lawyers established under the Legal Practitioner & Bar Councils Act, 1973. One of its primary functions under this Act is “to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils”. [Section 13(j)] It has been empowered to make rules to carry out its functions which include rules to provide for, “the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for that purpose.” (ii) The Affiliation of Law Colleges Rules framed by the Pakistan Bar Council and any rule added or amended from time to time by it are essential to Constitution Petition No.9 of 2005 16 ensure that the law schools/colleges impart uniform quality legal education. (iii) The rules framed by the Pakistan Bar Council shall be read into the rules framed by any Pakistani university and in case of conflict former rules shall have primacy. (iv) The rules do not envisage any concept of provisional affiliation. However, if any enactment, rules or regulation made thereunder provide for provisional affiliation, the same shall not extend beyond the period of one year and thereafter the said college shall stop admitting students for a law degree. (v) With a view to improve and update the syllabus prescribed for a professional degree in law, we are persuaded to appoint a 5-Member Committee to be headed by Justice (R) Nasir Aslam Zahid, former Judge of the Supreme Court of Pakistan to examine the existing courses of law prescribed by the universities for obtaining the professional degree and to suggest suitable proposals, inter alia, in the light of the observations made by this Court. The Committee shall submit its report within six months to the Pakistan Law Commission for consideration. The other members of the Committee shall be as under:- Constitution Petition No.9 of 2005 17 (a) The Vice Chairman, Pakistan Bar Council (Ex officio). (b) Prof. Ghafoor Ahmad, former Vice Chancellor Peshawar University and Principal Khyber Medical College. (c) Mr. Hamayun Ehsan, Principal Pakistan Law College, Lahore. (d) Mr. Mansoor Ali Shah, Advocate Supreme Court of Pakistan. (e) Two members to be nominated by the Chairman Higher Education Commission having the requisite academic background. (vi) A copy of this judgment shall be sent to all the Vice Chancellors of the universities in Pakistan, Chairman Higher Education Commission, the Federal Law Secretary and to the Secretary Pakistan Law Commission, Islamabad for information and necessary compliance. JUDGE JUDGE JUDGE ISLAMABAD, THE November 16,2006 khuram/*

IN THE SUPREME COURT OF PAKISTAN (Original/Appellate Jurisdiction) PRESENT Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Rana Bhagwandas Mr. Justice Javed Iqbal Mr. Justice Abdul Hameed Dogar Mr. Justice Muhammad Nawaz Abbasi Mr. Justice Tassaduq Hussain Jillani Mr. Justice Saiyed Saeed Ashhad Mr. Justice Hamid Ali Mirza Mr. Justice Karamat Nazir Bhandari CONSTITUTION PETITION NO. 9 OF 2006 & CIVIL PETITION NOs. 345 & 394 OF 2006 (On appeal from the judgment/order of High Court of Sindh at Karachi dated 30.03.2006 passed in Constitution Petition No.D-240 of 2006) Const. P.9/2006 Wattan Party through its President … … Petitioner. Versus Federation of Pakistan, through Cabinet Committee of Privatization, Prime Minister Secretariat, Islamabad and others … Respondents. CP.345/2006 Pakistan Steel Peoples Workers Union, CBA through its Chairman … … Petitioner. Versus Federation of Pakistan, through the Cabinet Secretary and others … … Respondents. CP.394/2006 Federation of Pakistan, through the Cabinet Secretary and others … … Petitioners Versus Pakistan Steel Peoples Workers Union, through its Chairman & others … … Respondents For the petitioner : Barrister Zafarullah Khan, Sr. ASC. (in Const. P.9/2006) Raja Muhammad Akram, Sr. ASC Assisted by Ms. Sadia Abbasi, Advocate. Muhammad Habib-ur-Rehman, Adv. For the petitioner : Mr. Abdul Mujeeb Pirzada, ASC. (in CP.345/2006 and for Respt. Mr. M.S. Khattak, AOR. No.1 in CP. No.394/2006) For the petitioner : Syed Zafar Abbas Naqvi, AOR. (in CP. No.394/2006) On Court Notice : Mr. Makhdoom Ali Khan, (in Const. P.9/06 & for Attorney General for Pakistan. petitioner in CP.No.394/06) Assisted by Mr. Khuram M. Hashmi, Adv. Const Petition No. 9 of 2006 etc 2 For respondent No.1 : Mr. Abdul Hafeez Pirzada, Sr. ASC (in Const.P. No.9/06 & for Raja Abdul Ghafoor, AOR Respt. No.2 in CP.No.345/06) Mr. Mehr Khan Malik, AOR Assisted by Mr. Hamid Ahmed, Adv. Mr. Sikandar Bashir Mohmand, Adv. For respondent No.2&4 : Syed Sharifuddin Pirzada, Sr. ASC. (in Const. P.9/2006) Mr. Sulman Aslam Butt, ASC Mr. Mehr Khan Malik, AOR. Assisted by Ms. Danish Zubari, Adv. Mr. Waqar Rana, Adv. For respondent No.3 : Mr. Wasim Sajjad, Sr. ASC. (in Const. P.9 /2006 & Mr. Arshad Ali Ch. , AOR. For Respondent No.5 Assisted by Mr. Idrees Ashraf, Adv. (in CP.345 /2006 Mr. Ali Hassan Sajjad, Adv. For respondent No.7 : Mr. Khalid Anwar, Sr. ASC. (in Const. P.9/2006) Mr. Kazim Hassan, ASC Mr. M.A. Zaidi, AOR. Assisted by Mr. Raashid Anwar, Adv. For Respondent No. 4 : Mr. Anwar Mansoor Khan, AG (Sindh) (in CP.345/2006) Dr. Qazi Khalid Ali, Addl. AG (Sindh) Raja Abdul Ghafoor, AOR. (Ms. Afshan Ghazanfar, AAG) For the applicant : Mr. Ahmer Bilal Sufi, ASC. (in CMA.1190/2006) Mr. G.N. Gohar, AOR Respondent No. 5 & 6 : Nemo. (in Const.P.9/06) Respondent No. 2-3&5 : Nemo. (in C.P.345/06) Respondent No.2-5 : Nemo. (in Const.P.394/06) Dates of hearing : 30th & 31st May, 1st , 5th to 8th, 12th to 15th 19th to 23rd June 2006. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – These petitions were disposed of vide short order dated 23rd June, 2006, concluding para therefrom is reproduced hereinbelow:- “we have heard learned counsel for the parties at great length, in view of the importance of the matter. After due deliberations and taking into consideration the issues involved therein in depth, by means of instant short order, which will be followed by detailed reasons later, it is held and directed as follows:-- 1. Conscious of the mandate of Article 153 and 154 of the Constitution, we hold that the establishment and working of the Council of Common Interests (CCI) is a cornerstone of the Federal structure Const Petition No. 9 of 2006 etc 3 providing for protection of the rights of the Federating units. Mindful that this important institution is not functioning presently and taking note of the statement made by the counsel for the Federal Government Mr. Abdul Hafeez Pirzada that the process for making it functional is underway, we direct the Federal Government to do the needful expeditiously as far as possible but not later than six weeks. 2. The approval for the privatization of Pakistan Steel Mills Corporation by the Council of Common Interests on 29th May 1997 continues to hold the field. But in view of the developments having taken place during the intervening period and the divergent stand taken by the counsel for the Federal Government to the effect that the afore-referred order was never recalled and the stand taken by the counsel for the P.S.M.C. that the matter of its privatization was dropped subsequently, by way of propriety, it would be in order if the matter is referred to the Council of Common Interests (C.C.I.) for consideration. 3. The Privatization Commission Ordinance No. LII of 2000 is not ultra vires of the Constitution. 4. While exercising the power of judicial review, it is not the function of this Court, ordinarily, to interfere in the policy making domain of the Executive which in the instant case is relatable to the privatization of State owned projects as it has its own merits reflected in the economic indicators. However, the process of privatization of Pakistan Steel Mills Corporation stands vitiated by acts of omission and commission on the part of certain State functionaries reflecting violation of mandatory provisions of law and the rules framed thereunder which adversely affected the decisions qua prequalification of a member of the successful consortium (Mr. Arif Habib), valuation of the project and the final terms offered to the successful consortium which were not in accord with the initial public offering given through advertisement. For the foregoing reasons, the Letter of Acceptance (LoA) dated 31st March, 2006 and Share Purchase Agreement dated 24th April, 2006 are declared as void and of no legal effect.” 2. Brief facts are that Pakistan Steel Mills Corporation (P.S.M.C.) is a private limited company and its 100% equity is owned by Government of Const Petition No. 9 of 2006 etc 4 Pakistan. It was incorporated in 1968 at a total cost of Rs. 24.7 billion. It commenced production in 1981 to 1984. The Mill is the biggest producer of steel in Pakistan and the only major manufacturer of flat and long bars and billet. It being situated near Port Qasim (Karachi) has got its jetty, water, natural gas and power. The plant was installed with the collaboration of Russian Government by the Ministry of Industries, Production and Special Initiatives. Mills net assets include land measuring about 19000 acres out of which the plant and the machinery is located on 4457 acres of land (core land) besides the land of downstream industrial estates. 3. The annual designed capacity of P.S.M.C. is 1.1 million tons. As explained in the written reply submitted by the management of the Mill, during initial years of its establishment, its profitability was not too remarkable on account of overstaffing, financial liabilities, poor work discipline, low capacity utilization, low sales, mismanagement and lack of a culture of accountability, etc. It was added that no appreciable investment was made in maintenance and mandatory repairs resulting in deterioration of machinery/equipment. However, in the year 1997, the Government of Pakistan (G.O.P.) decided to privatize it and got approval for the same from the Council of Common Interests (C.C.I.). But somehow process of privatization could not be completed and in the meanwhile on 20th May, 2000, its restructuring was approved by the Chief Executive of Pakistan. The process also included rightsizing of its manpower, repair and maintenance of plants, etc. It is the case of the Chairman P.S.M.C. that these measures were aimed at making P.S.M.C. a financially viable entity. To achieve the object following measures were adopted:- (a) Financial Restructuring. (b) Manpower Restructuring. (c) Repair & Maintenance. (d) Offer of Equity to Private Sector. (e) No New Investment in Direct Expansion. Const Petition No. 9 of 2006 etc 5 The idea of restructuring of the plant was conceived perhaps due to dropping the idea of privatization in 1998. The plan of restructuring so put forward proved successful as in the following years i.e. 2002-03, 2003-04, 2004-05, the audited accounts depicted its financial position as follows:- Rs. In Million Years Capacity Utilization (%) Net Profit before Tax Net Profit after Tax Accumulated Profit/Loss Duties & Taxes paid End Year Liquidity Earning per share (Rupees) 2002-03 92 1239 1024 (7648) 5505 412 0.60 2003-04 94 7094 4852 (2796) 5395 7751 2.82 2004-05 89 10191 6734 3938 8901 11096 3.91 Total 18,524 12610 19,801 9280* *as on 19.05.2006 4. Despite the above improved financial position of P.S.M.C. Government of Pakistan Ministry of Privatization and Investment, Privatization Commission on 4th March 2005 moved a summary to the Board of Privatization Commission suggesting therein that P.S.M.C. may be included in the privatization programme and recommendation to that effect may be made to the Cabinet Committee on Privatization (C.C.O.P.). It seems that in pursuance to it the Board of Privatization Commission gave approval to the proposal for the privatization of P.S.M.C. Later on, on having obtained approval from the Privatization Commission Board, Privatization Commission commenced the proceedings and in this behalf publications were made inviting Expression of Interest (EOI) from strategic investors to participate in the privatization of Pakistan Steel Mills Corporation (Pvt) Limited. The vibrant financial position of the company was also made public. It is important to note that besides publishing financial summary, the following statement showing the Profile of the company was notified:- “PSMC is the country’s largest and only integrated steel manufacturing plant with an annual designed production capacity of 1.1 million tons. It was Const Petition No. 9 of 2006 etc 6 incorporated as a private limited company in 1968 and commenced full scale commercial operations in 1984. PSMC complex includes coke oven batteries, billet mill, hot and cold rolling mills, galvanizing unit and 165 MW of own power generation units, supported by various other ancillary units. It is located 30km south east of the coastal city of Karachi, in close proximity to Port Bin Qasim, with access to a dedicated jetty, which facilitates import of raw materials. PSMC manufactures a wide mix of products, which includes both flat and long products. PSMC effectively enjoys a captive domestic market due to the prevalent demand-supply imbalance in the country’s steel industry, where demand has historically exceeded local supply. PSMC also strives to maintain high quality and environmental standards and in this regard has received ISO 9001, ISO 1400-1 and SA 8000 certifications, along with the Environmental Excellence Award 2005. As a result of sustained improvement in Pakistan’s macroeconomic environment, the demand for steel in the country is expected to grow substantially. PSMC is uniquely positioned to take advantage of the expected demand growth as adequate infrastructure is already in place to cater to capacity expansion.” 5. Before inviting E.O.I the Valuers were appointed to carry out a valuation. As per record, M/s City Group were appointed. The Group was assisted by Advisors namely M/s CORUS to provide technical “due diligence”, including plant mechanical integrity assessment and technical inputs to the valuation model and environmental “due diligence” and M/s A.F. Ferguson & Co. (an affiliate firm of Price Waterhouse Coopers) for the purpose of Accounting, Tax, HR and IT “due diligence” along with M/s ORR, Dignam & Co. Advocates for legal “due diligence”. It is relevant to point out that Financial Advisors/Valuers prepared the Valuation Report on the basis of the report submitted by A.F. Ferguson, CORUS and ORR, Dignam & Co. without undertaking independent exercise in respect of accounting, tax, etc and other aspects of the matter. A.F. Ferguson had also relied upon the Statement of Accounts furnished by P.S.M.C. In fact the Statement of Accounts and the balance sheet were copied in verbatim by the A.F. Ferguson. As far as these reports are concerned, admittedly, they are prepared on historical value of Const Petition No. 9 of 2006 etc 7 assets of a concern i.e. according to the book value which is always based on depreciated price of the unit. 6. The Financial Advisor completed exercise for preparation of Valuation Report on following guidelines provided by Privatization Commission (P.C.):--- “The objective is to apply various internationally accepted valuation techniques to obtain a valuation range for PSMC as a going concern. The valuation model will take into account the capital expenditure and earning projections, costs and other business considerations. The model will be used to undertake a sensitivity analysis in order to highlight the impact of changes in different variables, such as gross product margins, rate of custom duty on import of iron. A valuation based on comparative pricing analysis will also be prepared. Inputs of the valuation model and valuation methodology will be reviewed with the PSMC management.” 7. In pursuance to the publication of E.O.I. 19 parties had shown their interest. As such, Privatization Commission issued them Request for Statement of Qualifications (RSOQ) out of which the names of following nine prospective bidders were approved:- (i) Aljomaih Holding Company (Saudi Arabia). (ii) Al-Tuwairqi Group (Saudi Arabia) and Arif Habib Group (Pakistan). (iii) Azovstal Steel/System Capital Management (Ukraine). (iv) Government of Ras-Al-Khaimah (UAE). (v) International Industries Ltd (Pakistan) and Industrial Union of Donbass (Ukraine). (vi) Magnitogorsk Iron & Steel Works Open JSC (Russia). (vii) Nishat Mills Ltd. and D.G. Khan Cement Co. Ltd (Pakistan). (viii) Noor Financial Investment Co. (Kuwait). (ix) Shanghai Baosteel Group Corporation (China). It is stated that in the meanwhile on 28th October 2005, the Financial Advisor (F.A.) City Group submitted the interim report of Valuation of Shares followed by the final report on 30.03.2006. Const Petition No. 9 of 2006 etc 8 8. It may not be out of place to mention here that at the time of the issuance of the E.O.I., the Privatization Commission intended to sell 51 to 74% out of 100% equity stake in P.S.M.C. but at the time of bidding total 75% shares were put on sale. A perusal of the profile of P.S.M.C. published in the newspapers indicates that nothing was mentioned therein in respect of the incentives which were provided later on to the successful bidder by the Privatization Commission including the exclusion of the price of land on which unit/project is situated i.e. 4457 acres and goodwill of the P.S.M.C. The incentives/concessions not advertised but extended to successful bidder included:-- (i) The stock in trade contained in the Unit worth about Rs. 10.00 billion. (ii) The commitment of the Government of Pakistan to clear the loan liability of PSMC which was due for the year 2013 to 2019, amounting to about Rs.7.67 billion from the cash of Rs.8.559 billion lying with the Mills as per the Statement of Account. (iii) Refund of Rs.1.00 billion paid in advance as tax to Government of Pakistan (iv) Responsibility accepted by Government of Pakistan to satisfy the claim of the workers opting for Voluntary Separation Scheme (V.S.S.) up to Rs. 15.00 billion. 9. Admittedly, according to the report of Valuer (City Group) the value of the land has not been added in calculating the share price. In the final Evaluation Report/Summary dated 30th March, 2006 submitted by the F.A. to the BOPC, it was observed by the latter as follows:--- “The Board of Privatization Commission considered the valuation carried out by the FA as well as the replacement cost of plant and recommended total value of PSMC at US $ 500 Million. Based on this, the Reference price for 75% strategic stake would be US$ Const Petition No. 9 of 2006 etc 9 375 Million i.e. Rs. 17.43 per share calculated at the rate of Rs.60 per US $ (total shares being divested are 1,290,487,275).” The summary also indicates that the Privatization Commission Board (BOPC) having considered the valuation recommended by the Financial Advisor proposed that, “ the current market value of total assets of P.S.M.C. may also be taken into account.” The Board of Privatization Commission however while considering F.A. report as well as the replacement cost of the plant recommended that the total value of P.S.M.C. would be U.S. $ 500 Million and based on this the reference price for 75% strategic stake would come to US $ 375 million i.e. Rs. 17.43 per share calculated at the rate of Rs. 60 per U.S. $. 10. On the next day i.e. 31st March, 2006, the matter was placed before the Cabinet Committee on Privatization (CCOP). The CCOP however did not accede to the proposal of the Privatization Board with regard to the inclusion of the value of total assets as also the per share price worked out by it on the basis of F.A. Valuation and the replacement cost (Rs. 17.43 per share) and instead decided as under:-- “The Cabinet Committee on Privatization (CCOP) considered the summary dated 30th March 2006, submitted by the Privatization & Investment Division on “Privatization of Pakistan Steel Mills Corporation” and approved the valuation of US$ 464 million based on DCF valuation for privatization of the Pakistan Steel Mills Corporation Limited (PSMC) for its 100% equity stake. On the basis of above, 75% equity stake (1,290,487,275 shares) works out to US$ 348 million i.e. Rs. 16.18 per share. II. The CCOP also approved the proposal contained in Para 8 of the summary to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price mentioned in sub para I above. III. The CCOP directed the Privatization Division to follow the approved policy for Privatization, strictly in letter and spirit. Any deviation from the approved policy, if deemed necessary, should be brought up to the CCOP well in advance for consideration and approval of waiver, if any. Const Petition No. 9 of 2006 etc 10 IV. The CCOP directed the Privatization Division to impress upon the potential buyer to make the entire payment of the transaction to the GoP within the period stipulated in the bid documents. V. The CCOP directed the Privatization Division to invariably add their viewpoint(s) recommendations explicitly in their summaries, in future.” 11. In view of the above decision of C.C.O.P. the consortium comprising M/s Arif Habib Group of Companies, M/s Al-Tuwairqi Group of Companies and M/s Magnitogorsk Iron and Steel Works, Russia was declared successful bidder at the rate of Rs.16.80 per share. Thereafter the matter was not again placed before the CCOP and the Letter of Acceptance (LoA) was issued on the same date. 12. In the meanwhile on 27th February, 2006, the ongoing process of privatization of P.S.M.C. was challenged by Pakistan Steel Mills Workers Union (CBA) and three others before the High Court of Sindh at Karachi in a Constitutional petition (bearing No. 240 of 2006) claiming therein the following reliefs:- “a) Direct the respondent No.1 to constitute Council of Common Interests (CCI) under Articles 153 and 154 of the Constitution. b) Declare that the provisions of Sections 3,5,6,7,9,14,16,22 of the Privatization Ordinance LII of 2000 are ultra vires of Articles 153 and 154 of the Constitution and therefore, void and of no legal effect. c) Declare that the process of Privatization is violative of Articles 2-A, 3, 4, 5, 9, 25, 38 of the Constitution. d) Declare that the process of Privatization adopted by respondents No.1 and 3 in respect of sale of shares and management control in the PSM is illegal, arbitrary, irrational and without any lawful authority.’ e) Restrain the respondents No. 1 and 3 from carrying through with the Privatization of P.S.M. without the directions and supervision of CCI and the Province of Sindh. Const Petition No. 9 of 2006 etc 11 f) Direct the respondents to maintain status quo during the pendency of this petition. g) Any other relief (s) fit and necessary in the circumstances of this case may also be granted.” 13. Incidentally the above petition came up for hearing on 30th March, 2006 before acceptance/finalization of the bid and it was dismissed in limine vide short order reproduced hereinbelow:- “For reasons to be recorded later, we are of the view that the provisions of Article 154 are mandatory and the functions of the Cabinet under the Privatization Ordinance 2000 ought to be performed by the Council of Common Interest. Nevertheless in view of the fact that the Provincial Government has consented to the privatization of the respondent No.5 and other facts and circumstances we are not persuaded to exercise discretionary jurisdiction under Article 199 for the purpose of issuing any directions in respect of respondent No.5. The petition stands disposed of.” Later on detailed reasons for the above order were issued on 31.05.2006. 14. Wattan Party through Barrister Zafarullah Khan filed a petition under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan challenging the process of privatization and acceptance of bid of respondent No.7 before this Court. Aggrieved by the order/decision of High Court, C.P. No. 345 of 2006 was filed by the Workers Union C.B.A. and C.P. No. 394 of 2006 has been filed by the Federation of Pakistan against the same judgment. 15. It is to be observed that Federation of Pakistan and others challenged the judgment of the Sindh High Court at Karachi inter alia on the ground that Articles 153 and 154 of the Constitution of Islamic Republic of Pakistan are not attracted in the case of privatization of a company wholly owned by the Federal Government and further that in exercise of its Constitutional jurisdiction, the High Court can not decide academic question like vires of a statute when such decision was not warranted, upon the facts of the case. The learned Sindh High Court in the detailed reasons concluded that for privatization of the Federal Government owned industries approval of CCI is mandatory but Const Petition No. 9 of 2006 etc 12 relief was declined because the Chief Minister Sindh being one of the members of the C.C.I. had consented to the privatization of P.S.M.C. and in the facts and circumstances of the case, this consent of Chief Minister was sufficient to deny the petitioner, the discretionary relief under Article 199 of the Constitution. 16. Before dilating upon the merits of the case it is to be noted that both the learned counsel for Federation of Pakistan and Privatization Commission admitted that approval of CCI for privatization of Federal Government owned industrial units is necessary. Learned counsel for the Privatization Commission during his arguments placed on record a decision of CCI dated 29th May 1997 to substantiate that approval of CCI had already been obtained. Similarly learned counsel for the Government of Pakistan relied on the same decision and also brought on record complete summary placed before the CCI seeking approval for privatization of Federal Government owned industries including PSMC. He contended that the assertion (in Statement of Affairs filed by PSMC through its Chairman) that in 1998 the decision of privatization of PSMC was dropped is incorrect. He added that he has been instructed to make statement that the decision of C.C.I. dated 29th May 1997 still holds the field. On enquiry by the Court on the point as to whether C.C.I. has been appointed/activated so far or not, learned counsel after explaining the importance of C.C.I., answered that the process of making C.C.I. functional was “underway”. 17. Learned counsel for the petitioner (C.P. No. 9 of 2006) Barrister Zafarullah contended that P.S.M.C. is the only huge integrated iron mill having finishing plants, blast furnaces, steel converters, Hot and Cold Roll Galvanizing Unit, grinding units, 65 mega watts power generation plant, 4 steel plants in Thatha, water supply plant, thermal power plant, 40 locomotives of 100 HP each, more than 100 railway wagons, 110 kilometers metalled road, 10 k.m. railway track, water treatment plant, jetties and 98 coke ovens, 80 brand new vehicles, Const Petition No. 9 of 2006 etc 13 cash in hand, etc. But the Privatization Commission had sold its 75% shares against Rs.16.80 per share which comes to U.S. $ 348 million i.e. Rs. 21.68 billion along with the land measuring 4457 acres which has been unbundled from total land of 19086 acres on which Gulshan-i-Hadeed Town, schools etc are located. He further stated that out of the downstream industrial estates located on P.S.M.C. 220 acres land has been allotted to M/s Al-Tuwairqi Group of Companies by the Government of Pakistan (GoP) for the purpose of establishing a steel mill. Earth breaking ceremony of the said mill was carried out on 30th March, 2006, therefore, according to him for the best reasons known to the Privatization Commission its shares were sold to the same group along with the consortium of M/s Arif Habib Group of Companies, M/s Al-Tuwairqi Group of Companies and M/s Magnitogorsk Iron and Steel Works, Russia. He added that the petitioner being a registered political party having direct interest in national assets including the Steel Mill has invoked the jurisdiction of this Court under Article 184 (3) of the Constitution in its own right. He contended that ‘Access to Justice’ is a fundamental right of everyone, therefore, petition is maintainable. Reliance in this behalf has been placed by him on S.P.Gupta v. M. Tarkunde and others (A.I.R. 1982 SC 149), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869). 18. Mr. Abdul Mujeeb Pirzada, learned ASC contended that he is appearing on behalf of the members of the Union and it being a public interest litigation locus standi of the petitioners to invoke the jurisdiction either of the High Court or this Court should not be questioned for the purpose of denying relief to the petitioners. He stated that before the completion of the process of privatization, the Privatization Commission itself took into confidence the workers Const Petition No. 9 of 2006 etc 14 as it is evident from the letter dated December 20th, 2005 because the members of the Union have a right to form the workers and management group for the purpose of giving a bid to purchase the shares of the Mill and in fact in pursuance of such offer the workers were ready to participate in the bid but as at the eleventh hour they were called upon to deposit U.S. $ 30 Million as earnest money which they could not arrange hurriedly although the funds belonging to the workers amounting to about Rs. 18.00 billion were lying with the management. Therefore, the objection to the maintainability of the petitions is without any substance. Reliance was placed on Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) and Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi (1999 SCMR 2883). Learned counsel contended that the petitions have also been filed under Article 185(3) of the Constitution against the judgment of the Sindh High Court at Karachi passed in writ petition on 30th of March, 2006, detailed reasons thereof were issued subsequently on 31st May 2006. Against this very judgment, the Federation of Pakistan had also filed a petition under Article 185(3) of the Constitution with the prayer that the same may be set aside. The issues involved being similar, the question of locus standi would be merely an academic and insignificant question. 19. Syed Sharif-ud-Din Pirzada learned counsel for the Privatization Commission contended that to invoke jurisdiction of this Court under Article 184(3) of the Constitution, two conditions are required to be fulfilled namely infringement of the fundamental rights and absence of alternate remedy. In the case in hand no fundamental right has been infringed and under the scheme of Privatization Commission Ordinance No.LII, 2000 (hereinafter referred to as “Ordinance”), two alternate remedies are available in terms of section 27 and section 28 of the Ordinance. According to learned counsel the judgment relied upon by the petitioner in S.P. Gupta’s case ibid, in the circumstances of the Const Petition No. 9 of 2006 etc 15 instant case is not applicable because thereafter the Indian Supreme Court in the case of BALCO Employees Union (Regd) v. Union of India (AIR 2002 SC 350) has explained the scope of the public interest litigation. 20. Learned Attorney General, however, at the outset contended that after hearing the case at length by this Larger Bench for a long period, it will not be fair on his part to say that, “no point of public importance is involved in this case”, therefore, he will not be questioning locus standi of the petitioners particularly in view of the judgments in the cases of Multiline Associates and Ardeshir Cowasjee ibid. 21. This Court in the referred cases and the Indian Supreme Court in the case of S.P. Gupta ibid have laid down a rule namely that any member of the public having sufficient interest can maintain an action for judicial redress of public injury arising from breach of the public duty or from violation of some provision of the Constitution or the law and for enforcement of such public duty and observance of such Constitutional provision. In the case of Benazir Bhutto ibid, it was held that only when the element of public importance is involved , the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 of the Constitution has a wider scope as there is no such limitation therein. In Al-Jehad Trust ibid, it has been held that, “question of locus standi is relevant in a High Court but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution.” In Malik Asad Ali ibid it was observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I Part II of the Constitution even suo moto, without having any formal petition. Const Petition No. 9 of 2006 etc 16 In Multiline Associates ibid this Court held that requirement of the locus standi in the case of pro bono publico (public interest litigation is not so rigid) has extended scope. This principle has been reiterated in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) As far as the judgment in All Pakistan Newspaper Society v. Federation of Pakistan (PLD 2004 SC 600) cited by the learned Sr. ASC Syed Sharif-ud-Din Pirzada is concerned, it is distinguishable because in that case we have held that it pertains to a financial dispute between two groups of newspaper industry i.e. employer and employees and no question of public importance was involved as the parties (employer and employees) were litigating with each other in respect of the validity or otherwise of Wage Board Award published by the Government of Pakistan on 25th October, 2001. Likewise, Balco’s case ibid need not be discussed in view of the judgments referred hereinabove and keeping in view that the learned Attorney General has himself conceded that this case involves questions of public importance, therefore cannot be thrown away summarily. Besides we are conscious of the fact that it is not only the petition under Article 184 (3) of the Constitution which is pending consideration before us but at the same time there are two other petitions which have been filed under Article 185(3) of the Constitution (one by the Workers Union and second by the Federation of Pakistan), involving similar questions therefore, keeping in view the importance of the case and the alleged violation of Article 4 and Article 9 of the Constitution, we hold that the petition under Article 184(3) of the Constitution filed by the Wattan Party is maintainable. 22. Now we turn to the question relating to availability of alternate remedy to petitioner in terms of section 27 and 28 of the Privatization Commission Ordinance, 2000. For facility of reference both these sections are reproduced hereinbelow:- Const Petition No. 9 of 2006 etc 17 “27. Investigations.- (1) The Federal Government or any of its agencies authorized by it, may of its own or on a complaint oversee, scrutinize or investigate any privatization transaction within one year of the completion of the privatization. (2) After the expiry of the period referred to in sub- section (1), the Federal Government or any of its agencies shall not be empowered to carry out any such scrutiny or investigation. 28. Jurisdiction of High Courts.- Notwithstanding anything contained in any other law for the time being in force, the High Court shall exercise exclusive civil and criminal jurisdiction- (a) to adjudicate and settle all matters related to, arising from or under or in connection with this Ordinance; (b) to adjudicate and settle all matters transferred pursuant to section 31; and (c) to try offences punishable under this Ordinance.” 23. Learned counsel Mr. Abdul Mujeeb Pirzada contended that the Federal Government itself is petitioner in one of the petitions (C.P. No. 394 of 2006), in the memo of the petition it is supporting the process of privatization as prayer has been made for the dismissal of petition filed on behalf of the Workers Union before the High Court bearing C.P. No. D-240/2006. Besides from day one when the proceedings started the matter was discussed at considerable length wherein number of omissions and commissions in the privatization of the project under consideration have been pointed out which according to him were sufficient to annul the Letter of Acceptance (LoA) dated 31st March, 2006 and the subsequent Share Purchase Agreement between the parties dated 24th April, 2006. But no concern was shown at all on its behalf, therefore, under these circumstances availing an opportunity to lodge complaint before the Federal Government in terms of section 27 of the Ordinance would be nothing but a futile exercise. In this behalf he has placed reliance on Anjuman-e-Ahmadiya, Sargodha v. The Dy Commissioner Sargodha (PLD 1966 SC 639) and The Murree Brewery Co. Ltd v. Pakistan thr. The Secretary to Government of Pakistan, Works Division (PLD 1972 SC 279). He also submitted that because he Const Petition No. 9 of 2006 etc 18 is challenging the very vires of the Ordinance, he cannot be compelled to avail the so-called remedies. 24. Syed Sharif ud Din Pirzada, learned ASC for the Privatization Commission opposed the arguments put forward by Mr. Abdul Mujeeb Pirzada learned ASC and stated that in presence of a statutory remedy the petition under Article 199 or Article 184(3) of the Constitution is not maintainable. 25. Learned Attorney General contended by relying on the principles laid down in The Chairman East Pak Railway Board Chittagong etc v. Abdul Majid Sardar, Ticket Collector Pak Eastern Railway Laksam (PLD 1966 SC 725) and Lahore Improvement Trust, Lahore thr. Its Chairman v. The Custodian Evacuee Property West Pak Lahore (PLD 1971 SC 811) that “the Court to explore possibility of every possible explanation for the validity of an order passed by public authority,” suggested resort to section 27 of the Ordinance by making reference to the Federal Government for the purpose of further probe into the case to examine the legality and validity of transaction. 26. It is important to note that as far as the principle of law discussed in the cases of Anjuman-e-Ahmadiya, Sargodha and Lahore Improvement Trust ibid is concerned, there is no cavil with the same and we with utmost respect approve the same. But at the same time, we have also to keep in mind another very important principle of law enunciated by this Court in the case of Syed Ali abbas v. Vishan Singh (PLD 1967 SC 294) i.e. petitioner cannot be refused relief and penalized for not throwing himself again (by way of revision or review) on mercy of authorities who are responsible for such excesses. This principle has to be read along with the principle laid down in the case of Anjuman-e-Ahmadiya, Sargodha ibid wherein it has been held that if an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly this principle has been reiterated in the The Murree Brewery’s case Const Petition No. 9 of 2006 etc 19 ibid wherein it has been held that if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party. 27. Thus we are of the opinion that under the circumstances of the case, it would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent. Therefore under the circumstances, referring the case of the petitioner to the Federal Government or this Court directing investigation under section 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interests of justice. 28. Now turning towards the implication of section 28 of the Ordinance a perusal whereof indicates that civil and criminal jurisdiction has been conferred on the High Court to adjudicate and settle all matters related, arising from or under or in connection with the Ordinance as also all matters transferred pursuant to section 31 and to try offences punishable under the Ordinance. In our opinion the matters shall be arising in respect of the rights and obligations of the parties who are the subject of the Ordinance. As far as pro bono publico cases are concerned, those shall not be covered under this provision of law because in such cases Court has been called upon to exercise Constitutional jurisdiction on the basis of the information laid before it that the matter involves question of public importance relating to their fundamental rights individually or collectively. A perusal of section 28 clause a, b, c, indicates that for such like litigants this section provides no remedy for redressal of their grievances. 29. Besides above reasons there is an important aspect of the case namely these remedies are available within the Ordinance and Mr. Abdul Mujeeb Pirzada learned ASC has challenged its vires on the touchstone of Article 153 & 154 of the Constitution. Therefore the law vires, of which have been challenged, it Const Petition No. 9 of 2006 etc 20 would not be fair to compel the petitioner to avail the remedy under the same law. The High Court within its limited jurisdiction under section 28 can not strike down any of the provisions of the Ordinance. Furthermore, petitioner’s learned counsel has raised issues of great public importance falling within the Constitutional domain of this Court which could not have been adequately addressed to by the Court in terms of section 28 of the Ordinance. 30. Mr. Abdul Mujeeb Pirzada learned ASC argued that without the approval of C.C.I. privatization of P.S.M.C. is unconstitutional in view of the mandate of Article 154 of the Constitution. The Mill is owned by the people of Pakistan and its tax payers, there is representation of employees of all the Provinces and its sale proceeds are to be spent for alleviation of poverty of the people and discharge of debts, therefore, bypassing the CCI by the Federal Government is not only illegal but is also against the Command of the Constitution. He further contended that despite restoration of the Constitution w.e.f. 31st December, 2002, the C.C.I. has not been constituted and made functional so far. Therefore, the whole process of privatization has become illegal for this reason. He also stated that the learned High Court accepted the arguments of the petitioner in this behalf but declined to grant relief by not exercising discretionary jurisdiction under Article 199 of the Constitution for reasons which are not tenable in law. Therefore, he prayed that on this sole ground the process of privatization of P.S.M.C. deserves to be declared unconstitutional. According to him, even the Ordinance is bad law having not been approved by the CCI. 31. Syed Sharif-ud-Din Pirzada, learned Sr. ASC contended that as far back as 29th May, 1997, approval for the privatization of P.S.M.C. had been obtained. To substantiate his plea, he has placed on record decision of the CCI dated 29th of May 1997 along with the Schedule containing approval for privatization of Pakistan Steel Mills Corporation and its units and contended that Const Petition No. 9 of 2006 etc 21 after having taken approval there was no necessity for placing again the matter before the CCI. 32. Mr. Abdul Hafeez Pirzada learned Sr. A.S.C. contended that Article 173 of the Constitution has directly conferred authority upon the Federation and Provinces to dispose of their property. In this case as well, in exercise of the same authority, the CCI has not been bypassed as the Federal Government had received its categorical, explicit and unambiguous endorsement of the entire privatization programme on a summary submitted to it in accordance with the rules on 25th May 1997 approval of which was granted on 29th May, 1997. He explained the object of establishing the institution of CCI during the process of making of Constitution of 1973. According to him, in the Federal System of Government, it is necessary to take along the Federating Units in the affairs of the Federation and once CCI had taken a decision this Court in judicial proceedings has no jurisdiction to revise the same because under the principles of trichotomy of Powers the three Organs of the State have got their respective areas for the purpose of exercising jurisdiction. Therefore, interference made in the approval of the CCI dated 29th May 1997 would give rise to an anomalous position. Learned counsel placed on record a paper book containing documents of “Constitution Making in Pakistan” ever since the inception of this country. It is to be noted that management of P.S.M.C. had stated in unambiguous terms that the decision of its privatization was dropped in 1998 and in the year of 2000 a decision was taken by the then Chief Executive to revamp the Pakistan Steel Mills and to achieve the object loans were to be arranged from the banks. Two Memoranda of Understanding (MOUs) were also signed with Russian and Chinese Governments for the purpose of providing technical support to the Government of Pakistan to revamp Pakistan Steel Mills. In view of such stand taken by P.S.M.C., Mr. Wasim Sajjad learned counsel appearing on its behalf was asked to explain the position by filing another statement. In compliance of the order, he submitted an explanation wherein he Const Petition No. 9 of 2006 etc 22 took the stand that, “by implication the privatization process was dropped. The restructuring was approved by the then Chief Executive on 20.05.2000.” 33. Mr. Abdul Hafeez Pirzada, learned counsel for the Federal Government and learned Attorney General were on the same wavelength when they contended that the decision of C.C.I. can only be annulled by the Parliament in a joint sitting in accordance with the provisions of Article 154 (5) or could be rescinded by the CCI itself and such decision cannot be undone by any other functionary. This is in line with this Court’s earlier view given in Messrs Gadoon Textile Mills v. WAPDA (1997 SCMR 641) wherein at Page 769 it was observed as under:-- “It is significant to note that the Federal Government has not been authorized to give any direction to the CCI. Clause 5 of Article 154 provides a procedure in a case where the Federal Government or the Provincial Government is dissatisfied with the decision of the Council. Any of the aggrieved governments may refer the matter to Majlis-i-Shura (Parliament) in joint sitting whose decision in that behalf shall be final.” 34. Learned Attorney General contended that in view of the facts of the case in hand the reference in respect of the approval for privatization of P.S.M.C. by the C.C.I. is no more a live issue in view of its decision dated 29th May 1997, the question relating to taking approval of C.C.I. before privatization of an industry owned by the Federation presently seems to be academic one, therefore, it may be left open for decision in some other case where there is a live controversy when there is actually no approval of C.C.I. and then this Court may interpret Article 153, 154 and 173 of the Constitution and law. To substantiate his plea he has relied upon Qazi Hussain Ahmad v. Gen. Pervaiz Musharaf (PLD 2002 SC 853), Shah Sawar v. the State (2000 SCMR 1331), Commissioner Income Tax v. M/S. Hasan Associates (Pvt) Limited (1994 SCMR 1321), A.K. Roy v. Union of India (A.I.R. 1982 SC 710), Naresh v. State of Maharashtra (AIR 1967 SC 1) and Mst. Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901 at page Const Petition No. 9 of 2006 etc 23 915). In the last mentioned case it has been decided that it is an accepted principle that if a case can be decided on other issue properly it is not necessary to enter into Constitutional issues. The importance of CCI has been examined by this Court in Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473). Relevant para therefrom is reproduced hereinbelow:- “The Council of Common Interests is an important Constitutional institution which irons out differences, problems and irritants between the Provinces inter se and the Provinces and the Federation in respect of matters specified in Article 154. The Council is responsible to Majlis-e-Shoora, which in joint sitting may from time to time by resolution issue directions through the Federal Government generally or in particular matters to take action as the Parliament may deem just and proper and such directions shall be binding on the Council. Ground C(i) of the dissolution order specifies that the Council of Common Interests has not discharged its Constitutional functions to exercise its powers particularly in the context of privatization of industries in relation to the subject matter mentioned in Article 154.” 35. After perusal of judgment in Muhammad Nawaz Sharif’s case as well as an earlier judgment reported in Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan (PLD 1992 SC 646), one can well conceive the importance of CCI and by making it functional the Federal Government can resolve number of issues/differences including the process of privatization of industries owned by the Federal Government as per mandate of the Constitution and procedure laid down therein. In the instant case, the decision/approval was taken to privatize good number of industries mentioned in the schedule attached to the decision dated 29th May 1997 including P.S.M.C. Therefore the view taken by this Court in the case of Messrs Gadoon ibid is respectfully approved with reference to functioning of C.C.I. under Articles 153 & 154 of the Constitution. As a consequence whereof the view taken by the Sindh High Court in the impugned judgment is upheld. Const Petition No. 9 of 2006 etc 24 36. Thus in view of the statement so made on behalf of the Federation of Pakistan as well as learned counsel appearing for Privatization Commission that approval from CCI had already been taken on 29th May 1997, no further discussion is called for except to consider the effect of the stand which has been taken in the written statement by the counsel of PSMC namely that in 1998 the decision was dropped and its restructuring was planned by the then Chief Executive on 20.05.2000. Learned counsel for Federation of Pakistan stated that once the approval has been obtained from the CCI, the same decision cannot be set aside except in accord with the procedure laid down in Article 154(5). On having gone through the relevant Constitutional provision we agree with his contention but at the same time we are mindful of the fact that in the process of restructuring which started after about 3 years of the decision of CCI dated 29.05.1997, the project was restructured by investing huge money. The MoUs were also signed with the governments of China and Russia for the purpose of providing technical support to increase its capacity up to 1.5 metric tons per year and thereafter the Mill had started making profit as is evident from the Statements of Accounts/balance sheets pertaining to the years 2002-03, 2003-2004 and 2004-05. It is significant to note that during these years the project made remarkable profits and according to the stand taken on behalf of PSMC it wiped off all its losses and carried forward accumulated profit of Rs.3.938 billion as on 30th June, 2005, therefore, we observe that in view of these healthy developments having taken place during the intervening period and the divergent stand taken by the counsel for the Federal Government to the effect that order dated 29th May 1997 was never recalled and the stand taken by the counsel for the PSMC that the matter of its privatization was dropped subsequently, by way of propriety if not as a matter of legal obligation, it would be in order if the matter is referred to the Council of Common Interests (C.C.I) for fresh consideration. There is another reason to keep intact the decision dated 29th May 1997 because its validity or otherwise has not Const Petition No. 9 of 2006 etc 25 been challenged before us nor it was ever challenged before the Parliament in terms of Article 154 (5) of the Constitution. 37. During the course of arguments, learned counsel for the Federation was called upon to apprise the Court as to whether C.C.I. is functioning or not? He, after obtaining instructions, stated at the Bar on the following day that process for making C.C.I. functional was underway. Thus in view of the importance of C.C.I. as a body envisaged by the Constitution, we direct the Federal Government to do the needful expeditiously as far as possible but not later than six weeks. 38. The next most important question raised before us is with regard to the vires of the Privatization Commission Ordinance LII 2000. Mr. Abdul Mujeeb Pirzada learned ASC argued that Ordinance 2000 is ultra vires of the Constitution. He explained that it was promulgated during the period when the Constitution was in abeyance therefore the requirements of Article 154 of the Constitution were not fulfilled. However, on revival of the Constitution it was necessary to amend the same in order to bring it in line with the said Article. According to him, the C.C.I. is an important Constitutional body but perusal of the contents of Ordinance 2000 indicates that it has no role to play for the purpose of getting its policies implemented. As far as the executives are concerned, they are not supposed to take decisions for the purpose of privatization of the industries belonging to the Federal Government or to deal in other fields wherein CCI has got jurisdiction as per its Constitutional mandate. He emphasized that the vires of Ordinance 2000 were challenged before the Sindh High Court but it has failed to dilate upon this aspect of the case as the Constitutional petition has been dismissed in limine. It was also argued by the learned counsel that Constitutional protection available to the Ordinance in pursuance to 17th Amendment in the Constitution does not prohibit the Legislature to repeal or amend different sections of the Ordinance through the process of legislation. Substance of his arguments was that when there is a conflict between Const Petition No. 9 of 2006 etc 26 Constitutional provision and the sub constitutional provision then the sub Constitutional provision has to yield to the Constitutional provision and different provisions of the Ordinance including sections 2,3,5,6,7,9,14,16,22 are not in consonance with Articles 153 and 154 of the Constitution, therefore, the same are liable to be struck down. Reliance was placed by him on Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) and Syed Zafar Ali Shah ibid to explain judicial powers of the Court to examine the constitutionality of a law on the subject. He also contended that where a law encroaches upon fundamental rights or it comes in conflict with another provision of the Constitution, the same shall be deemed to be violative of the Constitutional provisions. The workers of P.S.M.C. are earning their livelihood and are responsible for its effective running but they were not permitted to form a group for the purpose of participating in the bid, therefore, section 25 of the Ordinance needs to be amended incorporating a further clause in the modes of privatization and in absence of such provision of law they have been deprived of their fundamental right to life. He further submitted that the Constitution is a social contract and it regulates rights and obligations of its subjects, therefore, any violation of the same by a subordinate legislation calls for striking off the same being contrary to Constitutional commitments between the parties. 39. Mr. Abdul Hafeez Pirzada learned ASC for the Federation contended that Ordinance 2000 does not suffer from procedural or substantive ultra vires. He argued that perhaps an impression has been gathered that CCI has to be approached for each and every item of privatization which is neither required nor possible. Reliance was placed on Gadoon Textile Mills ibid wherein it has been held that CCI superimposes its will on the Cabinet and the Cabinet is bound under the provisions of Article 154 of the Constitution to follow the decisions and directions of the CCI. According to him it would not be proper to say that in the entire process of privatization CCI is involved. He submitted that Ordinance 2000 Const Petition No. 9 of 2006 etc 27 was promulgated by the Chief Executive competently under the powers available to him at the relevant time and the same was protected/ratified under Article 270- AA of the Constitution. According to him the intent of the Parliament cannot be overridden by this Court in exercise of the power of judicial review unless it is shown that it is in conflict with any provision of the Constitution. He further explained that this Court can strike down a law on the following touchstones:- (i) If it is tainted with malice which must be proved as a fact. (ii) If it lacks procedural propriety which is extension of the principle of natural justice. (iii) If it is ex facie illegal. (iv) If there is failure to conform to the principle of proportionality (proportionality has not been defined even in England). In this regard he referred to the principle of reasonableness laid down in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All ER 680. He also submitted that if this Court at all comes to the conclusion that there is conflict between Article 154 and 270-AA which has provided protection to the Ordinance then the two Articles of the Constitution are to be reconciled as this Court is not empowered to strike down any provision of Constitution. He further contended that according to his information Rules and Procedure of the Council of Common Interests were promulgated (in exercise of the powers conferred by sub Article 3 of Article 154 of the Constitution) by the C.C.I. in the year 1991 and since then CCI is implementing its policies through the executives who are exercising the jurisdiction as per the provisions of Rules of Business of the Government of Pakistan. 40. Learned Attorney General for Pakistan (on Court notice) contended that there are two kinds of ultra vires, procedural and substantive. Procedural ultra vires is that law has been made in a manner different from which it should have Const Petition No. 9 of 2006 etc 28 been made as required by the Constitution and Substantive ultra vires means that it is in conflict with the provisions of the Constitution. Procedural ultra vires is sought to be cured by curative legislation in the form of validation of laws. Article 270-AA cured that procedural ultra vires because it has been protected by this Constitutional provision, therefore, this question is no longer open to this Court. As far as substantive ultra vires is concerned, the Ordinance will be protected throughout the extra Constitutional period and after the restoration of Constitution the Ordinance has been protected by 17th Amendment, therefore, it would be deemed to be a protected law and cannot be called ultra vires. Reliance was placed by him on Miss Benazir Bhutto ibid, Mrs. Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66). He further contended that legislation should not be randomly struck down. The Court must endeavour to find every reason for its validity as held in The Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397), Inamur Rahman v. Federation of Pakistan (1992 SCMR 563), Multiline Associates ibid, Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582), Pakistan Burma Shell Ltd. v. Federation of Pakistan (1998 PTD 1804), Dr. Tariq Nawaz v. Govt of Pakistan (2001 PLC (CS) 57), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499), Pakistan Muslim League (Q) v. Chief Executive of Pakistan (PLD 2002 SC 994) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719). 41. Before examining respective arguments advanced by the learned counsel for the parties it would be appropriate to observe that the concept of Council of Common Interests/Inter Provincial Council was conceived during the making of 1973 Constitution in pursuance of an Accord between the Parliamentarians:-- “To conform to the spirit of federalism, a new arrangement has been worked out to ensure effective participation of the Provincial Governments in Const Petition No. 9 of 2006 etc 29 sensitive and important spheres of national life. In respect of the subjects in Part II of the Federal Legislative List and the item of electricity in the Concurrent Leglislative List, special provision has been made for the creation of a Council of Common Interest to be appointed by the President as envisaged in the Constitutional Accord. The Council shall consist of the Chief Ministers of the Provinces and an equal number of members from the Federal Government. The Council shall formulate and regulate policies in relation to the specified matters and exercise supervision and control over related institutions.” 42. In line with the above accord, Council of Common Interests was to be constituted with following objects and purposes:- “24. COUNCIL OF COMMON INTERESTS/INTER PROVINCIAL COUNCIL. There shall be a Council of Common Interests under the Constitution which shall consist of four provincial Chief Ministers and four members of the Federal Cabinet to be nominated by the Prime Minister. 25. In respect of the items No.17 , 27 and 29 of the Federal List above and item of electricity on the Concurrent List in so far as it relates to the Federation, the Council shall exercise supervision and control on policy. The institutions relating to these items shall function under the control and supervision of this Council. 26. The decisions of the Council shall be implemented by the concerned Ministries of the Federal Government. 27. The Council shall, through the Prime Minister, be responsible to the Parliament.” 43. Subsequent thereto, the Constitution makers transformed the above provisions in Article 153 and 154 of the Constitution. Article 153 provides for the composition of the Council of Common Interests whereas Article 154 deals in respect of the functions and rules of procedure. For convenience these Articles are reproduced hereinbelow:- “153. (1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President. (2) The members of the Council shall be------ (a) the Chief Ministers of the Provinces, and (b) (an equal number of members from the Federal Government to be nominated by the Prime Minister from time to time. (3) The Prime Minister, if he is a member of the Council, shall be the Chairman of the Council but, if at any time he is Const Petition No. 9 of 2006 etc 30 not a member, the President may nominate a Federal Minister who is a member of the Council to be its Chairman. (4) The Council shall be responsible to [Majlis-e-Shoora] (Parliament)]. “154. (1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, in so far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions. (2) The decisions of the Council shall be expressed in terms of the opinion of majority. (3) Until [Majlis-e-Shoora] (Parliament) makes provision by law in this behalf, the Council may make its rules of procedure. (4) [Majlis-e-Shoora (Parliament)] in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as [Majlis-e-Shoora (Parliament)] may deem just and proper and such directions shall be binding on the Council. (5) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to [Majlis-e-Shoora (Parliament)] in a joint sitting whose decision in this behalf shall be final.” A perusal of Article 154 indicates that the Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and in so far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the concurrent legislative list and shall exercise supervision and control over related institutions. There is no need to furnish the details of the matters enunciated in Part II of the Federal Legislative List because presently we are only concerned in respect of privatization of Federally owned industries. It is nobody’s case that in the matter of disinvestment or privatization of PSMC the CCI has no jurisdiction. 44. On the basis of the law laid down by this Court in the case of Mian Muhammad Nawaz Sharif ibid, the Privatization Commission moved a summary dated 25th of May, 1997 to the CCI for the purpose of its approval to privatize the government owned industries details whereof were mentioned in the Schedule attached therewith. Relevant para therefrom is reproduced hereinbelow:- Const Petition No. 9 of 2006 etc 31 “Based on the functions and powers of CCI, its concurrence is necessary for the privatization of utilities (electricity, oil, natural gas and miners resources) and state-owned entities (industrial units and other undertakings). The honourable Supreme Court of Pakistan in Muhammad Nawaz Sharif v. the Federation of Pakistan (PLD 1993 Supreme Court Page 473) had observed that the Government ought not to have transferred any units included in Part II of the Federal Legislative List to the private sector in the absence of a policy or policies framed by the CCI.” 45. In pursuance to above summary, the following decisions were recorded by the CCI:- “The Council of Common Interests (CCI) considered the summary dated 25th May, 1997 submitted by the Privatization Commission on “Privatization of Utilities and other State Owned Entities” and decided to grant ex post facto approval to the disinvestments completed by the Privatization Commission so far subject to the reservations that non transparent and irregular transactions during the previous government’s tenure of office as in the case of Kot Addu Power Station, PTC, National Press Trust Newspapers and any other transactions should be thoroughly investigated and necessary action taken to proceed against those involved. II. The CCI decided to approve the recommendations as outlined in the Summary submitted by the Privatization Commission for early implementation. III. The CCI decided that the Privatization Commission should include at least one representative from each Province. IV. The CCI decided that the net sale proceeds accruing from privatization process should be utilized primarily for debt retirement and should not be used for budgetary support. V. The CCI approved the sale of surplus railway land for improving the financial position of the railways, providing better railway facilities and retirement of debt. The sale of surplus land available with federal and provincial governments/agencies should be expedited to retire the debt of federal and provincial governments. VI. The CCI decided that the share of hydel profits or royalties/gas development surcharge from Oil and Gas sources should remain at levels at which it would have remained, had there been no privatization. VII. The CCI endorsed the need for establishment of Regulatory Authorities i.e. for power, gas, telecommunications, railways and wherever required. The Regulatory Authorities, apart from other functions, should keep in view the CCI decision at (VI) above concerning their respective fields.” Const Petition No. 9 of 2006 etc 32 46. It is to be noted that prior to the promulgation of Ordinance 2000 the privatization was being done by a Commission established under the executive fiat of the Federal Government. Later on, apparently to implement the decisions of the CCI, Ordinance 2000 was promulgated also with a view to structure the discretionary authority of the Privatization Commission and to ensure greater transparency. 47. Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law Const Petition No. 9 of 2006 etc 33 contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in view the principles defining the powers of judicial review of this Court to examine a law at the touchstone of the Constitution, we have considered the arguments put forward by learned counsel for the petitioner and have also minutely gone through the provisions/sections of the Ordinance 2000 referred to by the learned counsel in his arguments to ascertain as to whether any of them negates the provisions of the Constitution. 48. It may be noted that the main concern of Mr. Mujeeb Pirzada was that as under Article 154 of the Constitution, it is the domain of the C.C.I. to lay down policies, therefore, with reference to the process of privatization the legislature must have given some role to the C.C.I. instead of conferring the jurisdiction upon the Privatization Commission. According to him, even in the definition clause C.C.I. has not been mentioned. It may be noted that a perusal of the Preamble of Ordinance 2000 shows that it has been drafted substantially and in consonance with the spirit of the summary which was put up before the C.C.I. on 25th May 1997. The Federal Government had made some commitments therein that the proceeds of privatization will be utilized for the retirement of the Federal Government debt and for poverty alleviation. To achieve the object a Privatization Commission has been established under section 3 for carrying out the purpose of the Ordinance. It is most important to note that earlier to the promulgation of the Ordinance, the Privatization Commission was responsible for disinvestment of the government entities in the industrial sector and it was functioning under the Notification bearing No. F(5)(1) Admn-1/1991 dated 22nd Const Petition No. 9 of 2006 etc 34 January, 1991. But after the promulgation of the Ordinance the said notification was rescinded in terms of section 3(ii) of the Ordinance. The provisions of section 5 of the Ordinance deal with the functions and powers of the Commission. One of the functions enumerated therein is to recommend privatization policy guidelines to the Cabinet etc. It is to be noted that in the year 2000 when the Ordinance was promulgated at that time the Constitution was in abeyance. Therefore, the Commission was authorized to provide guidelines to the Cabinet but no sooner the Constitution has been revived the policy guidelines of privatization prepared by the Commission shall be subservient to the policy guidelines of the CCI which it has to provide under Article 154 of the Constitution. Under the scheme of the Constitution the Commission independently cannot provide such guidelines and it has to follow whatever guidelines are provided by the CCI. Section 6 deals with the composition of Board of the Commission, general management and decision of the affairs of the Commission. This provision has been promulgated for the purpose of smooth working of the Commission for the purpose of implementing the Constitutional mandate given to the CCI in terms of Article 154 of the Constitution. Section 7 of the Ordinance deals with the appointment of the Chairman, Secretary and the members by the Federal Government. Obviously for the purpose of carrying out the object and the purposes of the Privatization Commission, appointments have to be made by the Federal Government and such appointment when made cannot be said to be un-Constitutional. As far as section 9 relating to the delegation of powers by the Board its examination does not identify violation of any of the provisions of law for the purpose of holding it contrary to the Constitution. Likewise sections 14, 16 and 22 deal with the privatization fund and their distribution for the purpose of the smooth running of the affairs of the Const Petition No. 9 of 2006 etc 35 Commission. Sections 14 and 16, deal with the establishment of fund, preparation of budget of the Commission which will be utilized while performing its functions and exercising its powers under the Ordinance. As far as section 16 is concerned, it is one of the important sections in the Ordinance therefore the same is reproduced hereinbelow:- “Privatization Fund.---(1) The Commission shall establish and maintain a distinct and separate Privatization Fund in which all Privatization proceeds shall be deposited. The Commission shall, out of the moneys so deposited, withdraw and contribute to the Commission’s Account such amount or amounts as may be needed by it from time to time but only to supplement the other resources therein if and to the extent necessary. The remaining Privatization proceeds shall be kept in trust for and distributed to the Federal Government or the enterprise owned or controlled by the Federal Government entitled to such proceeds.” The above provision seems to have been enacted to carry out the object for which CCI has given the approval on the summary dated 25th May 1997 viz that the sale proceeds of the project shall be used for the purpose of retirement of Federal Government debts. 49. It is to be observed that Section 16 of the Ordinance was amended by means of Ordinance CXVI of 2002 dated 8th of November 2002 by virtue of which two provisos were added:- 2.---Amendment of Section 16, Ordinance LII of 2000.---In the Privatization Commission Ordinance, 2002 (LII of 2000) in section 16, in subsection (1) for the full stop at the end, a colon shall be substituted and thereafter the following provisos shall be inserted, namely:- “Provided that the Commission may, if so required by the Federal Government, withhold a specified amount out of the Privatization proceeds, of the Government of Pakistan’s shares in the oil and gas fields specified in the Schedule to this Ordinance. Provided further that the amount withheld under the foregoing proviso shall be paid to the Federal Government and shall not exceed the sum equivalent to such proceeds as may be necessary to compensate the Federal Government for the investments made by it in such oil and gas fields.” Const Petition No. 9 of 2006 etc 36 Perusal of the above provisos indicates that the sale proceeds can be used by the Federal Government for the purpose other than that which has been approved by the CCI therefore the Federal Government has to examine its implication and to ensure that it takes ex post facto approval from the CCI. Thus it is concluded that subject to above observation, section 16 is also not contrary to any of the provisions of the Constitution. 50. Section 22 of the Ordinance reads as under”- “22.---Privatization Programme.—Subject to the provisions hereinafter provided, the Commission shall, after approval by the Cabinet, carry out the Privatization programme in the prescribed manner.” 51. Learned counsel emphasized that in terms of Article 154 of the Constitution, it is the CCI which has to give the programme and as this section gives power of approval to Cabinet, it is in conflict with Article 154. At this juncture Mr. Abdul Hafeez Pirzada, Learned Sr. ASC appearing for the Federal Government stated that all the policies of the CCI have to be implemented by some agency therefore section 22 has provided a vehicle for the implementation of such policy. A perusal of this section indicates that it does not speak in respect of the policy which essentially has to be framed by the CCI under Article 154(1) of the Constitution. Admittedly CCI has no implementing agencies, therefore, the Constitution makers had only assigned the job of giving the policies to it and as far as their implementation is concerned for that purpose Privatization Commission has been established. As stated hereinabove initially the Commission was acting under a notification but then it has been institutionalized by way of promulgating Ordinance 2000. It is Cabinet which is bound by the policy of the CCI and has to see that privatization programme is in accord with the same. 52. Before discussing the manner in which CCI policies are implemented by the Federal Government it would be appropriate to note that framing the policy and issuing the programme for the purpose of carrying out Const Petition No. 9 of 2006 etc 37 privatization are distinct and different from each other. The word “Policy” has been defined in Black’s Law Dictionary 7th Edition Page 1178 as follows: “the general policies by which a Government is guided in its management of public affairs.” Whereas the word “Programme” has been defined in 20th Century Dictionary Page 1107: “the schedule of proceedings for and list of participants in a theatre performance, entertainment, ceremony, etc; an agenda, plan or schedule, a series of the planned projects to be undertaken”. On having seen the meanings of both the expressions one can conveniently conclude that the programme which is to be provided by the Commission is merely a schedule for the purpose of the privatization in a manner prescribed in law. 53. Article 154 of the Constitution has itself provided mechanism for the purpose of functioning of the CCI. Its sub Article (3) lays down that until “Majlis-e-Shoora (Parliament) makes provisions by law in this behalf, the Council may make its rules of procedure”. In pursuance of such interim arrangement the Council has framed its rules as far back as 12th January, 1991 which have inter alia provided a procedure for implementing the decisions. Rule 4 of the Procedure stipulates the kind of cases which are to be submitted to the Council for formulation and regulation of the policies on which the CCI has jurisdiction of supervision and control. The list provided under the sub rule (c) includes all undertaking projects and schemes of such institutions, establishments, bodies and corporations; industries, projects and undertaking owned wholly or partially by the Federal Government or by a Corporation set up by the Federation. Essentially it also includes the supervision and control over PSMC. Rule 5 is again important as it deals with the meetings of the Council. The Chairman from time to time has been authorized to summon a Const Petition No. 9 of 2006 etc 38 meeting of the Council to meet at such time and place as he thinks fit. According to this rule there shall be at least one meeting of the Council in a year. As far as Rule 14 is concerned, according to it the minutes of the meeting should be circulated by the Cabinet Division to all the members who shall return the same after perusal. Discrepancies, if any, shall be reported by the members within seven days of the receipt of the minutes. Sub rule (2) says that the Cabinet Division shall also pass on the decision of the Council to all concerned for necessary action but the primary responsibility for the proper implementation of the decision would be that of the sponsoring secretary or the chief secretary of the Province concerned who would ensure that the decision has been duly passed on to all the agencies concerned. As per sub rule (4) it is the responsibility of the Cabinet Secretary to watch the implementation of the decision and the Secretary of the Division concerned or the Chief Secretary of the Provincial Government concerned shall supply to the Cabinet Secretary such documents as the latter should by general or special request require to enable him to complete his record of the case and to satisfy himself that the decision has been fully implemented. It is important to note that a perusal of both these rules abundantly makes it clear that the policy decisions of the CCI are required to be implemented by the Cabinet Secretary as well as the Secretary of the concerned Ministry. Therefore, it is not correct to assert that the powers of the C.C.I. have been transferred/delegated to the Commission for the purpose of making its policies independent of C.C.I. while discharging the functions in terms of section 5 as well as section 22 of the Ordinance 2000. It would not be out of place to mention that as far as the procedural rules are concerned they have got Constitutional support/backing, therefore, whatever decision will be pronounced by the CCI the Executive Government in discharge of its functions in terms of Article 97 of the Const Petition No. 9 of 2006 etc 39 Constitution is bound to implement the same unless it is varied by the Parliament. It may be recorded that validity of these Rules has not been challenged before us. 54. Besides the above decision to further elaborate the role of the executive for the implementation of the decisions of the CCI reference may be made to Sub Article (4) of Article 154 of the Constitution which provides that Majlis-e-Shoora (Parliament) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as [Majlis-e-Shoora] (Parliament) may deem just and proper and such directions shall be binding on the Council. A perusal of this Article indicates that the Constitution makers have even not allowed the Parliament to speak to the CCI directly but for communication of its directions it has also taken the help of the Federal Government. Since both the institutions are constitutional bodies there was no impediment for the Parliament even to address directly to the CCI in respect of the resolution passed by it. Making available the agency of the Federal Government clearly goes to show that it is just within the scheme of the Constitution because such decisions/resolutions even if passed by the Parliament have to be carried out or implemented through the Federal Government in terms of Article 97 of the Constitution which is repository of the Federal executive powers. In the instant case as well the various provisions of the Ordinance 2000 indicate that the object was nothing but to implement the decision of the CCI through a Privatization Commission which has been constituted under a statutory provision and the functions etc of the Privatization Commission clearly demonstrate that it was just for the purpose of providing a vehicle to the CCI for the implementation of its programme on the same analogy as the Majlis-e-Shoora (Parliament) takes the assistance of the Federal Government for purpose of getting implemented its resolution in terms of Article 154 (4) of the Constitution. We may point out here that the procedural rules are not ordinary rules framed under an Act of Parliament but are the rules which have been framed Const Petition No. 9 of 2006 etc 40 under the Constitutional provision, therefore, their status would not be less than that of an Act of the Parliament in any manner and so long Majlis-e-Shoora has not made the rules they shall hold the field. There is identical rule making provision in the Constitution i.e. Article 191 which confers power upon the Supreme Court and Article 202 which confers power upon the High Courts to frame their rules. Similarly Articles 90 and 99 confer powers upon the Federal Government to frame their Rules of Business. 55. Thus it is held that the procedural rules framed by the CCI are required to be adhered to strictly for the purpose of implementation/carrying out its policies. 56. All the above provisions have been tested by us at the touchstone of Article 8 of the Constitution in the light of the arguments put forward by the parties’ counsel. But we fail to find any provision in the Ordinance 2000 to be contrary to any of the fundamental rights. Besides it has got constitutional protection under Article 270-AA and adhering to the principles laid down in Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) it was promulgated competently by the Chief Executive and it has not been shown to us that either it has been framed by an incompetent authority, or that it suffers from mala fides and lack of jurisdiction. In as much in the post revival period of the Constitution when the Court’s powers were restored for judicial review to examine the legislation at the touchstone of the Constitution nothing has been identified or pointed out lacking or against the mandate of the Constitution as has been discussed hereinabove. Therefore, it is held that the Privatization Commission Ordinance, (LII) of 2000 is not ultra vires of the Constitution. 57. The next question is in respect of the judicial review of the policies of the Government. It is well settled that normally in exercise of the powers of judicial review this Court will not scrutinize the policy decisions or to substitute its own opinion in such matters as held in Messrs Elahi Cotton Mills ibid. Const Petition No. 9 of 2006 etc 41 Likewise in the case of Balco Employees ibid, the Supreme Court of India observed as follows:- “Process of disinvestments is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has while taking a decision, right to “trial and error” as long as both trial and error are bona fide and within limits of authority.” This view is in line with this Court’s view as given in Elahi Cotton ibid. Similar view was taken by the Indian Supreme Court in Delhi Science Forum v. Union of India (AIR 1996 SC 1356). 58. The parameters of judicial review were graphically commented upon in Associated Provincial Picture Houses Ltd. Ibid which has been relied upon by counsel for both sides where in the concluding paragraph the Court came to the conclusion in the words of Lord Somervell as under:- “I do not wish to repeat what I have said, but it might be useful to summarize once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it.” Const Petition No. 9 of 2006 etc 42 This view was further reiterated and the principle laid down therein was followed in Nottinghamshire County Council v. Secretary of State for the Environment and another appeal (1986) 1 All ER 199) wherein the Court observed as follows: “The law has developed beyond the limits understood to apply to judicial review as practiced by the courts in 1947. The ground on which the courts will review the exercise of an administrative discretion by a public officer is abuse of power. Power can be abused in a number of ways: by mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common law power) on the scope of the power; by procedural irregularity; by unreasonableness in the Wednesbury sense; or by bad faith or an improper motive in its exercise. A valuable, and already ‘classical’; but certainly not exhaustive analysis of the grounds on which courts will embark on the judicial review of an administrative power exercised by a public officer is now to be found in Lord Diplock’s speech in Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374.” There is no cavil to the proposition being espoused by learned Attorney General with reference to Peter Can’s “An Introduction to Administrative Law” 2nd Edition that the Court while exercising power of judicial review may not express opinions on polycentric issues requiring technical expertise and specialized knowledge. In the instant case, however, we are seized not with a polycentric issue as such but with the legality, reasonableness and transparency of the process of privatization of the project under consideration i.e. PSMC. These are well established basis for exercise of judicial review. Thus it is held that, in exercise of the power of judicial review, the courts normally will not interfere in pure policy matters (unless the policy itself is shown to be against Constitution and the law) nor impose its own opinion in the matter. However, action taken can always be examined on the well established principles of judicial review. Const Petition No. 9 of 2006 etc 43 59. Barrister Zafar Ullah Khan learned ASC contended that process of privatization of PSMC lacks transparency for number of reasons which he has explained in his petition duly supported with evidence available to him, therefore irrespective of the fact as to who is the successful bidder the transaction deserves to be declared contrary to the provisions of the Ordinance 2000 as well as rules framed thereunder. Mr. Abdul Mujeeb Pirzada learned ASC as well as Ahmar Bilal Sufi Advocate who appeared on behalf of Intervener (Iftikhar Shafi) supported his contention. Learned counsel for the Federation, for Privatization Commission, for P.S.M.C. and the bidders contended that the transaction of privatization of PSMS has been completed in the most transparent manner, therefore, calls for no interference by this Court. Learned Attorney General, however, contended that in the facts and circumstances of the case, the Court may not enter into controversial facts and can find out middle way to resolve the controversy, the suggested way was to direct investigation provided under section 27 of the Ordinance 2000. 60. We consider it appropriate at this stage to first of all ascertain the status of the material which is available on record in order to decide as to whether the Court has to confine to the material which has been placed on record only by the petitioners or in view of the importance of the case the documents which are not disputed between the parties can be taken into consideration. Learned senior ASC for the Privatization Commission stated that as far as the newspaper clippings are concerned those cannot be considered valid piece of evidence for judicial review. Reference in this behalf has been placed by him on the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736). He further emphasized that if the practice of equating the news clippings with evidence is allowed then every public interest litigation will be based on the press clipping. It will be highly dangerous. Similarly learned Attorney General contended that it is not the first case in which the reliance has Const Petition No. 9 of 2006 etc 44 been placed on the news clippings but there are may other cases like Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Khawaja Ahmad Tariq Rahim ibid, Miss Benazir Bhutto ibid and Mian Muhammad Nawaz Sharif ibid but the distinction which is required to be noted by this Court is that in the cases which he has referred to the decision had already been taken by the President of Pakistan for the purpose of forming his view not only on the basis of media reports but information received by him from different sources and this Court had to examine the validity of the decision of the President in dissolving the Assembly or taking action for banning a political party whereas in the instant case the Court is being called upon to accept the news clippings and based on the same give a verdict that the transaction of privatization lacks transparency which according to him is not possible unless the allegations are proved in accordance with law. He contended that all these judgments were reconciled by the Lahore High Court in the judgment reported in Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130) authored by one of the learned Member of this Bench Mr. Justice Tassaduq Hussain Jillani. In this context he also relied upon the judgments in the case of Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77) and Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583). In the case of Pakistan Lawyers Forum ibid, the learned author Judge laid down following parameters for the purpose of taking judicial notice of a newspaper report and articles:- (i) Where direct evidence is not available. (ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report. (iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which is to be used against him. (iv) In cases of defamation. (v) If the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable. From the above parameters laid down by the learned Lahore High Court it is manifest that newspaper reports and articles can only be used in above exceptional Const Petition No. 9 of 2006 etc 45 circumstances meaning thereby that if on record admissible evidence is available which is not disputed between the parties particularly in the cases where the defendant/respondent himself had brought on record certain documents in proof of his plea then the Court is not debarred to look into the same for the purpose of arriving at a just conclusion particularly in the exercise of jurisdiction under Article 199 and Article 184(3) of the Constitution, where the Court had no occasion to record the evidence itself and had to base on the pleadings of the parties who are supported with the documents like the instant case although the petitioners in Const. Petition No.9 of 2006 had relied upon the press clippings and articles but the respondents either on their own or under directions of the Court had brought on record material to satisfy the Court that the transaction under challenge is in accordance with law. Therefore, while accepting such request and declining to give relief, it would be incumbent upon the Court to rely upon the documents which are not disputed between the parties and such documents can be considered/treated as evidence on record. It may be noted that in the judgment passed by this Court in Constitutional Petition No. 59 of 1996 Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), a review was filed under Article 188 of the Constitution on the premise that in the judgment under review findings had been recorded in a summary manner and such findings may be detrimental during the trial of the petitioner on different charges. Keeping in view this aspect, this Court observed in the case of Benazir Bhutto ibid that in order to remove any doubt, it was clarified that the observations made in the order under review were restricted in their application to the proceedings under Article 184 of the Constitution for the purpose of Article 58 (2-b) alone and were not to be treated as a proof of charges for any other purpose. In Mian Muhammad Shahbaz Sharif ibid, this Court observed as under:- Const Petition No. 9 of 2006 etc 46 “23. As far as evidentiary value of press reports is concerned, it is noted that one line of precedents in the jurisprudence of the country is that no evidentiary value is attached to the press reports and no reliance can be placed on a press report where a person claims a legal right on its basis. The Courts do not decide cases on press reports. In the other line of authorities, such as Wali Khan’s case, Ms. Benazir Bhutto’s case and Mian Muhammad Nawaz Sharif’s case, the press reports are relied upon, but these cases are distinguishable. This Court in exercise of its jurisdiction under Article 184(3) does not act as a Court of appeal, but as a Court of review. 24. Basically to believe or disbelieve the press reports is a question of fact and before reaching a positive conclusion such facts need to be examined, keeping in view their intrinsic value. Many such statements are given only for political purposes, but the same cannot straight away be taken as proved nor at their own they create a legal right nor any evidentiary value can be attached to press reports, unless irrefutable evidence is brought on record for establishing their correctness.” We have no reason to disagree with the above proposition of the law. However, in the present case controversy is not only to be settled on the basis of the press clippings which were filed for the first time when the petition was submitted by the petitioner under Article 184(3). The other petition filed by Mr. Abdul Mujeeb Pirzada bearing (C.P.No. 345 of 2006) also has no documents to decide the factual controversy perhaps for the reason that when originally petitioner invoked the jurisdiction of the High Court under Article 199 of the Constitution the petition was dismissed in limine and against the short order followed by detailed reasons, petition for leave to appeal was filed. At the same time the Federation of Pakistan has also filed petition for leave to appeal (No. 394 of 2006) against the same judgment of the Sindh High Court. Thus, we will be evaluating the documents which have been placed on record by the respondents themselves. Amongst those, the important documents which were filed on behalf of the PSMC in pursuance of order dated 18th May 2006 passed by this Court are as follows:- (i) Comprehensive report about the existing affairs of the Mill along with its assets and the balance sheets duly audited for the last three years. Const Petition No. 9 of 2006 etc 47 (ii) The Privatization Commission also produced before the Court complete proceedings including the summary it submitted and the deliberations/proceedings by the Cabinet Committee for Privatization, its decisions and the reasons/grounds which persuaded the Commission and the Government of Pakistan to privatize Pakistan Steel Mills. Some other documents including Memorandum and Article of Association of PSMC were also placed on record. Likewise financial statements for the period ended June 30th 2003, June 30th 2004 and June 30th 2005 were filed without expressing any reservation to their admissibility. Similarly on behalf of the Privatization Commission all the necessary documents were filed including a secret report of CCI approving the privatization of the PSMC along with other projects. It is important to note that this document otherwise was not part of the pleadings but was placed on record during the course of hearing. It is most interesting to note that as far as the Government of Pakistan/Federation of Pakistan is concerned, it also filed a thick paper book of about 650 pages containing documents and other record of proceedings/deliberations taking place during the process of the privatization. The petitioners have not denied these documents in any manner whereas the respondents are bound by the same. Therefore, for our findings/decision, we will be relying upon/referring to these documents rather than press clippings or media reports, unless reference to latter is found absolutely necessary and we are convinced of its correctness and authenticity. 61. Now the stage has arrived where we have to examine and adjudicate the contentions raised by the learned counsel for the parties and to see whether on account of omissions and commissions committed by the relevant functionaries, the transaction is valid and transparent. To determine validity/transparency or otherwise following questions are to be addressed:- Const Petition No. 9 of 2006 etc 48 (i) Whether the terms of reference framed for the valuer were in accord with the Privatization Commission Valuation Rules, 2001? (ii) Whether the method adopted in valuing the property satisfied the mandate of law contained in Privatization Ordinance 2000 and the rules framed thereunder and whether it is in accord with the internationally recognized principles in this regard? (iii) Whether the process of pre-qualification of potential bidders satisfied the requirement of Privatization Commission Regulations? (iv) Whether the decision dated 31.03.2006 taken by the Cabinet Committee (CCOP) to sell the Mill if the bid was above Rs.16.18 per share satisfied the requirements of law? (v) Whether the final terms/concession offered to the highest bidder/consortium on 31.03.2006 were in accord with the terms and conditions of initial public offering given to the potential bidders through advertisement dated 19.10.2005 and if not whether these can be justified on the touchstone of law and “reasonableness”? 62. In view of the above points it may also be borne in mind that CCI vide its approval dated 29th May 1997 had given the approval for the privatization of the Federal Government owned projects or entities for the purpose of retiring the debts and this object has been duly transformed in the Preamble of the Ordinance 2000, therefore, keeping in view the object for privatization it should have been the endeavour on the part of the Privatization Commission to adopt such ways and means which may fetch highest price of its assets. Admittedly, in this context the report of the statement of affairs submitted on behalf of the Chairman of PSMC becomes more relevant coupled with the Statements of Accounts. The owners generally make their efforts to show less book value of the assets for purpose of lessening the tax burden on the concern. Admittedly such balance sheets and the statements of accounts were never prepared for the Const Petition No. 9 of 2006 etc 49 purposes of disposing of the assets, shares etc in the market. It is not disputed that before the appointment of Financial Advisor (F.A.), the P.C. was required to determine and decide the most important issue i.e. valuation of property according to section 24 of the Ordinance 2000 and its mode. The valuation of property is to be done in the prescribed manner i.e. the Privatization Commission (Valuation of Property) Rules, 2001 by independent valuers who are to be hired in accordance with Privatization Commission (Hiring of Valuers) Regulations, 2001. It may be noted that as per section 2 (l) of the Ordinance, property “includes any right, title or interest in property, moveable or immovable in whole or in part or any means and instruments of production owned or controlled directly or indirectly by the Federal Government or any enterprise owned or controlled by the Federal Government whether in or outside Pakistan”. The cumulative effect of the relevant law/rules/regulations is that the valuation of the property is part of the process of privatization of an ongoing concern. This conclusion about legislative intent is further reiterated by the Privatization Commission (Hiring of Valuers) Regulation 2001. Regulation 3 of which provides that for a fair and independent valuation of the property the Privatization Commission shall frame terms of reference for the valuer which shall, “include inter alia, a brief history of the entity, the financial position, a description of the produce line/service of the entity if any, a description of land, building, plant and machinery, the current assets and liabilities and the current state of industry.” 63. In the instant case during the hearing of the case, the land of PSMC had been one of the focal points for consideration, both for the Court as well as for the learned counsel appearing on behalf of the parties. Perhaps this issue has arisen in view of the report which has been submitted by the PSMC in respect of its affairs which says that the value of the non-core property situated in the downstream industrial estate is considerably high, therefore, the valuation of the land has attained more importance under the circumstances of the case. As already Const Petition No. 9 of 2006 etc 50 stated in Para (supra) the terms of reference given by the Privatization Commission to the valuer did not make any reference to determine the value of land. A perusal of the report of the statement of affairs of the PSMC reveals that PSMC has total of 19086 acres of land out of which little less than 9000 acres is meant for labour colony and little more than 1000 is earmarked for plants, storage of raw material and waste products. The Government of Pakistan has offered plant and machinery located on 4457 acres of the land for bidding purposes but unfortunately in the reference sent to the Financial Advisor nothing was stated for the valuation of the land and if the same was added in the assets then what would be the price of a share which the government was going to privatize. It was all the more essential as strategic equity share of 75% and management control was being handed over to the successful bidder. With this percentage of share holding, the owner under the Companies Ordinance has very wide powers. It was precisely for these reasons that, “the Disinvestment Commission of India” while laying down policy guidelines stressed the need that if strategic sale of equity holding of more than 50% has been offered for sale then the valuation of land becomes necessary. The report lays down as under:- “Strategic sale implies sale of a substantial block of government holdings to a single party which would not only acquire a substantial equity holdings of up to 50% but also bring in the necessary technology for making the PSU viable and comparative in the global market. It should be noted that the valuation of the share would depend on the extent of disinvestment and the nature of share holder interest in the management of the company. Where the Government continues to hold 51% or more of the share holding the valuation will relate mainly to the shares of the company and not to the assets of the company. On the other hand where shares are sold through strategic sale and management is transferred to the strategic partner, the valuation of the enterprise would be different as the strategic partner will have control of the management. In such cases the valuation of land and other physical assets should also be computed at current market values in order to fix the reserve price for the strategic sale.” Const Petition No. 9 of 2006 etc 51 The afore-referred recommendation of the Disinvestment Commission of India is in accord with the spirit which underlies section 24 of the Privatization Ordinance, 2000 and rule 3 of the Privatization Commission (Hiring of Valuers) Regulations, referred to above. When the case was being heard and reports were being examined the learned counsel appearing for the respondents candidly admitted that the Financial Advisor (City Group) had not valued the land on which the PSMC is located which is described as core land. This fact is also evident from the report of the City Group. Contrary to it the agreement of sale and purchase as per clause 4.2 of the Share and Purchase Agreement dated 24.04.2006 entered with purchasers, lays down condition precedent to completion that notwithstanding any other provision of this agreement completion shall not occur until and unless the unmutated land has been mutated in the name of the company in the relevant record of rights. When we inquired from the learned counsel for P.C. that without adding the value in the property (assets) of PSMC in terms of section 24 read with valuation rule 3 how can the property/land be mutated, he got recorded following statement as an officer of the Court but not as a counsel for P.C.:- “Admittedly the land has not been evaluated. What is the nature of the land subject to the document which has been produced by the learned Advocate General of Sindh, my submission is that since the land has not been valued and it appears that land was partly acquired under Acquisition Act for the purpose of the PSM by the Sindh Government and secondly it was given by the Sindh Government at a special rate again for the purpose of Steel Mill, so my personal opinion, I am not speaking as a counsel for the Privatization, my personal opinion as officer of the Hon’ble Court, that so long as the unit of the Steel Mills they can leave/use it, but if they are not going to leave/use it as Steel Mill then they are not entitled to the land, it will revert to the Federal Government, subject to the document which will come.” Const Petition No. 9 of 2006 etc 52 Whereas contrary to the above statement Mr. Khalid Anwar who appeared on behalf of the successful bidders contradicted the above statement and stated as follows:- “The land always belong to a company and name of the Company is PSM Co. Before the sale to me the land belongs to the company. The shape of the agreement the foundation says I am buying shares in the company. A separate question what does the company owns, the answer is the company owns land, plant, current assets. Land as such is not being sold. Not a single square inch of the land as such is being sold. Why not? The land always belong to the company; the land will always continue belong to the company. It will never ever be mutated in the name of the buyer. All that is happened is that out of that 19000 acres of land, which is already in the name of the company, the company will surrender only 13500 acres, and small amount of few hundred acres will be transferred in the name of the company not in the name of the buyer. I state in all integrity and seriousness before your lordship that my client is not buying a single square inch. Not one.” The above facts are sufficient to draw the inference that in the valuation process of the property the land underneath the unit was not added. Similarly A.F. Ferguson & Co. one of the Advisors to assist the City Group (F.A) engaged to conduct the accounting, tax, HR and I.T. due diligence had stated in unequivocal terms that they had conducted their due diligence review based on the draft UNAUDITED financial statements of the Corporation for the year ended June 30, 2005 which were provided to them by the management on September 16, 2005. The data provided to the F.A. was all the more insignificant as it had been informed by the management that significant adjustments had been incorporated in the financial statements of the Corporation in the year ended June 30, 2005 subsequent to the date on which the un-audited financial statements were provided to them for the purpose of their report. It was admitted at the Bar by the learned counsel appearing on behalf of the official respondents that these unaudited financial statements were prepared on book value (historical value and not on the basis of market value of its assets, stock in trade raw material etc). It is important to note that the market value of the assets is reckoned all over Const Petition No. 9 of 2006 etc 53 the world, reference in this behalf may be made to the report prepared by the experts in the exercise carried out under the auspices of United Nations. While commenting on the mode of valuation the report concludes as under:- “Unfortunately, the lesson of valuation as an inexact science has not been easy to learn. Political expediency (e.g. government officials often believe that the more financially rigorous the valuation is, the more politically defensible the sale will be) and the investment banking culture brought by most Western financial advisors, has led to the construction of sophisticated valuation models in perhaps too many privatization exercises. This is not to suggest that conventional valuation techniques are useless or should not be applied. Rather, their results should be viewed with an understanding of this uncertain and evolving context. There is never” one right answer.” The quality of the results of the valuation exercise is a function of the accuracy of the inputs used and the validity of assumptions made. The adage “garbage in-garbage out” rings true in this setting. Ultimately, we believe that resources are better spent developing and strengthening market-based mechanisms for price discovery, rather than relying on armies of investment bankers to conduct a valuation.” (Emphasis is supplied). 64. We are conscious of the fact that the courts are not supposed to settle the controversy as to which method should have been followed by the valuer for the purpose of determining the value of shares. As per Mr. Abdul Hafeez Pirzada this is not a science but an art. Same view was endorsed by the learned Attorney General although he has cited a number of judgments i.e. Commissioner of Wealth Tax v. Mahadeo Jalan [1972] 86 ITR 621 and Commissioner of Gift Tax v. Kusumben D. Mahadevia [1980] 2 SCC 238. However, we can look into the models of valuation internationally recognized to ascertain as to which out of them suits the seller and buyer respectively. In this behalf Mr. Abdul Hafeez Pirzada, learned ASC placed on record a report prepared by the World Bank titled as, “The Case-by-Case Approach to Privatization Techniques & Examples” wherein the principle for assessing the market value of assets for an ongoing concern has been stressed in the following words:-- Const Petition No. 9 of 2006 etc 54 “……….The government, on the other hand, has a fiduciary responsibility to its citizens when it privatizes an asset. It is entrusted to sell privatizable assets at or above their fair market value, and must take every precaution to ensure that this happens. Agreeing to sell state assets below their market value is tantamount to favouring a buyer, and it deprives the state of needed financial resources. While this may sometimes be politically desirable---for example, in the case of employees of privatized companies---transparency is crucial. Thus the size of the discount offered should be determined and publicly disclosed.” (Emphasis is supplied). 65. The above quotation from the World Bank Report goes to show that the Government must make efforts to adopt such a procedure on the basis of which fair market value of its assets can be achieved. As far as the judgments cited by the learned Attorney General are concerned, which are referred to hereinabove, those are not helpful in the context of the instant case, in as much as they are relatable to fixation of share for the purposes of Wealth Tax and Income Tax Act. These do not seem to be relevant for determining the share value for the purposes of privatization under the Ordinance. 66. Mr. Khalid Anwar, learned Sr. ASC appearing for the bidder stated that the bidders before the bid got prepared valuation report for their consumption from an independent valuer and the reference price fixed by the said valuers was mostly similar, therefore, the report of the City Group does not suffer from any material irregularity. 67. Suffice to observe in this behalf that the method of valuation favoured by buyers is known as “Discounted Cash Flow” (D.C.F.) and the method liked by the seller for calculating market value of share are different and distinct from each other. Incidentally the bidders got assessment of the share on the basis of historical evaluation of the assets handed over to it by PSMC, rightly so because their interest was to purchase the share at a lesser value whereas as has been noted above, generally this formula is not preferred by the seller. Be that as it may, even in the report which has been relied upon by the bidders, the assets Const Petition No. 9 of 2006 etc 55 including the land have not been evaluated and the valuation has been based on the discounted cash flow method. Both the reports prepared by the City Group and Taseer Hadi from whom the bidders got prepared the report had calculated the discounted cash flow from 2006 onward without having regard to the fact that after restructuring in the year 2002-03 the PSMC did increase its profitability and the P.C. while publishing the notices for Expression of Interest in the newspapers had shown the statement of positive financial condition. The crux whereof is that in the fiscal year 2004-2005, PSMC had recorded annual sales of over Rs.30.00 billion and net profit of Rs.6.00 billion. It is equally important to note that after restructuring, the liquidity of the Corporation improved and it paid off principal amount of debt of Rs. 11.35 billion on 30th June 2003. Therefore under these circumstances it was incumbent upon the Privatization Commission to have taken care about these facts and these must have been mentioned categorically in the Terms of Reference framed for the Financial Advisor that the Mill is ongoing profitable concern and it has marketable assets and the liabilities are much less than the assets, therefore, keeping in view these facts any internationally acceptable methodology for calculating its shares may be adopted. At this juncture it is important to note that according to the report of PSMC 10% equity offer will be made to the private sector meaning thereby enlisting its shares on the Stock Exchange for the purpose of ascertaining correct value in order to achieve the object for which in terms of the Ordinance the privatization was to take place. 68. It is equally important to note at this stage that this procedure could have been more appropriate, accurate and acceptable to the seller i.e. the Government of Pakistan in view of its experience in respect of privatization of 23.2 percent government owned shares of the National Bank of Pakistan and to follow this procedure there was no difficulty to take steps for the purpose of offering 10% shares for public through Stock Exchange. In this behalf, the Const Petition No. 9 of 2006 etc 56 Privatization Commission had a precedent in respect of the case of National Bank of Pakistan which is reported as PLJ 2004 Central Statutes 259, the following paragraphs are relevant to discussion:- “NBP was the first SOE whose shares were offered by means of an Offer for Sale to the general public. The Cabinet Committee on Privatization (CCOP) decided to offer 5% (18,652,000) shares of NBP with a green shoe option of an additional 5% shares in case of over- subscription Shares of NBP were listed on the Karachi, Lahore and Islamabad Stock Exchanges and subscription for the shares was held during 19-22 November 2001. Since it was an initial offering, shares were offered at par value (Rs. 10/- per share) to attract small investors. The offering was heavily over- subscribed and applications for an amount of Rs.1.04 billion were received against the required amount of Rs.186.5 million (for 5% shares). Thus Government exercised the green shoe option and divested 37,304,000 shares for gross proceeds of Rs.373 million. In October 2002, it was decided to divest an additional 5% (18,652,000) shares of NBP through a secondary public offering at the Stock Exchanges with a green shoe option of additional 5% shares. Taking the market price of NBP share as a benchmark, the CCOP fixed the offer price as Rs.21/- per share. Subscription for the shares was held during 07-09 October, 2002. This offer was also heavily oversubscribed and applications were received for an amount of Rs.1.63 billion against the target amount of Rs.391.7 million (for 5% shares). The Government chose to exercise the green shoe option and realized proceeds of Rs.783.3 million. To take advantage of the bullish market and excess liquidity available with investors, it was decided in June 2003 to offer additional shares through a third public offering. However, on this occasion the offer size was restricted to 3.2% (13.131 million) of the outstanding shares in order to keep the Government’s shareholding above 75%. Again using the market price as a benchmark, shares were offered at the price Rs.46/- per share and subscription as held during 13- 15 October 2003. The offer was oversubscribed and funds received amounted to Rs.1.22 billion against the required amount of Rs.604 million. Through the above process, The Government has divested 23.2% (87.7 million) shares of NBP for total proceeds of Rs.1.76 billion. As the divested shares were owned by the Government through State Bank of Pakistan (‘SBP’), the Privatization Commission remitted the proceeds for the first two offerings to SBP in early 2002 and early 2003. Sale proceeds for the 3rd offering have also been Const Petition No. 9 of 2006 etc 57 remitted to SBP on January 14, 2004. The transaction stands successfully completed on January 14, 2004.” It is in our knowledge that the shares of the National Bank of Pakistan were already listed on the Stock Exchange but there was no harm in even taking steps and adopting measures for the purpose of enhancing the value of the shares of the PSMC by adopting the same procedure and bringing its limited shares on the Stock Exchange as the Government had already decided to sell its 10% equity to the public. And if for this purpose, some legal formalities were required to be taken, the same ought to have been resorted to. 69. The contract for valuation of project was awarded in terms of a written agreement/terms of reference, para 3.2.6 of which required that the final report of valuation shall be submitted by the Financial Advisor six weeks prior to the bidding date. The said paragraph reads as under:- “3.2.6. Final Valuation Model The final valuation model will be used to determine the Reserve Price for the bidding process. The FA is expected to present the valuation model to explain and discuss the underlying assumptions and workings at various forums within the Government to obtain approval of the Reserve Price. The final valuation report shall be submitted at least six weeks prior to the bidding date.” For reasons best known to the F.A. and which have not been explained either in the written statement filed by the counsel for the P.C. or by the counsel for the Federal Government the final report was submitted to the P.C. on 30th March 2006, the date P.C. sent a summary to the C.C.O.P. regarding approval of the reference price. The requirement of six weeks was mandatory as after submission of the valuation report the P.C. is required to examine it at its own level so as to fix a fair reference price for approval by the C.C.O.P. This belated submission just 24 hours before the bidding date on the one hand deprived the PC to assess the report independently and the CCOP of a well considered and independent comment on the said report on the other hand. Const Petition No. 9 of 2006 etc 58 70. The argument of Mr. Abdul Hafeez Pirzada, learned Sr. ASC that the interim report submitted on 28th October 2005 meets the requirement of Regulation is not tenable because requirement under Para 3.2.6. is that of “FINAL REPORT” and not the interim report and secondly the lapse of “half a year” may have changed the objective conditions and thirdly it is not the case of PC that the interim report was considered at the time of fixing the reference price. 71. This brings us to the question as to whether decision taken by the Cabinet Committee (CCOP) on 31.03.2006 for sale in favour of anybody offering more than the reference price of the share i.e. Rs. 16.18 is valid. 72. Unmindful of the codal violation (violation of para 3.2.6. of the Terms of Reference sent to the valuer) and of the qualitative infirmity, the PC carried out the exercise of preparing a summary for approval of the reference price by the CCOP the same day. According to the written statement filed by Mr. Zahid Hameed Consultant P.C., during course of hearing, on 30.03.2006 the Board of Privatization Commission convened and deliberated on the privatization of PSMC for 4-5 hours. During this meeting the Managing Director of the F.A. Mr. Joz Garza who had already flown in from U.K. came and presented salient features of the valuation report to the members of the Board. The meeting according to him was held in the afternoon of the afore-referred date. The summary prepared by P.C. and submitted to the CCOP on 31.03.2006 reads as under:- “The Financial Advisors, Citigroup Global Markets Limited (FA) has conducted the valuation of Pakistan Steel mills Corporation (PSMC) using three standard valuation methodologies used in global M&A transactions. These include: (a) Discounted Free Cash Flow Analysis (DCF) (b) Public Multiple Analysis (comparable companies). (c) Precedent Transaction Analysis. 2. On the basis of DCF approach, the valuation ranges between US$ 407-464 Million. The weighted average cost of capital assumed for discounting the free cash flows to the firm is 12%. 3. Using Public multiple Analysis, the valuation ranges between US$307-406 Million. 4. On the basis of Precedents Transaction Analysis, the valuation ranges between US$ 389-501 Million. Const Petition No. 9 of 2006 etc 59 5. The FA has recommended a value of US$ 375 Million (on 100% equity basis). This recommendation is on the basis of average of above three valuation methodologies with a 10% discount as bidders are not expected to pay full fair value. 6. The PC Board considerd the valuation as recommended by the FA and proposed that the current market value of total assets of PSMC may also be taken into account. Valuation recommended by the FA reflects the core operations of PSMC (i.e., excluding surplus land and assets) and therefore, is based on PSMC as a going concern. The non-core land and assets being unbundled from PSMC includes Steel Town and Gulshan-e-Hadeed land which have been evaluated at US$ 500 Million by Nanjee & Co Karachi. The replacement value of the plant is estimated at around US$500 Million. These estimates do not include the current market value of Downstream Industries land and land reserved for NIP (this segment includes approximately 5,000 acres). Adding up these elements the value of PSMC comes in excess of US$ 1.0 Billion. 7. The Board of Privatization Commission considered the valuation carried out by the FA as well as the replacement cost of the plant and recommended total value of PSMC at US$ 500 Million. Based on this, the Reference price for 75% strategic stake would be US$ 375 Million i.e. Rs. 17.43 per share calculated at the rate of Rs. 60 per US$ (total shares being divested are 1,290,487,275). 8. It is proposed that the Privatization Commission may be authorized to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price approved by the CCOP. 9. The Cabinet Committee on Privatization (CCOP) is requested to approve the proposals made in para 7 and 8 above. 10. The Minister of the Privatization and Investment has seen and authorized the submission of this summary to CCOP.” 73. The C.C.O.P. on examining the above summary recorded its minutes and the decision on 31.03.2006 as follows:- “MINUTES---Privatization Division informed the CCOP that the Financial Advisor (FA) of Pakistan Steel Mills Corporation (PSMC) has recommended a valuation of US$ 375 million for privatization of PSMC on 100% equity basis. The FA of PSMC is Citigroup Global Markets Limited. 2. CCOP was informed that FA’s valuation of US$ 375 million for 100% equity stake is based on the average of the following three valuation methodologies with a 10% discount: (i) Discounted Free Cash Flow Analysis (DCF) valuation ranges between US$ 407-464 million with weighted average cost of capital assumed for discounting at the rate of 12%. (ii) Public Multiple Analysis (comparable companies) valuation ranges between US$ 307-406 million. (iii) Precedents Transaction Analysis valuation ranges between US$ 389-501 million. 3. CCOP was informed that the Board of Privatization Commission has recommended a total value of US$ 500 million for 100% equity stake of PSMC. According to this, the Reference Const Petition No. 9 of 2006 etc 60 Price for 75% equity stake (1,290,487,275 shares) works out to US$ 375 million i.e. Rs. 17.43 per share (calculated at the rate of Rs. 60 per US$). 4. Privatization Division briefed the CCOP that the Board of Privatization Commission considered the valuation as recommended by the FA and proposed that the current market value of total assets of PSMC may also be taken into account. PC Board observed that the valuation recommended by the FA reflects the core operations of PSMC (i.e. excluding surplus land and assets) and therefore, is based on PSMC as a going concern. The non-core land and assets being unbundled from PSMC includes Steel Town and Gulshan-e-Hadeed land which have been evaluated at US$ 500 million by the evaluators. The replacement value of the plant is estimated at around US$ 500 million. These estimate do not include the current market value of Downstream Industries and land reserved for NIP (this segment includes approx 5,000 acres). Adding up these elements the value of PSMC comes in excess of US$ 1.0 billion. 5. It was acknowledged that DCF is the most acceptable methodology for valuation of on-going units. 6. Privatization Division briefed the CCOP on the profiles of the prospective bidders, also. 7. CCOP observed that Privatization Division has not amplified their viewpoint in the summary in detail. Privatization Division clarified that the viewpoints of FA, Board of Privatization, as well as, the Privatization Division have been covered in its overall context in the summary. 8. On the question of payment of VSS to the employees of PSMC, the CCOP was informed that the entire liability on this account would be borne by the GoP. DECISION The Cabinet Committee on Privatization (CCOP) considered the summary dated 30th March, 2006, submitted by the Privatization & Investment Division on “Privatization of Pakistan Steel Mills Corporation” and approved the valuation of US$ 464 million based on DCF valuation for privatization of the Pakistan Steel Mills Corporation Limited (PSMC) for its 100% equity stake. On the basis of above, 75% equity stake (1,290,487,275 shares) works out to US$ 348 million i.e. Rs. 16.18 per share. II. The CCOP also approved the proposal contained in para 8 of the summary to issue Letter of Acceptance (LoA) to the Successful Bidder if their per share price is equal or higher than the Reference Price mentioned in sub-para I above. III. The CCOP directed the Privatization Division to follow the approved policy for Privatization, strictly in letter and spirit. Any deviation from the approved Policy, if deemed necessary, should be brought up to the CCOP well in advance for consideration and approval of waiver, if any. IV. The CCOP directed the Privatization Division to impress upon the potential buyer to make the entire payment of the transaction to the GoP within the period stipulated in the bid documents. Const Petition No. 9 of 2006 etc 61 V. The CCOP directed the Privatization Division to invariably add their viewpoint(s) recommendations explicitly in their summaries, in future.” 74. The above decision of the CCOP not only reflects disregard of the mandatory rules but also all material which was essential for arriving at a fair reference price. Because firstly determining the reference price for approval of the CCOP is a separate exercise to be carried out in terms of rule 6 of the Privatization Commission (Valuation of Property) Rules 2001 whereas the approval of the highest bidder is a separate exercise undertaken under the Privatization (Modes & Procedure) Rules, 2001. Rule 4(2) of these rules mandates that, “Upon selection of a highest ranked bidder as specified in sub-rule (1) the Board shall refer the matter for approval, or rejection of such highest ranked bidder with full justification, to the Cabinet”. While approving the summary the Cabinet Committee totally ignored rule 4 of the Privatization (Modes & Procedure) Rules, 2001, referred to above and instead abdicated its authority to the Privatization Commission to issue Letter of Acceptance to whoever is the highest bidder. Secondly the Cabinet Committee totally ignored the proposal of the Board of Privatization Commission that the net assets should also be included while valuing the project. Thirdly the decision that the Government of Pakistan shall bear the liability of the entire VSS of the employees of the PSMC was neither part of the summary submitted by the Privatization Commission nor was it included in the initial public offering given to the bidders through advertisement. Fourthly notwithstanding the proposal of the Board of Privatization Commission to value the share of PSMC at the rate of Rs.17.43 it reduced it to Rs. 16.18 without assigning any good reason whatsoever. This is violative of section 24-A of the General Clauses Act of 1997 as interpreted by this Court in M/s Airport Support Services v. Area Manager Quaid-i-Azam International Airport Karachi (1998 SCMR 2268). There is no cavil to the proposition that when the law entrusts a power to an authority it has to be Const Petition No. 9 of 2006 etc 62 exercised by the said authority and this Court may not substitute its opinion with that of the said authority. But if the decision of the authority betrays total disregard of the rules and the relevant material, then the said decision fails the test of reasonableness laid down by the Constitutional Courts for the exercise of the power of judicial review. Faced with such a situation a Constitutional Court would be failing in its Constitutional duty if it does not interfere to rectify the wrong more so when valuable assets of the nation are at stake. 75. The last question framed pertains to the question of divergence in the initial public offering to the successful bidders and the final terms/conditions offered to the highest bidder (on 31.03.2006) and whether these were in accord with the terms and conditions of public offering given through advertisement dated 16.09.2005. 76. For a better appreciation of the issue under consideration it would be in order if the terms offered in the advertisement are kept in view. The advertisement dated 16.09.2005 reads as under:- “The Transaction: The Privatization Commission (“PC”) intends to sell as 51-74% equity stake in Pakistan Steel Mills Corporation (Pvt) Ltd. (PSMC or the Company), together with management control; to a qualified strategic investor on an “as is, where is” basis. A consortium led by Citigroup Global Markets Limited is advising the PC on the sale. Expression of Interest Investors interested in joining the process are requested to submit an Expression of Interest (EOI), at the earliest. EOIs should clearly provide the following information: • Name of company/group and its background information • Audited financial statements for the preceding three years. • Details of ownership/group structure. Upon receiving the EOIs and processing fee, Request for Statement of Qualification (RSOQ) will be dispatched to the interested investors immediately. EOIs should be submitted (in duplicate) together with a non-refundable processing fee of US$ 5,000/- or Pkr 300,000/- payable in the form of a bank draft favouring ‘Privatisation Commission, Government of Pakistan’. EOIs and the bank drafts should reach the Director General (I&T), PC at the given address by 8th October, 2005. The Company PSMC is the country’s largest and only integrated steel manufacturing plant with an annual designed production capacity of 1.1 million tons. It was incorporated as a private limited company in 1968 and commenced full scale commercial operations in 1984. PSMC complex includes coke oven batteries, billet mill, hot and cold rolling mills, galvanizing unit and 165 MW of own power generation units, supported by various other ancillary units. It is located 30km south east of the coastal city of Karachi, in close proximity to Port Bin Qasim, with access to a dedicated jetty, which facilitates import of raw materials. PSMC manufactures a wide mix of products, which includes both flat and Const Petition No. 9 of 2006 etc 63 long products. PSMC effectively enjoys a captive domestic market due to the prevalent demand-supply imbalance in the country’s steel industry, where demand has historically exceeded local supply. PSMC also strives to maintain high quality and environmental standards and in this regard has received ISO 9001, ISO 1400-1 and SA 8000 certifications, along with the Environmental Excellence Award 2005. PSMC’s brief financial summary is as follows: Financial Summary (Pkr million) FY02 FY03 FY04 FY05 Net Sales 14,286 22,084 24,778 30,452 Operating Profit 4 2.275 6.666 9.761 Net Income 102 1,024 4,852 6,008 Total Assets 30,151 23,669 30,935 36.687 Equity 8,544 9,568 14,420 20,419 (1) Provisional As a result of sustained improvement in Pakistan’s macroeconomic environment, the demand for steel in the country is expected to grow substantially. PSMC is uniquely positioned to take advantage of the expected demand growth as adequate infrastructure is already in place to cater to capacity expansion. Preliminary information on PSMC is available on the following websites: www.paksteel.com and www.privatization.gov.pk. “ A bare reading of the afore-referred advertisement would show that the Privatization Commission had invited Expression of Interest from strategic investors for the privatization of PSMC and the salient features of the public offering were mainly two:- (i) Sale of 51 to 74% equity stake (it was increased to 75% by way of corrigendum) of PSMC. (ii) The sale carried with it the transfer of management control to strategic investors on and “as is” “where is” basis. There was no break up of the land which was to be sold to the strategic investors along with PSMC. There was no undertaking that the liability of VSS (up to Rs.15.00 billion) would be borne by the seller. There was no commitment that loans (about Rs. 7.67 billion) would be cleared before the Sale Purchase Agreement is signed. These concessions which had been offered after the acceptance of the bid were rather huge. The liability of VSS it was admitted before this Court by the counsel for Federation and counsel for the Steel Mills would amount to Rs.15.00 billion. The loan liability which was to be cleared by the Government of Pakistan amounted to Rs.7.67 billion and this was payable immediately even though the due date was June 2013, onwards. Const Petition No. 9 of 2006 etc 64 77. Similarly valuable core land part of which had not been transferred to the PSMC had to be transferred to it without which it was stipulated in the agreement that the agreement shall not be complete (Clause 4.2 of the agreement). The value of inventories it was admitted before the Court was not less than 12.00 billion. Similarly the refund of Rs. 1.00 billion excess tax which shall now be received by the bidder if he is allowed to operate after issuing the letter of acceptance in this manner minus the price of land the bidder shall be having benefit of Rs. 12.451 billion (Inventories of raw material etc as per Statement of Net Assets dated 31st March 2006) + Rs. 8.517 billion (cash in hand as per Statement of Net Assets dated 31st March 2006) + Rs. 1.00 billion (refund of Rs. 1.00 billion tax as per report 2006) = Rs. 21.968 Billion. When Mr. Wasim Sajjad counsel was confronted with the afore-referred figures and asked what is the net benefit of the sale he replied that the cost of the land which is being unbundled amounts to Rs.70.00 billion and this according to him would be the ultimate gain. This argument ignores the reality that land always belonged to Government of Pakistan and could be unbundled, even without privatization. Similarly Mr. Abdul Hafeez Pirzada, learned Sr. ASC said that as the Government of Pakistan is disbursing the loans which were due in 2013 therefore the amount of mark up (existing) which would come to about Rs. 6.00 billion shall be saved in this manner. We asked him as to whether the amount of the interest would have not been paid if the mill remains in operation and has shown profit as it has started making the improvement in its performance from the year 2000 to 2003, he could not answer satisfactorily. It may also be noted that besides the above profit the bidder will also be entitled to get another profit if the employees opt for VSS then the liability of Rs.15.00 billion shall be paid by the Government of Pakistan. On our enquiry during the hearing, it was informed by the Director Operations that up till now more than 2000 employees have applied for VSS Scheme. Const Petition No. 9 of 2006 etc 65 78. This transaction is outcome of a process reflecting serious violation of law and gross irregularities with regard to sale of the first and the biggest steel mill that this country has. From the facts admitted before us, even the procedural irregularities are not disputed. It has been argued by Mr. Abdul Hafeez Pirzada that rule 4(2) of the Privatization Commission (Modes & Procedure) Rules 2001 has been satisfactorily applied even though it was conceded that the name of the highest bidder was neither before the CCOP nor approved. The fact is that even the bidding took place after CCOP decision dated 31.03.2006. He obliquely suggested that in any case the CCOP knew the names of the bidders. If this be correct, how could the CCOP import its behind the scene knowledge into decision making and that also without noting it. Learned Attorney General argued somewhat on the similar lines even though he admitted that PC and CCOP have adopted somewhat “convoluted” procedure. 79. In our judgment rule 4 is couched in absolute language which requires full compliance. The rule has a wisdom behind it when it says that the CCOP will approve the name of the highest ranked bidder and not the highest bid. To us the wisdom in requiring approval of the highest bidder rather than the highest bid is that the Cabinet/CCOP will also have to keep in view the considerations not purely economic in approving or not approving the names of the highest bidder. As mandatory and absolute requirement of Rule 4 has not been met, in our considered view this alone is sufficient to invalidate the Letter of Acceptance and the Share Purchase Agreement based on it. 80. Learned Attorney General stated that the Courts are not supposed to substitute their own opinion with that of the authority under the law unless it is shown that the action is not sustainable being unreasonable. He relied upon Associated Provincial Picture Houses ibid and Nottinghamshire County Council ibid. Const Petition No. 9 of 2006 etc 66 81. We have considered learned Attorney General’s contention and have gone through the precedent case law. The case law would have been relevant if the public functionaries had not committed violation of the rules, noted above. Question of reasonableness would be relevant if the transaction/action was otherwise in accordance with law/rules. 82. Besides it has been noted by us with concern that the whole exercise reflected indecent haste by P.C. as well as C.C.O.P. in that on 30th of March 2006 the final report of the F.A is received, the officials of the PC process the same on the same day, the meeting of the Board of Privatization Commission also takes place the same day and the summary is prepared the same day. The very next day i.e. 31st of March 2006, the CCOP meets, considers the summary, fixes a reference price and authorizes the P.C. to approve the highest bid. Even the Managing Director of the FA had already flown a day earlier to make presentation. During lengthy hearing spread over almost three weeks, no counsel much less Mr. Abdul Hafeez Pirzada learned Sr. ASC for Federation could offer any explanation for the haste in finalizing the process of the privatization. Apart from the illegality noted above viz complete violation of Rule 4, this unexplained haste casts reasonable doubt on the transparency of the whole exercise. 83. It has been argued by the learned Attorney General that as no consequences of non-compliance of rule 4 have been provided in the Rules, the same be held as directory and not mandatory. For this purpose he relied on Maulana Noor ul Haq v. Ibrahim Khalil (PLJ 2001 SC 380). Non provision of consequence is one of the tests to determine the “directory” or “mandatory” nature of a statutory provision. The whole purpose of legislation is also to be kept in view to determine whether the duty cast is of absolute nature or of directory nature. We have already explained that the rule creates a distinction between the bid and the bidder and obliges the CCOP to approve the highest ranked bidder and not the bid. The language employed is mandatory in nature. Therefore, we repel the Const Petition No. 9 of 2006 etc 67 argument that the rule is “directory” in nature and having been substantially complied with the Court should condone the twisted or as he put it “convoluted” procedure. Reference made by him on Messrs Nishtar Mills Limited v. Superintendent of Central Excise Circle II (PLD 1989 SC 222) is not apt under the circumstances. 84. As far as the argument of the learned Attorney General that as making fresh reference to the CCOP for reconsideration may result in reiteration of the earlier decision, therefore, the Court should not strike down the decision on this ground is concerned, it is clear that we are not striking down the action on this ground alone as the contents of this judgment reveal. The argument, therefore, has no merit. In any case reaffirmation of the decision after compliance with law, would demonstrate the supremacy of law. 85. The process of pre-qualification of potential bidders is an important limb of privatization process as it is the declared motto of the Privatization Commission (as manifested on the first page of the Annual Report 2004) that “Privatization in an open, fair and transparent manner, for the benefit of the people of Pakistan, in the right way, to the right people, at the right price”. To ensure that only “sound bidders with adequate experience and sound track record of corporate governance participate in the bidding process” the PC issued elaborate set of conditions in October 2005 containing conditions of eligibility and disqualification for pre-qualification with nomenclature titled as, “Request for Statement of Qualification. Pakistan Steel Mills Corporation Limited October 2005”. The definition clause defines, inter alia, consortium, due date and lead bidder. The due date for submission of seeking pre-qualification was 29th October 2005. Condition 2.1 lays down the eligibility requirements sub paras of which are relevant for the instant case: (a) the Potential Bidder, and if the Potential Bidder is a Consortium the Lead Bidder, must be a company or a Const Petition No. 9 of 2006 etc 68 body corporate, whether incorporated in Pakistan or abroad (refer to Section 3.5). (b) …………… (c) if the Potential Bidder is a Consortium there must be a Lead Bidder (refer to Section 3.5(b) who is duly authorized (to the satisfaction of the Commission) by all other Consortium members to act on their behalf. After the submission of the SOQ, the Consortium members shall not be changed (both in respect of the percentage of the Equity Stake specified in Section 3.5 (b) below and any addition or deletion in the composition of the Consortium), unless the Commission consents to the same, in its sole discretion, not later than thirty (30) days prior to the proposed date of bidding. (d) ………….. (e) the Potential Bidder, and in the event the Potential Bidder is a Consortium each Consortium member, must demonstrate a track record of sound corporate performance and governance. (f) ……………. (g) the acquisition of the Equity Stake by the Potential Bidder (or where the Potential Bidder is a Consortium, any part of the Equity Stake by any member of the Consortium) should not be in violation of the laws of Pakistan.” Condition 2.2 spells out the basis for disqualification some paras of which would be relevant, those are as follows:- “(a) ………… (b) ………… (c) ………… (d) ………… (e) has a track record of corporate behaviour evidencing any willful defaults on any of its obligations to any bank or financial institution in or outside Pakistan or is currently in default of its payment obligations to any bank or financial institution; (f) …………. (g) …………. (h) …………… (i) …………….. (j) is involved in any litigtion, arbitration or any other dispute or event which may have a material adverse effect on its ability to acquire the Equity Stake or to manage PSMC after completion of the acquisition of the Equity Stake. (k) ………… (l) ………….. (m) ………….. (n) …………..” 86. 19 parties filed Request for Statement of Qualification (ROSQ) out of which following nine were found eligible:- Const Petition No. 9 of 2006 etc 69 i. Aljomaih Holding Company (Saudi Arabia). ii. Al-Tuwairqi Group (Saudi Arabia) and Arif Habib Group (Pakistan). iii. Azovstal Steel/System Capital Management (Ukraine). iv. Government of Ras Al Khaimah (UAE). v. International Industries Ltd (Pakistan) and Industrial Union of Donbass (Ukraine). vi. Magnitogorsk Iron & Steel Works Open JSC (Russia). vii. Nishat Mills Ltd. and D.G. Khan Cement Co. Ltd (Pakistan). viii. Noor Financial Investment Co. (Kuwait). ix. Shanghai Baosteel Group Corporation (China). At Sr. No.2 of the above eligible parties, Arif Habib and Al-Tuwairqi Group formed a consortium from the very beginning. The due date for constitution of consortium as given in the Request for Statement of Qualification was 29th October 2005. The Consortium which ultimately participated in the bidding process on 31.03.2006 consisted of the following:-- (i) M/s Arif Habib Group of Companies. (ii) M/s Al-Tuwairqi Group of Companies. (iii) M/s Magnitogorsk Iron and Steel Works, Russia Admittedly this Consortium had not applied within the afore-referred due date and their qualification as Consortium had not undergone the test of scrutiny. This aspect has assumed importance for two reasons: firstly because during the course of hearing of C.M.A. No. 1190 of 2006 filed by Iftikhar Shafi levelling serious allegations which remained uncontroverted and this factual position has also been admitted by counsel for Mr. Arif Habib during the hearing at the Bar, with regard to his qualification to participate in the bidding process falling within the mischief of Condition (i) and (ii) of the Basis of Disqualification (reproduced ibid). The conditions for qualification required that change can be brought about in the consortium “not later than 30 days” prior to the proposed date of bidding (Para 2.1 of the Request for Statement of Qualification). In the instant case even if there was a valid sanction order for the creation of the Consortium on 22.03.2006 this Const Petition No. 9 of 2006 etc 70 change in the composition of the bidding party was hit by the afore-referred condition. 87. A comment on the corporate credentials of a member of the consortium would be pertinent in view of the mandatory requirements of the “Request for Statement of Qualification” (RSOQ) referred to above. It has not been denied by the respondent Mr. Arif Habib that he is involved in following criminal and civil cases: (i) FIR No. 55/2003 dated 26.05.2003 under sections 342, 386/ 409 and 506 of Pakistan Penal Code at PS Lahore. (ii) Suit No. 481/2003 for the recovery of Rs.5600611760 in Sindh High Court filed by Iftikhar Shafi against Arif Habib/Ms Arif Habib Securities Ltd. (iii) Suit No.639/2003 for the recovery of Rs.1701035843 in Sindh High Court filed by M/s Shafi Chemicals against Arif Habib and M/s Arif Habib Securities Ltd. (iv) Suit No.480/2003 for the recovery of Rs.10989948199 in the Sindh High Court Karachi, filed by M/s Diamond Industries Ltd against Arif Habib and M/s Arif Habib Securities Ltd. (v) Representation dated 5 April 2002 filed before SECP and pending against Arif Habib. (vi) Representation to the President of Pakistan against Arif Habib. (vii) Representation to the Prime Minister of Pakistan against Arif Habib. (viii) Arbitration proceedings notified by the Chief Minister Punjab and still pending. (ix) Proceedings of the inquiry Committee reports on the affairs of Karachi Stock Exchange and Lahore Stock Exchange dated 31st August 2000 and 14th June 2002.” Copies of the afore-referred F.I.R and the civil suits were appended with C.M.A. No. 1190 of 2006 which indicate that in the F.I.R., he was the principal accused Const Petition No. 9 of 2006 etc 71 and the allegations were that through his manipulation the stock exchange crashed leading to enormous losses to the small investors running into billions. In the civil suits the allegations are that the respondent Arif Habib and others manipulated the stock market and thereby caused losses. Learned counsel placed on record a copy of the report of four member Task Force headed by Mr. Justice Saleem Akhtar (a retired Judge of the Supreme Court of Pakistan) against certain individuals. In the report on different occasions the Commission had made observations about the corporate behaviour of Mr. Arif Habib. It may be noted that at the time of the crash of the Karachi Stock Exchange (K.S.E.) Mr. Arif Habib was President of the KSE as well as one of its major brokers. One of the following paras from the Task Force report would reflect about the corporate behaviour of Mr. Arif Habib:- “In these circumstances, the role of Badla financing in whetting investor appetite needs to be understood. Badla financing which grew markedly during this period, provided financing to investors who lacked liquidity to purchase in the ready market, albeit at high interest rate. Investors were willing to borrow at exorbitant Badla rates (which were capped at 18% in KSE but rose in the uncapped LSE to over 100%) because the accelerated rise in stock prices made such expensive borrowing feasible. The growing availability of Badla financing from lenders, who were largely brokers and institutions added to the buying frenzy in the ready market, raising stock prices on a daily basis and further amplifying expectations in the futures market. It may be noted that some of the major Badla providers were the same people who were selling the future market, and thus benefiting from the heightened expectations of price rises in the future. In other words, there was a strong nexus between lenders and brokers/investors who could influence market sentiment to their own advantage. The major brokers representing financiers of Badla on February 28, 2005 and some of the largest net sellers in the March Futures were:- Badla Providers 28th February 2005 Amount (Rs. Million) Arif Habib Securities 4,622 Aqeel Akarim Dedhi 4,233 It is equally significant to note here that in reply to C.M.A. filed on behalf of Iftikhar Shafi it was admitted on behalf of Arif Habib that, “it may be mentioned that the existence of these suits has been expressly stated in the annual accounts of Const Petition No. 9 of 2006 etc 72 Arif Habib Securities Limited, which is a public document and it was also filed with the Privatization Commission.” This statement in the pleadings on behalf of Arif Habib goes to substantiate without any doubt that his involvement in litigation was in the knowledge of the Privatization Commission. Thus, it had a duty to have applied mind before declaring him qualified to be one of the members of the consortium because we are of the opinion that a person who is involved in litigation in respect of the matter which pertains to a corporate body like K.S.E., etc, and against whom a report publicly has also been issued by the Task Force could not be considered a person who could, prima facie, handle the affairs of the Pakistan Steel Mills transparently. Thus, his involvement in the litigation as well as the corporate behaviour as is evident from the Task Force Report could have disqualified him under Para 2.2(j) of the RSOQ. Apparently this aspect seems to have been ignored by the Privatization Commission. We are conscious of the fact that the observations being made herein are not conclusive and can only be used for the purposes of the present litigation in view of the principle laid down by this Court in the case of Mohtarma Benazir Bhutto ibid (PLD 2000 SC 77). 88. This Court would not like to comment on the veracity of the allegations levelled either in the application, in the F.I.R., the civil suits filed or the report of the Enquiry Commission lest it may prejudice the case of either side before appropriate forums/courts. However, for the purposes of qualification as a potential bidder, the disqualification condition stipulates that a potential bidder would be disqualified to participate in the bidding process if, “he is involved in litigation, arbitration or any other dispute or event which may have material adverse effect on its ability to acquire the Equity Stake or to manage PSMC after completion of the acquisition of the Equity Stake.” It is surprising that although the afore-referred allegations are a matter of record and have not been controverted either by respondent Mr. Arif Habib or by the Privatization Commission yet he was cleared of the qualification process and was allowed to participate. Const Petition No. 9 of 2006 etc 73 89. After bidding the consortium consisting of (i) M/s Magnitogorsk Iron & Steel Works (ii) M/s Al-Tuwairqi Group of Companies and (iii) M/s Arif Habib Group of Companies was declared successful and Letter of Acceptance dated 31.03.2006 issued. But surprisingly agreement dated 24.04.2006 was executed between the:-- (i) President of Islamic Republic of Pakistan through the Ministry of Privatization and Investment (the “Seller”) and (ii) the Privatization Commission, established under the Privatization Commission Ordinance, 2000 (Ordinance LII of 2000), having its principal office located at 5-A Constitution Avenue, Islamabad, hereinafter referred to as the “Commission”. and (iii) PSMC SPV (Mauritius) Limited a company incorporated and existing under the laws of Mauritius as joint venture company having its registered office at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius and the existing and paid up capital of which is owned entirely by ATG Holdings and MMK Holdings in equal shares (“PSMC Mauritius”) and (iv) Arif Habib Securities Limited a company incorporated and existing under the laws of Pakistan and having its registered office at 60-63 Karachi Stock Exchange Building, Stock Exchange Road, Karachi Pakistan (“AHSL”) and (v) Arif Habib son of Habib Haji Shakoor, resident of 86/11 10th Street, Khayaban-e- Sehr Phase VI, DHA Phase NIC No.42301-1015651-1 (“AH”) (AHSL and AH forming “AHG” as defined below. Following parties stood as guarantors for the purchasers named above:- (i) ATG Holdings Mauritius Limited, a company incorporated and existing under the laws of Mauritius a wholly owned subsidiary of ISPC whose registered office is at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius (“ATG Holdings”). (ii) Al-Ittefaq Steel Products Company, a company incorporated and existing under the laws of the Kingdom of Saudi Arabia whose registered office is at P.O. Box 2705 Dammam-31461, Kingdom of Saudi Arabia (“ISPC”). (iii) MMK Holdings (Asia) Limited, a company incorporated and existing under the laws of Mauritius whose registered office is at Suite 450, 4th Floor, Barkly Wharf East, Le Caudan Waterfront, Port Louis, Mauritius a wholly owned subsidiary of MMK (“MMK Holdings”). Const Petition No. 9 of 2006 etc 74 (iv) Magnitogorsk Iron and Steel Works Open Stock Company, a company incorporated and existing under the laws of the Russian Federation whose registered office is at 93 Kirova Street, Magnitogorsk, Chelyabinsk Region, Russia (“MMK”). 90. It is an admitted fact that the PSMC SPV (Mauritius) Limited got certificate of incorporation from Republic of Mauritius on 19th Day of April, 2006. Learned counsel appearing for bidders namely Mr. Kazim Hussain also filed a statement mentioning therein that except Mr. Arif Habib remaining members of the Consortium had no office in Pakistan. Relevant para therefrom is reproduced herein below:- “The guarantors ATG Holdings Mauritius Limited, Al-Ittefaq Steel Products Company, MMK Holdings (Asia) Limited and Magnitogorsk Iron and Steel Works Open Stock Company do not have any place of business or office in Pakistan at the present time. 2. PSMC SVP (Mauritius) Limited also does not have any place of business or offices in Pakistan at the present time. 3. Arif Habib Securities Limited however is a public limited company duly incorporated in Pakistan having its registered office at Karachi.” It is clear that bidders are different than the purchasers. The names of the purchasers shown in the Agreement dated 24.04.2006 have not been approved by the C.C.O.P. When asked to explain the anomaly, learned counsel for successful bidder explained that the afore-referred arrangement was devised with a view to provide a corporate vehicle through which the successful bidder could exercise corporate control on P.S.M.C. He further attempted to explain that this devise was adopted to save the double taxation. We fail to understand that the Privatization Commission readily accepted the arrangement which was to the benefit of the bidders for the purpose of entering into the Sale Purchase Agreement knowing well that under the law of our country no such permission can be granted because the contract is to be entered between the seller and the purchaser as approved by Const Petition No. 9 of 2006 etc 75 the Privatization Commission Board and the CCOP in terms of Rule 4(2) of the Privatization Commission (Modes and Procedure) Rules, 2001. Further under section 10 of the Contract Act the parties have to make contract for a lawful consideration and with a lawful object which are not thereby expressly declared to be void. In view of this principle of law it is to be borne in mind that the expediencies of the bidder with regard to save their skin from double taxation could not form a valid basis for the Privatization Commission to accept such a plea for the purpose of allowing them to enter into contract through an offshore company which has been incorporated out of the country. Even otherwise, we cannot encourage such practice because if at all the bidders wanted to have any benefit of taxation they should have resorted to the municipal law of Pakistan and in this behalf if at all there was necessity they could have obtained incorporation of any other company within the territory of Pakistan having its own permanent office or business. Although we are mindful of the fact that after starting the business in Pakistan a company can open its office and can get the registration for the same purpose in terms of section 450 of the Companies Act. But if a corporate body i.e. PSMC SVP (Mauritius) Limited had got incorporation few days before entering into an agreement i.e. on 19th April 2006 in a different country coupled with the fact that this company is not a bidder, the PC should have not entered into contract in the present shape. 91. Now turning towards the contents of the contract it may be noted that the same has been signed after vetting but there is not a single clause incorporated therein to the effect as to whether the bidders had furnished any guarantee for the purpose of making investment in the PSMC with a view to raise its production capacity. On this when we enquired from the learned Attorney Const Petition No. 9 of 2006 etc 76 General as well as learned counsel appearing for the bidders, they filed following statement on 8th June, 2006:- “We refer to your request for clarification regarding the utilization of PSMC land and future enhancement in the production capacity of PSMC. We hereby confirm that PSMC land will only be used for purposes of the steel industry and related industrial activities and we shall not carve it out for sale or disposal for commercial or residential purposes. We hereby confirm that immediately after the Completion Date we shall commence work on the repair and revamping of the existing facilities of PSMC in an effort to ensure sustained utilization of its designed production capacity of 1.1 MTA and thereafter shall seek an economic enhancement of its production capacity up to 1.5 MTA. It is estimated that immediately an investment of US$ 250 mm will be required for PSMC to be become economically viable. Thereafter furthr investments will be made to raise the capacity of up to 3.0 MTA.” 92. It may be noted that at the initial stage of the hearing when the learned counsel appearing for the P.C. Syed Sharif-ud-Din Pirzada made a statement in his personal capacity that the land underneath the Mill cannot be used for any other purpose except for the purpose of running the business of the Mill, the learned counsel for the bidder did not agree but when the proceedings went on and the Court expressed its apprehension in respect of the valuation of shares without including the value of the land as has been discussed, then for the first time the above statement was filed. It is equally important to note that no assurance/guarantee was obtained earlier. The incorporation of the above letter to the effect as to how much investment would be made when for the first time this Const Petition No. 9 of 2006 etc 77 fact was also highlighted in the above letter but without making any commitment that the amount shall be invested because the language employed therein indicates that in the revamping of the existing facilities of PSMC in an effort to ensure sustained utilization of its design production capacity of 1.1MTA and thereafter shall seek enhancement of its production capacity to 1.5 MTA it is estimated that immediately an investment of U.S. $ 250 mm will be required for PSMC to become economically viable. Thereafter further investment will be made to raise the capacity to3.0 MTA. The letter in terms does not clearly suggest that this much amount shall be invested. However, the learned Attorney General as well as the counsel for the bidder stated that this letter may be read as one of the conditions of the warranty of the agreement and this may be read and treated as part of the agreement. The submission made on their behalf is not acceptable for a number of reasons: firstly the document is not the part of the original transaction; secondly during the Court proceedings such documents cannot be read as part of the agreement unless it is agreed to by the PC and when essentially this document does not bear the signatures on behalf of the PC; thirdly it is not signed by the parties who are signatories to the Share Purchase Agreement. Fourthly, it has been issued and placed on record not as a reflection of genuine transaction between the contracting parties but to allay the concerns of the Court reflected in observations made during hearing. 93. At this juncture it is noted that the amount which purchaser intends to spend, if the statement is considered as commitment for the sake of argument, then the same has to be examined along with the fact that equal to this amount the Government of Pakistan itself is paying to its employees i.e. Rs. 15.00 billion if they all accept VSS besides other financial benefits break-up of which has already Const Petition No. 9 of 2006 etc 78 been given in above paras. Thus, examined from this angle as well, there was no necessity to privatize the PSMC at a lesser price instead of selling it at a fair market price for achieving the objects set out for privatization. 94. It may be pertinent to point out here that the learned counsel appearing for the bidder was not holding the brief on behalf of the PSMC SVP (Mauritius) because power of attorney had been filed only on behalf of guarantors and Arif Habib. We may explain as to why it was enquired with regard to the investment of the amount because during the hearing impression was being created that the object of privatization is not to close the PSMC but to increase its production capacity. Therefore, the violation was also done by following the internationally acceptable principle of DCF which only deals with in respect to the future prospects of an on-going concern. It was pointed out to the learned counsel for the respondents that if the object was so, then where is the condition in the contract of Sale Purchase Agreement dated 24.04.2006 to the effect that how much money will be invested by the purchaser for enhancing its capacity. There was no answer to it and at the end of the day the above statement was filed. It is equally important to note here that there is no doubt that the Government can independently form a policy for the purpose of privatization but here in Pakistan the policies have to be framed in pursuance to the decisions of the C.C.I. The decision of C.C.I. dated 29th May 1997 explicitly provides that the object of privatization would be to retire the debts and this policy has been incorporated in the Ordinance 2000, as well. Therefore, if the P.C. wanted to sell the shares of PSMC for any other purpose i.e. to build its capacity for the purpose of catering the requirements of steel in the country then in that case they should have again approached the CCI for the purpose of modification of its policy. Thus the result Const Petition No. 9 of 2006 etc 79 could be that after framing a policy through C.C.I., privatization can take place, however, the only object should be the debt retirement and for this purpose the government may apply any such formula internationally recognized which may ensure to bring more money in the country. 95. In the above context the next important question is with regard to the period of holding. Admittedly, in the agreement the holding period has been fixed only three years meaning thereby that after three years there is no guarantee whether the actual purchaser would not sell the shares of this on-going concern which is an industry of a very important nature known as mother industry. But no guarantee in this behalf has been obtained. Learned counsel appearing for the PC stated that there is a clause that the shares shall not be transferred against the security of Pakistan. We quite agree with him but at the same time it has not been defined anywhere that for the purpose of ensuring the security of Pakistan what measures shall be followed if the purchaser ultimately decides to dispose of/sell the shares against the interests of Pakistan. Therefore, in this behalf a clause should have been incorporated into the agreement. As we have observed hereinabove that even the agreement dated 24th of April 2006 has not been conditionalized to safeguard the interest and it seems that it is an ordinary standard type of agreement which has been signed without looking into the pros and the cons. 96. In the circumstances and for above reasons, Constitution Petition No. 9 of 2006 and C.P. No. 345 of 2006 (after conversion into appeal) are allowed and C.P. No. 394 of 2006 is dismissed, all in the above terms. Parties are left to bear their own costs.

SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Qazi Muhammad Amin Ahmed CONST. PETITION NO.9 OF 2010 [Niamatullah Khan Advocate Vs. Federation of Pakistan, etc.] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017 [Mst. Sahiba Parveen Vs. Syed Nasir Abbas, Director General, KDA and others (Matter pertaining to allotment of alternate plot)] AND CMA NO.6206 OF 2013 IN CONST. P. NO.9 OF 2010 [Report of Additional Registrar of this Court] AND GUJJJAR NALLAH C.R.P.No.61-K of 2021 [Shehri Citizen for a better Environment & others (Matter regarding encroachment over Gujjar Nallah & Orangi Nallah. Vs. Niamatullah Khan Advocate & others] AND CRIMINAL ORIGINAL PETITION NO.9-K OF 2021 [Syeda Maria Raza Vs. Government of Sindh through Chief Secretary Sindh & others (matter regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND CMA NO.441-K OF 2021 [Niamatullah Khan Advocate Vs. Federation of Pakistan & others (regarding illegal Faiz Muhammad Vs. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND CMA No.819-K OF 2021 Mrs. Almas Rizwan and others Vs. Federation of Pakistan and others (Matter pertainis to Gujjar Nallah) Const.P.No.9 of 2010 etc. 2 AND CMA No.850-K OF 2021 [Khalil ur Rehman Vs. Federation of Pakistan & others (matter pertains to Gujjar Nallah)] AND NASLA TOWER C.R.P.NO.55-K OF 2021 [Feroza and others Vs. Federation of Pakistan and others (Matter regarding Nasla Tower) AND C.R.P.NO.56-K OF 2021 [Abdul Qadir Vs. Niamatullah Khan Advocate & others (matter pertains to Nasla Tower)] AND CIVIL AVIATION AUTHORITY CMA No.774-K OF 2021 [Civil Aviation Authority Vs. Federation of Pakistan & others (matter regarding Land allotted to CDA in 1990)] AND AMENITY PLOT USED FOR MARRIAGE HALLS CMA No.522-K OF 2020 IN CONST. P. No.9 OF 2010 [Waleed Ahmed & others Vs. Federation of Pakistan & others (Plot No.SNPA-21-D & SNPA-23, both are public amenities plots and meant for “Park” and the same are used for marriage/commercial activities)] AND ZIA UDDIN HOSPITAL CRL.M.A. No.59-K OF 2018 [Application for Intervener filed by Mr. Ghulam Rasool Mangi, AOR on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND ENFORCEMENT IN JACOBABAD OF AMENITIES CMA NO.NO.941-K OF 2020 Const.P.No.9 of 2010 etc. 3 [Niamatullah Khan Advocate Vs. Federation of Pakistan and others (regarding encroachment in Jacobabad at various government lands i.e. amenities, parks etc. By influential persons)] AND CMA No.775-K OF 2021 [Muhammad Akram Abro Vs. Federation of Pakistan & others (Applicant has prayed for the correction of order dated 16.06.2021 whereby he has requested to read name hotel mairaj instead of Hotel Hermain)] AND ALADIN PARK CMA NO.698-K OF 2021 [M/s A.A. Joy Land (Pvt.) Ltd. Vs. Federation of Pakistan & others (matter pertains to Aladin Park)] AND CMA No.1000-K OF 2021 [Niamatullah Khan & others. Vs. Federation of Pakistan & others (matter regarding Aladin Park)] AND PARKING ISSUES OF HIGH COURT OF SINDH AND FUTURE EXTENTION OF HIGH COURT OF SINDH CMA No.74-K OF 2020 IN CONST. P. No.9 OF 2010 [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (regarding parking space at High Court of Sindh)] AND COMM-3 CMA NO.86-K OF 2020 IN CONST.P.NO.9 OF 2010 [M/s Ishaq Enterprises Vs. Federation of Pakistan & others (concise statement with regard to allotment of COMM-3)] AND CMA No.711-K OF 2020 [M/s Ishaq Enterprises Vs. Federation of Pakistan & others (objection filed on CMA no.86-K of 2020)] Const.P.No.9 of 2010 etc. 4 AND YMCA GROUND CRP NO.57-K OF 2021 [Asian Pacific Alliance of YMCAs Vs. Federation of Pakistan & others (matter pertains to YMCA Ground)] AND KIDNEY HILL LAND CRL.ORG.P.NO.8-K OF 2021 [Abu Turab Vs. Syed Mumtaz Ali Shah & others (matter regarding Kidney Hill Land) AND CMA NO.391-K OF 2020 IN CONST.P.NO.9 OF 2010 [Abu Turab Vs. Federation of Pakistan & others (regarding illegal constructions inside of Kidney Hill Land situated at Faran Society, Barrister Ahmed Road near Dhooraji Colony, Karachi)] AND CMA NO.714-K OF 2020 IN CONST.P.NO.9 OF 2010 [Niamatullah Khan Vs. Federation of Pakistan & others (mater regarding Al-Fatah Masjid Admeasuring 1400 Sq. Yards at Kidney Hill Ahmed Ali Park, Faran Society, Karachi)] AND CMA NO.424-K of 2021 [Mr. Ibrahim Younus & others. Vs. Federation of Pakistan & others (Kidney Hill Park Land)] AND CMA NO.437-K OF 2021 [Niamatullah Khan Vs. Federation of Pakistan & others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND CMA NO.438-K OF 2021 [Niamatullah Khan Advocate Vs. Federation of Pakistan & others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND Const.P.No.9 of 2010 etc. 5 CMA NO.515-K OF 2021 [Abrar Hassan Vs. Federation of Pakistan & others (matter pertains to Kidney Hill Park)] AND HILL PARK LAND CRL.ORG.P.NO.13-K OF 2021 [Mrs. Gul Nilofer & another Vs. Major (R) Naveed Ahmed Khan & others] AND KDA OFFICERS CLUB CRL.MA NO.229-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Mr. Ghulam Qadir Jatoi, AOR on behalf of KDA Officer Club (Against illegal and unconstitutional partial demolition on the premises of the applicant at Plot No.ST-6, Of Kashmir Road, Karachi)] AND KARACHI CIRCULAR RAILWAY CMA NO.621-K OF 2021 [Niamatullah Khan Advocate Vs. Federation of Pakistan & others. (report regarding KCR, in compliance of order dated 08.04.2021 filed by D.G. FWO)] AND CMA NO.167-K OF 2020 [Application for intervener filed by Syed Muhammad Iqbal Kazmi. (the matter regarding KCR project and demolishing of illegal construction in Karachi)] AND CMA NO.367-K OF 2020 IN CONST.P.NO.9 OF 2010 [Shamim Ahmed Siddiqui Vs. Federation of Pakistan & others (regarding encroachment over railway land/Safari Park)] AND CMA NO.177-K OF 2020 Const.P.No.9 of 2010 etc. 6 [Application for intervener filed by Farhad Younus Memon. (The matter regarding 650 constructed Houses in Project No.7 (PRECHS) near Gillani Station Gulshan-e-Iqbal, Karachi] AND CMA NO.898-K OF 2020 [Pakistan Railways through Divisional Superintendent. Vs. Federation of Pakistan & others (matter regarding encroachment over Pakistan Railway Land & Revival of KCR)] AND CMA NO.445-K OF 2021 [Nabiha Qureshi Vs. Federation of Pakistan & others (matter regarding encroachment over Pakistan Railway Land & revival of KCR)] AND CMA NO.446-K OF 2021 [M/s Karachi Town Builders & Developers. Vs. Federation of Pakistan & others (matter regarding encroachment over Pakistan Railway Land & revival of KCR)] AND TEJORI HEIGHTS/TOWER ON RAILWAY’S LAND CRP NO.15-K OF 2021 IN CMA NO.906-K OF 2020 IN CONST.P.NO.9 OF 2010 [Naeemuddin Vs. Pakistan Railway (matter regarding encroachment over Pakistan Railway Land & revival of KCR) (Tejori Heights/Tower)] AND CMA NO.277-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CMA NO.898- K OF 2020 IN CONST.P.NO.9 OF 2010 [M/s Karachi Town Builders Vs. Pakistan Railways (matter regarding encroachment over Pakistan Railway Land & revival of KCR) (Tejori Heights/Tower)] AND CMA NO.278-K OF 2021 [M/s Karachi Town Builders Vs. Pakistan Railways (matter regarding encroachment over Pakistan Railway Land & revival of KCR) (Tejori Heights/Tower)] Const.P.No.9 of 2010 etc. 7 AND RAILWAYS EMPLOYEES COOPERATIVE HOUSING SOCIETY CMA NO.541-K OF 2020 [Muhammad Ahmed Khan & others. Vs. Federation of Pakistan & others (matter regarding Pakistan Railway Employees Cooperative Housing Society))] AND CMA NO.630-K OF 2020 [Pakistan Railway Employees Cooperative Housing Society Limited Vs. Federation of Pakistan & others (the matter pertains to encroachment over Railway Land on account of Railway Cooperative Housing Society)] AND ROYAL PARK CM APPEAL NO.37 OF 2021 IN CRP NO.7-K OF 2020 IN CMA NO.690-K OF 2019 IN CONST.P.NO.9 OF 2010 [M/s Quality Builders Vs. Federation of Pakistan & others (for grant of time to remove and take away the materials from building)] AND NON-SUPPLY OF WATER CMA NO.770-K OF 2020 [Matter regarding non-supply of water through already decided water lines in DHA, Karachi] AND HIGH RISE BUILDING ON AMENITY PLOTS OR OTHERWISE (MULTI STOREIES BUILDING CRL.M.A.NO.52-K OF 2018 [Application for Intervener filed by Muhammad Asif Shafi against seeking direction for demolition of illegal construction on plot No.70-A, Sindh Muslim Cooperative Housing Society, Karachi (Multi-Storey Building)] AND CMA NO.631-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Mrs.Nelofar Abbasey Vs. (illegal Const.P.No.9 of 2010 etc. 8 construction is carried out by King Builders over Private Park/Amenity Plot] AND CMA NO.78-K OF 2020 [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid Vs. (regarding high rise building on amenity plot)] AND KING COTTAGE/BAGH-E-QAMAR CMA NO.523-K OF 2020 IN CONST.P.NO.9 OF 2010 [Muhammad Waseem Samoo Vs. Federation of Pakistan & others (matter regarding King Cottage/Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)] AND HYATT REGENCY HOTEL CMA NO.83-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. And NCEL Building Management Ltd. Vs. (regarding Hyatt Regency Hotel)] AND KARACHI GYMKHANA CMA NO.512-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Mst.Yasmeen Lari (regarding Karachi Gymkhana)] AND PARSA CITY (ILLEGAL CONSTRUCTION OF 18 FLOOR BUILDING CMA NO.594-K OF 2020 IN CONST.P.NO.9 OF 2010 [M/s Madrasa Tahfeezul Quraan Al Karim Vs. Federation of Pakistan & others (matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND HYPER STYAR (RESIDENTIAL INTO COMMERCIAL LOCALS) CMA NO.617-K OF 2019 IN CONST.P.NO.9 OF 2010 Const.P.No.9 of 2010 etc. 9 [Application for intervener filed by Venu G. Advani Vs. (Against illegal conversion of plot from residential into commercial locals at Block 4, Scheme-5, Clifton Karachi)] AND P & T COLONY CMA NO.889-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi Vs. (regarding ownership of P & T Colony also declared as Katchi Abadi)] AND K-ELECTRIC (CONNECTED WITH HRC NO.20883/2018, PENDING AT PRINCIPAL SEAT, ISLAMABAD CRP NO.28-K OF 2020 IN CONST.P.NO.9 OF 2010 [K-Electric Limited Vs. Federation of Pakistan & others. (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND SMALL BUSINESS RUNNING I.E. SUGARCANE CRUSHING MACHINE AT FOOTPATHS/ROAD ETC. CMA NO.940-K OF 2020 [Muhammad Yousaf Vs. Federation f Pakistan & others (regarding Sugarcane Crushing Machine situated at Hasrat Mohani Road, near Cafe Victory, Karachi)] AND CHINA CUTTING OF AMENITY PLOTS CRL. M.A.121-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Muhammad Essa Vs. (60 Feets land reserved for Bus Stop divided into 80 Sq. Yd. Plots-China Cutting Plot)] AND CRL.MA NO.38-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by applicant namely, Akbar Hussain Vs. (against China Cutting of plots by manipulated documents of Plot No.R-160/4 & R-160/5, Sector 11, North Karachi. Fabricated against master plan, as these are amenity plots for Bus Stop/Car Parking/Green Belt etc.)] AND Const.P.No.9 of 2010 etc. 10 CMA NO.423-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Porf. Dr. Muhammad Shahid Hussain Vs. (encroachment over public road in between St.6 to St.8, Gulshan-e-Iqbal, Block 4, KDA, Scheme-24, Karachi)] AND ENCROACHMENT OVER GREEN BELT (SHARAH-E-QUAIDEEN) CMA NO.179-K OF 2020 [Application for intervener filed on behalf of Rashid Ali Vs. (against demolishing/sealing order of Friends Petrol Pump (Shell) on plot No.PP-1, Survey No.35, Pakistan Employees Cooperative Housing Society, Shahrah-e-Quaideen, Karachi)] AND CONVERSION OF PLOTS FROM RESIDENTIAL INTO COMMERCIAL C.P.NO.422-K OF 2020 [Mst. Zahida Naz Vs. Province of Sindh & others (petitioners have challenged the purported commercialization of the residential Plot No.A/216, Block C, Unit No.2, Latifabad, Hyderabad and its amalgamation with an amenity plot)] AND CMA NO.767-K OF 2020 IN CONST.P.NO.9 OF 2010 [Syed Masood Ahmed & others Vs. Federation of Pakistan & others (Defence Officers Housing Authority has been and its illegally converting various plots to used other than its original use)] AND CP NO.92-K OF 2010 [Karachi Chamber of Commerce and Industry Vs. Karachi Metropolitan Corporation and others (Coversion of residential land into commercial i.e. Plot No.79, Survey Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi] AND CP No.93-K OF 2010 [Karachi Chamber of Commerce and Industry Vs. Karachi Metropolitan Corporation and others (Coversion of residential land into commercial i.e. Plot No.79, Survey Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi] AND VACATION OF 35,000 AMENITY PLOTS AT 112 SITES OF KDA SCHEME/TOWNSHIPS Const.P.No.9 of 2010 etc. 11 CRL.ORG.P.NO.19-K OF 2017 IN CRL.ORG.P.NO.7 OF 2017 [Ghulam Muhiyuddin Vs. Province of Sindh through Secretary Local Governmnet and others (matter pertains to 35,000 plots at 112 sites of KDA Schemes/Townships will be got vacated and recovered and put to use for which they were originally meant in master plan)] AND CRL.MA NO.124-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Muhammad Ismail Shaheedi Vs. (regarding lands illegally occupied by land grabbers in Karachi)] AND CRL. MA NO.132-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by AOR for the applicant Anjuman- e-Kalayna Vs. (Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)] AND CRL.MA NO.111-K OF 2018 IN CRL.MA NO.132-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017 [Application for withdrawal filed by in person namely Anjuman-e- Kalayana through its President)] AND CRL.MA NO.243-K OF 2018 IN CRL.MA NO.8-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for withdrawal filed by in person, namely, Anjuman-e- Sadat-e-Amroha through its President] AND CRL.MA NO.8-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed on behalf of Anjuman Sadat-e- Amroha Vs. (for restraining from demolishing further construction on the applicant plot which was allotted by KDA to Anjuman on 06.08.1974)] AND CRL.MA NO.19-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Mr. A.S.K. Ghori, AOR on behalf of applicant namely, Muhammad Jaffar Vs. (for removal of encroachment and unauthorized illegal construction around Const.P.No.9 of 2010 etc. 12 Saddar and Katrak Road Karachi and has also requested that order dated 29.11.2017 be enlarged and stretch to encompass the Cantonment Area)] AND CRL. MA NO.20-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Muhammad Raees Vs. (regarding encroachment on applicant’s plot by construction boundary wall thereon by Mr. Hussain Rajpar, Land Grabber)] AND CRL.MA NO.72-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Mr. Mazhar Ali B.Chohan, AOR on behalf of Anjuman-e-Musalman-e-Kalayana Vs. (seeking direction to restrain KDA & SBCA not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)] AND ENCROACHMENT OVER AMENITY PLOTS CMA NO.59-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Syed Arif Shah Vs. (encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College & Allied Institutions)] AND CMA NO.349-K OF 2019 [Application for intervener filed on behalf of Public Interest Law Association of Pakistan Vs. (for seeking direction of this Court to have Amenity Plots of Karachi developed with parks and playground with the coordination of the relevant authorities)] AND CMA NO.875-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Muhammad Saleem Qureshi Vs. (regarding cancellation of false & fabricated lease granted on amenity plot at Bihar Colony, Layari)] AND CMA NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Mrs.Mahamadi Vs.(regarding demolishing of all illegal construction and usage of public property on main Korangi service road)] AND Const.P.No.9 of 2010 etc. 13 CM APPEAL NO.139 OF 2020 IN CMA NO.NIL OF 2020 IN CMA NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010 (Samira Mahamadi Vs. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND CMA NO.202-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed on behalf of AVA Ardeshir Cowasjee Vs. (regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi)] AND CMA NO.281-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed on behalf of the Karachi Goan Association Vs. (regarding allotment of that Plot No.J.M.I/79. Jamshed Quarters, M.A. Jinnah Road, Karachi)] AND CRL.MA NO.32-K OF 2018 IN CRLORG.P.NO.7-K OF 2017 [Application for intervener filed by Mr. Ghulam Qadir Jatoi, AOR Vs. (for issuance of allotment order and lease deed in favour of applicant)] AND CRL. MA NO.1-K OF 2019 IN CRL. ORG. P. NO.7-K OF 2017 [Application for intervener filed by Mr. Mazhar Ali B. Chohan, AOR on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (seeking direction for removal of encroachment from the plot of applicant society)] AND CRL. MA No.34-K/2020 IN CRL. ORG. P. NO.7-K OF 2017 [Application for intervener filed by Mr. Ghulam Rasool Mangi, AOR on behalf of M/s Fatima Jinnah Dental College & Hospital Trust (matter pertains to non-profitable educational institution/trust on plot No.AM/1/B at Bhittai Colony “Amenity Plot”)] AND CMA No.761-K OF 2020 IN CONST. P. No.9 of 2010 [Abdul Haq Abbasi Vs. Federation of Pakistan, etc. (matter regarding encroached overstate property situated at Sindh Muslim Society Karachi)] AND CMA No.808-K of 2020 IN CMA No.459-K of 2020 IN CONST. P. No.9 of 2010 Const.P.No.9 of 2010 etc. 14 [Muhammad Ameer Shah Vs. Federation of Pakistan and others (encroachment over 2000 million road at North Karachi)] AND CM APPEAL NO.16 OF 2021 IN CONST.P.NO.9 OF 2010 [Haji Abdul Razziq Khan Vs. Federation of Pakistan & others (regarding enforcement over Amenity Plot at PECHS)] AND CMA NO.782-K OF 2021 [Malik Jameel Ali Vs. Federation of Pakistan & others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from green belt)] AND CP NO.599-K OF 2021 [Mumtaz A. Qureshi Vs. The Province of Sindh & others (matter pertains to encroachment upon the gardens/parts, amenity plots playground and Footpath in the city of Nawabshah/Shaheed Benazirabad)] AND CMA NO.966-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 OF 2010 [Azhar Ahsan Thanvi Vs. Federation of Pakistan & others. (matter regarding encroachment over Plot No.ST-14)] AND CMA NO.971-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 OF 2010 [Muhammad Khan Parhar & others. Vs. Federation of Pakistan & others (matter regarding encroachment over Plot No.ST-14)] AND CRL.ORG.P NO.10-K OF 2021 [Muhammad Irfan Vs. Federation of Pakistan & others (matter regarding encroachment over 51 Plots of Gulistan-e-Johar)] AND ILLEGAL ENCROACHMENT OVER PLOT OF INDIVIDUALS CRL.MA NO.71-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Muhammad Hussain, in person (against encroachment by the land grabber on 51 Plots of the Const.P.No.9 of 2010 etc. 15 applicant at Sector 51-C, Korangi Township, Karachi)] AND CRL.MA NO.95-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Imdad Hussain, applicant in person (against notice issued by the KDA for demolition/vacating of the house of applicant i.e, House No.318, Sector 6-B, Mehran Town, Korangi Industrial Area, Karachi)] AND CLR.MA NO.214-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017 [Application for intervener filed by Salman Muhammad (for seeking directions to stop Anti-encroachment operation against the poor villagers Gulshan-e-Saiful Mance, Sector 8, Scheme 41, Surjani Town, Karachi)] AND CRL.MA NO.2-K OF 2019 IN CRL.ORG.P NO.7-K OF 2017 (Application for intervener filed BY Muhammad Farhan (against illegal demolition of the lawful construction on the plot owned by applicant, as it was offered by KDA illegally in compensation to Mst.Sabiha Parveen)] AND CMA NO.521-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Murtaza Ali (regarding illegal encroachment on Plots No.33 and 34, PR-II, Preedy Quarters, Karachi)] AND CMA NO.527-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Advocate Aqeel Hassan Khan (illegal construction of Masjid on Plot No.R-07, Longlife Bungalows Block-17, Gulistan-e-Johar)] AND CMA NO.162-K OF 2020 [Application for intervener filed on behalf of Ms.Muneera Khatoon (against illegal encroachment over plots bearing Nos.46-F & 46-G, situated at Bihar Colony, Shah Abdul Latif Bhittai Road, Karachi)] AND CMA NO.193-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plots No.B-100 & B-113, Block-10, Gulistan-e-Johar, Karachi)] Const.P.No.9 of 2010 etc. 16 AND CMA NO.762-K OF 2020 IN CONST.P.NO.9 OF 2010 [Syed Khurram Iqbal Vs. Federation of Pakistan & others (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)] AND DISCRIMINATION/GRIEVANCE WITH REGARD TO ENCROACHMENT DRIVE CMA NO.425-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed on behalf of Muhammad Jibran Nasir and others. (matter regarding discrimination & grievances with regard to anti-encroachment operation in Karachi)] AND CRL.ORG.P.NO.5-K OF 2020 IN CONST.P.NO.9 OF 210 [Mohammad Jibran Nasir & others. Vs. Mr. Habib ur Rehman Gillani & others (matter pertains to resettlement and rehabilitation plan for the affectees who have been disposed or dislocated due to the anti-encroachment drive)[ AND CMA NO.809-K OF 2020 IN CMA NO.460-K OF 2019 IN CONST.AP.NO.9 OF 2010 [Yousuf Masih Vs. Federation of Pakistan & others. (regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)] AND ALLEGATIONS LEVELLED AGAISNT GOVERNMENT OFFICIALS CMA NO.82-K OF 2020 IN CONST.P.NO.9 OF 2010 [Application for intervener filed by Syed Mehmood Akhtar Naqvi, (regarding corruption allegations against mentioned officials of SBCA and highlighted the illegal construction & encroachment in certain areas of Karachi)] AND CMA NO.336-K OF 2020 IN CONST.P.NO.9 OF 2010 [Mr. Imran Ayub Khan Advocate Vs. Federation of Pakistan & others (issue regarding title documents the people living at Allah Bux Goth registered as Kachiabadi)] AND Const.P.No.9 of 2010 etc. 17 CRL. ORG.P.NO.1-K OF 2020 IN CONST.P NO.9 OF 2010 [Syed Mehmood Akhtar Naqvi Vs. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh & others)] AND CMA NO.510-K of 2021 [Muhammad Ashraf Samoo. Vs. Province of Sindh & others (applicant has pointed out various issues i.e, corruption, violation of fundamental rights etc.)] AND MISCELLANEOUS CMA NO.300-K OF 2020 IN CONST.P.NO.9 OF 2010 [Niamatullah Khan Advocate Vs. Federation of Pakistan & others (statement of the amicus curiae from “Salahuddin Ahmed, ASC)] AND CMA NO.414-K OF 2020 IN CONST.P.NO.9 OF 2010 [Niamatullah Khan Advocate Vs. The province of Sindh & another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021 [Report filed on behalf of Chief Minister, Sindh through AOR in compliance of Court order dated 09.05.2019 Vs. Federation of Pakistan & others)] For the petitioners/ Applicants : Mr. Faisal Siddiqui, ASC (in CRP.61-K/2011 and CMAs.698- K/2011, 515-K/2021, 630-K/2020, 525-K/2019, Crl.MA.229-K/2018 & Crl.OP.5-K/2019) Mr. Munir A. Malik, Sr. ASC a/w Mr. K.A. Wahab, AOR (in CRP.56-K/2021 and CMA.541- K/2020) Mr. Abid S. Zubari, ASC with Mr. K.A. Wahab, AOR (in CRP.55-K/2020 & CMAs.86-K/2020, 277-K/2021, 278-K/2021 and 28- K/2020) Mr. Anwar Mansoor Khan, Sr. ASC Ms. Umaimah Anwar Khan, ASC Const.P.No.9 of 2010 etc. 18 (Crl.MA.59-K/2018, CMA.1003-K/2021, Crl.OP.13-K/2021 & Crl.MA.34-K/2020) Syed Ashikue Raza, ASC with Ms. Abida Parveen Channar, AOR (in CMA.367-K/2020) Mian Raza Rabbani, ASC with Ms. Abida Parveen Channar, AOR (in CRP.15-K/2021) Raja Qasit Nawaz, ASC with Mr. Abdul Qadir Khan, AOR (in CMAs.898-K/2020 and 83-K/2020) Khawaja Shamsh-ul-Islam, ASC (in CMA.714-K/2019, CPs.92-K and 93-K/2020) Syed Abdul Waheed, ASC (in CMA.594-K/2020) Mr. Sanaullah Noor Ghouri, ASC (in CMAs.808-K/2020 and 809-K/2020) Mr. Muhammad Ashraf Samoo, ASC (in CMA.510-K/2021) Mr. Zakir Hussain Khaskhali, ASC (in Crl.MA.132-K/2017) Mr. Salahuddin Ahmed, ASC (in Crl.MA.59-K/2018) Mr. Badar Alam, Sr. ASC (in CMA.941-K/2020) Mr. Muhammad Sohail Hayat Khan,ASC (in Crl.MA.34-K/2020) Khawaja Naveed Ahmed, ASC (in CMA.782-K/2021) Mr. Saalim Saleem Ansari, ASC (in CMA.898-K/2020) Ms. Abida Parveen Channar, AOR (in CMA.391-K/2020 and Crl.OP.8- K/2021) Dr. Raana Khan, AOR (in CMAs.441-K/2021 and 527-K/2019) Mst. Sabiha Parveen (in Crl.OP.7-K/2017) Syeda Maria Raza (in Crl.OP.9-K/2021) Mrs. Amber Ali Bhai, Dr. Sadia Virk, (in Crl.MA.59-K/2018) Const.P.No.9 of 2010 etc. 19 Ms. Maliha Malik (in CMA.941-K/2020) Muhammad Akram Abro (in CMA.775-K/2021) Akbar Hussain (in Crl.MA.38-K/2018) Syed Arif Shah (in CMA.59-K/2019) Malik Jameel Ali (in CMA.782-K/2021) Muhammad Irfan (in Crl.OP.10-K/2021) Murtaza Ali (in CMA.521-K/2019) Ijaz Hussain Jakharani & Sajjad Hussain Jakharani (in CMA.941-K/2020) (all in person) On Court’s Notice For the Federation : Mr. Khalid Javed Khan, Attorney General for Pakistan Mr. Kashif Sarwar Paracha, Addl. AGP For Govt. of Sindh : Mr. Salman Talib ud Din, Advocate General, Sindh Mr. Sahulat Rizvi, Addl.A.G.Sindh Mr. Naveed Ahmed Sheikh, Commissioner Karachi G. Mohiuddin Asim, Addl. Secretary P&D Shariq Ahmed, Secretary Transport Asif Jan Siddiqui, DC East Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary For F.W.O. : Brig. Waqar Abbasi, PD Brig. Muhammad Qasim, PD Abdul Basit Khan Tanoli, Legal Advisor For Pakistan Railways : Mr. Habib ur Rehman Gillani, Secretary Railways Nisar Ahmed Memon, Sr. GM Ameer Muhammad Daudpota, D.G. M. Hanif Gul, DS Rao Moinuddin ADLA SBCA : Syed Jameel Ahmed, ASC Dr. Raana Khan, AOR Muhammad Salim Raza, DG Abdul Waqar Memon, Sr. Director Muhammad Saleem Raza, Chief Controller KWSB : Assad Ullah Khan, M.D. NDMA : M. Idrees Mahsud, Member Akbar Bacha, Deputy Director Const.P.No.9 of 2010 etc. 20 Jacobabad Administration : Mr. Shafique Mehasar, Commissioner Dr. Hafeez Sial, DC Shumail Riaz, SSP Mazhar Hussain Alvi, AIGP WAPDA : Aamir Mughal, CE/PD, K-IV Traffic Police : Iqbal Dara, DIG Ghulam Navi, SSP (South) Provincial Assembly : Mr. Liaqat Ali, Law Officer High Court of Sindh : Mr. Karam Din Junejo, Nazir KMC : Mr. Umar Lakhani, ASC Murtaza Wahab, Administrator Azra Muqeem, Legal Advisor Afzal Zaidi, M/C Azhar Muqeem, Legal Advisor Cantonments : Adil Rafi, Director, Military Land & Cantonment, Karachi M. Saleem Hassan, CEO, Clifton Cantonment M. Farque, Military Estate Officer, Karachi Omer Masoom Wazir, CEO, Korangi Cantonment Barrister M. Omer Riaz, ASC on behalf of Cantonment Board Rana Khawar Iftikhar, CEO, Faisal Haider Ali Sial, CEO, Malir Qazi Rizwan Ahmed, CEO, Karachi, Cantonment Umar Mehboob, CEO Date of Hearing : 22.09.2021 O R D E R GULZAR AHMED, CJ.- CRP.61-K of 2021: Notice to the Advocate General Sindh. Affectees of Nalahs: 2. There is a big issue for the Government of Sindh so also the Government of Pakistan to rehabilitate the affectees of the Gujjar Nalah, Orangi Nalah and Mehmoodabad Nalah, in that, the Government of Sindh says that it has no funds altogether to Const.P.No.9 of 2010 etc. 21 provide for the rehabilitation of the affectees. The statement of the Advocate General Sindh on its face appears to be not reasonable rather such a statement ought not to have been made by the Advocate General Sindh before this Court rather the Sindh Government ought to have stated that as it had stated before this Court which is reflected in the previous orders of this Court, it will do everything to provide for the rehabilitation of the affectees of the above Nalahs. Funding for such rehabilitation is the responsibility of the Government of Sindh itself, in that, as a Government, it has to provide funding from its available resources and the Sindh Government cannot be obliviated of its responsibility. We, therefore, direct the Chief Minister, Government of Sindh to ensure that the affectees of the above Nalahs are rehabilitated by providing them all sorts of amenities, which are required in the present day living. The Chief Minister, Government of Sindh shall ensure that funding is arranged for this purpose and the affectees of the above Nalahs are rehabilitated in all manners preferably within a period of one year. An initial report under the hands of the Chief Minister, Government of Sindh shall be submitted before this Court within a period of two weeks from today. C.M.A. No.996-K/2021 in C.R.P. No.56-K/2021: 3. Through the instant CMA, learned counsel for the applicant seeks permission to argue the review petition. We have heard the learned counsel for the applicant. For reasons mentioned in the application, the same is allowed. C.R.P. No. 55-K and 56-K/2021 in C.M.A. No.625-K/2021 in Const. P. No.9/2010: Const.P.No.9 of 2010 etc. 22 4. We have heard the learned counsel for the review petitioners and have also gone through the record of the case. 5. For reasons to be recorded later, both the review petitions are dismissed. The Commissioner, Karachi is directed to make compliance of the order dated 16.06.2021 passed by this Court. C.M.A. No.1003-K/2021 and Report No.69-K/2021 in C.M.As. No.86- K & 711-K/2021: 6. Notice to Mr. Salahuddin Ahmed, learned counsel as well as the learned Advocate General, Sindh. Notice be also issued to the Administrator, Karachi so also the Commissioner, Karachi and the Director General, Karachi Development Authority. In the meantime, the Municipal Commissioners as well as the Director General, KDA and the CEOs of all the Cantonments in Karachi are directed to file complete list of ST (amenity) Plots all over Karachi and give their description, including total area, present status and as to for what purpose these ST (amenity) Plots are meant and being utilized. Details of ST (amenity) Plots shall be given individually, with photographs of each of the ST (amenity) Plots. 7. Adjourned to a date during the next session. 8. Dr. Saadia Virk appeared on behalf of the South City Hospital, Karachi, and requests for time to file response to the Court order dated 16.6.2021. 9. The request is allowed. Let the needful be done within a period of three weeks. C.M.A. No.941-K/2020: 10. The explanation given by Mr. Shumail Riaz, Senior Superintendent of Police, Jacobabad though is not satisfactory but as he has tendered unconditional apology before the Court, we restrain ourselves to take any action against him, but he has been warned to be careful in future. Const.P.No.9 of 2010 etc. 23 11. The Deputy Commissioner, Jacobabad states that demolition work of Meraj Hotel has been started and major part of the building has been demolished, however, a small portion remains to be demolished, which will be achieved at the earliest and the plot of land shall be restored for the purpose of school, for which it is meant. The Deputy Commissioner is directed to ensure that the demolition work be completed expeditiously and a final report regarding this property be submitted in Court before next date of hearing. The photographs of open plot of land occupied by Meraj Hotel shall be placed before the Court by the Deputy Commissioner. Government Girls High School, Jacobabad: 12. The Deputy Commissioner, Jacobabad has filed a Report No.73-K of 2021 in Court today. Let a copy of such report be supplied to the applicant Ms. Maliha Malik who will give her response to it well before the next date of hearing. Re-list in the next session. Hotel Al-Harmain and Saint John School: 13. The owners of Hotel Al-Harmain state that they have purchased the land from the Municipality in auction and thereafter, have constructed the Hotel. They seek time to file proper documents regarding the acquiring of land on which the Hotel has been built. The same party also claims to have been allotted land of Government Veterinary Hospital whereby they are running a school by the name of Saint John School and claims that the same has been allotted to them by the Chief Minister, Government of Sindh. We have asked them to show under what authority of law the Chief Minister can make allotment of the land of Government Veterinary Hospital for private/commercial purposes. They request for time. 14. The Deputy Commissioner, Jacobabad states that so far as the ground of Government Girls High School, Jacobabad is concerned, Const.P.No.9 of 2010 etc. 24 the same has been got vacated from Abdul Baqi Abro of the Education Department who has built his house. He states that the house has been got vacated and the same has been handed over to the Education Department to be used for the purposes for which it is meant. People Primary Healthcare Initiatives: 15. As regards the house of Riaz Jakhrani, it is stated by the Deputy Commissioner, Jacobabad that the land on which such house is built was allotted and is privately owned. We note from C.M.A. No.941-K of 2020, that the land on which Riaz Jakhrani has built his house is the land meant for People Primary Healthcare Initiatives. Let notice be issued to Riaz Jakhrani for appearance before the Court on the next date of hearing and also file his reply. 16. M/s. Ijaz Jakhrani and Sajjad Hussain Jakhrani have appeared in Court today. They shall file their replies. 17. Adjourned to a date during the next session. Aladin Amusement Park: 18. The Commissioner, Karachi has filed a report bearing No.63- K of 2021. It seems that all the constructions which were made in the Aladin Amusement Park have been demolished and substantial Malba has also been removed, but some Malba still remains in the area. He states that for restoring the park, he has written a letter to the Government of Sindh for providing funds and that as soon as the funds are made available, he will take all necessary steps for establishing the park on the said land. Let the Commissioner, Karachi take expeditious steps in this regard. He will ensure that no encroacher or trespasser is allowed to occupy any portion of the land of the Aladin Amusement Park. Proper security in this regard shall be ensured by the Commissioner. He shall also ensure that a park is developed on the land and such is also done without delay. Const.P.No.9 of 2010 etc. 25 19. Adjourned to a date during the next session. C.M.A. No.698-K/2021: 20. Notice. Re-list during the next session. CHIEF JUSTICE JUDGE Bench-I Karachi 22.09.2021 ‘APPROVED FOR REPORTING’ Mahtab/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE NASIR-UL-MULK MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE EJAZ AFZAL KHAN CONSTITUTION PETITION NO. 9 OF 2014 (Constitution petition under Article 184 of the Constitution regarding seniority of the Judges of Lahore High Court, Lahore) Muhammad Aslam Awan, ASC … Petitioner VERSUS Federation of Pakistan and others … Respondents For the Petitioner: Mr. Zaka ur Rehman, ASC On Court Notice: Mr. Salman Aslam Butt, Attorney General Kh. Saeed uz Zafar, Addl. Attorney General Mr. Sajid Ilyas Bhatti, Deputy Attorney General Mr. Waqar Rana, ASC, Consultant to Attorney General Date of Hearing: 06.05.2014 ORDER TASSADUQ HUSSAIN JILLANI, CJ.- For reasons to be recorded later in the detailed judgment, we hold and declare as under:- i) that the inter se seniority of Judges of a High Court shall reckon from the order and date of their appointment as Additional Judges of that Court; ii) that the inter se seniority of Additional Judges of a High Court appointed vide the same order and date shall reckon from their seniority in age. If appointment of two or more service candidates is simultaneously Constitution Petition No. 9/2014 2 made with that of the candidates from the Bar, the service Judges shall retain their existing seniority in the department regardless of their age, though that would be the determining factor in respect of their seniority viz a viz the candidates from the Bar. This principle has consistently been followed without exception ever-since the establishment of the High Courts in Pakistan and is even otherwise in accord with the equitable dispensation of justice. 2. With the above observations and declaration, this petition is dismissed. CHIEF JUSTICE JUDGE (HJ-1) JUDGE (HJ-3) JUDGE (HJ-5) JUDGE (HJ-8) Islamabad, the 6th of May, 2014 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar CONSTITUTION PETITION NO. 9 OF 2023 (Holding General Elections of National Assembly and Provincial Assemblies on same date) Sardar Kashif Khan …Petitioner(s) Versus Federation of Pakistan, Law and Justice Division through its Secy. to the Law and Justice Division and others …Respondent(s) For the Petitioner(s) : Mr. Shah Khawar, ASC Respondent(s) : Not represented. Date of Hearing : 19.04.2023 O R D E R Mr. Shah Khawar, learned ASC represents a concerned citizen who has approached the Court to highlight the alternate means of a political dialogue for ending the impasse on the issue of holding General Elections to the Punjab and KP Provincial Assemblies. Whereas the Court vide its judgment dated 04.04.2023 had directed the General Elections to Punjab Provincial Assembly to be held on 14.05.2023, there is resistance to compliance with the said direction by the Election Commission of Pakistan, Federal Government and the Ministry of Defence. The grounds of their reservations are not germane to the present petition. Const.P.9 of 2023 2 2. Learned counsel has argued that for ensuring peaceful, honest, just and fair elections there must be understanding and mutual respect among the political parties that participate in the general elections. He contends that historically the holding of simultaneous elections to the National Assembly and four Provincial Assemblies has secured a more durable outcome than the staggered elections held in 1970 and 1977 as are being envisaged presently for the said two Provincial Assemblies. 3. Prima facie, the submission made by the learned counsel appears to have substance because elections are contested in the political arena and these can be best conducted with the feedback and input of all electoral political forces in the country would contest in such elections. However, the Court considers that the alternative route proposed by the learned counsel cannot operate to negate or erase the date fixed by the Court in its judgment dated 04.04.2023 for the holding of General Elections to the Punjab Provincial Assembly which is in line with the dictates of the Constitution. This is for the reason that political dialogue must not be made a means for avoiding the imperative obligation under Articles 112 and 224 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) to hold a general election to a provincial assembly with 90 days of its dissolution. Therefore, time is of the utmost essence in exploring the course suggested by the learned counsel. Correspondingly, we appreciate the initiative taken by the petitioner to propose the initiation of a political dialogue as a means for settling a practical and feasible date on which general Const.P.9 of 2023 3 elections, that satisfy the requirement of Article 218(3) of the Constitution, are held. 4. Keeping the time constraint in view, notice is issued to the respondents No.3 to 12 in this petition as well as to the Jamat-e-Islami through its Ameer for arranging their representation through their duly authorized and instructed senior office bearers of the respective parties to appear in-person before the Court tomorrow. Notice shall also be issued to the Federation of Pakistan, the Election Commission of Pakistan and the Attorney General for Pakistan under Order 27A of the CPC. Office shall send the notices through the various modes provided in law including special messenger and shall request the electronic and print media to convey the Court’s order to the respective political parties. 5. To come up tomorrow i.e. 20.04.2023 at 11:00 am. Sd/- Chief Justice Sd/- Judge Islamabad 19.04.2023 Sd/- Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE ASIF SAEED KHAN KHOSA Civil Petition No. 1017-L of 2011 (Against the judgment dated 11.5.2011 passed by the Lahore High Court, Multan Bench in W.P. No. 8930 of 2010) Rana Aamer Raza Ashfaq and another … Petitioners VERSUS Dr. Minhaj Ahmad Khan & another … Respondents For the Petitioners: Mr. Ahmad Raza, ASC along with Sajid Iqbal in person. For Respondent No.1: In person For Respondent No.2: Mr. Nazir Ahmad Chishti, Deputy Registrar, BZU. On Court’s Call: Maulvi Anwarul Haq, Attorney General for Pakistan a/w Salman Faisal, Advocate, Syed Ali Mustafa Gillani, Advocate and Mrs. Shafaq Mohsin, Advocate. Khawaja Haris Ahmed, Advocate General Punjab Mr. Khadim Hussain Qaiser, Addl. A.G. Punjab Mr. Jawad Hasan, Addl. A.G. Pb. Date of Hearing: 19.8.2011, 14, 19 & 22.9.2011 JUDGMENT TASSADUQ HUSSAIN JILLANI, J.- “Good or bad fortune of a nation depends on three factors; its Constitution, the way the Constitution is made to work and the respect it inspires*1.” The Constitution of a country is a sacrosanct document which * George Bidault, a French intellectual and former Prime Minister. Mr. K. K. Agha, Addl. Attorney General for Pakistan. C.P. No. 1017-L of 2011 2 establishes various institutions, apparatus of the government, defines the relationship between the individuals and the State, between the Federation and its Federating Units/Provinces and various organizations of the State. The judiciary is under oath to preserve and defend the Constitution under the rule of law. It does so by its power of judicial review and in the case in hand, we have been called upon to exercise it in the following set of circumstances. 2. Petitioner and respondent No.1 Dr. Minhaj Ahmad Khan applied for three posts of Assistant Professors in Computer Sciences in Bahauddin Zakariya University (hereinafter referred to as “the University”] pursuant to advertisement made by it on 11.3.2010 through newspapers and its website. They were among the nine candidates shortlisted and called for the interview on 4.8.2010. Respondent No.1 appeared before the Selection Committee but was neither interviewed nor considered. However, the petitioners were selected after the interview. He challenged this selection through a Constitution petition. In the written statement filed by the respondent-University before the High Court, the fact that respondent was the only Ph.D among the nine shortlisted candidates and more experienced was not disputed but the reason given for not considering him for the posts was that he went to France on ex-Pakistan leave for post doctoral studies though with NOC but without the permission of the competent authority therefore, the Syndicate in its meeting dated 17.2.2010 had directed an enquiry against him under the Punjab Employees Efficiency, C.P. No. 1017-L of 2011 3 Discipline and Accountability Act, 2006 (PEEDA Act 2006) which was still pending. The Constitution petition was allowed by the Lahore High Court vide the impugned judgment dated 11.5.2011 on the ground that the pendency of an enquiry was no ground not to consider him. The recommendations of the Selection Board dated 8.8.2010 were declared illegal by the High Court and the respondent was directed to convene a meeting of the Selection Board and conduct interviews of the petitioner along with the shortlisted candidates afresh. 3. Seeking leave to appeal against the impugned judgment, learned counsel for the petitioners submitted that the High Court had no jurisdiction to interfere in the selection process as the employees of the University are not governed by statutory rules; that even otherwise relief could have been granted to respondent No.1 without interfering with the selection of the petitioners as there was still one post vacant; that petitioners had assumed the charge after having been selected and worked for eleven months and that their appointment has been set aside for reasons not sustainable in law. He further submitted that on account of the non-appointment of the Vice Chancellor of the University, the meeting of the Selection Board has not been convened for a denovo exercise for selection in terms of the impugned judgment and not only the petitioners are suffering but the University is partially dysfunctional on account of this inaction on the part of the Provincial Government. C.P. No. 1017-L of 2011 4 4. The University has not challenged the impugned judgment. On 19.8.2011 during the course of hearing of this petition and on Court query, the Deputy Registrar of the University apprised the Court that meeting of the Selection Board to initiate the process of interviewing the shortlisted candidates afresh in terms of the impugned judgment has not been held because no Vice Chancellor has been appointed as yet; that the appointment is being delayed as the Chancellor of the University/Governor Punjab has not passed any order in this regard despite the advice having been tendered by the Chief Minister Punjab in terms of section 11(8) of the Bahauddin Zakariya University Act, 1975 [hereinafter referred to as ‘the Act’]. 5. Notice was issued to the learned Attorney General for Pakistan to address this Court, inter alia, on the following issues arising out of the petition:- (i) Whether the Chancellor of the University/Governor of Punjab is bound by the advice tendered by the Chief Minister on reconsideration in view of section 11(8) of the Act read with proviso to Article 105 of the Constitution and the law declared by this Court [in the case of Muhammad Nawaz Sharif vs. President of Pakistan and others (PLD 1993 SC 473) and Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879)] and in Intra Court Appeal No. 243 and 245 of 2010, decided by the Lahore High Court, Lahore, in which the Chancellor was a party? (Emphasis is supplied) (ii) Whether the delay in appointment of the Vice Chancellor and the Pro Vice Chancellor in the University has the effect of making the Institution dysfunctional to achieve its objectives under the law? C.P. No. 1017-L of 2011 5 (iii) Considering the Right to Education to be a Fundamental Right, whether the same is being violated on account of delay in appointment of the institutional head of the said University? (iv) Whether the delay in appointment of the Institutional Head has the effect of impinging on the Fundamental Rights enshrined in Articles 9, 14, 18 of the Constitution? 6. The learned Attorney General for Pakistan submitted as follows:- (i) that the Governor of Punjab while acting in his capacity as Chancellor under the Act as opposed to his Constitutional capacity as Governor is not bound by the advice of the Chief Minister. According to him the Governor is bound to act on the advice of the Chief Minister under Article 105 of the Constitution only if he is acting as Governor and not when he is seized of a matter as Chancellor of the University; (ii) that if Article 105 of the Constitution was made applicable to acts done and orders passed by the Governor under a Statute acting in a different capacity, it would deprive him of any discretionary and independent decision making power under the Act and make the relevant Statute redundant qua his role; (iii) that a distinction has to be made in the functions of the Governor when he acts under the Constitution in C.P. No. 1017-L of 2011 6 terms of its Article 105 and in cases when he acts under the Statute in different capacities i.e. Chancellor; (iv) that the powers of the President under Article 48(1) and (2) are comparable with that of the Governor in a Province in terms of latter’s powers under Article 105(1). This Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84 at 93 to 95) has dilated upon matters/Articles of the Constitution where the President is bound by the advice and where he can act in his discretion. This distinction has to be kept in view in the case of Governor as well; (v) that the advice of the Prime Minister is binding on President in some cases under the Constitution, whereas when the latter is acting under a Statute, he has discretionary powers to act. The afore-referred judgment does not lay down that President/Governor while performing functions in different capacities under a Statute, will be bound by the mandate of Article 48(1) and Article 105 of the Constitution respectively; (vi) that section 11(8) of the Act inserted through an amendment has incorporated Article 105 of the Constitution into the Act and this inserted provision applies to the functions of the Chancellor in respect C.P. No. 1017-L of 2011 7 of those matters set out in section 11 only and not those set out in section 14 of the said Act; (vii) that while interpreting section 11(8) of the Act, this Court has to keep in view the decision taken by the Chancellors’ Committee in its meeting held on 11th of May, 2006 under the chairmanship of President of Pakistan, para-7 of which unequivocally vests the power for appointment of Vice Chancellor in the Chancellor. The said para reads as follows:- “7. Vice Chancellors of all Provincial Public Universities should be appointed after advertisement through a search committee process. The search Committee will be required to put up a panel of 3 names for approval of the Chancellor from whom the Vice Chancellor may be selected.” (viii) that in the present case the above mentioned decision was followed. An advertisement was placed and the Search Committee recommended three names from which the Governor in his capacity as Chancellor, not Governor, selected one, in his discretion and gave credible reasons for his selection. This is fully in line with the scheme envisaged by the Act under section 14 and the law on the exercise of discretion; (ix) that in any event section 11(8) is wholly out of place in the Act and is contrary to the scheme of the Act. It C.P. No. 1017-L of 2011 8 is entirely inappropriate to incorporate a Constitutional provision into an ordinary piece of legislation which is relatable to the functions of the Governor under the Constitution rather than a Statute. Its incorporation can therefore be regarded as redundant vis-à-vis the working of the Act; and (x) that it is notable that when the Chief Minister ignored the summary by not recommending the first of the three in order of merit on the Search Committee’s list and interviewed only two of the three candidates, he gave no reasons as to why he preferred candidate No. 2 over candidate No. 1 or 3. On the other hand, the Chancellor/Governor interviewed all the three candidates selected by the Search Committee. After careful examination of their comparative merit, he considered Dr. Muhammad Zafar Ullah as the best of the lot which is not open to exception. 7. Learned Advocate General Punjab, on the other hand, submitted as follows:- (i) that refusal of Governor of Punjab to appoint Professor Dr. Syed Khawaja Alqama and instead appointing Prof. Dr. Muhammad Zafar Ullah is not tenable in law: first because in terms of section 11(8) of the Act read with Article 105 of the Constitution, the Chancellor can only refer the matter back to the C.P. No. 1017-L of 2011 9 Chief Minister once for re-consideration, but when the said advice is re-tendered by the Chief Minister, the Governor has no option but to act in accordance therewith within ten days; (ii) that neither the Constitution nor the law permits him to sit in judgment over the advice of the Chief Minister and the law does not empower him to override the said advice; (iii) that the provisions of section 11(8) of the Act are based on the principle embodied in Article 105 of the Constitution and cannot be termed to be violative of Article 9, 14, 18 and 25 as contended in the written statement filed by the Attorney General; (iv) that the decision of the Second Chancellors’ Committee meeting dated 11.5.2006 cannot in any manner override a statutory provision contained in section 11(8) of the Act; (v) that the argument that Governor in his capacity as Chancellor is not performing the Constitutional functions and therefore is not bound by the advice completely ignores that Article 105 of the Constitution was inserted in the Act by legislative reference to which no exception can be taken and the advice of the Chief Minister wi th reference to section 11(8) of the Act is binding in the same C.P. No. 1017-L of 2011 10 manner on the Chancellor as the advice of the Chief Minister on the Governor because Article 105 of the Constitution is in pari materia to section 11(8) of the Act; (vi) that the Chief Minister was not bound to interview Dr. Muhammad Zafar Ullah though he was amongst the three recommended by the Search Committee for the slot of Vice Chancellor because first Dr. Muhammad Zafar Ullah was placed at No.3 in the list of candidates recommended by the Search Committee and, as such, it was the prerogative of the Chief Minister whether to call him for interview or not; and, second there was sufficient information available with the Chief Minister that the conduct of Dr. Muhammad Zafarullah had not been above board, and that he had been undergoing a number of inquiries during his previous tenure as the Vice Chancellor of the University; and (vii) that the Vice Chancellor is the academic head of the university and enjoys a pivotal position in various domains of the functioning of the University under the Statute. The delay in the appointment of Vice Chancellor is adversely affecting the functioning of the university and may have a negative effect on the fundamental right of Right to Education of the C.P. No. 1017-L of 2011 11 students. According to him, the Vice Chancellor of the University is head of the Senate which passes the annual statement of accounts and revised budgets; that he appoints members of the Syndicate; he convenes meeting of the Syndicate being its Chairman; he is head of the Academic Council; he in his capacity as Head of Board of Studies has to coordinate publication, research work, assigning subject to each faculty and convenes the meeting of the Selection Board which fills various posts in the University. 8. We have considered the submissions made and have gone through the precedent case law to which reference has been made above. 9. The issues mentioned in Para-5 above have nexus and are being dilated upon together. 10. The role and functions of the Chancellor under the Act have been delineated in various provisions of the Act. In terms of its section 11(1), the Governor Punjab is the ex officio Chancellor of the University; Under section 11(2), he or his nominee presides over the Convocation of the University and the meeting of Senate; he has the power to issue show cause to an Authority functioning under the Act for annulling any proceedings which are violative of the Act, the Statute, the Regulations or the Rules framed under the Act [Section C.P. No. 1017-L of 2011 12 11(3)]; he confirms conferral of an honorary degree on any one [Section 11(4)]; he issues assent to Statutes which are to be submitted to him by the Senate [Section 11(5)]; and he has the power to remove any one from membership of any Authority under the Act for reasons given in sub-section (6) of Section 11. Sub- section (8) of section 11 mandates that “in performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of the Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan.” (Emphasis is supplied). He has the revisional powers (Section 11-A), powers of visitation and inspection (Section 12), power to appoint Vice Chancellor on such terms and conditions as he may determine, and he has the power to appoint Pro Vice Chancellor (section 15). 11. Sub-section (8) of Section 11 of the Act referred to above was inserted along with certain other amendments by the Multan University (Amendment) Act, 1975 (Punjab Act No. XIX of 1975, Section 2). The declared object and reasons for this amendment were as follows:- “it is also imperative that in order to preserve the academic atmosphere of the Universities, there should be effective machinery to regulate the conduct and behaviour of all people engaged in the instruction of the youth of the country.” 12. A perusal of the Statutes relating to some other Universities in Punjab indicate that similar amendments were brought about in following Universities:- C.P. No. 1017-L of 2011 13 S.No. Description Amendment Reasons and Objects 1. The University of the Punjab (Second Amendment) Bill, 1975 In Section 11 after sub-section (7), sub- section (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) It is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible. It is, therefore, necessary to amend the law on the subject. 2. The University of Agriculture Lyallpur (Second Amendment) Bill, 1975. In Section 11 after sub-section (7), sub- section (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) It is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible. It is, therefore, necessary to amend the law on the subject. 3. The Islamia University of Bahawalpur (Amendment) Bill, 1975 In Section 11 after sub-section (7), sub- section (8) was added. (8) In the performance of his functions under the Act the Chancellor shall act and be It is necessary that principles of good Government as enunciated in the Constitution should be made applicable as widely as possible. It is, therefore, C.P. No. 1017-L of 2011 14 bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) necessary to amend the law on the subject. 4. The Government College University, Lahore (Amendment) Bill, 2003 In Section 9 after sub-section (6), sub- section (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) As the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University shall act on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the University and in order to create academic freedom for the University and to help it function smoothly representation of the Members of the Provincial Assembly in the Syndicate should be made. Therefore, the Government of Punjab has decided to amend the Government College University Lahore Ordinance, 2002 (XLVIII of 2002). 5. The University of Education, Lahore (Amendment) Bill 2003 In section 10, after sub-section 6, sub- section 7 was added. (7) In the As the Chief Minister is the executive head of the Province, the Governor in his C.P. No. 1017-L of 2011 15 performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) capacity as Chancellor of the University shall act on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the University and in order to create academic freedom for the University and to help it function smoothly representation of the Members of the Provincial Assembly in the Syndicate should be made. Therefore, the Government of Punjab has decided to amend the University of Education, Lahore Ordinance, 2002 (L of 2002). 6. The University of Sargodha (Amendment) Bill, 2003 In section 9, after sub-section (6), sub- section (7) was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) As the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University shall act on his advice. The Minister for Education, Punjab should act as Pro- Chancellor of the University and in order to create academic freedom for the University and to help it function smoothly representation of the Members of C.P. No. 1017-L of 2011 16 the Provincial Assembly in the Syndicate should be made. Therefore, the Government of Punjab has decided to amend the University of Sargodha Ordinance, 2002 (LXXX of 2002). 7. The University of Engineering & Technology Taxila (Amendment) Bill 2003 In Section 9, after sub-section (5), sub- section (6) was added. (6) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis is supplied) As the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University should act on his advice. Government of the Punjab has therefore, decided to amend the University of Engineering and Technology, Taxila Act, 1994 (XII of 1994). 8. The Fatima Jinnah Women University, Rawalpindi (Amendment) Bill 2003 In Section 8, after sub-section 6, sub- section 7 was added. (7) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. (Emphasis As the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University should act on his advice. Government of the Punjab has therefore, decided to amend the Fatima Jinnah Women University, Rawalpindi Ordinance, 1999 (XLIII of 1999). C.P. No. 1017-L of 2011 17 is supplied) 13. There is no cavil to the proposition as canvassed by the learned Attorney General for Pakistan, Moulvi Anwarul Haq that there are matters/Articles where the President or the Governor, subject to Constitution, may act in their discretion. But those matters are not an issue before this Court and the attempt to extend the discretionary domain to the issue in hand has not been found by us to be backed by law. Here we are seized of giving effect to a Statute which incorporates a Constitutional provision by reference. In construing such a piece of legislation, the Court has to examine and keep in mind three things: (i) the Statement of Reasons and Objects given therein; (ii) the statement of objects given in other laws in pari materia to the one under consideration; and (iii) the mandate of the Constitutional provision which stands adopted by way of reference. 14. A bare perusal of the statement of objects of the similar amending provisions in various Universities of Punjab, a detail of which has been given in the table above, reflects that the legislative intent was that “the principles of good government as enunciated in the Constitution should be made applicable” (The University of the Punjab Second Amendment Bill, 1975) or “as the Chief Minister is the executive head of the Province, the Governor in his capacity as Chancellor of the University shall act on his advice” [The Government College University, Lahore (Amendment) Bill 2003]. These amendments insert in the Statutes an important principle of C.P. No. 1017-L of 2011 18 Parliamentary Democracy enshrined in Article 105 of the Constitution which inter alia mandates that (at the Provincial level) “subject to Constitution, in the performance of his functions, Governor shall act [on and] in accordance with the advice of the Cabinet [or the Chief Minister].” 15. The Constitutional intent and mandate of Article 48 and Article 105 are one of the foundational values of our Constitutional scheme. The Constitution of Islamic Republic of Pakistan underpins a system of Federal Parliamentary Democracy. The Governor of a Province under the Constitution enjoys an exalted position—he is a nominee of the President and a symbol of Federation in the Province, whereas the Chief Minister is the Chief Executive of the Province and is elected by the Provincial Assembly. Except otherwise so provided under the Constitution, the President and Governor are bound by the advice tendered by the Prime Minister and the Chief Minister respectively and in the manner as provided in the afore-referred provisions of the Constitution. The Governor while acting as Chancellor is a statutory functionary. By specific mention of Article 105 of the Constitution in section 11(8) of the Act and in laying down that, “in the performance of his functions under the Act, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan”, the Legislature has blended the same value of supremacy of the Parliament/Provincial Assembly which underlie the adopted Constitutional provision. C.P. No. 1017-L of 2011 19 16. The insertion of sub-section (8) in section 11 of the Act and similar provisions in Statutes of other Universities are instances of referential legislation which is a common device to incorporate earlier statutory provisions by reference rather than setting out similar provisions in totality. Such a legislation is as old as the Latin maxim Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur i.e. words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them. 17. Referential legislation broadly is of two kinds i.e. either a specific provision of a certain Act is incorporated into another Statute or the provision of a certain Statute is incorporated by a general reference. Laws including the adopted provisions do not remain static and issues crop up when the adopted provisions are amended in the earlier Statute. The question whether subsequent amendments in such adopted provisions either by specific incorporation or by a general reference would be ipso facto read into the latter has been a subject of judicial comment. In Bajaya vs Gopikabai And Anr. (AIR 1978 SC 793), the Court was of the view as follows:- Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the C.P. No. 1017-L of 2011 20 former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus : A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted. (Vide, Sutherland's Statutory Construction, Third Edition, Article 5208, page 5208). Corpus Juris Secundum also enunciates the same principle in these terms : ...Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof,...the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute.” 18. In a rather instructive judgment of the Lahore High Court in Pakistan International Airlines Corporation v. Chairman, C.P. No. 1017-L of 2011 21 Punjab Labour Appellate Tribunal, Lahore (PLD 1979 Lahore 415), the rule of interpretation in this context was summed up as follows:- “37. The rule of interpretation to be inferred from all the references quoted above is: (a) When a statute adopts a part or all of another statute by specific or descriptive reference the, adoption takes the statute as it exists at that time and the adopted , provisions with necessary adaptations if any became a part of the adopting statute as if it was written down in it; (b) any subsequent addition to or modification of the adopted statute, can be included in the - adopting statute only if so expressly or impliedly provided in the adopting statute; (c) When particular sections of an earlier statute are expressly incorporated into a later statute the other sections of the earlier statute may be referred to in order to resolve any ambiguity or obscurity that may arise in its interpretation of that section; (d) When the adopting statute refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting act but all subsequent laws on the particular subject referred to, in so far as they are consistent with the adopting law; (e) When Legislature in adopting the procedural provisions of another Act, made substitutions in certain instances, it will be inferred that in matters not specified no substitutions were intended.” 19. In a recent judgment of the Supreme Court of India dated 11.1.2011 passed in M/s Girnar Traders v. State of Maharashtra & Ors (Civil Appeal No. 3703 of 2003 & Civil Appeal C.P. No. 1017-L of 2011 22 No. 292 of 2011), a similar view was taken and it was held as follows:- “Reference to an earlier law in the latter law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the latter law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the latter law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act. Ultimately, it is the expression and/or the language used in the new law with reference to the existing law that would determine as to under what class of referential legislation it falls.” 20. The effect of this referential legislation [Section 11(8) of the Act] would be that any Constitutional amendment made in the said Article would be read into the amended provision of the Act. Consequently the amendments brought about in Article 105 of the Constitution by virtue of the 18th Amendment (Act X of 2010) would be fully applicable. Article 105 as amended reads as follows:- “105. Governor to act on advice, etc.—(1) Subject to Constitution, in the performance of his C.P. No. 1017-L of 2011 23 functions, Governor shall act [on and] in accordance with the advice of the Cabinet [or the Chief Minister]: [Provided that [within fifteen days] the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall [,within ten days,] act in accordance with the advice tendered after such reconsideration.] (Emphasis is supplied). (2) The question whether any, and if so what, advice was tendered to the Governor by the Chief Minister [or Cabinet] shall not be inquired into in, or by, any court, tribunal or other authority. [(3) ………. (a) ……… (b) ……… (5) The provisions of clause [(2)] of Article 48 shall have effect in relation to a Governor as if reference therein to “President” were reference to “Governor”.] 21. The principle of Parliamentary Democracy or supremacy of the Parliament which underlie the afore-mentioned provision is also reflected at the Federal Level in Article 48(1) of the Constitution qua the binding nature of the advice tendered by the Prime Minister to the President and has time and again been highlighted by this Court. In a seminal judgment titled as Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473 at 567), it was held as follows:- “Our Constitution, in fact, is designed to create a parliamentary democracy. The President in this set-up is bound to act, in the exercise of his functions, in accordance with the advice of the Cabinet or the Prime Minister [Article 48(l)] and the Cabinet in its turn is collectively responsible to C.P. No. 1017-L of 2011 24 the National Assembly [Article 91(4)] though the Prime Minister holds office at the pleasure of the President. However, the President cannot remove him from his office as long as he commands the confidence of the majority of the members of the National Assembly [Article 91(5)]. In view of these provisions, the system of Government envisaged by the Constitution of 1973 is of the Parliamentary type wherein the Prime Minister as Head of the Cabinet is responsible to the Parliament, which consists of the representatives of the nation. It is manifest, therefore, that in the scheme of our Constitution the Prime Minister in administering the affairs of the Government is neither answerable to the President nor in any way subordinate to him. In formulation of the policies of his Government and in the running of its affairs, the Prime Minister is answerable only to the National Assembly and not to the President. Indeed, it is the President who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of the affairs of the Government and not the other way about, as appears to have been mistakenly understood. Undoubtedly, the President may require the Cabinet or the Prime Minister, as the case may be, to reconsider any advice tendered to him but the President is bound to act on the advice tendered, even if it be the same, after consideration. Undoubtedly, both are expected to work in harmony and in close collaboration for the efficient running of the affairs of the State but as their roles in the Constitution are defined, which do not overlap, both can exercise their respective functions unhindered and without bringing the machinery of the Government to a standstill. Despite personal likes or dislikes, the two can co-exist Constitutionally. Their personal likes or dislikes are irrelevant so far as the discharge of their Constitutional obligations are concerned. Despite personal rancour, ill-will and incompatibility of temperament, no deadlock, no stalemate, no breakdown can arise if both act in accordance with the terms or the Oath taken -by them, while accepting their high office. They have sworn: C.P. No. 1017-L of 2011 25 .not to allow their personal interest to influence their official conduct or their official decisions." And taken Oath: "to do right in all circumstances, to all manner of people, according to law, without fear or favour, affection or ill-will." 22. In yet another Full Court judgment of this Court in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), the Hon’ble Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, speaking for the Court, reiterating the ratio laid down in Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), observed as follows:- “198. In Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), it was held that in respect of appointments of Judges as contemplated under Articles 177 and 193 of the Constitution, advice of the Cabinet or Prime Minister under Article 48(1) would be attracted, but the same would be further qualified by, and subject to the ratio decidendi of the judgment passed in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324). Following the principles enunciated in the aforesaid two judgments, it is declared that in the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the fact that the recommendations of the Governor in the case of the respondents Nos. 3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J.” 23. In a recent case pertaining to appointment of Vice Chancellor of Government College University, Faisalabad, a learned Division Bench of the Lahore High Court in Intra Court Appeal Nos. C.P. No. 1017-L of 2011 26 243 and 245 of 2010 has already held that the Chancellor of the University/Governor of Punjab is bound by the advice tendered by the Chief Minister qua appointment of Vice Chancellor. In this judgment, the Chancellor/Governor of the Punjab was a party and the judgment has attained finality and it was not interfered with by this Court. 24. In the instant case, the Chief Minister of Punjab having received a panel of three candidates recommended by the Search Committee advised the Governor of Punjab vide Summary dated 25.6.2011 to appoint Dr. Syed Khawaja Alqama as Vice Chancellor of the University. The summary reads as follows:- “Chief Minister, after interviewing the first two candidates on the panel recommended by the Search Committee, is of the view that Dr. Syed Khawaja Alqama s/o Khawaja Khair-ud-Din is more suitable for appointment as Vice Chancellor, Bahauddin Zakariya University, Multan and has been pleased to advise the Governor/Chancellor in terms of section 14 and section 11(8) of the Bahauddin Zakariya University, Multan Act, 1975 read with Article 105 of the Constitution of the Islamic Republic of Pakistan to appoint Dr. Syed Khawaja Alqama as Vice Chancellor of the said University for a term not exceeding four years.” 25. The Chancellor of the University/Governor of Punjab instead of acting on the advice tendered by the Chief Minister, or sending it back to him for reconsideration in terms of Article 105(1) of the Constitution, himself interviewed the panel of three candidates (selected by the Search Committee) and sent a memo to the Chief Minister on 7.7.2011 in purported exercise of appointing Dr. C.P. No. 1017-L of 2011 27 Muhammad Zafarullah as the Vice Chancellor and gave his own reasons which inter alia are as follows:- (i) The amended provision in Sub Section 8 of Section 11 would itself be void under Article 8 of the Constitution impinging upon the Fundamental Rights of Articles 9, 14, 18 and 25 of the Constitution of the Islamic Republic of Pakistan and hence, by virtue of inbuilt mandate of the Constitution, the extent of such inconsistency (Sub Section 8), the amending Act would be void and non-operative, ineffective and liable to be declared accordingly by the Judicial for a causing embarrassment to the Government. (j) As per prevailing position in the Federally Chartered Public Sector Universities, the Head of the State as Chancellor appoints the Vice Chancellors at his discretion. Similarly in the other Provinces, Constitutional Heads of the Provinces exercise such powers in their capacity as Chancellors without the advice of the Chief Ministers. This is also reflected from the decision of the 2nd Chancellors Committee meeting held on 11.05.2006, as indicated at Para 1 ante. Accordingly, the affairs of the Universities including appointment of Vice Chancellors of the Public Sector Universities in Punjab are also the sole prerogative of the Governor/Chancellor, to maintain parity in line with the Federation as well as other Provinces. As also to sustain educational excellence through integrated expansion of curricula, disciplines, policies in tune with national aspirations and international accreditation, a cohesive uniformity is imperative and consistent with the propounded exposition. In view of the above, I, in exercise of the powers vested in me, in my capacity as Chancellor, under Section 14(1) of the Bahauddin Zakariya University Act, 1975, hereby appoint Prof. Dr. Muhammad Zafarullah as Vice Chancellor, Bahauddin Zakariya University, Multan, for a period of four years, with immediate effect.” C.P. No. 1017-L of 2011 28 26. The procedure adopted by the Chancellor/Governor of Punjab for purported appointment of Prof. Dr. Muhammad Zafarullah is not countenanced in section 11(8) of the Act read with Article 105(1) of the Constitution. The only option which the Chancellor had under the afore-referred provision is given in proviso to Article 105 of the Constitution which mandates, “provided that [within fifteen days] the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall [within ten days] act in accordance with the advice tendered after such reconsideration” (emphasis is supplied). The timeline given in Article 105 of the Constitution within which the Governor is to act, is intended to avoid deadlock and friction between the two Constitutional functionaries. The Chancellor’s summary reflects a lack of understanding of both the legal and Constitutional provisions which regulate the powers of the Chancellor of the University. The mandate of law cannot be frustrated. We, therefore, hold that the summary sent by the Chancellor to appoint a person of his choice as Vice Chancellor against the advice tendered by the Chief Minister (recommending Prof. Dr. Syed Khawaja Alqama as Vice Chancellor of the University) be treated as a reference for reconsideration by the Chief Minister and the letter of the Chief Minister holding that the Chancellor’s attempt to appoint a person of his choice was violative of section 11(8) of the Act read with Article 105(1) of the Constitution, C.P. No. 1017-L of 2011 29 reiterating the earlier advice for appointment of Prof. Dr. Syed Khawaja Alqama as Vice Chancellor, shall be deemed to be the advice of the Chief Minister after reconsideration and shall be given effect to accordingly. The said summary/advice reads as follows:- “Chief Minister has seen and has observed as under:- The purported powers claimed by the Governor in his capacity as Chancellor and the consequent “appointment” of Dr. Muhammad Zafarullah, as Vice Chancellor, Bahauddin Zakariya University, Multan, claimed to have made by him, have no legal or constitutional basis. Nor does the Chancellor have the authority to arrogate to himself the power to sit over the judgment of the Chief Minister, inter alia, in the matter of advice given by him in the context of Section 14(1) read with Section 11(8) of Bahauddin Zakariya University Act, 1975. Accordingly, the purported appointment of Dr. Muhammad Zafarullah, in disregard of the advice of the Chief Minister (para 9/ante), is illegal, void ab initio and of no legal effect in view of Section 14(1) and Section 11(8) of the Bahauddin Zakariya University, Multan Act, 1975, read with Article 105 of the Constitution and the legal opinion at Annex-K (paras 18 and 26). Be that as it may, considering the observations of the Chancellor as a referral for reconsideration, particularly in view of the contents of para 11(a) to (e) supra, the Chief Minister, after thoroughly examining the case from all conceivable angles, is pleased again to advise the Chancellor to appoint Dr. Syed Khawaja Alqama as Vice Chancellor of the said University for a term of four years. The case may be placed before the Chancellor accordingly.” Sd/- (Abdul Qayoum) C.P. No. 1017-L of 2011 30 Additional Secretary Chief Minister’s Secretariat” 27. The afore-mentioned summary/advice by the Chief Minister after reconsideration is dated 11.7.2011. More than three months have gone by, although the timeline provided under Article 105 of the Constitution is ten days within which the Chancellor was to act on the advice. The lack of appreciation reflected in the summary of the Chancellor/Governor of Punjab of the mandate of law can neither be permitted to frustrate the legislative intent, nor the university’s disarray can be allowed to remain unchecked. 28. In the afore-referred circumstances, we further hold that the summary dated 11.7.2011 sent after reconsideration by the Chief Minister shall be deemed to have been acted upon and the department concerned shall issue the requisite notification accordingly. 29. It is imperative to remind ourselves particularly those who are under Oath, “to defend and protect” the Constitution that in terms of Article 5(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.” A Constitutional provision which is time bound is always mandatory unless the context otherwise provides so. The provisions of Article 254 of the Constitution i.e. “failure to comply with requirement as to time does not render an act invalid” are not intended to condone non-compliance of a mandatory and time bound provision, rather are C.P. No. 1017-L of 2011 31 meant to save the action taken belatedly. In the instant case, we are not dealing with a delayed act but a failure to act as mandated by the Constitution. 30. We may add that prior to Eighteenth Amendment [brought about by Constitution (Eighteenth Amendment) Act, 2010 (Act No. X of 2010)], no timeline was provided within which the President was to act under the advice of the Prime Minister (Article 48) or the Governor was to act on the advice of the Chief Minister (Article 105). The absence of timeline could be problematic. It was vulnerable to misuse, had the potential to cause delay in decision making and to impede the working of two elected office holders enjoying majority in respective Assemblies i.e. the Prime Minister at the Federal Level and the Chief Minister at the Provincial Level. This could have a destabilizing effect on democracy. It goes to the eternal credit of those who amended these provisions by the Eighteenth Amendment that the options available to the two important Constitutional functionaries i.e. the President (under Article 48) and the Governor (under Article 105) were made time bound. Although the consequences of non-compliance with these timelines are not provided in the amended provisions, yet this Court has to give a purposive interpretation to make the Constitution a living document. One may imagine the consequences on the affected institutions, if the legislative intent is not given effect to. Unfortunately one of our national banes has been that we tend to live in history but do not learn form it. Friction between the President and the Prime Minister C.P. No. 1017-L of 2011 32 [with reference to enforcement of Article 48(1) of the Constitution] or between the Governor and the Chief Minister [with reference to Article 105(1) of the Constitution] has been a recurrent theme of our Constitutional history and one of the causes of political instability. Societies grow and nations progress by strict adherence to the rule of law. Judges have nothing to do with shades of public opinion which the holders of public office may represent or with the passions of the day which sway public opinion. Their task is to tenaciously and fiercely uphold and implement the Constitution and the law. In the words of Lord Justice Lawton:- “Their function is to decide whether a minister has acted within the powers given to him by statute or the common law. If he is declared by a court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play2.” 31. Blowing a “judicial whistle” is a Constitutional mandate which a Judge can neither shun when it is time to blow, nor can do so without a just cause. 32. The deadlock between two important holders of public offices evidenced in this case is not merely a political issue. It has wider ramifications which may not be difficult to fathom. It is adversely affecting the working of various institutions and in this 2 Laker Airways v. Deptt. Of Trade, 1977 (2) WLR 234 at 267. C.P. No. 1017-L of 2011 33 particular case an important educational institution i.e. the University and consequently the quality of education. 33. Right to education is a fundamental right as it ultimately affects the quality of life which has nexus with other Fundamental Rights guaranteed by the Constitution under Article 4 and 9 of the Constitution of Islamic Republic of Pakistan. Awareness of rights and duties, growth of civic consciousness in a society, enjoyment of Fundamental Rights guaranteed under the Constitution and legal empowerment of people depend to a great extent on the quality of education. People cannot be free in the real sense unless they are properly educated. In Ahmed Abdullah v. Government of the Punjab (PLD 2003 Lahore 752 at 791), a case decided by a Full Bench of the Lahore High Court and wherein one of us (Tassaduq Hussain Jillani, J.-) authored the judgment, it had been held as under:- 26. The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of our Constitution has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its actions, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life. Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right. In Brown v. Board of Education (1953) 98 Law Ed. 873, the C.P. No. 1017-L of 2011 34 US Supreme Court acknowledged this right and held as under:-- "Today, education is perhaps the most important function of State and Local Governments ... ... .... .. it is required in the performance of our most basic responsibilities, even service in the Armed Forces, it is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment'. In these days, it is doubtful and child may reasonably be expected to succeed in life if he is denied the opportunity of an education. " 34. Universities are seats of learning and centres of excellence. They not only enable the future generations to equip themselves with degrees/practical tools to earn livelihood, but also enrich them with learning, with wisdom and with visions for practical lives. To achieve its objects, the University functions besides the Chancellor and Vice Chancellor through its various institutions i.e. the faculty, the Senate, the Syndicate and Board of Studies. The Vice Chancellor is its institutional head and enjoys a pivotal position. Being the executive and academic head of the University, it is for him to ensure that the University’s Statute, Regulations and Rules are faithfully observed. He presides over the meetings of various bodies of the University and affiliated colleges. In matters of urgent nature, it is he who takes remedial steps; it is he who creates temporary posts when the urgency requires; he sanctions expenditures provided for in the approved budget, re-appropriates amounts not exceeding a certain amount; he convenes meetings of C.P. No. 1017-L of 2011 35 the Senate and the Syndicate. He is the bridge between the executive and academic wings of the University. It is this multi- dimensional role of the Vice Chancellor which requires that the person who occupies this office should be imbued with values and character traits of integrity, of academic excellence and administrative ability. It is because of this that the search for Vice Chancellor the world over has been an exercise driven by higher principles. In our own country, the University Grants Commission has laid down a procedure for appointment of Vice Chancellor which inter alia requires the constitution of a Search Committee. The said Search Committee comprises of eminent individuals having distinction in various disciplines. The Search Committee is to recommend a panel of three candidates out of which the competent authority has to appoint one as Vice Chancellor. 35. The afore-referred description of the role of the Vice Chancellor under the Act would show how the delay in appointment of such an important functionary would adversely affect the working of the University and would make the institution almost dysfunctional and would thereby adversely affect inter alia the quality of education. 36. Adverting to the validity of the judgment under challenge, the submissions of petitioners’ learned counsel qua the maintainability of petition before the High Court have been considered by us. However, we find that the impugned judgment even if having some element of jurisdictional defect has been passed in aid of justice and any interference would not be in accord C.P. No. 1017-L of 2011 36 with the canons of equity. Because respondent No.1’s grievance was that the principles of natural justice and due process had been violated when he was called for the interview but not considered. It is not denied that in terms of the qualifications prescribed as reflected in advertisement, respondent No.1 was qualified to compete for the post in question and the only Ph.D. in the subject among the shortlisted candidates. He was sent a letter to appear for interview, was called in on the day of interview by the Selection Committee but was not put any question and practically was not interviewed. In the minutes of the Selection Committee, no reason was recorded as to why he was not interviewed nor any reason was conveyed to him. The plea taken by the respondent-University before the Court that the Committee did not deem it proper to interview him because an enquiry was pending appears to be an afterthought and even otherwise in absence of any penalty, he could not have been condemned. In refusing to interview respondent No.1 without assigning any reason, the Selection Committee acted arbitrarily in the exercise of the discretion vested in it. Dilating on the principles which weigh with the courts while exercising the power of judicial review, S.A. de Smith in his book ‘Judicial Review of Administrative Action’ (3rd Edition) at page 452 adverts to this aspect as follows:- "The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must C.P. No. 1017-L of 2011 37 genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations (emphasis supplied) and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously (underlining is ours). These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown, is it possible to differentiate with precision the grounds of invalidity contained within each category." 37. In Federation of Pakistan v. Charsadda Sugar Mills Limited (1978 SCMR 428), this Court was called upon to consider a judgment of the High Court whereby relief was granted against an order passed by the Central Board of Revenue which reflected arbitrariness, absence of conscious application of mind and for considerations other than law. The Court observed as follows:- "It is self-evident that the Central Board of Revenue in allowing the partial abatement was satisfied that the shortfall in the production capacity was substantial and beyond the control of the respondent but to the extent of 855.53 tons only. In disallowing the shortfall for the remaining 2,643.16 tons of sugar claimed by the respondent the Board merely relied on its own formula by applying the 10$ cut on the total production capacity of 26,000 tons per annum. It has failed to C.P. No. 1017-L of 2011 38 even consider the case set up by the respondent in its application made under Rule 4 of the Rules. In doing so the Board acted almost mechanically and failed to exercise the discretion vested in it under the law. It was the duty of the Board to have acted justly, fairly and reasonably having full regard to the facts and circumstances of the case before it. The Board did not even weigh and examine the merits of the claim pleaded by the respondent. This indeed, tantamount to the refusal on the part of the Board to exercise quasi-judicial discretion vested in it under the law. We, therefore, find that the judgment delivered by the High Court is unexceptionable and hereby dismiss this petition." 38. Lord Denning expressed similar views on exercise of discretionary authority (in his book ‘The Closing Chapter’) when relying on a judgment of Court of Appeals of England & Wales (1948 1 KB 223, 234) authored by Lord Greene (Master of the Rolls) he said:- “Again, if a public authority is entrusted, as part of its public law function, with the exercise of a discretion, it must take into account all relevant considerations. It must not be influenced by any irrelevant consideration. And its discretion must be exercised reasonable—in this sense, that it must not be so unreasonable that no reasonable authority could have reached it.” 39. This Court would not interfere in the judgment of the High Court on yet another salutary principle of equity i.e. if in the exercise of Constitutional jurisdiction it has passed an order to remedy a manifest wrong. In Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal (1986 SCMR 1071), it was observed as follows:- C.P. No. 1017-L of 2011 39 “In this view of the matter, as laid down in Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236, the High Court was within its power to refuse relief in writ jurisdiction, where the impugned order before it had the effect of fostering justice and righting a wrong, even though the authority concerned had acted clearly without jurisdiction. The High Court having acted in consonance with this higher principle of justice laid down by this Court, there is no justification for taking exception to the impugned judgment. The other question of law need not, therefore, be examined.” 40. The respondent-University though did not challenge the impugned judgment, yet its Registrar has submitted a report/written statement dated 17.09.2011 to the effect that the Enquiry Committee entrusted with the task of inquiring into the charge of misconduct against respondent No.1 has submitted its finding and the same would be placed before the Syndicate whenever its meeting is convened, for consideration. The findings of the Enquiry Officer dated 17.3.2011 are to the following effect:- 1. Dr. Minhaj Ahmad Khan remained absent from his duty without approval of leave from the competent authority. 2. The unauthorized absence from duty is considered misconduct in view of the provision of PEEDA Act 2006 and hence Dr. Minhaj Ahmad Khan is found to be guilty in this context. 3. The absence from duty period is less than one (1) year, hence, in view of the provision of PEEDA Act 2006 penalty should be of minor degree. It should be not more than withholding one annual increment without any cumulative effect.” C.P. No. 1017-L of 2011 40 41. We would not like to comment on the afore-referred findings as it is for the Syndicate, at appropriate stage, to consider and decide about the matter in accordance with law. However, the fact remains that on the date when he was shortlisted and called for interview on 8.8.2010, there was neither any finding against him nor penalty. Even otherwise, it was not a case of promotion but a case of fresh appointment. 42. It was also brought to our notice that another seat of Assistant Professor Computer Sciences for which the parties had competed is available and without disturbing the petitioners, respondent No.1 could be accommodated. This factual position was not specifically controverted by the respondent-University. If that be so, the direction for fresh interview would be confined to respondent No.1 and if he gets selected, the inter se seniority shall be re- determined as if respondent was interviewed along with the petitioners. If no fresh seat is available, the entire exercise would be carried out afresh strictly in terms of the impugned judgment. 43. So far as withholding of salary of respondent No.1 is concerned, there is nothing on record and even in the report submitted by the Registrar before this Court to indicate that there is any order passed by the competent authority to withhold his salary. In these circumstances, the same is without any lawful authority and respondent-University is directed to release his salary and arrears, if any, forthwith. C.P. No. 1017-L of 2011 41 44. For what has been discussed above, we hold, declare and direct as under:- (i) that notwithstanding the powers under the Constitution where the Governor may act in his discretion, the Governor while acting as Chancellor is a statutory functionary in terms of section 11(1) of the Bahauddin Zakariya University Act and in the performance of his functions under the Act, he is to act and is bound by the advice tendered by the Chief Minister in the manner provided in section 11(8) of the Act read with Article 105 of the Constitution of Islamic Republic of Pakistan; (ii) that the Chancellor of the University/Governor of Punjab is bound by the timeline given in proviso to Article 105 of the Constitution which stands incorporated in the Act by legislative reference i.e. within fifteen (15) days he may require the Chief Minister or the Cabinet, as the case may be, to reconsider the advice and if such a reference/advice is tendered after reconsideration by the Chief Minister, he is bound to act within ten (10) days of having received it; (iii) that the Chief Minister had sent the summary for appointment of Dr. Syed Khawaja Alqama as Vice Chancellor on 25.6.2011. The Chancellor/ Governor C.P. No. 1017-L of 2011 42 of Punjab instead of acting on such advice, vide memo dated 7.7.2011, purported to appoint Prof. Dr. Muhammad Zafarullah as Vice Chancellor, which shall be deemed as a reference to the Chief Minister for reconsideration. The summary of the Chief Minister dated 11.7.2011 in terms of which the Chief Minister reiterated his earlier advice with regard to appointment of Dr. Syed Khawaja Alqama as Vice Chancellor shall be deemed to be the advice tendered by him after reconsideration; (iv) that as the Chancellor/Governor of Punjab was to act on the reconsidered advice within ten (10) days and as more than three months have elapsed since the tendering of reconsidered advice, the same shall be deemed to have been acted upon and the concerned department may issue requisite notification accordingly; (v) that since respondent No.1 was the only Ph.D. among the shortlisted candidates for appointment as Assistant Professor Computer Sciences and despite having been called for interview, he was not considered, the interference by the learned High Court and direction for a denovo exercise of selection from amongst the shortlisted candidates has not been found by us to be against the canons of C.P. No. 1017-L of 2011 43 equity and no case for interference except partial modification of the impugned judgment is made out; and (vi) that the meeting of the Selection Committee shall be convened by the new Vice Chancellor forthwith and he shall ensure that the matter is processed in terms of Paras 42 & 43 of this judgment. The petition is partly converted into appeal and allowed i.e. the impugned judgment is modified in terms noted above. JUDGE JUDGE JUDGE Announced in Open Court at Islamabad on 07.10.2011. JUDGE APPROVED FOR REPORTING Khurram Anees C.P. No. 1017-L of 2011 44 Asif Saeed Khan Khosa, J.: The proposed judgment authored by my learned brother Tassaduq Hussain Jillani, J. is quite comprehensive and I fully endorse the same but there are certain aspects of the relevant constitutional issue which I would like to highlight and explain through the present note. 2. By virtue of subsection (1) of section 11 of the Bahauddin Zakariya University Act, 1975 the Governor of the Punjab is ex officio to be the Chancellor of that University and, thus, the said statute adds another function to the many other constitutional and statutory functions to be performed by the Governor. In terms of clause (1) of Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 “in the performance of his functions, the Governor shall act on and in accordance with the advice of the Cabinet or the Chief Minister” and the said constitutional provision does not recognize any distinction between the Governor’s functions under the Constitution and his functions under any statute. 3. It is generally accepted that the position of a Governor in a Province is by and large similar to that of the President in the Federation and clause (5) of Article 105 of the Constitution makes such similarity explicit. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) it had been made abundantly clear by this Court that the President has no other powers except those which are expressly conferred upon him by the Constitution. In this view of the matter any attempt to expound or advance any distinction between the President/Governor’s constitutional powers or functions and his powers or functions under any statute runs contrary to the law so clearly declared by this Court. It had been held by this Court in that case as under: “Unfortunately, this belief that he enjoys some inherent or implied powers besides those specifically conferred on him under Articles 46, 48(6), 101, 242(1A) and 243(2)(c) is a mistaken one. In a Constitution contained in a written document wherein the powers and duties of the various agencies C.P. No. 1017-L of 2011 45 established by it are formulated with precision, it is the wording of the Constitution itself that is enforced and applied and this wording can never be overridden or supplemented by extraneous principles or non-specified enabling powers not explicitly incorporated in the Constitution itself. In view of the express provisions of our written Constitution detailing with fullness, the powers and duties of the various agencies of the Government that it holds in balance there is no room of any residual or enabling powers inhering in any authority established by it besides those conferred upon it by specific words. Our Constitution, in fact, is designed to create a parliamentary democracy. The President in this set-up is bound to act, in the exercise of his functions, in accordance with the advice of the Cabinet or the Prime Minister [Article 48(1)] and the Cabinet in its turn is collectively responsible to the National Assembly [Article 91(4)] though the Prime Minister holds office at the pleasure of the President. However, the President cannot remove him from his office as long as he commands the confidence of the majority of the members of the National Assembly [Article 91(5)]. In view of these provisions, the system of Government envisaged by the Constitution of 1973 is of the Parliamentary type wherein the Prime Minister as Head of the Cabinet is responsible to the Parliament, which consists of the representatives of the nation. It is manifest, therefore, that in the scheme of our Constitution the Prime Minister in administering the affairs of the Government is neither answerable to the President nor in any way subordinate to him. In formulation of the policies of his Government and in the running of its affairs, the Prime Minister is answerable only to the National Assembly and not to the President. Indeed, it is the president who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of the affairs of the Government and not the other way about, as appears to have been mistakenly understood. Undoubtedly, the President may require the Cabinet or the Prime Minister, as the case may be, to reconsider any advice tendered to him but the President is bound to act on the advice tendered, even if it be the same, after consideration.” (italics have been supplied for emphasis) In a recent case of Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365) an Hon’ble former Judge of this Court had been appointed by the President of Pakistan as Chairman, National Accountability Bureau without the advice of the Prime Minister under an impression that the power derived for such appointment from the National Accountability Ordinance, 1999 was a statutory power of the President and not a function of the President conditioned by the Constitution to be performed upon an advice of the Prime Minister but upon the initiative of the learned counsel for the Federation of Pakistan the President had cancelled the notification of appointment and a fresh appointment of the Chairman was made upon the advice of the Prime Minister. Maulvi Anwarul Haq, the learned Attorney-General C.P. No. 1017-L of 2011 46 for Pakistan, had appeared before this Court in that case as well and in the present proceedings he was reminded of that case and he had no other option but to concede that in that case the understanding of the Federation of Pakistan was that even in the matter of exercise of powers derived from a statute the President is to act on the advice of the Prime Minister or the Cabinet. It has already been observed by me above that the position of a Governor in a Province is by and large similar to that of the President in the Federation and, thus, the impression entertained by the Governor of the Punjab in the present case about any distinction between his powers or functions under the Constitution and his powers or functions under a statute may be, in the words of the judgment rendered by this Court in the case of Mian Muhammad Nawaz Sharif (supra), “mistaken” and I observe so with respect to the exalted office that he holds. 4. In his Concise Statement submitted before this Court the Governor of the Punjab, in his capacity as the Chancellor, has maintained that he may be bound by the provisions of Article 105 of the Constitution in his functions exercised as the Governor but when it comes to exercise of his powers or functions as the Chancellor of the relevant University the provisions of Article 105 of the Constitution do not remain relevant. This stance of the Governor/Chancellor, however, overlooks the fact that any doubt in this regard was removed by the relevant legislature itself through insertion of subsection (8) in section 11 of the Bahauddin Zakariya University Act, 1975 through an amendment Act of 1975 and the added provision reads as under: “In performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of the Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan.” I understand that the Governor of the time, who had already ex officio become the Chancellor of the said University under the main C.P. No. 1017-L of 2011 47 Act, had assented to the amendment Act without any demur and also that no Governor/Chancellor has so far challenged the said amendment in the relevant law before any court of law on any ground whatsoever and, thus, the above mentioned amendment is still very much a part of the relevant statute. 5. The issue at hand may also be addressed from another angle and perspective. The Governor of a Province is generally acknowledged to be a nominee, agent or representative of the Federation or the Federal Government in the Province concerned. A Governor is appointed by the President on the advice of the Prime Minister [Article 101(1) of the Constitution], he holds his office during the pleasure of the President [Article 101(3) of the Constitution], the President may make such provision as he thinks fit for the discharge of the functions of a Governor in any contingency not provided for in Part IV of the Constitution [Article 101(5) of the Constitution] and a Governor enjoys the same discretionary constitutional powers in his Province as are enjoyed by the President under the Constitution [Article 105(5) of the Constitution]. A perusal of the Fourth Schedule of the Constitution containing the Federal Legislative List shows that except for “Education as respects Pakistani students in foreign countries and foreign students in Pakistan” the subject of Education falls within the exclusive legislative domain of the Provinces. According to Article 97 of the Constitution “the executive authority of the federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws” and by virtue of Article 137 of the Constitution “the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws”. It is not disputed that the authority exercised by a Chancellor vis-à-vis the affairs of his University is essentially an executive authority and if a Governor in his capacity as a Chancellor of a University situated within a Province starts exercising the relevant executive authority treating C.P. No. 1017-L of 2011 48 the same as his personal and discretionary authority to be exercised without the advice of the Chief Executive of the Province, i.e. the Chief Minister then it would practically amount to the Federation or the Federal Government exercising that executive authority in the Province through its nominee, agent or representative and that would surely be violative of the express constitutional intent and mandate besides being offensive to the principle of provincial autonomy which is a cornerstone of our constitutional dispensation. 6. Before entering upon his office a Governor of a Province makes an oath, prescribed in the Third Schedule of the Constitution, and solemnly swears, inter alia, “That as the Governor of the Province of -------, I will discharge my duties and perform my functions, honestly, to the best of my ability, faithfully, in accordance with the Constitution of the Islamic Republic of Pakistan, and the law -------” (italics have been supplied for emphasis). The constitutional position regarding the issue at hand has already been clarified by this Court in the case of Mian Muhammad Nawaz Sharif (supra) and the same is being reiterated through the present judgment and the legal position in respect of the issue before us is evident in no uncertain terms from the provisions of subsection (8) of section 11 of the Bahauddin Zakariya University Act, 1975 reproduced above and, therefore, it is expected that the worthy Governor of the Punjab shall perform all his functions as Chancellor in accordance with the Constitution and the law while adhering to the oath of his gubernatorial office. (Asif Saeed Khan Khosa) Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition Nos.1017/2021 to 1020/2021, 1077/2021 to 1091, 1093 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418- K/2021 (Against the order dated 02.03.2021 in Const. P.D-299/2017, order dated 10.3.2021 in Const. P. Nos. D-599, 546/2019, 4740, 4423/2016, 543, 537/2019, 1262/2020, 443/2018, 541/2019, 3067/2016, 569/2019, 528/2018, 944/2019, , 541/2018, , 493/2018, 472/2018, 923/2018, 473/2018, 497/2018, 460/2018, 644/2018, 627/2018, 474/2018, 423/2018, 1203/2018, 728/2018, 1593/2018, 626/2018, 624/2018, 522/2018, 516/2018, 527/2018, 665/2018, 573/2018, 492/2018, 625/2018, 568/2019, 314/2019, 520/2018, 770/2018, 1376/2019, 1376/2019, order dated 17.3.2021 passed in Const. P. D-1175/2020, 1160/2020, 1243/2020, 1168/2020, 1162/2020, 966/2020, 1157/2020 and order dated 16.3.2018 passed in Const. P. Nos. D-688, 704, 708, 743, 649 and 904 of 2019) Tariq Ahmed (in C.P.1017/2021) Abdul Rasheed Malik (in C.P.1018 /2021) Khadim Hussain (in C.P.1020/2021) Ali Madad Laghari (in C.P.1019 /2021) Agha Khaliq Ahmed Khan (in C.P.1077 /2021) Noor Ahmed (in C.P.1078 /2021) Asif Iqbal and others (in C.P.1079/2021) Bilal Khan (in C.P.1080/2021) Inayatullah (in C.P.1081/2021) Amir Ali (in C.P.1082/2021) Tariq Ahmed Pathan (in C.P.1083/2021) Ghulam Ali Gopang and others (in C.P.1084/2021) Ghulam Hussain Siming (in C.P.1085/2021) Abdul Jabbar Shaikh (in C.P.1086/2021) Muhammad Saleem Shaikh and another (in C.P.1087/2021) 2 Civil Petition Nos.1017/2021 to 1020/2021, 1077/2021 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418-K/2021 Asmatullah (in C.P.1088/2021) Touseef Ahmad Shaikh (in C.P.1089/2021) Sanaullah Memon (in C.P.1090/2021) Abdul Shakoor Sheikh (in C.P.1091/2021) Muhammad Ali Ujjan (in C.P.1093/2021) Irshad Ali Kalhoro and another (in C.P.1094/2021) Muhammad Yousif (in C.P.1095 /2021) Didar Ali (in C.P.1096/2021) Sikandar Ali and another (in C.P.1097/2021) Naseer Shah (in C.P.1098/2021) Zakaullah (in C.P.1099/2021) Munawar Ali and others (in C.P.1100/2021) Abid Hussain (in C.P.1101/2021) Muhammad Nihal (in C.P.1102/2021) Imdad Hussain (in C.P.1123/2021) Ghulam Ali Gopang (in C.P.1124/2021) Nazar Muhammad and another (in C.P.1125/2021) Bilal Khan (in C.P.1126/2021) Muhammad Paryal (in C.P.1127/2021) Kamran Ali (in C.P.1128/2021) Rafique Ahmad (in C.P.1129/2021) Imtiaz Ali Mangi (in C.P.1130/2021) Fida Hussain Mangi (in C.P.1131/2021) Abdullah and others (in C.P.1132/2021) Aijaz Ali Rahooju (in C.P.1133/2021) Shakeel Ahmad Kalar (in C.P.1134/2021) Abdul Jabbar and another (in C.P.1135/2021) Shakeel Ahmad (in C.P.1136/2021) Mushtaq Ahmad Channa (in C.P.1137/2021) Mushtaq Mangi (in C.P.1138/2021) 3 Civil Petition Nos.1017/2021 to 1020/2021, 1077/2021 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418-K/2021 Lashkar Khan (in C.P.1139/2021) Aamir Ali (in C.P.1140/2021) Riaz Nawaz and others (in C.P.1141/2021) Ghulam Sarwar and others (in C.P.1142/2021) Sajid Hussain (in C.P.1143/2021) Naveed Akhtar and others (in C.P.1144/2021) Qamar-ud-Din (in C.P.1145/2021) Ali Asghar Nagor and another (in C.P.1146/2021) Ghulam Shabbir and others (in C.P.1278/2021) Asif Ali (in C.P.1279/2021) Abdul Razzak (in C.P.1280/2021) Asadullah (in C.P.1281/2021) Gohar Hussain (in C.P.1282/2021) Farman (in C.P.1283/2021) Nasrullah (in C.P.1284/2021) Ikhlaque Ahmad Joyo and others (in C.P.1285/2021) Hafeezullah Peerzado (in C.P.1286/2021) Ahsan Ali Memon (in C.P.1287/2021) Khalil Ahmed (in C.P.1288/2021) Sarwar Hussain (in C.P.442-K/2021 in C.M.A No.418-K/2021 in C.P.442-K/2021) …Petitioner(s) Versus NAB through its Chairman and others (in all cases) …Respondent(s) For the Petitioner(s): Mr. Shah Khawar, ASC Mr. Mehmood A. Sh, AOR (In CP.1017-1020/2021) Mr. Zulfikar Khalid Maluka, ASC (In CP.1077-1084, 1095-1102, 1123- 1146, 1278-1282/2021) Mr. Mukesh Kumar G. Karara, ASC Mr. M. Kassim Mirjat, AOR 4 Civil Petition Nos.1017/2021 to 1020/2021, 1077/2021 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418-K/2021 (In CP.1085-1091, 1093-1094/2021) Malik Mumtaz Hussain Jai, ASC Mr. Mehmood A. Sh, AOR (In CP.1283-1288/2021) Ms. Abida Parveen Channar, ASC/AOR (In CP.442-K/2021 & CMA.418-K/21) For the NAB: Abdus Sattar Awan, Special Prosecutor, NAB. Mr. M. Hasan Akbar, Additional Prosecutor General, NAB (In all cases) Date of hearing: 14.04.2021 ORDER Qazi Muhammad Amin Ahmed, J.- The petitioners are arrayed as accused in different NAB references; they were admitted to bails, both anticipatory as well as post arrest by a learned Division Bench of High Court of Sindh at Sukkur in different Constitution Petitions, allowed on different dates in lieu of deposit of amounts allegedly embezzled by the each petitioner, vires whereof are being assailed. With unanimity it is argued that not only the stipulated condition is alien to law but also virtually tantamount to denial of relief that too foreclosing further avenues for the petitioners. The learned Additional Prosecutor General NAB has assailed the impugned orders as well and with reasons more than one. According to the learned Law Officer, there existed irrefutable overwhelming evidence, documentary in nature, in each case that prima facie framed the accused with the impugned transactions heavily incurring upon the exchequer; he has further argued that in the absence of any element of mala fide there was no occasion for the learned Division Bench to extend judicial protection to the accused merely upon realization of embezzled amounts. 2. Heard. 3. Be that as it may, a wholesale treatment of motions seeking bails, pre-arrest as well as post arrest, in an omnibus manner, in isolation to the distinct facts and circumstances of each case as well as different legal regimes applicable thereto, fails to commend our approval. Exasperating delay in disposal of some 5 Civil Petition Nos.1017/2021 to 1020/2021, 1077/2021 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418-K/2021 of the petitions has also been viewed by us with disquiet, as it appears to have obstructed the investigative process by unnecessarily placing the prosecution in a disadvantageous position; it is equally discomforting to a claimant who justifiably seeks judicial protection. Petitions are converted into appeals and allowed; orders impugned are set aside. Bail petitions filed by the appellants before the High Court of Sindh are remitted and shall be deemed as pending for decisions afresh; Accused on pre-arrest bail shall be notified by the Court for their appearance and remain on ad-interim bail upon furnishing bonds in the sum of Rs.500,000/- with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of Sukkur Bench before the month is out. It is expected that the petitions shall be decided/disposed of with all convenient dispatch on their own merits having regard to the law declared by this Court in the case of Talat Ishaq Vs. National Accountability Bureau (PLD 2019 Supreme Court 12). Judge Judge Judge Islamabad 14th April, 2021 Not approved for reporting. Azmat/Kashif*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 1033 OF 2020 (On appeal against the judgment dated 08.01.2020 passed by the Federal Service Tribunal, Islamabad in Appeal No. 878(R)CS/2019) Member (Administration), Federal Board of Revenue etc …Petitioner(s) VERSUS Mian Khan …Respondent(s) For the Petitioner(s): Mr. M.D. Shahzad Feroz, ASC For the Respondent: N.R. Date of Hearing: 26.04.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the judgment dated 08.01.2020 passed by the Federal Service Tribunal, Islamabad, whereby the Service Appeal filed by the respondent was accepted, whereby the penalties of compulsory retirement and reduction to the lower rank awarded to him were set aside. 2. Briefly stated the facts of the matter are that the respondent being Havaldar, Customs Headquarter, Model Customs Collectorate was posted at New Islamabad International Airport and was assigned the duty of checking and diverting the passengers towards Customs Counters. On the basis of a CCTV footage showing that the respondent was allegedly receiving bribe from the two passengers, he was proceeded against departmentally. The authorized officer i.e. Additional Collector (HQ) after dispensing with the regular inquiry, issued him show cause notice on 15.10.2018. The respondent submitted his reply on 30.10.2018 and was also afforded an opportunity of personal hearing but being dissatisfied with the reply, the Authorized Officer recommended for imposition of major penalty of compulsory retirement against the Civil Petition No. 1033/2020 -: 2 :- respondent, which was concurred by the Collector vide order dated 16.11.2018. The respondent filed appeal against the penalty imposed. The appellate authority on the appeal filed by the respondent vide order dated 16.04.2019 converted the major penalty of compulsory retirement into major penalty of reduction of lower rank as such he was demoted to the rank of Sepoy under Rule 4(1)(b)(ii) of Government Servants (E&D) Rules, 1973 for a period of three years, as such he was reinstated into service. The respondent challenged both the aforesaid orders i.e. dated 16.11.2018 & 16.04.2019 before the Federal Service Tribunal, Islamabad, and the same have been set aside by the Tribunal vide impugned judgment. Hence, this petition seeking leave to appeal. 3. Learned counsel for the petitioners inter alia contended that while passing the impugned judgment, the learned Federal Service Tribunal did not take into consideration that the CCTV footage clearly showed that the respondent was taking bribe from the passengers; that when the footage was clear, unambiguous and authentic then there was no need to hold regular inquiry but, even despite of clear evidence against him he was given personal hearing both by the Authorized Officer as well as by the Competent Authority but the respondent could not provide any plausible explanation to rebut the accusation leveled against him. He lastly prayed for setting aside of the impugned judgment. 4. We have heard learned counsel for the petitioners at some length and have perused the available record. 5. It is an admitted fact that no regular inquiry was conducted by the petitioner Department and the same was dispensed with on the ground that the other evidence in the shape of CCTV footage is so authentic that major penalty can be imposed upon the respondent in the absence of regular inquiry and while imposing the major penalty CCTV footage was made the sole criterion to proceed against the respondent. It is an apathy that the said CCTV footage was never sent to the office of Forensic Science Laboratory for its authenticity. In the absence of any forensic report qua the authenticity of the CCTV footage, the same cannot be considered a legal basis for proceeding against a person. In the case of Ishtiaq Ahmed Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) this Court has held that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and as such Civil Petition No. 1033/2020 -: 3 :- examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not because advancement of science and technology has also made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video, therefore, without a forensic examination, audit or test, it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. We have noticed that the CCTV footage was even not produced before the learned Federal Service Tribunal. Even otherwise, mere producing of CCTV footage as a piece of evidence without any forensic test is not sufficient to be relied upon unless and until corroborated and proved to be genuine. The passengers, who allegedly gave the bribe, had also not been associated with the departmental proceedings. No question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been raised either in this petition to warrant interference by this Court. 6. For what has been discussed above, we are of the considered view that the learned Service Tribunal has passed a well reasoned judgment to which no exception can be taken. This petition having no merit is accordingly dismissed and leave to appeal is refused. Before parting with the judgment, we may observe that departmental proceeding in such a casual way by the departmental authority inviting a public servant into litigation for considerable time should be avoided because at the one side, it wastes time of the court of law and on the other it causes physical stress, loss of reputation in public eyes, which ultimately leads to mental agony for a public servant, which has no legal or moral justification. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 26th of April, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Ch. Ijaz Ahmed Mr. Justice Ghulam Rabbani CPs 1049, 1348 and 1406 of 2009 And HRC 1827-P & 12388/09 Syed Rahat Mehmood (in CP 1049/09) Muhammad Akhtar (in CP 1348/09) Muhammad Farooq Ansari (in CP 1406/09) Petitioner (s) Versus NAB thr. Its Chairman and others …Respondent(s) For the petitioner(s): Syed Rahat Mehmood in person (in CP 1049/09) Mr. Amin K. Jan, ASC With petitioner Muhammad Akhtar (in CP1348/09) Rai Muhammad Nawaz Kharal, ASC With petitioner M. Farooq Ansari (in CP 1406/09) Respondents: Mr. Shah Khawar, DAG Mr. Sultan Mansoor Chaudhry, Acting P.G. NAB Dr. Asghar Rana, ADPG, NAB Mr. Naveed Ahsan, Chairman NAB Col (R)Tarqi Mehmood Bhatti, I/o For RDA: Mr. Bashir Awan Date of hearing: 19.02.2010 ORDER After passing order in judgment dated 16th December, 2009 in the case of Dr. Mobashir Hassan Vs. Federation of Pakistan (PLD 2010 SC 1) appearance of the representatives/prosecutors on behalf of the NAB in different cases has become irregular, except in few cases wherein one of the Prosecutors is appearing regularly and during the hearing of this case we have noticed that despite allowing sufficient time to the NAB no progress has been made and Mr. Sultan Mansoor, Acting Prosecutor General, who appeared, also could not answer satisfactory as to why the 2 matter was not settled so far. Therefore, we have summoned the Chairman, NAB in the Court and asked him as to why, in pursuance of the Judgment in the case of Dr. Mobashir Hassan (ibid) the Prosecutor General and Additional Prosecutor General, have not been removed, so the new incumbent may take the charge for effective prosecution of the cases and appear before this Court as well as other Courts. He states that he was under the impression that all this was to be done by the Attorney General or by the Ministry of Law. It is pointed out to him that action was to be initiated from his office and he would perform his duty in respect of action which was required to be taken in the light of the judgment of 17 Members Bench, referred above. He requests that time be given to him so he may start performing his part of obligation from today onward. It may be cleared that if no action relevant to his performance is taken by him, the coercive measures including attachment of his salary will be taken and directions will be made that no one on behalf of the NAB should appear unless the compliance of the judgment with regard to the Prosecutor General and Additional Prosecutor General is made. However, we give him a chance on his assurance that all necessary steps shall be taken in this regard. He is directed to appear on the next date of hearing and submit progress report in respect of the observations made in the case of Dr. Mobashir Hassan(ibid) 2. Despite clear directions no progress has been made in satisfying the claims except that according to Mr. Tariq Mehmood Bhatti I/O, NAB he has registered claims of about 11000 people from whom amount was taken by Syed Rahat Mehmood. In this regard, a report has also been submitted by the NAB. 3. Malik Bashir Awan appeared on behalf of RDA to whom notice was given in view of the statement of Syed Rahat Mehmood. He is interested to purchase the property owned by accused. Learned counsel states that the claim so put forward by the accused is not correct as in the Adyala village, where the RDA intends to acquire the land for the purpose of building a city, he had only a small portion of land i.e. 2 kanals. In this behalf Syed Rahat Mehmood has offered flimsy explanation, which exfacie, is not relevant for the disposal of the claims of the claimants because he alongwith other co-accused persons are responsible to satisfy their claims. He has however, requested that if two weeks’ time is given to 3 him, he would be in a position to come out with a positive result. At his request, case is adjourned to 12.3.2010. Chief Justice Judge Judge Islamabad, the 19 February, 2010 Nisar/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITION NO.1088 OF 2016 (On appeal from the judgment dated 19.2.2016 of the Lahore High Court, Multan Bench passed in FAO No.159 of 2010) Ghania Hassan wife of Muhammad Hassan Ahmad … Petitioner Versus Shahid Hussain Shahid son of Khadim Hussain and another … Respondents For the Petitioner : Syed Riaz-ul-Hassan Gillani, ASC Ch. Akhtar Ali, AOR (absent) For Respondent No.1 : Mr. Muhammad Kokab Iqbal, AOR/ASC Respondent No.2 : N.R. Date of Hearing : 22.09.2016 JUDGMENT SH. AZMAT SAEED, J.- This Civil Petition for Leave to Appeal is directed against the Judgment dated 19.02.2016 of the learned Lahore High Court, Multan Bench, whereby FAO No.159 of 2010, filed by the present Petitioner, was dismissed. 2. The brief facts necessary for adjudication of the lis at hand are that Respondent No.1 filed a Suit for CP No.1088 of 2016 - 2 - recovery of Rs.1,48,50,000/- against Respondent No.2 under Order XXXVII CPC on the basis of four cheques issued by Respondent No.2 in favour of Respondent No.1. The Suit was decreed. Such decree has attained finality. Respondent No.1 initiated execution proceedings against Respondent No.2, during the course whereof, the present Petitioner, who was claiming to be the wife of Respondent No.2, filed an Objection Petition asserting therein that she had married with Respondent No.2 on 20.12.2003 and the dower, as settled between the parties, reflected in the Nikahnama including some immovable property. It was further contended that by a subsequent arrangement/agreement arrived at between the spouses on 12.06.2007, the dower amount was increased so as to include 282 kanals and 5 marlas of land, hence, the immovable property mentioned as dower in Nikahnama as well as the immoveable property mentioned in the subsequent agreement dated 12.06.2007 purporting to enhancement of the dower was not the property of the Judgment Debtor/Respondent No.2, hence, could not be attached or sold in execution of the decree in favour of Respondent N.o.1. The said Objection Petition was CP No.1088 of 2016 - 3 - dismissed by the learned Executing Court vide Order dated 29.06.2010. Aggrieved, the Petitioner filed an Appeal i.e. FAO No.159 of 2010, which was dismissed vide impugned Judgment dated 19.02.2016. 3. It is contended by the learned counsel for the Petitioner that the impugned Judgment is based on an erroneous assumption of law that the dower was agreed between the parties and mentioned in the Nikahnama could not be enhanced by the husband. It is further contended that the dispute inter se the parties could only be resolved through recording of evidence and not in a summary manner. The learned counsel further contended that there could be no dispute with regard to the property mentioned as dower in the Nikahnama and the said property cannot be subjected to execution of a decree against Respondent No.2. 4. The learned counsel for the contesting Respondent No.1/Decree Holder did not seriously dispute the legal proposition canvassed at the bar by the other side that the dower, as settled between the spouses can be increased subsequently. The learned counsel for Respondent No.1 further stated that the Decree Holder has no intention of executing the decree CP No.1088 of 2016 - 4 - against the immovable property mentioned in the Nikahnama. However, it was his case that the property mentioned in the subsequent document dated 12.06.2007 was liable to be executed as the same vested with Respondent No.2/Judgment Debtor and the contentions of the Petitioner to the contrary are neither borne out from the record nor supported by the law. In fact, it is an obvious attempt to frustrate the execution of the decree in favour of Respondent No.1 5. Heard and perused the available record. 6. At the very outset, it has been noticed that by way of the impugned Judgment a passing reference has been made, which may be interpreted to mean that a dower once agreed between the parties could not be subsequently increased by the spouses. Such a proposition would be contrary to the settled law. 7. In the Principles of Mohammadan Law by DF Mulla (Pakistan Edition), it has been stated as follows: “287. Dower may be fixed after marriage:- The amount of dower may be fixed either before or at the time of marriage or after marriage: 15 can be increased after marriage. 16” (emphasis supplied) CP No.1088 of 2016 - 5 - In the Mahommedan Law Vol II (Containing the Law Relating to Succession and Status Compiled from Authorities in the Original Arabic) by Syed Ameer Ai, it has stated as follows: “Dower may be increased after marriage:- The Musulman Law accepted in the mater the more liberal principle of the pre Islamic Arab customs. Under the Islamic system there is no community of goods between husband and wife. She is absolute owner of her own property and of whatever the husband settles on her as dower. The terms of the settlement are agreed to before marriage, but when these have been omitted, they may be settled subsequently. The terms of the contract may be varied at any time during the continuance of the marriage by mutual consent. The wife has the power either to relinquish the whole dower-debt, or make an abatement in her husband’s favour: whilst the husband, similarly, has the power of making additions to her settlement or dower. The amount of the dower, as already pointed out, is either settled by the contract of marriage or by custom, or in the case of tafwiz or tahkim, by a subsequent agreement between the parties, or by an order of the Judge, or arbitrators.” (emphasis supplied) In Hedaya (2nd Edition Vo.1 page 45) Commentary on the Muslim Law, it is stated that: “Case of an addition made to the dower after marriage.—if a man makes any addition to the dower in favour of his wife CP No.1088 of 2016 - 6 - subsequent to the contract, such addition is binding upon him.” 8. The question of addition of dower came up before this Court in the judgment, reported as Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore (PLD 1989 SC 613), wherein after examining the classical text books on the subject and the previous judgments of the Sub-continent on the matter in issue, it was observed as follows: “19. It would have been seen that an acknowledgement in any form including declaration by the husband with regard to increase of dower is, as held by the Lahore High Court in Chan Pir’s case, “quite sufficient” to prove the same under Muslim Law. …” A similar view was taken by this Court in the judgment, reported as Ameer Ali Khan v. Kishwar Bashir and another (PLD 2004 SC 746). An overview of the above reveals that it is now a settled proposition of law that the dower can be fixed before marriage and at time of marriage or thereafter. Furthermore, the dower once settled can always be increased by the husband or by an agreement between the parties. 9. In the instant case, some immoveable property now being subjected to the execution was mentioned in CP No.1088 of 2016 - 7 - the Nikahnama as dower. The learned counsel for Respondent No.1/Judgment Debtor has stated at the bar that such property shall not be subjected to the attachment or sale in execution, therefore, no question in respect thereof remains to be adjudicated upon. 10. The only question requiring adjudication is the validity and effect of the document dated 12.06.2007. 11. Respondent No.1 filed a Suit against Respondent No.2 under Order XXXVII CPC. The said Suit was based on four cheques given by Respondent No.2 in favour of Respondent No.1. The Suit was decreed. Such decree attained finality. The execution proceedings were initiated, during the course whereof, the present Petitioner, the spouse of Respondent No.2, surfaced with the Objection Petition relying, inter alia, upon the document dated 12.06.2007. Respondent No.2, as informed by the learned counsel for the Petitioner, is a fugitive from law. The Petitioner has also filed a Suit seeking enforcement of her rights in the property subject matter of the document dated 12.06.2007. 12. In the above backdrop, the learned Executing Court was not satisfied with the bona fides of the Petitioner with regard to the Objection Petition and CP No.1088 of 2016 - 8 - declined to allow the same at the stage prior i.e. to the final adjudication by the learned Family Court upon the Suit filed by the present Petitioner. The learned Appellate Court by way of the impugned Judgment concurred with the findings returned by the learned Executing Court. In the facts and circumstances of the case, we are also not persuaded to interfere in the matter. Consequently, this Civil Petition must fails subject to the observations made herein above. Furthermore, in view of the statement of the learned counsel for Respondent No.1, the decree shall not be executed against the immovable property mentioned in the Nikahnama. 13. For the foregoing reasons, this Civil Petition is dismissed and leave declined. Chief Justice Judge Bench-I Islamabad, the Judge 22nd September, 2016 Not approved for reporting Safdar/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE MUNIB AKHTAR A-FP- CWIL PETITION NOS. 1092 & 1093 OF 2018 Against the judgment dated 8.3.20 18 passed by Islamabad High Court, Islamabad in ICA No.859 of 2013 Khushdil Khan Malik (in both cases) VERSU$ Petitioner(s) The Secretary, Establishment Div. Cabinet Block (in CP 1092/2018) Islamabad & others Federation of Pakistan thr. Secretary Establishment, (in CP 1093/2018) Cabinet Block, Islamabad Respondent(s) For the Petitioner(s) [n-person For the Respondent(s) NI? Date of Hearing: 12.9 .20 18 JUDGMENT MUSHIR ALAM, J.- The instant Civil Petitions No. 1092 of 2018 and 1093 of 2018 arise out of the impugned consolidated judgment dated 08.03.2018 passed in I.C.A No.859 of 2013 allowed by the learned Bench of the Islamabad High Court against the judgments dated 13.05.2013 passed in Writ Petition No.828 of 2011 and dated 10.03.20 17 passed in Writ Petition No. 4118 of 2016. 2. Succinctly stated facts are that the Petitioner was originally appointed as Headmaster (BPS- 18) on 24.2.1996 in the Federal Government Educational Institutions (Cantts/Garrison) thereinafter referred to as the parent department]; which falls under the administrative control of the Ministry of Defence. The petitioner - - - -. -- - CIVIL PETITION NOS. 1092 & OF 2018 2 was posted as Deputy Secretary in the Federal Government on deputation basis w.e.f. 13.09.2004. The period of deputation was extended from time to time under section 10 of the Civil Servants Act, 1973 (hereinafter referred to as the "Act of 1973'). The petitioner, while being serving as Deputy Secretary, States and Frontier Regions Division, was repatriated to his parent department w.e.f. 03.02.20 10 r vide Notification dated 20.01.2010 on alleged misconduct. The petitioner challenged his repatriation orders before the Islamabad High Court through Writ Petition No.828 of 2011. He was promoted from BS-19 to BS-20 as Headmaster vide Notification dated 22.04.2011 and posted to FG Tech. High School Tariqabad Rawalpindi. The date of promotion to BS-20 was revised later on Four Tier Service Structure Formula, in pursuance of Notification and the petitioner was granted financial benefits of BPS-20 w.e.f. 25.10.2004 while transferring his services to NACTA, Interior Division, and Government of Pakistan. Vide Office Memorandum dated 20.10.2011, the Establishment Division was requested to notify the transfer of services of the petitioner against the post of Director General (35-20) in NACTA under Section 10 of the Act 1973 and the Notification dated 20.10.2011 was issued by the Cabinet Secretariat Establishment Division accordingly. The petitioner was given an additional charge of the Joint Secretary (Law) vide letter dated 17.11.2011. The Government of Pakistan vide Office Memorandum dated 30.05.20 12 circulated the policy for induction of Civil Servants (BS-20) as well as persons in BS-20/ equivalent in service of Federal! Provincial Autonomous Bodies! Semi- Autonomous Bodies! Corporations etc. as Joint Secretary (35-20) in ecretariat Group and invited nominations from all the concerned Ministries/ Divisions. When the petitioner's request for induction in the CIVIL PETITION NOS. 1092 & OF 2018 3 r Secretariat group was not considered, he filed amended petition in Writ Petition No.828 of 2011, which was allowed accordingly on 13.05.13 and the respondents in that case were directed to process petitioner's case for induction/ absorption in the Federal Government (Secretariat Group) as per rules and regulations applicable. The said judgment was assailed by the Federal Government through I.C.A. No. r 859 of 2013. The Prime Minister of Pakistan had issued a directive whereby the financial benefits under the 'Time Scale Formula' were granted to the Teaching Staff of the Federal Directorate of Education, Islamabad and, pursuant thereto, the Capital Administration and Development Division issued the Office Memorandum dated 15.09.2011. The Ministry of Defence forwarded a summary to the competent authority for extending the Time Scale Formula' to the Teaching Staff in BPS-16 and above employed and working in the parent Department. The said summary was endorsed by the Secretary Finance vide note dated 14.02.20 14 and the approval, accorded by the Prime Minister, was duly communicated to the Defence Secretary on 16.10.20 15. A summary had already been forwarded by the parent department to the Ministry of Defence for granting promotion to the petitioner on the basis of meritorious service. The Ministry of Defence, vide office Memorandum dated 24.06.2015, sought the advice of the Establishment Division to this effect. The latter regretted that the petitioner was transferred vide Notification dated 29.07.2013 without seeking its concurrence or that of the parent department. Moreover, it was further observed that the petitioner had barely served in BPS-19 and BPS-20 in his parent department. The Establishment Division, vide Office Memorandum dated 17.12.2015, observed that petitioner could not be promoted on the basis of meritorious service. It transpires CIVIL PETITION NOS. 1092 & OF2QTh 1 from the record that the petitioner's repatriation orders to his parent department were issued again through Notifications dated 18.10-2012 and 05.05.20 16 but the same orders were never Complied with. Nonetheless, the petitioner continued to serve outside his parent department for many years. The petitioner filed W.P. No.4 118 of 2016, seeking the grant of Time Scale Promotion' in BPS-21 w.e.f r 01.01.2011 and thereafter forwarding his case for the grant of BPS-22 on the basis of meritorious service'. The said Writ Petition was allowed by the learned Single Judge in Chambers of the Islamabad High Court vide judgment dated 10.03.2017. The respondents in the said petition were directed to issue a notification in favour of the petitioner for the grant of Time Scale Promotion' in BPS-21 w.e.f. 01.01.2011 and then to forward his case for promotion to BPS-22 on the basis of meritorious service. The Secretary Establishment Division challenged the judgment dated 10.03.2017, through I.C.A. No. 123 of 2017, while the same had also been assailed by the parent department through the Ministry of Defence by filing I.C.A. No. 117 of 2017. The petitioner was transferred vide Notification, dated 12.01.2017, to the National Security Division and later directed to report to the Establishment r Division. The said transfer order was also challenged by the petitioner by filing Cr1. Org . Petition No. 11 of 2017 in C. P. No.23 of 2012 and the same was dismissed by the Islamabad High Court vide order dated 30.01.2017. The petitioner filed W.P. No.427 of 2017 before the Islamabad High Court, which was disposed of vide order dated 06.02.2017. Another Writ Petition No.1230 of 2017, filed by the petitioner, was also disposed of by the Islamabad High Court vide order dated 10.04.2017. Pursuant to the aforesaid orders, dated 1.02.2017 and 10.04.2017, the Secretary Establishment Division CIVIL PETITION NOS. 1092 & OF 2018 5 passed order, dated 26.04.2017, and the relevant portion thereof is as follows: 'WOW, THEREFORE, the undersigned, in compliance with the orders of the honourable Islamabad High Court, has heard the petitioner and is of the view that an appropriate placement, that too in consultation with his parent department or repatriation of the officer to is parent department, would be decided in pursuance to any final order of the honourable Islamabad High Court (LC.A. No. 85912013) for which an application for early hearing has already been filed. A seat of OSD for the officer will be created in the Establishment Division meanwhile, for pay purposes. 3. The respondent filed three Intra Court Appeals No. 117 of 2017, titled "Federation of Pakistan through Secretary, Ministry of Defence, Secretariat No.2, Rawalpindi & another v. Khush Dil Khan Malik & others" and I.C.A. No.123 of 2017, titled The Secretary Establishment Division, Islamabad v. Khushdil Khan Malik and others' before the Islamabad High Court. The learned bench of the Islamabad High Court decided I.C.A. No.859 of 2013 in W.P. No.828 of 2011 along with the aforementioned Intra Court Appeals through impugned consolidated judgment dated 08.03.20 18 and allowed all the three appeals filed by the respondents while setting aside judgments, dated 13.05.2013 passed in W.P. No.828 of 2011 and dated 10.03.2017, passed in W.P. No.4118 of 2016. The learned bench of the Islamabad High Court observed that: "It will be open to the Federal Government to proceed with the placement of the respondent in the light of paragraph 8 of the order, dated 26-04-2017, passed by the Secretary, Establishment Division." I W CIVIL PETITION NOS.] 092 & OP 2018 6& 4. The instant Civil Petition No. 1092 of 2018 before this Court arises out of the judgment dated 10.03.2017, passed in W.P. No.4118 of 2016 and the Civil Petition No. 1093 of 2018 arises out of the judgment dated 13.05.2013 passed in W.P. No.828 of 2011, which were set aside through the impugned consolidated judgment dated 08.03.2018 in I.C.A. No.859 of 2013. C. The petitioner contended that the respondent has inducted/ absorbed similarly placed officers in the Secretariat Group despite the fact that they were not members of any Occupational Group/ Service. He further contended that he has a vested right to be considered for promotion on the basis of 'Time Scale Formula' and that the learned Single Judge in Chambers of the Islamabad High Court after considering all the achievements of the petitioner correctly directed the respondent process the case of the petitioner for induction/ absorption in the Secretariat Group vide judgment dated 13.03.2013 in W.P No.828 of 2011. He contended that the repatriation orders issued vide Memorandum dated 20.01.2010 were in response to his request to the then Prime Minister of Pakistan seeking his induction/ absorption in the Secretariat Group on the analogy of some p.' blue eyed officers. That no misconduct has ever been proved against him throughout his career and he possesses unblemished service record; and for the same reason the parent department had recommended the grant of the higher pay scale on a meritorious basis however the same was arbitrarily regretted by the Establishment Division. The petitioner argued that the impugned consolidated judgment dated 08.03.20 18 suffers from legal infirmities and has failed to correctly appreciate the facts and circumstances of the case. CIVIL PETITION NOS. 1092 & OF 2018 7 6. The arguments advanced by the petitioner in-person and the record perused with his able assistance. 7. The petitioner invoked the constitutional jurisdiction time and again under Article 199 of the Constitution, seeking direction for his absorption/ induction in the Secretariat Group, benefits of BPS-21 under the Time Scale Formula and thereafter, his further promotion to r BPS-22 under the policy relating to the grant of the higher pay scale on a meritorious basis. The constitutional petitions were allowed which were later on set aside through impugned consolidated judgment. In order to appreciate the nature of controversy, it is necessary to examine the respective laws and policies forming the background of the dispute. The matter of creation of Civil Service on All-Pakistan basis was considered for the first time after independence on 8.11.1950 in a meeting of the representatives of the Government a Resolution which was passed to set up a Centralized Civil Service on All-Pakistan basis. This resolution was given effect to by promulgating Civil Service of Pakistan (Composition and Cadre) Rules, 1954 by the Governor-General in exercise of powers under section 241 of the Government of India Act, 1935. In order to improve the efficacy of civil services the Government of Pakistan carried out administrative reforms in the year 1971 and as a first measure the Pakistan Services (Change in Nomenclature) Rules, 1971 were promulgated which provided that the names of the Civil Service of Pakistan and the Police Service of Pakistan shall stand changed to All-Pakistan Unified Grades and all persons who were members of Civil Service of Pakistan or Police Service of Pakistan shall stand appointed in their existing posts in All-Pakistan Unified Grades. Different occupational groups were created from time to time to become part of All Pakistan Service. The CIVIL PETITION NOS. 1092 & OF 2018 8 Secretariat Group was set up by the Establishment Division in continuation of Memorandum No.2/2/75-ARC dated 17.01.1975 through O.M. No.2/2/75-ARC dated 12 .04 . 1976. 1 This Group Composed of officers of the former CSP, DMG who opted for this Group; officers of 0MG on promotion to the posts of Deputy Secretary and officers of other services/groups who opted for or were inducted in Secretariat Group- 2 The Secretariat Group has been placed under the administrative control of the Establishment Division and Clauses 3, 4, 5 and 6 of the Office Memorandum, dated 12.04.1976 prescribe the modes for appointment as well as induction in the Secretariat Group. Clauses 3 and 4 of the said ON provide that: "3. Deputy Secretary.- Appointment to the post of Deputy Secretary will be made in accordance with the following methods: i. By promotion of Grade 18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board. By horizontal movement from other Occupational Groups of Grade 19 Officers who have been recommended by the Ministries/Divisions/Departments or Provincial Governments and have been found fit by the Central Selection Board. iii. By direct appointment on the recommendations of Federal Public Service Commission of persons possessing such qualifications and experience etc., as may be prescribed. 4. Joint Secretary. --- Appointment to the post of Joint Secretary will be made as under MANUAL ON APPOINTMENT, PROMOTION AND TRANSFER (Edition -2013), Appendix A. Page No 280. 2 MANUAL ON APPOINTMENT, PROMOTION AND TRANSFER (Edition -2013). Appendix A. Page No. 244. CIVIL PETITION NOS. 1092 & OF 2018 i. By promotion of officers in the Grade of Deputy Secretary on the recommendations of the Central Selection Board. ii. By horizontal movement of such Grade 20 Officers of the various occupational groups as are recommended by the Ministries! Divisions, Departments Provincial Governments etc. and are found fit by the Central Selection Board. C iii. By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. as may be prescribed." It is apparent from the language employed in clauses 3 and 4 reproduced above that three modes can be adopted for the appointments against the posts of Deputy Secretary or Joint Secretary, as the case may be. Firstly, it can be made through the promotion of grade 18 officers of the Office Management Group and the Secretariat Group. Secondly such appointments can be made by the horizontal movement of officers in BPS-18 from other Occupational Groups. Thirdly direct appointments can be against the posts of Deputy Secretary or Joint Secretary, on the recommendation of the Federal Public Service Commission. It is pertinent to mention here that ppointment through horizontal movement of officers in BPS 18 again has to meet three conditions; the first prerequisite is that the officer considered for appointment must belong to one of the Occupational Groups. Secondly, such an officer is required to be recommended by the concerned Ministry, Division, Department or Provincial Governments, as the case may be; and lastly such an officer shall be found fit by the Central Selection Board. These three conditions must necessarily be fulfilled by every officer who aspires to be inducted in - CIVIL PETITION NOS. 1092 &OF 2018 10 the Secretariat Group as Deputy Secretary or Joint Secretary. Admittedly the petitioner was inducted into service against the post of Headmaster (BPS-18) on 24.12.1996 in the Federal Government Educational Institutions (Cantts/GarrisOn). In the year 2004 he was transferred to the Federal Government on deputation basis and he was repatriated to the parent department vide Office Memorandum dated 20.10.2010; he had hardly served in his parent department as member of the Teaching Staff when he was again transferred in the year 2011 to the Federal Secretariat under section 1.0 of the Act of 1973. The petitioner is neither an officer of Management Group nor of Secretariat Group as provided in clause 3 supra. Moreover he doesn't belong to any of the 'Occupational Groups' in terms of clause (viii) of Rule 2 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; therefore he cannot be considered for appointment through horizontal movement. Moreover there is nothing on record to show that he was ever recommended by the controlling Ministry of the parent department to be considered for such appointment. Therefore the petitioner has no vested right to be considered for induction/ absorption in the Secretariat Group as per prescribed eligibility criteria and conditions laid down in the relevant laws and policies, despite his best service record and the learned ench of the Islamabad High Court has fully appreciated this aspect of the matter in paragraph '7' of the impugned consolidated judgment and we see no reason to set aside the same. 8. Now adverting to another contention of the petitioner that benefits under Time Scale Formula may be granted to him, it is essential to consider the terms and conditions of service of the petitioner under the Act of 1973 read with the Civil Servants CIVIL PETITION NOS. 1092 & OF 2018 11 I (Appointment, Promotion and Transfer) Rules, 1973 hereinafter referred to as Rules 1973. The petitioner being a civil servant was appointed under the Act of 1973 and transferred and promoted under the procedure and conditions prescribed under the same Act and Rules 1973. The Act of 1973 doesn't define the term 'Time Scale Promotion'; therefore it cannot be considered as a term and condition of service. Promotion on the basis of Time Scale is not a regular promotion but a matter of policy granted to specific categories of professions by the relevant competent authority with the concurrence of the Finance Division. Such a policy is meant to grant benefits of higher pay scales to those cadres of civil servants which do not ordinarily get promotions to higher grades under the Rules 1973 on a regular basis. The monetary benefits under the Time Scale Formula cannot be extended generally to all civil servants but to class of civil servants as mentioned in the approved policy. The Establishment Division, expressly mentioned in Office Memorandum dated 19.09.2011, that Time Scale Formula is simply the grant of financial benefits of a higher pay scale without change in designation of the post and does not tantamount to up-gradation of the said post nor requires amendment in the recruitment rules. It was further clarified by the Finance Division, vide letter dated 10.09.20 13, that even after the grant of higher time scale the incumbent continues to hold the same post without there being any change in its status. The explicit conditions of the Time Scale Formula as mentioned in the relevant policy make it crystal clear that it does not tantamount to regular promotion under the Rules 1973. The monetary benefits under the Time Scale Formula were initially granted to the Teaching Staff of the Federal Directorate of Education, Islamabad and later, at the request of the Ministry of - C CIVIL PETITION NOS. 1092 & OF 2018 12 II I Defence, these were extended to the Teaching Staff of the parent department pursuant to approval given by the Prime Minister which was duly communicated on 16.10.2015. The petitioner admittedly belongs to the cadre of the Teaching Staff of the parent department; however, he is serving on ex-cadre posts since 2011 and has hardly served as an officer of Teaching Staff in the parent Department. He Could not be extended the benefits of Time Scale Formula, particularly when at the same time he was also seeking his induction in the Secretariat Group. Therefore, the request of the petitioner for consideration of his promotion on Time Scale basis at this stage is not feasible. However, it is open to the relevant competent authority to consider his case on Time Scale basis after his repatriation to the parent department. 9. The last contention of the petitioner is that he may be promoted on the basis of meritorious service. Finance Divisions Office Memorandum, dated 18-08-1983 envisages the policy regarding grant of Basic Pay Scales 21 and 22 to Technical and Professional Officers on meritorious basis in paragraph 7(a) (c). The criteria and modalities of the same policy were notified vide Office Memorandum, dated 07.04.1987 by a Committee constituted for the very purpose. The same policy was revised and accordingly notified vide Office Memorandums dated 25.11.2008 and dated 04.10.2012. The revised policy 2008 encapsulates the revised criteria on the following terms: "a. Officers be considered for grant of BPS-21 and BPS-22 on the basis of meritorious service in order of seniority. b. P.E.Rs. should be quantified in present and previous scales as per existing promotion policy and assigned a weightage of 70%. c. Training from NIPA, Staff College and National Institutes of Management may be given 15% weightage. In case CIVIL PETITION NOS. 1092 & OF 2018 IN I U C the training information/ requirement is not relevant, overall professional competence be judged and notional marks be assigned on the basis of his previous record. d. Minimum of 3 years' active service in BPS-20 for BPS-21 and 5 years active service in BPS-20 and above including 3 years in BPS-21 for BPS-22 will be required excluding the period of long leave (4 months or more). e. The Special Selection Committee shall scrutinize significant contribution of the Technical and Professional Officers in their relevant fields of specialization, consulting Secretary concerned and Head of Offices,/Organizations about the background, level of competence and general reputation and allocate marks out of 15 to the officers being considered for grant of BPS-21 and BPS-22 on the basis of meritorious services. f Minimum threshold in this way shall be 75% marks." The terms of aforementioned revised policy make it clear that the Special Selection Committee shall scrutinize significant contribution of the Technical and Professional Officers in their relevant fields of specialization, consulting Secretary concerned and Head of Offices/ Organizations about the background, level of competence and general reputation and allocate marks accordingly to the officers for being considered for grant of BPS-21 and BPS-22 on the basis of meritorious services. It is exclusively the prerogative of the Special Selection Committee to consider the competence of the officer for the grant of promotion to BPS-21 and BPS-22 to Technical and Professional officers, and not a vested right of a civil servant. It is actually a reward for such technical and professional officer who has distinguished himself by rendering meritorious services as an acknowledgment for exceptional contributions in his specialized field. The role of Special Selection Committee cannot be assumed by any other authority by any stretch of interpretation of the revised policy, -.__ CIVIL PETITION NOS. 1Q2iQF2fflS 14 S I I not even by the Court. As the petitioner has been serving outside the parent department since 2011 and he is not holding any technical or professional office in his parent department, therefore the Ministry of Defence sought clarification from the Establishment Division and the latter regretted the recommendations made by the parent department for being in violation of violation of the conditions and procedure, inter alia, prescribed in Office Memorandum, dated 25.11.2008. The petitioner no doubt served on higher grades for many years and might have rendered service to the best of his ability; however we are afraid the same aspects could be considered by the Special Selection Committee and not by us. Therefore, both the instant Civil Petitions No.1092 of 2018 and 1093 of 2018 are hereby dismissed and the impugned consolidated judgment dated 08.03.20 18 is upheld. Judge Judge ISLAMABAD 12th Sep., 2018 Approved for Reporting" T

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Muhammad Nawaz Abbasi Mr. Justice Saiyed Saeed Ashhad CIVIL PETITION NO.1097-L OF 2004 (On appeal from the judgment dated 8.1.2004 passed by Federal Service Tribunal, Lahore in Appeal No.89(L)(C.S)/2000) Superintending Engineer GEPCO Sialkot …Petitioner Versus Muhammad Yousaf …Respondent For the Petitioner: In person For the Respondents: Mian Mehmood Hussain, ASC Date of hearing: 23.11.2006 ORDER Iftikhar Muhammad Chaudhry, CJ. - This petition has been filed for leave to appeal against the judgment dated 8.1.2004 passed by Federal Service Tribunal, Lahore in Appeal No.89(L)(C.S.)/2000. 2. Precisely stating the facts of the case are that respondent faced criminal proceedings for committing offence of culpable homicide amounting to murder. The trial Court saddled him with the penalty of death. Meanwhile, because of his arrest on 8th January, 1992 he was suspended. On the other hand in appeal learned Lahore High Court, Lahore set aside the conviction/sentence awarded to him by the trial Court and acquitted him from the charge of murder vide judgment dated 12th July, 1998. Accordingly, he was taken back on duty and the period of his suspension was treated as leave i.e. from 6th January, 1992 to 8th October, 1994. It is to be noted that from 9th October, 1994 to 12th September, 1998 nothing was paid to him. It is stated that the period from 8th January, 1992 to 8th October, 1994 on his acquittal was treated as leave on due basis instead of suspension as per order of the Authority dated 13th August, 1999. The period commencing from 9th October, 1994 to 12th September, 1998 was also treated as leave on due basis vide order CP No.1097-L of 2004.doc 2 dated 16th July, 1999. Respondent being aggrieved from the order of the department approached the Service Tribunal for release of his salary for this period. Appeal was allowed by the impugned judgment. Relevant para therefrom is reproduced hereinbelow: - “We have before us a judgment of the Apex Court. The citation is 1998 SCMR 1993. In this case the Civil Servant was also involved in a murder case. He was acquitted. The apex court was pleased to hold that in case of acquittal the Civil Servant should be considered to have committed no offence. He was declared entitled to grant of arrears of pay and allowances in respect of period he had remained under suspension on the basis of murder case against him. In the light of this authority we hold that the appellant is entitled to arrears of pay and allowances for the disputed period. In 2002 P.S.C.157 a similar view was expressed by the apex Court. The appellant was reinstated in service with back benefits for the period he had not been gainfully employed elsewhere. In the present case the appellant had not been gainfully employed elsewhere due to conviction in a murder case. He is, therefore, entitled to back benefits as held by the apex court. The most recent judgment of the apex court on the subject is reported as 2003 U.C.809 the appellant was acquitted in the criminal case and was held entitled to back benefits.” 3. Learned counsel for the petitioner contended that the respondent would only be entitled for the financial benefits for a period of six months during which he remained under suspension while for the remaining period he would be granted financial benefits but this period would be treated as leave on due basis. 4. On the other hand learned counsel for the respondent stated that as the respondent has been acquitted of the charge honourably, therefore, he is entitled for full benefits without treating the same period on the basis of leave due. He stated that exactly in such like situation this Court in the case Dr. Muhammad Islam Vs. Government of N.W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 SCMR 1993) has granted the relief to the employee who after acquittal from the murder charge claimed the benefit under FR 54(1). In this behalf it is to be noted that in identical circumstances in the case which has been relied upon by the Tribunal Rashid Mahmood Vs. Additional Inspector CP No.1097-L of 2004.doc 3 General of Police and two others (2002 PSC 157) in which financial benefits were extended for the period during which a civil servant could not perform his duty on account of his involvement in the criminal case and as soon as he was acquitted of the charge he was held entitled for the full benefits considering him as if he has performed the duty. Learned counsel for the petitioner also contended that question for consideration would be as to whether the respondent was honourably acquitted because according to him the learned High Court while accepting his Criminal Appeal on 12th July, 1998 extended him benefit of doubt. In this behalf it may be noted that in the case of Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu Vs. superintending Engineer, Southern Irrigation Circle, Bannu and 4 others (1999 SCMR 2870) identical question came for consideration and this Court considered that acquittal of a civil servant, even if based on benefit of doubt was honourable. Applying same principle we are of the opinion that the respondent who statedly was acquitted by extending him benefit of doubt would be deemed to have been acquitted honourably. Therefore, under the circumstances we are of the opinion that the Service Tribunal rightly directed the petitioner to treat him on duty and give him all financial benefits during the period of his confinement in custody on account of his involvement in the murder case. 5. Thus for the forgoing reasons we see no force in the petition which is dismissed and leave declined. Chief Justice Judge Judge Islamabad, the 23rd November, 2006 Atif/* APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition No.1125 of 2018 (Against the judgment dated 26.01.2018 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in W.P. No.2271/2012) Ex- PA 43620 Lt. Asim Bashir …Petitioner(s) Versus Federation of Pakistan & 3 others …Respondent(s) For the Petitioner(s): Mr. S.A. Mahmood Khan Saddozai, ASC Ms. Rubina Mahmood Khan Saddozai, ASC Ch. Akhtar Ali, AOR For the Respondent(s): Mr. Sajid Ilyas Bhatti, Addl. Attorney General for Pakistan Major Haider and Major Azmat, JAG Branch. Date of hearing: 06.05.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Gasping for life with a fire shot in the head, Naveeda Gohar, 24/25, was escorted by Asim Bashir, her second cousin, a lieutenant in the Pakistan Army, petitioner herein, to Combined Military Hospital on 4.2.2010; incident was reported to the police by her husband Major Syed Afaq Ahmed (PW-8) wherein he alongside the petitioner named his mother as suspects; the injured breathed her last on 23.2.2010. D.N.A. (deoxyribonucleic) profile generated through deceased’s vaginal swabs were found compatible with petitioner’s specimens to conclusively confirm the carnal liaison. Refusal of proposal by the petitioner, prior to deceased’s marriage with the complainant, was cited as motive for the crime; he was taken into custody by the Army authorities same day. Presented before a Field General Court Martial convened at Bahawalpur Cantonment, the petitioner was indicted for homicide and fornication, initially let off on the former charge, however, 2 Civil Petition No. 1125 of 2018 returned a guilty verdict on the latter with a sentence of rigorous imprisonment for 3-years 6-months as well as payment of Rs.10,000/- as fine, accompanied by concomitant dismissal from the service vide decision dated 14.06.2011, a finding reverted for reconsideration by the Convening Authority/General Officer Commanding vide order dated 13.08.2011, in consequence whereof, after revisiting the evidence, comprising ocular account, admission and forensic report, he was convicted for homicide as well and sentenced to imprisonment for life vide decision dated 01.09.2011, affirmed by the General Officer Commanding as well as the Chief of Army Staff; his appeal, filed under section 133B of the Pakistan Army Act, 1952 (the Act) was dismissed on 10.2.2012; a Constitution petition also failed before a learned Judge-in-Chamber of the Lahore High Court at Rawalpindi Bench on 19.10.2017, leave to appeal wherefrom is being prayed for. Petitioner’s mother was prosecuted for abetting the crime in regular jurisdiction before a learned Additional Sessions Judge Rawalpindi; she was acquitted without challenge vide judgment dated 9.5.2012. 2. Learned counsel for the petitioner contends that the petitioner, notwithstanding the accusation was not subject to the provisions of the Act in view of Section 59(2) thereof; that Field General Court Martial was not convened at the proper venue as contemplated by section 93 of the Act ibid as the petitioner had since been transferred to another station and, thus, the entire exercise was a nullity in the eye of law; that the offence was of a civil nature, a position confirmed by separate trial of petitioner’s mother, namely, Nigar in regular jurisdiction; that a Convening Officer could not have remitted the case for reconsideration of the evidence and, thus, the entire exercise suffered from the taints of mala fide and being coram non judice was liable to be set aside, concluded the learned counsel. The learned Additional Attorney General by referring to various provisions of the Army Act argued that the petitioner was convicted and sentenced on the strength of admissible evidence in compliance with the procedure permissible by law and, thus, there was no occasion calling for interference with a conclusion drawn by the High Court. 3. Heard. Record perused. 3 Civil Petition No. 1125 of 2018 4. On the eventful day, the petitioner was serving as a lieutenant in the Pakistan Army; though the incident occurred in a civilian neighbourhood, he was apprehended by the Military Police on the fateful day and a case for murderous assault was registered on the basis of information laid by victim’s husband, himself a serving Major in the Pakistan Army; the petitioner conspicuously figured as the prime suspect therein. Given his status as an Army Officer, his apprehension, custody and prosecution before a Field General Court Martial are the steps taken within the remit of Section 549 of the Code of Criminal Procedure, 1898 (the Code) which unambiguously authorizes such a prosecution on the option of Commanding Officer, a choice that is in line with the concurrent jurisdiction of Court Martial and Criminal Courts on the discretion of “Prescribed Officer” as contemplated by sections 94 and 95 of the Act ibid, laying down the procedure in such an eventuality, therefore, the argument that the petitioner was not liable to be treated as subject to the Act in view of the nature and venue of the crime is entirely beside the mark. We are also not impressed by the contention that the petitioner ought not to have been tried in Bahawalpur Cantonment and that proceedings of Field General Court Martial stood vitiated on this score alone. On the contrary, in view of the options available to the Army authorities under section 93 of the Act ibid to convene Field General Court Martial “in any place”, we are not inclined to take exception to the convenience of choice exercised by the authorities. The learned counsel has not been able to point out any prejudice suffered by the petitioner by his trial at Bahawalpur where, according to the record, he was afforded sufficient and fullest opportunity to meet the witnesses half way without let or hindrance. Statutory scheme, regulating proceedings of Court Martial does not attach finality with any finding or sentence recorded thereunder unless confirmed within the contemplation of section 119 of the Act ibid by the competent authority; a combined reading of various provisions relating thereto under Chapter X of the Act ibid validly space the possibility of revision of a finding by the officer higher in hierarchy. In the present case, General Officer Commanding while taking stock of the evidence directed reassessment thereof by the president and members of Field 4 Civil Petition No. 1125 of 2018 General Court Martial, an exercise envisaged by the Act, undertaken in continuation of an ongoing process. The final sentence/finding is cumulative impact leading to the logical end of the proceedings within the integrity of the procedure regulating trial under the Act. Acquittal of petitioner’s mother tried for abetment of the crime by a learned Additional Sessions Judge in regular jurisdiction does not adversely affect petitioner’s prosecution, assigned a vastly distinguishable role of fatal shot to the deceased as unanimously alleged by the witnesses in the suggested backdrop, forensically confirmed. 5. The parameters authoritatively settled by this Court to examine the vires of a finding/sentence recorded by a Court Martial provide a limited space to examine hypothesis of any mala fide lurking behind the prosecution or any juridical flaw in holding of the Court Martial that may be viewed as coram non judice or without jurisdiction and in so doing a High Court shall not attempt to search for a contra view of evidence, competently recorded during a Court Martial. See Ex-Capt. Muhammad Akram Khan Vs. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1969 SC 174), The State Vs. Zia-ur- Rehman and others (PLD 1973 SC 49), Brig. (Rtd.) F.B. Ali and another Vs. The State (PLD 1975 S.C. 506), Sh. Karamat Ali Vs. The State (PLD 1976 SC 476), Federation of Pakistan Vs. Malik Ghulam Mustafa Khar (PLD 1989 S.C. 26), Secretary Ministry of Religious Affairs and Minorities and others Vs. Syed Abdul Majid (1993 SCMR 1171), Mrs. Naheeed Maqsood Vs. Federation of Pakistan through Secretary, Ministry of Interior, Govt. of Pakistan Islamabad and 4 others (1999 SCMR 2078), Ex-Lt. Col. Anwar Aziz Vs. Federation of Pakistan through Ministry of Defence Rawalpindi and others (PLD 2001 SC 549), Mst. Tahira Almas and another Vs. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another (PLD 2002 SC 830), Mushtaq Ahmed and others Vs. Secretary Ministry of Defence through Chief of Air and Army Staff and others (PLD 2007 S.C. 405), Federation of Pakistan and others Vs. Raja Muhammad Ishaque Qamar and another (PLD 2007 S.C. 498), Ghulam Abbas Niazi Vs. Federation of Pakistan and others (PLD 2009 S.C. 866), Federation of Pakistan through 5 Civil Petition No. 1125 of 2018 Secretary Defence and others Vs. Abdul Basit (2012 SCMR 1229), Rana Muhammad Naveed and another Vs. Federation of Pakistan through Secretary M/o Defence ( 2013 SCMR 596), Ghulam Abbas Vs. Federation of Pakistan through Secretary, Ministry of Defence and others (2014 SCMR 849), District Bar Association Rawalpindi and others Vs. Federation of Pakistan and others (PLD 2015 S.C 401), Ex-Lance Naik Mukarram Hussain and others Vs. Federal Government , M/o Defence through Chief of the Army Staff and others (2017 SCMR 580), Ex-Gunner Muhammad Mushtaq and another Vs. Secretary Ministry of Defence through Chief of Army Staff and others ( 2015 SCMR 1071) and Said Zaman Khan and others Vs. Federation of Pakistan (2017 SCMR 1249). Official acts, protected by statutory presumption, of being intra vires cannot be readily branded as being actuated by considerations, tainted with mala fide, as exercise of jurisdiction by the functionaries of the Republic, vested in them by law, to accomplish a statutory purpose; these deserve full faith and credit. Contra allegations must qualify falsification test on the strength of material capable of objective verification; a bald accusation merits no consideration. The officers who carried out the exercise do not appear to have an axe to grind and conclusions drawn by them are irresistibly based upon the preponderance of evidence; they by virtue of their ranks validly constituted the Field General Court Martial as well as positions superior thereto and, thus, allegation of coram non judice is nothing than a far cry in circumstances. View taken by the learned Judge-in-Chamber being in accord with the law declared by this Court in the supra cases, calls for no interference. Petition fails. Leave declined. Judge Judge Judge Islamabad 6th May, 2021 Not approved for Reporting Azmat/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 1134-L OF 2018 (On appeal against judgment dated 01.03.2018 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 1392/2017) Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore … Petitioner VERSUS Yasir Majeed Sheikh etc … Respondents For the Petitioner: Barrister Qasim Ali Chohan, Addl. A.G. Mr. Asif Bashir, Deputy Director Legal For Respondent (1): Barrister Umer Riaz, ASC Date of Hearing: 15.01.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, the petitioner has called in question the legality of the impugned judgment dated 01.03.2018 passed by the Lahore High Court, Lahore, whereby the Intra Court Appeal filed by the petitioner was dismissed and hence the judgment dated 07.06.2017 of the learned Single Judge in Chambers was maintained, whereby the Writ Petition filed by the respondent No. 1 for getting access of his petrol pump from the main carriage way was allowed. 2. Briefly stated the facts of the matter are that in the year 2004, the respondent No. 1 installed a petrol pump on Lahore-Kasur Road. At that time, he was given access from the Civil Petition No. 1134-L/2018 2 main road but subsequently the access from the main road was denied by the Punjab Highway Department, which led to filing of Constitutional Petition by the respondent before the learned Lahore High Court, Lahore. The learned Single Judge in Chambers of the High Court vide judgment dated 07.06.2017 allowed the Constitutional Petition by directing the petitioner to provide access points to the petrol pump of the respondent No. 1 from the main Lahore-Kasur Road in the shape of entry and exit. Being aggrieved, the petitioner filed Intra Court Appeal before the learned Lahore High Court but the same has been dismissed vide impugned judgment dated 01.03.2018. Hence, this petition seeking leave to appeal. 3. Learned Additional Advocate General inter alia contended that most of the petrol pumps, which have been given direct access are not situated in front of the green belt whereas the petrol pump of the respondent is situated in front of the green belt, therefore, no question of discrimination arises; that the learned Single Judge as also the learned Division Bench did not inquire from NESPAK to explain their design of the dual carriageway so that if access is granted to the respondent’s petrol pump what could be the possible consequences in terms of road safety and other traffic related hazards; that no fundamental right of the respondent has been infringed by declining him direct access as he is specifically been given access from the alternate road, which is 360 feet away and that the impugned judgments are not maintainable in the eyes of law. 4. Learned counsel for the respondent No. 1, on the other hand, defended the impugned judgment. He contended that there are other petrol pumps which have been given direct access whereas the same has been denied to the respondent and that right of a roadside owner to have access to the highway is a fundamental right, which is protected under the constitution and, therefore, the writ petition was maintainable. 5. We have heard learned Law Officer as also learned counsel for the respondent and have perused the record. 6. We have specifically confronted learned counsel for the respondent as to how the writ petition was maintainable when the Civil Petition No. 1134-L/2018 3 respondent was claiming direct access from the main road, which is an easementary right, to which he stated that right of roadside owner to have access to the highway is a fundamental right, which is protected under the Constitution and for the grounds of discrimination writ petition was filed. The learned High Court while allowing the writ petition of the respondent mainly observed that only the respondent’s petrol pump has been denied access from the main road, which is violation of Article 18 of the Constitution. However, we have noted that same is not the case here. According to the reports of local commissions, which were formed during the proceedings before the High Court, although some of the petrol pumps have been given access from the main road but at the same time there are petrol pumps, which have no direct approach, therefore, the question of discrimination does not arise. There is no cavil that Article 18 of the Constitution of Islamic Republic of Pakistan guarantees every citizen the right of freedom of trade, business or profession but this right of the respondent has not been infringed, because although he has been denied access from the main road but he has the access from alternate route i.e. service road, which is 360 feet away from the main road. In these circumstances, existence of right of easement in respect of the respondent is a question of fact, which needs to be decided after recording of evidence and the same could not have been done in the constitutional jurisdiction. Extraordinary writ jurisdiction in such like situations, which is based upon factual propositions, should not be exercised mere on the apprehension of the party. The jurisdiction conferred on the High Courts under Article 199 of the Constitution is an extraordinary relief and the same has to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums unless it is shown that order, action or inaction is in violation of any provision of law or without lawful authority or jurisdiction. When the law has provided an adequate remedy, constitutional jurisdiction under Article 199 of the Constitution cannot be exercised as the same has to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction. It has time and again been said by this Court that propensity to bypass remedy provided under relevant statue by Civil Petition No. 1134-L/2018 4 resorting to constitutional jurisdiction is to be discouraged so that legislative intent is not defeated. The same is meant to be exercised in extraordinary circumstances and not in run of the mill cases. Therefore, we are compelled to observe that the very constitution petition was not maintainable as disputed question of facts were involved, which cannot be decided unless evidence is recorded to that effect. Learned counsel for the respondent has cited certain judgments but those are squarely distinguishable on the facts and law, therefore, of no avail to the respondent in any manner. 7. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment of the learned Division Bench dated 01.03.2018 as also the judgment of the learned Single Judge in Chambers dated 07.06.2017. Needless to observe, the respondent can approach the Court of competent jurisdiction for redressal of his grievance in accordance with law, if so advised. JUDGE JUDGE JUDGE Islamabad, the 15th of January, 2021 Approved For Reporting Khurram

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Jamal Khan Mandokhail Mr. Justice Muhammad AU Mazhar CIVIL PETITION NO. 1165 OF 2021 [Against the order dated 18.2.2021, passed by the Lahore High Court, Lahore, in W.P. No.53502 of 20191 President, Zarai Taraqiati Bank Limited, Islamabad and others . . . Petitioners Versus Agha Hassan Khursheed . . . Respondent For the Petitioners Respondent Date of Hearing Mr. Adrian Ahmed Khawaja, ASC Mr. Jawaid Masood Tahir Shatti, AOR (absent) Hassan Raza, HeaA Legal, ZTBL Muhammad Jibran, Law Officer In person 03.0 1.2022 ORDER GULZAR AHMED, CJ.- The petitioners bank had advertised the post of Assistant Vice President (AVP) (Operations) in which the qualification required was that of Master •Degree in Business Administration/ Commerce with at least seven years experience or Graduate/Post Graduate degree with twelve years experience in Banking Operations in large commercial or financial organizations. The respondent applied for the said post and it is admitted by him, who is present in person that he has mentioned in his application, the qualification of holding of BA Degree in Punjabi, Political Science, Journalism so also MBA (Marketing). The case of the C11. 1165 of 202) 2. I - respondent was processed for appointment as AVP by the It petitioners bank by mentioning both his qualifications of BA as well as MBA and such is mentioned in the list of shortlisted candidates (at page 93 of the paper book) where the name of the respondent is mentioned at Serial No.3. The name of the respondent appears at Serial No.51 in the Interview Evaluation Sheet, where he has been granted 55 marks for the Professional Competence and overall 74 marks. At page 104 of the paper book, again the name of the respondent appears at Serial No-51 in which his qualification is mentioned as BA (Punjabi, Political Science) from Bahauddin Zikria University and MBA (Marketing) from Cresset College, Lahore with previous experience of service as AVP, My Bank Limited, from 1996 to date and again overall 74 marks have been given to him. The respondent was issued Offer of Employment letter dated 11.07.2009 as AVP. Clause (f) of item No.vi of the Offer of Employment letter provides as follows: "f) In case any information/ document provided by you at the time off seeking appointment in the Bank or after joining proved to be incorrect/fake, necessary departmental proceedings would be initiated against you, which may result in termination of your services from the Bank. The above action shall not preclude the criminal proceedings that the Bank may initiate against you for recovery of its dues/assets which you may owe to the Bank at the time of termination." CI'.l 165 of 202 -3- It seems that vide Office Memorandum dated 21.04.2015, the respondent was granted promotion from the post of AVP to Vice President with effect from 01.04.2015. This Office Memorandum is available at page 111 of the paper book. in the meantime, another Office Memorandum dated 17.09.2009 was issued, which is available at page 117 of the paper book by which the respondent was asked to provide academic credentials duly attested/ authenticated by the Higher Education Commission (HEC) along with Declaration of Assets and Liabilities (on enclosed format) and attested copy of CNIC, at the earliest for record. The respondent submitted along with letter dated 28.09.2015, degrees/ certificates verified from the HEC and in the Column mentioned Degrees/ Certificates, MBA and in the Column of department, it is mentioned as GSU, Lahore. This 'I letter appears at page 137 of the paper book. The respondent admits that he has signed this letter and submitted the MBA H. Degree verified from HEC to the petitioners bank. The I petitioners bank through letter dated 15.10.2015 addressed to the Director, Attestation and Accreditation, HEC sent the MBA Transcript submitted by the respondent for verification along with copy of CNTC of the respondent. HEC responded to theç petitioners bank letter vide letter dated 26.10.2015 available at page 141 of the paper book where in the Columns provided atH H Serial No.1, Ticket No.271260, January 21, 2010 the remarks! are OK. At Serial No.2, against the name of the respondent, Ticket No.209089 dated February 09, 2015, MBA transcript of the respondent was found not attested by HEC and it was: CF. 1) h, 0! 202 further informed that Ticket No.209089 reflected on MBA transcript held by the respondent was originally allotted to B.Sc. (Hons) degree held by one Irfan Yaqub. The respondent was issued Charge Sheet dated 19.01.20 18 along with the Statement of Allegations that he has failed to supply Degree of MBA despite lapse of 13 years and he obtained BA Degree from Bahauddin Zakria University, Multan during Session 1,996 and MBA Degree from Cresset College, Lahore during Session 2002, while he remained posted in My Bank, Karachi from 16.06.1996 1 to 20.07.2009 as AVP. He was informed that he violated clause (0 of Item No.vi of the Offer of Employment letter dated 11.07.2009. The respondent submitted reply to the Charge L Sheet/ Statement of Allegations, which he has dated as 02.03.2017 in the first page of the reply, but while under his signature, the respondent has mentioned the date of If 02.03.201.8. This reply of the respondent is available at page 152 of the paper book. It seems that in reply dated 31.10.20171 to a letter dated 26.10.201.7 of the petitioners bank, the respondent has specifically mentioned as follows: I "Keeping in view the above narrated just and genuine facts it is again humbly requested that MBA Degree may please be deleted from my testimonial as well as in your record to avoid unnecessary correspondence as it is impossible for me for verification and submission of attest copy of my MBA degree at this belated stage." CI'. 1165 of 2021 .1 F F - 5 In his reply to the Charge Sheet and the Statement of Allegations, the respondent has stated as follows: "Keeping in view the above narrated facts and figures it is humbly requested that I may be absolved from the charges levelled against me with the request that I may very kindly be waived off the condition to submit my extra qualification of MBA mentioned in my CV which may be deleted from my testimonial and from your record as already requested for which I shall be highly obliged and pray for your long life and prosperity." It seems that enquiry was conducted against the respondent on the Charge Sheet and the Statement of Allegations, where the J charges against the respondent were found to be proved. He was issued a Show Cause Notice dated 10.04.2018 by the petitioners bank. The respondent filed reply dated 29.04.2018H to the Show Cause Notice. Vide letter dated 30.04.20 18 of thei] petitioners bank, the respondent was asked to appear for: personal hearing. The respondent filed Writ Petition No.222080! of 2018. On 28.06.2018, the High Court disposed of the writ I petition with the direction that application (Annex-L) be decided? strictly in accordance with law. It seems that no notice of the writ petition was issued to the petitioners bank rather the DAG was called to examine the file, who accordingly made statement that he has no objection if such direction is issued. Pursuant tO the order dated 28.06.2018 of the Lahore High Court, the respondent was called for personal hearing vide letter dated 09.07.2018. The respondent again file writ petition No.226277 I Cl', 1 165 of 202 -6- of 2018 against this letter of personal hearing dated 09.07.2018. This writ petition of the respondent was allowed by the Nigh Court vide its order dated 17.06.2019 and notice of personal hearing dated 09.07.2018 was set aside and the petitioners bank were directed to hold a regular enquiry in which the person who appointed the respondent shall be associated. Pursuant to the order of the High Court dated 17.06.2019 vide Office Memorandum dated 07.08.2019 an Enquiry Committee was constituted to conduct fresh enquiry into the Charge Sheet and the Statement of Allegations dated 19.01.2018 against the respondent. The respondent through his Advocate, Mian Liauqat Au, submitted objections dated 12.09.201.9 on the constitution of the Enquiry Committee, On :1 17.09.2019, the respondent was issued final notice to appear! before the Enquiry Committee. This final notice was again challenged by the respondent by filing of Writ Petition No.53502 of 2019 and through an order dated 20.09.2019, the High Court suspended the final notice dated 17.09.20 1.9. Through a Circular dated 09.09.2020, the petitioners bank has abolished General Services Unit, Karachi and Lahore. Through Office' . Memorandum dated 14.09.2020, the respondent service was terminated on the ground of abolishment of General Services Unit, Karachi and Lahore. Such termination of the respondent was effected in terms of para 16(B) of HR Manual (2012) under Staff Regulations (SR)-2005. On 18.02.202 1, the High Court passed the impugned order in Writ Petition No.53502 of 2019, whereby the petitioners were given one month's time to CP. 1 165 of 2021 conclude the enquiry in accordance with the observations and directions passed by the Court on 17.06.20 19 in Writ Petition No.226277 of 2018. The respondent states that he has filed another Writ Petition No.18588 of 2021 in the Lahore High Court where he has challenged the letter of his termination. 2. The learned counsel for the petitioners contends that in the first place the enquiry being conducted by the petitioners bank against the respondent was to determine as to whether L the respondent is at all entitled to payment of terminal dues for which Enquiry Committee was constituted but the respondent did not participate in the same rather submitted frivolous objections and filed the writ petitions one after the other due to; which the enquiry could not be completed. The learned counsel further contends that the petitioners bank only has to pass final order in respect of the enquiry and the petitioners bank bef allowed to pass the order to conclude the proceedings. 3. The learned counsel further contends that in the order dated 17.06.2019, the learned Single Judge of the High Court while setting aside notice of personal hearing dated 09.07.2018 has directed the petitioners to hold a regula enquiry in which the person who appointed the respondent shall be associated. The learned counsel contends that Mr. Zaka Ashraf, who was the then President of the petitioners bank, has appointed the respondent and the very appointment of Mr. Zaka Ashraf as President of the Bank in the case of Muhammad Igbal Khattak vs. Federation of Pakistan (2010 CLD 1572), in a 4. - 7 UP. 1165 of 202 petition for for quo waanto was found to be without lawful authority and of no legal effect. 4. It seems that this judgment of the High Court was challenged in ICA No.21.1. of 2010 in which initially interim injunction was granted but subsequently the ICA was disposed of vide order dated 25,09.2014, against which Muhammad lqbal Khattak filed Civil Petition No.2290 of 2014, which was dismissed vide order dated 06.01.2015. However, Mr. Zaka U Ashraf resigned from the post of the President of the petitioners bank. The learned counsel further contends that the very order! of associating the appointing authority of the respondent, who was Mr. Zaka Ashraf, in the enquiry is not possible at this point U of time and even otherwise, such an order is ex fade a void!J order. S. We note that such argument has been made by the learned counsel for the petitioners bank but the very order dated 17.06.20 1.9 was not challenged by the petitioners and attained finality. However, we note that the observation of the, High Court in the order dated 17.06.2019 that a person who appointed the respondent shall be associated in the enquiry, apparently, is not sustainable in law, for that, the enquiry is to be conducted by the petitioners bank, and whosoever is to be associated in such enquiry, is a matter which only the petitioners bank is competent to decide. 6. It is for the respondent, in case he wants to contest the enquiry and to produce any person, as a witness before the Enquiry Committee, he is well entitled to do so, but under no L CF'. 1 lbS oF 2021 9- legal norms the petitioners could have been directed to associate a person in the Enquiry Committee who had appointed the respondent. The very direction given by the High Court in the order dated 17.06.2019 is not supported by any law nor by any precedent and apparently, such direction has been passed merely on the asking of the respondent, which in itself will pollute the enquiry and also rob it of being independent and transparent. The constant presence of Mr. Zaka Ashraf, who had been President of the petitioners bank and also appointed the respondent, will unnecessarily bringf influence on Enquiry Committee which is also likely to cause embarrassment and serious prejudice. 7. The respondent who has appeared in person beforél the Court has admitted that the Degree of MBA possessed by him is not recognized by any institution in Pakistan and it is also not recognized by HEC. 8. Under Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973, the Supreme Court has been given power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. This very power of the Supreme Court is very much inherent and could be exercised without being handicapped by any technicality or rule or practice, nor exercise of such power is dependent upon any application being filed by a party to the case. It is enough that it is brought to the notice of the Court, while hearing a case, that an order has been passed by a forum below which has bearing on the caseYand CR 1165 of 2023 ib causes injustice to one of the parties, and the Court will not be hesitant for a moment to correct such injustice. Reliance in this behalf may be made to the cases of The State through Director General, FIA, Islamabad v. Alif Rehman (2021 SCMR 503), Raja Khurram Ali Khan and 2 others vs. Tayyaba Bibi and another (PLD 2020 SC 146) and Imran Ahmad Khan Niazi vs. Mian Muhamad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others (PLD 2017 SC 265). 9. The direction to the petitioners bank to obtain; presence of Mr. Zaka Ashraf in the enquiry being conducted against the respondent, thus, is an order which inherently is not equitable rather on its face appears to be not consisteit with the well recognized legal principles of law and therefore, lacks any legal support. Thus, while exercising power under Article 187 of the Constitution, the direction of the High Court of associating the person who had appointed the respondent; in its order dated 17.06.2019 in Writ Petition No. 226277 of 2018, is, therefore, set aside. 10. The petitioners bank shall continue the enquiry dnd pass order within 15 days after complying with all cddal formalities. The respondent shall be called by the petitioners bank, who will appear before the relevant authority. 11. No further opportunity to the respondent shAll be provided by the petitioners bank for concluding and passing of the final order. I -S I CR1165 of 2021 - I ii- 12. The impugned order is, therefore, set aside and the petition is converted into appeal and allowed. Bench-I Islamabad 03.01.2022 '®q' APPROVED FOR REPORTING' Mahtab/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel Civil Petitions No.1191, 1192 and 1193 of 2017 Against the judgment dated 16.1.2017 passed by Lahore High Court, Lahore in Writ Petitions No.23034, 15864 and 21910 of 2009 Securities & Exchange Commission of Pakistan, Karachi (in all cases) Petitioner(s) versus M/s East West Insurance Company thr: its GM & others (in CP 1191/17) Adamjee Insurance Company Limited, (in CP 1192/17) Karachi M/s United Insurance Company Pakistan Ltd. (in CP 1193/17) & others Respondent(s) For the Petitioner(s): Syed Hamid Ali Shah, ASC For the Respondent(s): N.R Date of Hearing: 12.02.2018 ORDER Mushir Alam, J.- Securities & Exchange Commission of Pakistan, (SECP) petitioner herein has impugned the judgment dated 16.01.2017 passed by the Lahore High Court in writ petitions No.1191, 1192 and 1193 of 2017 filed by different Insurance Companies, whereby setting aside the orders all dated 28.10.2009 passed by the Petitioner SECP, as an adjudicatory and appellate authority whereby it directed the Respondent No.1 insurance Companies to pay the claims arising out of policy of Insurance of the insured. Fact in brief in each case appears to be: 2. In CPLA No.1191 of 2017 respondent No.3-M/s Y & U International Model Town, Sialkot, raised claim under Marine Cargo Policy for the consignments, which was later found damaged Civil Petitions No.1191, 1192 and 1193 of 2017 2 by water. Claim was repudiated by respondent No.1-M/s East West Insurance Company, on the ground of limitation and on the ground that consignments were disposed of prior to the survey, knowledge and approval of the Insurance Company. Complaint was filed before the Insurance Ombudsman, which after due notice and hearing the parties was dismissed. On the ground inter-alia that the jurisdiction vests in the Insurance Tribunal constituted under Section 122 of the Insurance Ordinance, 2000. However, on appeal under section 130(2) of the Insurance Ordinance, 2000 (Ordinance, 2000), Petitioner being appellate authority formed an opinion that “mal-administration on part of the Respondent is evident, the respondent is ordered to pay the amount of loss as assessed by the surveyors and also a reasonable allowance for damaged goods” together with liquidated damages for late settlement in terms of section 118 of the Insurance Ordinance, 2000. 3. In CPLA No.1192 of 2017, Insurance Ombudsman directed the Insurance company to pay Rupees one million to the insured with liquidated damages vide order dated 9.8.2007 petitioner Commission dismissed the appeal and maintained the order of the Insurance Ombudsman. 4. In CPLA 1193 of 2017, the Insurance Ombudsman vide order dated 16.12.2008 directed the insurance company to settle the claim amicably within thirty days. After survey report, the Insurance Company offered Rs.500,000/- towards the settlement of the claim, which was not accepted and ultimately matter went up before the petitioner Commission and order was maintained. 5. All the three Insurance Companies challenged the order passed by the Federal Insurance Ombudsman, through three different Writ Petitions, which through impugned Judgements all dated 16.01.2017, were allowed essentially on the ground, inter alia, that the Insurance Ombudsman had no jurisdiction to adjudicate the claim arising out of Insurance Policy, as such were not the cases of maladministration; and conclusion drawn by the Securities & Exchange Commission of Pakistan, to the contrary, Civil Petitions No.1191, 1192 and 1193 of 2017 3 was also set-aside. It was further held that the claim of the insured falls within the jurisdiction of the Insurance Tribunal. 6. When learned counsel was confronted as to how the Petitioner, being appellate adjudicatory authority could impugn the judgment of the High Court; it was contended that office of the Federal Insurance Ombudsman, has been created to remedy the complaints and protect the interest of insured at the hands of the Insurance Companies that indulges in maladministration and, cause undue delay in settlement of or, avoidance in payment of the insurance claim. Learned Counsel concedes that insurance cover in all the three cases is not disputed, survey has been carried out and loss in each case has already been assessed. Learned Counsel for the Petitioner concedes that to his knowledge the insured have not assailed the order of the Lahore High Court. 7. Heard the arguments and perused the record. It may be observed that Office of Insurance Ombudsman was established under section 125 of the Insurance Ordinance, 2000, jurisdiction. Function and powers of Federal Insurance Ombudsman are enumerated in section 127 ibid and it is only on the complaint of “any aggrieved person” Insurance Ombudsman may under take investigation against “any insurance company” on the allegation of “maladministration” as defined under sub-section (2) of section 127 ibid; In case complaint is found to be justified the Insurance Ombudsman may make recommendation of the nature provided for under section 130 thereof. In terms of sub-section (2) of section 130 ibid; only “insurance company” or “official of a Insurance company” or a “complainant” aggrieved by an order passed by the Insurance Ombudsman may file an appeal with the Securities and Exchange Commission of Pakistan (SECP). It may be noted that the SECP, under the Insurance Ordinance, 2000, is the final adjudicatory and appellate authority provided under the Insurance Ordinance, 2000 against the recommendatory order of the Insurance Ombudsman. 8. Insurance Ombudsman being investigatory and recommendatory authority and the SECP, being final appellate authority against the recommendatory order of Insurance Civil Petitions No.1191, 1192 and 1193 of 2017 4 Ombudsman and performs judicial function within the parameters laid down under the Ordinance, 2000. Insurance Ombudsman, after passing an order, on a complaint made by ‘any aggrieved person’ against ‘maladministration’ of insurer, becomes functus- officio; likewise, SECP being final adjudicatory and appellate authority against the order of Insurance Ombudsman after passing an order on appeal becomes functus-officio. Any order passed by the Insurance Ombudsman, which has not been appealed against, or any order passed by the SECP in appeal, as the case may be, becomes final and enforceable against the insurer, unless the complaint is dismissed or in cases where any party aggrieved (as defined under subsection (2) of section 130 ibid:), by order of appellate authority, may invoke jurisdiction of judicial review of the High Court under Article 199 of the Constitution of Pakistan. Since original investigatory or appellate authority are independent and impartial forms have no adversarial interest against either of the contesting party (i.e. insurer or insured) before it. While performing such functions the Ombudsman and the SECP in fact are discharging their respective duty to probe into complaint of maladministration and settle rights and obligations against the parties in conflict before such forum. The statutory authority, may it be exercising its original or appellate functions under an enactment cannot challenge the order passed by the higher judicial forum either created under the law or constitutional dispensation under Article 199 of the Constitution, 1973 whereby and whereunder its judgment and or order is reversed or modified. 9. Role of SECP as an appellate authority under the Insurance Ordinance, 2000 is independent and non-patrician, in a dispute between insurers and insured. Any order passed by the Insurance Ombudsman, which has not been appealed against, or an order passed by the SECP in appeal as the case may be, is final and operative. In case insurance company, or the official of an insurance company or complainant is aggrieved by the decision of SECP, only course available to an aggrieved party is to invoke jurisdiction of judicial review of High Court under Article 199 of the Constitution. Neither the Insurance Ombudsman nor, SECP is required to come forward to justify and or defend it order before Civil Petitions No.1191, 1192 and 1193 of 2017 5 the High Court or Supreme Court as the case may be, it is for the person aggrieved to pursue the remedy any further. One may see case of Syed Yakoob v. K.S.Radhakrishnan and Others, (AIR 1964 Supreme Court 477), in which case it was held that the Tribunals are not supposed to defend its own orders unless allegations are made against them, one may also see Mohtesham Mohd. Ismail v. Spl. Director Enforcement [(2007)8 Supreme Court Cases 257], and M.S. Kazi v. Muslim Education Society and others [(2016)9 Supreme Court Cases 263]. 10. Besides on the merits, we are extremely doubtful whether the petitioner being appellate adjudicatory authority could challenge the order passed by the learned Bench of the High Court in purely adversarial proceeding by and between the policy holders and the insurance companies. The policy holders so far have not challenged the findings recorded by the learned Bench of the High Court, Impugned order, if at all challenged by the policy holder may be examined. Accordingly, finding no merits leave is declined and these petitions are dismissed. Judge Judge ISLAMABAD, THE 12th February, 2018 arshed Approved for Reporting

1 4 IN THE SUPRE COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE JAMAL KHAN MANDOKHAIL civil Petition No.1193/?020 n appeal from the Ordor dated 112.2020 passed by the Lahore High Court. Lahore fl (O C,R.No.76197/2019) Misbah Khanum ..Petitioner Versus Karnran Yasin Khan and another ...Respondeflts For the Petitioner Mr. Kamrafl Murtaza, Sr. ASC Respondent-i.: Mr. Rashid Mehmood SindhU ASC Respondent-2 Anis-Ud-Din, ASC Date of hearing: 26,10.2021 JUDGMEfl MAZHAR ALAM KHA.N M!ELJ.. The Respondent No.1 filed a suit against the present Petitioner for specific performance of an agreement to sell dated 27 September, 2012 regarding a residential house built upon Plot No.143/B situated in Nazimabad, Faisalabad, owned and possessed by present Petitioner i.e. Mst. Misbah Khanurn (Misboh Aziz). The Respondent No.2 (the real son of the petitioner) appearing as a special attorney in the said ease, recorded a conceding statement before the Trial Court and on the basis of that Civil Petition No. 1193/2020 2 statement, the Court passed a Decree in favour of Respondent No.1 vide its Judgment dated 9th October, 2013 (the Decree laterly drawn on 14th March, 2014 and such delay per Se will have no adverse effect on the matter before us) subject to payment of balance sale amount of Rs.6,00,000/- (Six Lac) within a month. The Respondent No.1, despite decretal of his suit, filed an Appeal by alleging that his payments made earlier, amounting to Rs.36,00,000/- (Thirty-Six Lac) have not been referred to in the Judgment. The Appellate Court allowed the Appeal of the Respondent No.1 vide its Judgment dated 23rd January, 2014 (the Decree in Appeal, too was drawn laterly on 9"' December, 2019 but this delay will also not affect the merits of the case before us) that too on the basis of yet another conceding statement of the even date, made by Respondent No.2 as attorney of present Petitioner by confirming the receipt of balance amount of Rs.6,00,000/- (Six Lac). It is not out of context to mention here that the Decree Sheet in Appeal was not prepared by the concerned Clerk at the time of decision of Appeal and the same was got prepared on the basis of a separate Order dated 9 th December, 2019 of the Appellate Court passed on the application made by Respondent No.1 in this regard as the Order of the alleged acceptance of Appeal was not being executed in absence of the Decree Sheet. The delayed preparation of Decree Sheets (bcth the Thai Court and the Appellate Court, as stated above, will have no bearing on the merits of the case before us and is immaterial. 2. The Respondent No.1, after getting Decree in his favour by the Appellate Court filed an execution petition dated 19th February, 2014. The Petitioner on getting knowledge of the Decree against her, initially filed a suit for declaration, challenging the Civil Petition No. 1193/2020 3 a very agreement to sell dated 27th September, 2012, special power of attorney in favour of Respondent No.2, her real son. This suit of the Petitioner was rejected vide Judgment and Decree dated 4th January, 2017 under Order VII Rule 11(d) of Code of Civil Procedure, 1908 (CRC.) being barred by law (Section 11 C.P.C). However, the learned Judge in its Judgment ibid, made a reference regarding pendency of an application under Section 12 (2) C.P.C. Filed by the present Petitioner. But the record available before us would reflect that the said application under Section 12(2) C.P.C. was against the initial Decree for specific performance of agreement and the same after a full-fledged trial and at the time of final arguments, was dismissed as withdrawn subject to payment of costs of Rs.15,000/- vide Order dated 18th October, 2019 as yet another application at the same time with the same relief i.e. under Section 12(2) C.P.C. was pending adjudication before Additional District Judge, Faisalabad wherein the Decree of the Appellate Court was challenged. 3. The learned Additional District Judge, Faisalabad after hearing the parties, dismissed the said application under Section 12(2) C.P.C. vide its Judgment dated 9th December, 2019. The Petitioner feeling aggrieved, filed a Civil Revision before the High Court but this too, met the same fate of dismissal by the learned Judge in Chambers of the High Court vide impugned Judgment dated 11 th February, 2020. 4. The Petitioner still not satisfied, has questioned the impugned Judgment by invoking the jurisdiction of this Court under Article 185(3) of the Constitution of the Islamic Republic of I Civil Petition No. 119312020 4 Pakistan, 1973 through instant Petition for grant of Leave to Appeal. S. We have heard the learned counsel for the parties and have gone through the entire record including the original record of different files requisitioned vide Order dated 21st September, 2020 of this Court. The record of the case would reveal that the Petitioner is an old and illiterate lady who became owner of the house in question way back in the year 2006 and this very fact is not disputed. The dispute/ controversy in hand, arose when she got knowledge about the transfer of her house through a Decree for specific performance in favour of Respondent No. 1. After getting this knowledge, (though no specific date of knowledge apparently reflects from the record but all the proceedings initiated by her i.e. the civil suit and both the applications under Section 12(2) C.P.C. are within the prescribed period of limitation, so, non-mentioning/non-appearance of exact date of knowledge would become immaterial as date of knowledge is normally required for calculating the period of limitation). No doubt, on the basis of legal advices available to her, she filed a civil suit referred to above and also an application under Sectionl2(2) C.P.C. before the Trial Court which, ultimately was dismissed as withdrawn, as referred to above, because of pendency of yet another application under Section 12(2) C.P.C. before the Appellate Court. The reason for filing two different pplications might be on the assumption that there is no legal Civil Petition No. 119312020 5 bar in availing two or more available remedies even before different forums simultaneously and whichever is decided earlier would make the other/others redundant/infructuous or because of a legal apprehension in her mind regarding the appropriate/ultimate forum for filing of an application under Section 12(2) C.P.C. in view of the Judgment of this Court in the case of Maharunisa v. Ohulam Sughran (PLD 2016 SC 358) as there was yet another Decree of the Appellate Court dated 23rd January, 2014 which finally decided the controversy between the parties and the Judgment and Decree of the Trial Court was merged in the latter Judgment and Decree of the Appellate Court. In view of law laid down in the case of Maharunisa supra, the application under Section 12(2) C.P.C. before the Appellate Court was maintainable. Withdrawal of her earlier application under Section 12(2) C.P.C. before Trial Court and rejection of her Civil Suit will have no adverse effect on her instant application under Section 12(2) C.P,C. before the Appellate Court. It is also settled law of the land that there is no legal bar for a party to avail two or more available remedies under the law simultaneously and a decision in any one of such remedies availed would render the others as infructuous. 6. While coming to the merits of the case in hand, the Petitioner has alleged fraud and misrepresentation for which, once she filed a civil suit and also an application under Section 12(2) C.P.C. before the Trial Court and also approached the Appellate Court by challenging the Decree in Appeal through a separate application under Section 12(2) C.P.C. would show that fraud has Civil Petition No. 119312020 been committed with her and that too, by her husband and the son by managing to get executed an agreement to sell, a deed of special power of attorney and then by making a conceding statement in the Court by her son on the basis of a special power of attorney which she had categorically denied. She in her statement recorded as AW-1, in the proceedings under Section 12(2) C.P.C. before the Trial Court (though withdrawn by her after the trial but it was between the same parties and making its reference would cause no prejudice to any of the party and is also available on the file, so, this Court, in the circumstances, can take judicial notice of the same to do complete justice between the parties) had categorically stated about a similar fraud by the same persons regarding her other property i.e. a shop, regarding which litigation was also pending between the parties and said fact was also not confronted or cross-examined which means, the Respondents had nothing to say anything in denial or rebuttal. Yet another stance giving support to her allegations, is the Decree for dissolution of her marriage which resulted after all the mess referred to above occurred: That she was so dis-hearted that she went on to break the marital bond with her husband. Her son and the husband never appeared before the Court in rebuttal of her allegations before any forum. The Respondent No.1 remained in contest throughout and this aspect alone would be sufficient to support the allegations of Petitioner. 7. The most important legal aspect of the case which went an-noticed by the Courts below is that the alleged transaction was shown to be with an elderly, illiterate lady and the I Civil Petition No. 1193/2020 7 PI Respondent No.1 being a beneficiary of the entire episode was legally bound to prove the genuineness of the alleged transaction in his favour. Law of the land places a heavy burden on the person who is ultimately on the receiving end in such like transactions. The said burden, as per record, has not been discharged by the Respondent No.1 at all. The record would suggest that the initial Decrees from both the Courts were based on the conceding statements made by the son of the Petitioner, the alleged special attorney on her behalf. The power of attorney present on original file of the main suit for specific performance was even not exhibited at the time of recording of the conceding statement of the alleged attorney, who happens to be her son. Even at the time of acceptance of Appeal, the photocopy of the said power of attorney was placed on file but was not referred to or exhibited at the time of recording that statement of the alleged attorney. Even reference of the same was not made in the statement nor in the Order of the Court. Such an authorization which lacks legal proof has no evidentiary value and cannot be relied upon and considered in evidence. Both the conceding statements, before the Trial Court and that of the Appellate Court can at the most be considered as the statements of 'Mud assar Ahmad Khan' (Respondent No.2), himself and not as an attorney of the lady, his mother. The document which is denied and under the contest, even if available on the file/record cannot be looked into by the Court unless the same is tendered in evidence, exhibited and proved in accordance with law. This, in other words, would mean that there was no power of attorney before the Court to look into. The Suit or the Appeal was never contested. During the proceedings under Section 12(2) Civil Petition No. 1193/2020 S -t C.P.C. execution of both the documents, agreement to sell and the special power of attorney was categorically denied by the Petitioner. The agreement to sell in favour of Respondent No.1 was not legally proved as per requirements of Article 79 and other enabling provisions of the Qanun-e-Shahadat Order, 1984. If there was no contest in the main suit and a categoric denial and a hot contest in the proceedings under Section 12(2) C.P.C. then it was for the Respondents to have proved both the documents in their favour as they were the persons to get benefits on the strength of these documents. Payment of sale consideration of Rs.42,00,000/- (Rs. Forty-Two Lac) has been alleged but the same has also not been proved in accordance with the law. There is not an iota of evidence which could reflect that the alleged sale consideration was ever received by the Petitioner. This aspect of the case alone would be sufficient to nullify the Decrees in favour of the Respondent No.1. These are the sufficient examples of fraud and misrepresentation for the purpose of an application under Section 12(2) C.P.C. Even one of the ground of the three, if established on the record, would be sufficient for setting aside such an Order, Judgment and Decree etc. 8. The most important legal aspect which goes to the root of the case is that the initial Decree on the basis of the Judgment dated 9th October, 2013 was a conditional Decree. The Respondent No.1 though was granted a Decree for specific performance but the same was subject to payment of balance amount of sale consideration amounting to Rs.6,00,000/-(Rs.Six Lac) within thirty days (starting from the same date) and his failure in this respect was Civil Petition No. 1193/2020 sufficient enough for dismissal of the suit in the light of an unambiguous Order and legally no further Order for dismissal of the suit was required. The record of the case would further reveal that despite decretal of his suit, Respondent No.1 filed an Appeal before the District Judge on 8th November, 2013. This Appeal was against the Judgment and not against the Decree and non-filing of Decree sheet even was not dispensed with by the Court, is sufficient enough for its outright dismissal. It was in clear violation of the mandatory provisions of Rule 1 of Order XLI of C.P.C. It was for the office to have reported for such deficiency. This Appeal, despite the above deficiency, was allowed once again on the conceding statement made on 23rd January, 2014 by the alleged attorney, none else but her son Mudassar Ahmad Khan, that he has received the balance decretal amount of Rs.6,00,000/- (Rs.Six Lac) and has no objection on acceptance of Appeal. Appeal was allowed accordingly on the same day. Relevant text/Order is reproduced here-in-below for ready reference:- "In view of statement of above and in the interest of justice, the instant appeal is accepted, as a result of Which, the suit of the appellant stands decreed in favour of the appellant/plaint ff and against the respondent/defendant. There is no order as to cost. Copy of the order along with record of trial Court be sent back and file of appeal be consigned to the record room after completion, within stipulated period. Announced: 23.02.2024 Sd/ - JamilAhmadCH. Add!. District Judge, Faisalabad". Civil Petition No. 119312020 10 9, No Decree Sheet was drawn in the light of above Order of acceptance of Appeal. In absence of the Decree Sheet, execution was not possible. So, the Respondent No.1 was compelled to file a separate application before District Judge for preparation of a Decree Sheet and ultimately Decree Sheet in Appeal was ordered to be drawn on 9th December, 2019. His application in this regard reflects that he has categorically written in Para-2 of the application that he failed to deposit the decretal amount within the prescribed time (Page 117 of Paper-Book of C.P.No, 1193/2020). The record would further reveal that the operation of the initial Judgment dated gth October, 2013 of Civil Judge was never suspended by the Appellate Court. Since the original Appeal file was not available along with other available files, so the same was requisitioned through a special messenger. The record of the Appeal file makes it abundantly clear that there was no stay Order and operation of the impugned Judgment of 9th October, 2013 was never suspended. The relevant documents reflecting the date of filing of Appeal and all the Order Sheets are scanned herein as part of this Judgment for ready reference: - (Scanned documents overleaf.) Civil Petition NoAI93/2020 I! NJ - I •7.- In) 7IV - i1 if So, o ......................-; - •& .ly " ErtrIClA). /1 ) . .. , SkI)JlC.J5ti)LJj)(i3OJ.144J6UO,OOO/d Oiclrt9 Ju4. Fais4.aad. I' 09 10 2013 I 143/AL Civil Petition No.) 193/2020 12 p - i_ •it__ - I 2013 NOV I It is afrsh apøeai. let it be registered.0 8 NOV 2013 08.112013. Present: Cou' isel for the appe}lant, 1-b; tile pertains to the court of Mr. Imtiaz Hussain, learned Addi District Judge, Faisalabad who ison leave today and the rile was pit up before me as Duty Judge. 2. tiEs clvil appeal has been hed against the crier daceG 09 10-2013 pa;sed by Mr. Mumtaz Abmad, learned ',Civil' iUdQr Faisalabad 'rhereby he decreed the suit subject to the condition that the plaintiff will deposFt the rrnnainin; consideration amount of RS lacs within 0 days. 3 'tow to come up for prolimir1ary/rgUrfleflLc for IL-li- 2011 Announced, ) 08.11203 (Mci!wrnnfl?nlad Aflithan), Duty )ndg.j/Mdl: üiWi Judge, -- rMalab'th Civil Petilion No. 1193/2020 13 1 1 I:hJ I. %'fi=* c-<vc rj,3$/ Ice e <tT7 41 1: 'L 3 NOV 2013 lip - h2-1 c4C& Ad It •J— -? F 10 DEC 201a - - .v .t • 17.12.2013, Present: Mr. Sardar H atfs A]::d Amin Adv ibr appellant. Mr. Frliwi Solcftfl Adv. fik I Wa.kJ, L Name on behalf of respondeits. Prelinijnn' arau nats heinj. Points raised by .enrnd Cu, he! if appellant in die instant appeal needs consideration, hence in Ow ntre of u.lic, instant appeal is adrniiled for regular hearing jo come t.ji lor iruin.'s an 110,1 .204. Record of learned lriI Cc,ur be also summered ft;r tic daa, [;%cd Announced 17,12.2013, JAMUI AHMAD CU, Au D,stn' Judge r F,i,soS,ad. Jc5sbci't j1 y7 -v 4of HyF!L4 Civil Petition No.] 193/2020 14 Li J 23JA N 2O14 N } cJ k c>flA2 A,bJj• Dktrick4k':. C 'arJ' c& 0 //y'4S' 4 O!tRC A / 7 a'amAL4BAD. /:. . OItDER. In UCW 01 t.ilji1C ii U! ;t;ce wJ ii l' ! i L! ( ci usLce. Q\i l 'U I appeal is iccepted. as a ft 'Pt olv flLh lic 41 tile appcflant Suli üi Ihvourof thc ppeIiaIit :iaiiitiflind igint thcpnLICIflhdCfrnda1t is no order as to cost. (oyv ol tbt order iloiig" reord of trial Cnirl cui \ back and III , or appeal be cOib i.ed to the rec .10111 ailer cumpIcti. wiihin stipulated 'eriot!. Announced: 23.012014. JAMtL ARMW CII. AdUI. Di , Judge. Civil Petition No 119312020 15 This makes it clear that the balance decretal amount of Rs.6,00,000/- (Rs.Six Lac) was neither deposited within thirty days of the Judgment dated 9 th October, 2013 nor the same was ever suspended by the Appellate Court. This non-compliance would mean that the suit of the Respondents stands dismissed. Once the suit stands dismissed, the conditional Decree also gets buried with the suit. The acceptance of Appeal on 23rd January, 2014 on the conceding statement of the alleged attorney (much latter than the specified period) can in no way resuscitate the already dead suit. Before passing of the Decree in Appeal on 231d January, 2014, the original Decree of 9th October, 2013 had succumbed due to its non-compliance within the given time. But this important aspect of the matter was concealed and ignored by the so called attorney and even not taken note of by the Court itself. It was also for the Appellate Court to have asked for compliance of the Order of deposit of balance amount. If the so called attorney was sincere to his principal (his mother) he would have straight away taken the plea of dismissal of the suit due to non-compliance of the Decree within the stipulated time. It appears that the Appellate Court has acted in a mechanical manner without application of its judicial mind. The Court while deciding a matter, even on compromise or on a conceding statement, has to see the legality and genuineness of the issue brought before it. Acting in a mechanical manner without application of judicial mind is not expected from a Judicial Officer. This would also paint a picture of his competence and conduct. This in other words means, playing with the rights of the people which cannot be expected from a Judicial Officer. In the . given circumstance, the suit of the Respondent No.1 stands Civil Petition No. 1193/2020 16 dismissed. No Decree in his favour remains intact in the eye of law. Petitioner's ownership automatically stands restored with the dismissal of the suit. We, in the circumstances, for safe administration of justice, would like to observe that as per record, the apparent alleged transactions, if any, were between the Respondent No.1 and the Respondent No.2, the alleged attorney, and if there is any exchange of money or agreement to sell due to their mutual connivance and understanding, that would be between them alone by excluding the Petitioner. 10. Perusal of the impugned Judgments, especially that of the Additional District Judge, is based on surmises and conjectures and without any legal footing. It can in no way be termed as a legal Judgment. Acceptance of Appeal by the Additional District Judge in such a cursory manner would encourage such type of people to play with the rights of the others. Such type of Decrees cannot be given protection by the Courts where the rights of a third party like the Petitioner are going to be affected. 11. For what has been discussed above, this Petition is converted into Appeal and allowed. Consequently, impugned Order/Judgment of the High Court and Appellate Court, dismissing the application of the Petitioner under Section 12(2) C.P.C. are set aside and the said application of the Petitioner under Section 12(2) C.P.C. stands accepted and allowed. Resultantly, the Order/Judgment dated 231d January, 2014 and its Decree, latterly drawn, on 9th December, 2019 of Additional istrict Judge, Faisalabad are set aside in view of the above I I Civil Petition No. 1193/2020 U t. discussion. The Judgment of the Civil Judge dated 9th October, 2013 and its Decree, latterly drawn, has died its natural death due to its non-compliance which simply means there is no Decree in the field. Needless to mention that by accepting application under Section 12(2) C.P.C. and setting aside the Judgments and Decrees of both the Courts, (the Trial Court and the Appellate Court); we are not going to send back the suit for specific performance for a trial afresh, as the suit itself stands dismissed for non-compliance of the Judgment dated 9th October, 2013 and the Decree arising thereof. These are the reasons of our short Order dated 26" October, 2021 which is reproduced here-in-below: "For reasons to be recorded later, this petition is converted into appeal and allowe&. (If the Judges of the Thai Court and the Appellate Court are still in service then copies of this Judgment be tent to them). Islamabad, 266h October, 2021 Sarfraz /- Approved for reporting'

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Dost Muhammad Khan Mr. Justice Qazi Faez Isa Civil Petition No.1282 of 2014 (Against the order dated 20.06.2014 of Lahore High Court, Rawalpindi Bench passed in Writ Petition No.1194 of 2014) Haider Ali & another Petitioner(s) VERSUS DPO Chakwal & others Respondent(s) For the Petitioner(s): Syed Rafaqat Hussain Shah, AOR with Haider Ali petitioner No.1 On Court’s notice: For the Federation: Mr. Sohail Mehmood, Dy. Attorney General, Syed Nayab Hassan Gardezi, ASC/Standing Council For Govt. of Balochistan: Mr. Tariq Mehmood Butt, Prosecutor General Mr. Muhammad Ayaz Khan Swati, Addl. AG Syed Parvaiz Akhtar, Dy. Prosecutor General For Govt. of KPK: Mr. Mujahid Ali Khan, Addl. AG For Govt. of Punjab: Mr. Razzaq A. Mirza, Addl. AG Ch. Zubair Ahmed Farooq, Addl. PG For Govt. of Sindh: Mr. Shehryar Qazi, Addl. AG Date of hearing: 04.09.2015 ORDER Jawwad S. Khawaja, CJ.- The facts of this case are all too typical for our criminal justice system. A party to a family dispute, which appeared to be of a civil nature, filed a compliant with the police to allegedly pressurize the other party. The police initially (presumably in good-faith) rejected the complaint. The party then attempted to have the case registered through the Justice of Peace. This application was also denied. Thereafter, a writ petition was filed, on the basis of which the High Court ordered investigation of the case. What culminated thereafter was a series of appeals and petitions taking the matter right up to the Supreme Court. 2. When the case came up for hearing before us, the unsatisfactory state of affairs was apparent. We were perplexed to note that the police failed to register the FIR on the CP 1282 of 2014 2 complaint being filed, even though the provisions of Section 154 Cr.P.C. do not provide them any discretion in deciding whether or not they can register a FIR. Numerous judgments of this Court have also reaffirmed this principle. If the complaint was indeed false and vexatious, as the petitioner alleged, then the police should have filed a case against the complainant under the relevant provisions of the Pakistan Penal Code. However, the relevant officials chose not to do this and instead pushed the parties into various rounds of litigation involving a simple issue of whether the FIR should be registered. Similar maladministration was noted in the police investigation. Neither the challan had been submitted within the stipulated period of fourteen days nor was there any valid or apparent reason as to why the investigation of the case had not been concluded. It was clear to us that such unjustified delays created room for wrongdoing. What made the matter worse is that there were no effective safeguards within the police to guard against such maladministration. And there was no accountability. 3. It would be an under statement to say that the state of our criminal justice system which led to this case, and many others like it, is deficient. The majority of human right cases which come before us concern in one way or another police abuse of powers or inefficiency. Even as we heard this case, we noted many instances of police excesses. These numerous complaints cannot be adequately dealt with by the apex Court nor is it the primary function of the apex Court to probe into the transparency or honesty of police investigation. This is a function which has to be performed by the Provinces and by the Federation. Ineffective investigation and weak prosecution is similarly another matter which has created deep ruptures in our justice system and which we identify on a daily basis. Therefore, seeing how this matter is recurrent, of great public importance and directly related to the fundamental rights of the citizens at large, we issued notices to the Federation and the four Provinces to submit a comprehensive and effective plan which CP 1282 of 2014 3 would be necessary for ensuring that the grievances of citizens are redressed at their doorsteps in the shortest possible time and that instances of wrongdoing or maladministration are dealt with promptly. 4. At our request Khawaja Haris, learned Sr. ASC agreed to assist us. He reviewed the reports submitted by the Provinces and also solicited suggestions and proposals from the Advocates General, Prosecutors General, Secretaries Prosecution and Inspectors General of Police, as well as from some of the eminent retired civil servants who had served in the Police or the Prosecution Department. 5. In response thereto, a number of suggestions and proposals were received by Khawaja Haris, learned Sr. ASC and the same were placed on the record through C.M.A. No.1014/2015. Thereafter, on the basis of the suggestions and proposals so received, Khawaja Haris, learned Sr. ASC, formulated 72 questions considered to be relevant for purposes of ensuring effective redressal of complaints, fair, honest and effective investigation and for ensuring accountability of the police. These questions were then forwarded to all the aforementioned officials of the four Provinces and the retired civil servants. Their responses were placed on the record of this Court through C.M.A. No. 1457/2015. The learned Sr. ASC also provided his own proposals with respect to the subject matter through C.M.A. No. 3710/2015. Based on our directions, Mr. Sarwar Khan, Secretary Law & Justice Commission of Pakistan, also submitted his report on the issue with suggestions through C.M.A. No. 5569/2015. 6. A bare overview of the above mentioned reports and the numerous responses we received from the various state officials during the course of this case, would be enough to show that there are a number of fundamental issues with our criminal justice system. Everyone admits as such. Even the learned Prosecutor General Punjab admitted before this Court that the Government is “aware that steps have to be taken to ensure that the police and CP 1282 of 2014 4 prosecution departments which are meant to ensure the enforcement of the law fairly and honestly, do not in fact become instruments of oppression of the public at large”. While admission of fault is the first step towards making amends, our concern is that despite appreciation of the problem no effective steps have been taken to enhance the efficiency and competence of the concerned government departments. What is more troubling is that certain key issues faced by our justice system could be addressed instantly, in some cases through administrative measures and in others through legislation. 7. It may be useful at this stage, to refer to some of the key issues which were highlighted before us. For ease of reference, we have categorized the issues based on whether they relate to: (i) pre-investigation stage (registration of FIR); (ii) investigation stage; (iii) prosecution and trial; and (iv) accountability and transparency. A. Pre-investigation stage (registration of FIR) Any person familiar with the workings of a police station in Pakistan knows that the provisions of Section 154 Cr. P.C. are flouted and misused. Section 154 Cr. P.C. provides, inter alia, that every information given to an officer in charge of a police station relating to the commission of a cognizable offence, whether given in writing to him or reduced in writing by an officer in charge of a police station, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. While this provision is mandatory in nature, often the concerned police station refuses to register the FIR even if the information provided to it relates to the commission of a cognizable offence. Khawaja Haris, learned Sr. ASC, noted in his report that in the year 2011 alone, out of 419,365 FIRs lodged in the Province of the Punjab, 28,787 (approximately 7%) were registered pursuant to orders of the Justices of Peace under Section CP 1282 of 2014 5 22-A (6) of the Cr. P.C. What is astonishing is that despite orders of the Justices of Peace, FIRs were not registered in 554 (approximately 2%) cases. It is thus clear that a number of persons suffer and are pushed into litigation because of failure of the police to register the FIR. Litigation too, it seems, does not guarantee relief. The Justice of Peace cannot issue coercive process for compliance of his orders. At best, learned Sr. ASC submits, the Justice of Peace can refer the matter to the higher officials of police for taking actions against the defaulting SHO under Article 155 of the Police Order, 2002, but such a direction to proceed against the official for misconduct is rarely implemented. Another issue at this stage is the registration of false or vexatious complaints to pressurize and harass people. While, the Pakistan Penal Code provides for measures through Sections 182 and 211 to discourage and punish false complaints, it is common knowledge that very few cases involving such offences are filed and prosecuted. This must be unacceptable, especially given that Section 154 of the Cr.P.C. requires mandatory registration of FIR. If the Police therefore has no discretion in registering an FIR, action must be taken against those who abuse this provision of law and use the police as an instrument for their designs. B. Investigation stage While the registration of a FIR is mandatory, initiating investigation is not. Reading section 156 Cr.P.C with section 157 Cr.P.C. it appears that the officer in charge of a police station shall proceed to initiate investigation of a case only where, inter alia, from information received, he has reason to suspect the commission of an offence. This interpretation is further fortified when we read clause (b) of the proviso to sub-section (1) of section 157 Cr.P.C, which provides CP 1282 of 2014 6 that “if it appears to the officer in charge of a police station that there is not sufficient ground for entering on an investigation he shall not investigate the case.” Yet, what we often find is that on registration of a FIR, the relevant police officer without application of mind directly proceeds to arrest the accused. We have held time and again (see for instance Muhammad Bashir’s case (PLD 2007 SC 539), that the police should not move for the arrest of the accused nominated in the FIR unless sufficient evidence is available for the arrest. Yet to our dismay we have to deal with such matters on a daily basis. Perhaps, as some of the reports referred to above point out, the issue lies in the fact that there are no real guidelines available to the police which would channel their discretion and judgment. This coupled with their lack of training, makes defective investigation almost a near possibility. In this regard, it is instructive to note the following observations of Khawaja Haris, learned Sr. ASC in his report: “It is indeed a fact that even today an officer investigating a case of murder has no concept of (1) securing the scene of the crime so that the place where the occurrence has taken place as well as the surrounding area is not trampled or invaded by the general public before the investigation officer has had an opportunity to collect evidence from the place of occurrence, (2) how to secure incriminating articles, likes pieces of cloth, blood, fiber or hair etc from the place of occurrence and its surrounding area, (3) how to lift and secure fingerprints from various articles found inter alia at the scene of the crime and to get them examined and matched for purposes of investigation, (4) how to ensure that all incriminating articles are properly secured from the spot and delivered promptly and intact to a forensic laboratory and/or fingerprints expert in safe custody and without being tampered with, and to expeditiously CP 1282 of 2014 7 obtain the results from the forensic laboratory so as to be credibly admitted in evidence during the trial.” The lack of training and emphasis on the development of specialized investigation officers and facilities, is perhaps indicative of the wider issue in policing: the police it appears is still largely used to secure the interests of the dominant political regime and affluent members of society, rather than furthering the rule of law. As a result, where, even in this debilitating environment, an honest and competent investigation officer is found, his work is thwarted at one juncture or another. C. Prosecution and trial In our order dated 15.01.2015, we noted how at least in the Punjab more than 65% of criminal cases do not result in conviction. The learned Prosecutor General Punjab also stated that in even those cases where a person has been convicted by the trial court, a substantial number are acquitted by the appellate forums. These figures are indicative of weak investigation and gathering of evidence which we noted above, but are also a result of serious deficiencies in our prosecution system. The following issues among others were highlighted by the various parties in this respect: i. Lack of cooperation between the police and prosecution at the investigation stage: there appears to be no standardized SOPs which guide the relationship between prosecutors and police officers and allow them to aid each other in the fair and timely investigation of the case. ii. Lack of training and competent prosecutors: prosecutors are not provided proper training and facilities. In addition, competent prosecutors because of lack of incentives resign from their service for better opportunities. There also appears to be no effective quality review system in place to check underperforming prosecutors. As a result, the best prosecutors are not being retained in service. CP 1282 of 2014 8 iii. Protection of witnesses: we have been informed that in many cases the prosecution’s case is damaged as key witnesses resile from their stated position because of pressure from the accused. iv. Adjournment requests by lawyers and delay in fixation of cases by judiciary: the defendant’s lawyer deliberately at times delays resolution of cases. Delays and injustice is also caused as a result of backlog in the judicial system and frequent transfers of presiding judicial officers. D. Accountability and transparency During the course of the proceedings, we directed the Inspector General of Police Punjab to submit figures relating to actions taken against delinquent police officials. As a result, various reports were submitted regarding actions taken against delinquent police officials on the recommendation of the prosecution department. An overview of these reports would make two things clear. First, we noted that the figures submitted in these reports kept changing. We assume that such changes were made in good-faith to present the correct position before this court. But this exercise at the very least lays bare the attention which senior police officials place towards delinquents within their ranks: they did not even have for ready reference an accurate collation of complaints against police officials! Second, even if we accept the most conservative figures of complaints submitted before us, we note that in only 20 cases was some form of major punishment (reduction in rank and pay) awarded to delinquent officers (in another report this figure was stated to be 10). We must therefore ask whether sufficient measures are being taken by senior police officials to deter delinquent behavior and misconduct by police officials. It was also noted by us that the systemic accountability forums which were created pursuant to the Police Order, 2002, in the form of National and CP 1282 of 2014 9 Provincial Public Safety Commissions and Police Complaints Authority are either inactive or not operational. Transparency in policing activities is another major issue. Public money is used to finance the police, which in turn is supposed to deliver services to the public. At present however information regarding funds allocated to the police, police plans and annuals performance reports are not publicly available. How then are the public and state functionaries supposed to properly examine (and if required make changes to) the delivery of this important public service, if the relevant facts and figures are not available to them? 8. The issues noted above can be addressed, provided there is political and administrative action to transform the police and prosecution into an effective public service. There are many examples where we have seen this. The Police Order, 2002, is one such example of political will aimed at transforming the police. During the course of these proceedings, our attention was also drawn to various initiatives taken by the Punjab and KPK Governments towards making the police an effective public service. Regrettably however such actions are few and far between. Even in the case of the Police Order, 2002, it is discouraging to note that after the passage of the 18th Amendment, the provinces of Sindh and Balochistan abandoned the Police Order and shifted to a policing regime which is reminiscent of colonial times where the police was used to keep the ‘natives’ on a tight leash. 9. In some of our earlier orders, we have noted the high degree of political and administrative apathy which has translated into the failing criminal justice system before us. It must be emphasized that the failure to address individual grievances of citizens causes frustration amongst them which, in turn, may lead to lawlessness. It also needs to be emphasized that a functioning criminal justice system is directly linked to the enforcement CP 1282 of 2014 10 and realization of various fundamental rights of citizens such as Article 9, 10, 10A, and 14. We can no longer stand idle as the nation suffers. It is therefore directed as under: i. A universal access number (UAN) and website should be provided to the general public for filing of complaints. The said website should be developed and be operational within three months from the date of this order. Till such time that the website has been launched, the provisions of Section 154 Cr. P.C. should be strictly adhered to and action should be taken against any police official who fails to abide by the said provision. ii. Serious notice should be taken of frivolous, false or vexatious complaints and where applicable cases should be registered under Sections 182 and 211 of the Pakistan Penal Code. iii. The principles laid out in Muhammad Bashir’s case (PLD 2007 SC 539) should be strictly followed and no person should be arrested unless there is sufficient evidence available with the police to support such arrest. Where a person is unjustly deprived of his liberty, compensation will be required to be paid to him or her by the delinquent police officer. The affected person may approach the civil courts for appropriate remedy in this regard. iv. Adequate provision should be made for the training of police officers and the development of specialized investigation officers and facilities. In addition adequate funds should be made available to police stations and for investigation activities. The respective Provincial and Federal heads of police shall submit a report in court within three months from the date of this order which details the steps taken in this regard and the relevant police funds and personnel dedicated towards investigation activities, training of police personal, and development of forensic facilities. v. No police officer is to be transferred in breach of the principles laid out by this Court in the Anita Turab case (PLD 2013 SC 195). The respective Provincial and Federal heads of police shall submit a report in Court within one month from the date of this order which specifies the names and details of all police officers above BPS-17 who have been transferred or made OSD over the past three years and also provide reasons for the same. vi. Guidelines/SOPs should be developed to foster coordination between the prosecution and the police. The Attorney General and the respective Advocates General of each province shall submit the said guidelines/SOPs in court within three months from the date of this order. vii. Adequate funds should be dedicated towards the training and development of public prosecutors. The Attorney General and the respective Prosecutors General CP 1282 of 2014 11 prosecutors; and (ii) accountability mechanisms and review systems of public prosecutors. viii. The Attorney General and the respective Advocates General shall submit a report in court within one month from the date of this order on the steps being taken to provide witness protection in their relevant jurisdiction and the funds dedicated for this purpose. ix. The respective bar councils may take appropriate action against lawyers who deliberately seek adjournments with a view to delay trial. Respective district judges are also directed to impose costs on such lawyers and hear criminal cases involving the liberty of persons on a day to day basis to the extent possible. x. Respective heads of police of the Federation and the Provinces shall submit a report within one month of the date of this order which details the relevant police complaints and accountability mechanisms in place and the actions taken under such mechanism against delinquent police officials. This information shall also be made publicly accessible in English as well as Urdu on their respective websites. The Attorney General and respective Advocates General shall submit a report detailing compliance in this respect within one month from the date of this order. xi. Police budgets (disaggregated by district and local police stations, functions, human resource allocation and a statement of their utilization), police plans and annual performance reports shall be made publicly accessible on the respective Federal and Provincial police websites and submitted in Court within one month of the date of this order. The Attorney General and respective Advocates General shall submit a report detailing compliance in this respect within one month from the date of this order. xii. The Attorney General and the respective Advocates General of the Provinces of Sindh and Baluchistan should submit in Court within one month from the date of this order reports which examine the constitutionality of the policing regime established by the Police Act, 1861, currently in force in Sindh and the Balochistan Police Act, 2011 currently in force in Balochistan. This report should inter alia state whether these policing statutes allow the constitution and organization of a politically independent police force which is consistent with the protection of the fundamental rights of citizens. xiii. The Federal and Provincial Ombudsmen should submit in Court within three months from the date of this order, good-administration standards for police stations and should also submit a report which outlines the measures being taken to curb maladministration in police stations. xiv. Provincial Information Commissioners should notify transparency standards relating to police services and functions and submit these standards in Court within three months from the date of this order. CP 1282 of 2014 12 xv. The Law and Justice Commission of Pakistan shall prepare a consolidated report based on the various reports received by the Court till date and the proposals submitted by Khawaja Haris, learned Sr. ASC, detailing the relevant amendments which are required in legislation to improve the criminal justice system. The said report shall be submitted in court within three months from the date of this order. Copies of the said report shall also be sent to the National and Provincial Assemblies. 10. It is so ordered. Let the matter come up for hearing in the 3rd week of October, 2015. Chief Justice Judge Judge ISLAMABAD, THE 4th September, 2015 A. Rehman APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhelo Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.1285 of 2020 (Against the judgment dated 12.03.2020 passed by the Lahore High Court at Rawalpindi Bench in W.P. No.3673/2019) Jahangir Khan …Petitioner(s) Versus Khalid Latif …Respondent(s) For the Petitioner(s): Ch. Abdul Khaliq Thind, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): N.R. Date of hearing: 03.08.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Petitioner is amongst the array of accused, who allegedly kidnapped Khalid Latif respondent along with his wife while the family was on way to Murree. The accused were clad in police uniform and ostensibly arrested and handcuffed the respondent for being an accused in some criminal case registered at Jhelum; they snatched valuables that included cash and gold ornaments. On way to Jhelum, the accused attempted to shift the respondent after crossing Mandra Toll Plaza when a contingent of Highway Patrolling Police was attracted to the scene and rescued the family, however, the accused managed to escape with the loot. A criminal case vide FIR No.249 was registered at Police Station Westridge Rawalpindi under various penal provisions that included section 365-A of the Pakistan Penal Code, 1860, on the basis whereof, a report under section 173 of the Code of Criminal Procedure 1898 was submitted in an Anti Terrorism Court at Rawalpindi. The accused motioned for remission of the case into regular jurisdiction, a request Civil Petition No.1285-2020 2 conceded vide order dated 4.5.2018 by the learned Special Judge Anti- Terrorism Court-II Rawalpindi, however, reversed vide impugned order dated 12.3.2020, vires whereof, are being assailed on the ground that the learned trial Judge had rightly remitted the case for trial in regular jurisdiction as the accusation even if admitted as gospel truth fails to disclose mischief of section 365-A of the Code, an offence exclusively triable by an Anti Terrorism Court. 2. Heard. 3. We have gone through the record annexed with the petition and do not consider it expedient to comment on the merits of the case lest it may cast its shadow upon the outcome of the trial. The High Court has discreetly attended the controversy leaving the fate of the case to be finally decided after recording statements of the prosecution witnesses, a course wisely suggested in the face of accusations leveled by the couple who allegedly endured the ordeal, with an option to the accused to re-agitate the issue afresh on the basis thereof, if need be. View taken by the High Court does not suffer from any jurisdictional error or flaw and, thus, calls for no interference. Petition fails. Leave declined. Judge Judge Islamabad, the 3rd August, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ. MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITION NO.130 & 131 OF 2015 (On appeal against the judgment dated 2.12.2014 passed by the Lahore High Court, Lahore, in Civil Revision No.2577/2014 and FAO No.442/14 respectively) Pakistan Railways, thr. AGM(Traffic) … … Petitioner Pakistan Railways, Lahore (in both cases) VERSUS M/s Four Brothers International (Pvt) … … Respondents Ltd and others (in both cases) For the Petitioner : Sardar Muhammad Aslam, ASC (in both cases) For Respondent No.1 : Mr. Aitzaz Ahsan, Sr. ASC (in both cases) Mr. M. S. Khattak, AOR Date of hearing : 28-10-2015 JUDGMENT AMIR HANI MUSLIM, J.- These Petitions are directed against the judgment dated 2.12.2014, passed by the Lahore High Court, Lahore, whereby Civil Revision and FAO filed by the Petitioner were dismissed. 2. Facts necessary for the purpose of deciding these proceedings are that the Petitioner invited Expression of Interest from qualified parties by floating tender in the National Press, for plying Train between Lahore- Karachi-Lahore on public-private partnership basis. The Respondent being the highest bidder was declared successful and awarded the contract. The C.Ps.No.130/15 etc. 2 agreement between the Petitioner and Respondent No.1 was executed on 18.8.2011, which was subsequently amended on 26.12.2011. The term of the agreement was initially fixed for a period of five years, on the terms and conditions enumerated in the agreement, extendable for another term of five years with mutual consent of the parties. As per the terms of agreement the train started its operation by 4.2.2012. Under Article 6.1 of the agreement the Business Train was scheduled to run between Lahore and Karachi Cantt. as agreed upon, and the Respondent No.1 was obliged to pay to the Petitioner a sum of Rs.1.573 million per single train journey calculated at 88% capacity of luggage and passenger, normal business class fares for passengers and luggage. The journey fare was required to be deposited by the Respondent No.1 before commencement of the train journey. It was further stipulated that any delay in payment of the agreed fare would entail additional penalty of 5% of the amount in case no amount is deposited till the 6th day, the Petitioner would be entitled to suspend the operation of the Train without any notice. 3. It was further stipulated in the said article that the Respondent No.1 would invest a sum of Rs.225.786 million for value added services, which would be treated as performance guarantee/security and additional expenses incurred for value addition or uplifting in respect of the business train would be the sole responsibility and liability of the Respondent No.1 which would, under no circumstances, be transferred to the Petitioner. Under Article 6.2 of the agreement, in case one or more passenger coaches are not available by the Petitioner, the Petitioner will not recover any amount equal to 88% of carrying capacity of the coaches and if additional coaches are C.Ps.No.130/15 etc. 3 provided then the Respondent No.1 shall pay to the Appellant equal to 88% of the amount of carrying capacity of coaches. 4. However, the Respondent No.1 inspite of depositing of Rs.225.736 million as performance guarantee, paid a sum of Rs.3.19 million before the commencement of the business, without justifiable reasons. The Respondent Company failed to own its commencement as per Article 6.1 of the agreement and on 10.2.2012, exactly after six days of commencement of business, approached the Ministry of Railways with the request to suspend operation of Article 6.1 of the agreement, undertaking to pay the outstanding amount within a period of six months. The Ministry of Railways through a summary dated 16.5.2012 referred the matter for change in the composition of business express to the Economic Coordination Committee [hereinafter referred to as “ECC”] in order to safeguard the interest of the Railways, which was stranger to the agreement. The ECC decided to determine the basis of award of contract and validity of personal agreement for sharing of revenue, by evaluation through a third party. The ECC appointed M/s Deloitte Pakistan as a consultant to make its recommendations, which submitted its following recommendations and the E.C.C in its meeting dated 1.1.2013 approved them : - i. “Minimum occupancy to be achieved at 65% ii. Share ratio of gross revenue can be set as 80.20 between Pakistan Railways and Joint Venture Partners up to occupancy of 75% and, iii. For occupancy achieved above 75% the sharing ratio between PR and JV Partner can be set at 75.25.” 5. In the light of the recommendations of M/s Deloitte Pakistan on 3.7.2012 the ECC took the following decision : - C.Ps.No.130/15 etc. 4 “The Economic Coordination Committee of the Cabinet considered the Summary dated 16th May, 2012, submitted by Ministry of Railways on “Changes in the Composition of Business Express” and decided to constitute a Committee, comprising Minister for Information & Broadcasting (Convener), Chairman Board of Investment, Deputy Chairman, Planning Commission and Secretary Ministry of Railways for further examining the matter and suggesting a viable course of action for Pakistan Railways. Ministry of Railways will also act as secretariat of the Committee.” 6. On 17.12.2012, the Ministry of Railways floated another summary, proposing that the Respondent No.1 had defaulted to the extent of Rs.289.8 million and any dispensation granted to Respondent No.1 must be accompanied by a caveat with the understanding that the outstanding amount must be cleared within one year. This proposal contained in the summary was an interim arrangement, which was approved by the ECC and on 15.3.2013 was endorsed by the Federal Cabinet. 7. The Respondent No.1 failed to clear its outstanding dues in terms of the Cabinet decision. On 23.2.2013 the Respondent No.1 undertook to clear the outstanding amount of Rs.236,247,808/- in equal installments starting from July 1st, 2013 and concluding the entire amount within the stipulated period. On 28.2.2013, the Ministry of Railways floated another summary to the ECC on which following decision was made, which was approved by the Government on 4.6.2013 : - “The Economic Coordination Committee of the Cabinet considered the Summary dated 28th February 2013, submitted by the Ministry of Railways on “Charges in the Composition of Business Express” and decided that the additional services provided to the passengers by the JV partner should not be part of ticket/fare and revenue be shared accordingly, with the condition that there is no downward revision in the actual fare.” 8. On 17.9.2015, The Ministry of Railways moved yet another summary, stating that summary to review the earlier decisions, came under C.Ps.No.130/15 etc. 5 discussion of the ECC on 17.6.2015, in which it was stated that matter needs reconsideration of ECC to the Cabinet and that the decision of ECC to the Cabinet dated 1.1.2013 may be re-visited and re-called abinitio, and save Pakistan Railways from recurring losses. After consideration of the summary, the ECC took the following decision:- “The Economic Coordination Committee of the Cabinet considered the summary dated 11th September, 2015, submitted by the Ministry of Railways regarding “Change in the Composition of Business Express Train”, endorsed the opinion of Ministry of Law, Justice and Human Rights contained in para-9 of the summary and approved the proposal contained in para 11 of the summary.” 9. On 29.11.2013, the Petitioner required the Respondent No.1 to resolve the issue but the Respondent No.1 approached the Civil Court under Section 20 of the Arbitration Act for appointment of an independent Arbitrator and to refer the dispute to him with the following prayer alongwith an Application for interim relief : - a. The agreement dated 18.08.2011 along with the Addendum dated 26.12.2011 be filed in this learned Court. b. This application may kindly be allowed and the matter be referred for Arbitration under the terms of the Agreement for adjudication on merits. c. Adjudication be completed within a period of four months and award be filed in this learned Court. Any other relief as deemed appropriate in the circumstances of the case may also be granted in favour of the Plaintiff and against the Defendants.” 10. By order dated 24.4.2014, the Civil Judge, Ist Class Lahore, allowed the Application and directed the parties to provide names of their respective Arbitrators. The Civil Judge also allowed the Application of the Respondent No.1 under Section 41(b) of the Arbitration Act, granting injunction from recovery of the amounts from them. C.Ps.No.130/15 etc. 6 11. Feeling aggrieved, the Petitioner filed Civil Revision against the order of allowing the Application of the Respondent No.1 under Section 20 of the Arbitration Act and F.A.O against the grant of interim injunction. which were dismissed, by the Lahore High Court, Lahore, vide impugned judgment dated 02.12.2014. Hence these Petitions for leave to Appeal. 12. The learned Counsel for the Petitioner has contended that he will not be pressing his Petition against the appointment of the Arbitrators, as he has been instructed to contest the Petition against the grant of interim injunction, allowing the Application of the Respondent No.1 under Section 41(b) of the Arbitration Act. The learned Counsel next contended that the Respondent No.1 has neither paid the amounts in terms of the contract nor invested the agreed amount contained in the contract. He contended that the Respondent No.1 was put to notice for payment of the agreed amount under the terms of the contract besides the investment they had to make and the matter was referred to the E.C.C, for decision which allowed the interim arrangement under which the contract amount was reduced from 88% capacity of luggage and passengers to 65%. The Respondent No.1 had defaulted in payment of such amounts and inspite of the undertaking given by them that they would clear the outstanding amount within one year. In the intervening period, the Respondent No.1 approached the Civil Court which had directed the parties to take up the dispute to the Arbitrators appointed by each one of them. Additionally, the Civil Court restrained the Petitioner from recovery of the amounts and presently the Respondent No.1 has to pay a huge sum of Rs.1,11,55,00,000/-, outstanding against them while they are playing the train and availing all the benefits under the contract. C.Ps.No.130/15 etc. 7 13. The learned Counsel submits that on one hand, the Petitioner has been restrained from recovery of the outstanding amount and on the other hand the dispute has been referred to Arbitration. He contended that neither the Civil Court nor the High Court has applied their minds to the facts of the case while granting injunction against the Petitioner. The principles for grant of injunction have been completely overlooked by the learned High Court and the Court below while passing the impugned order. The reasons for grant of injunction were neither assigned nor discussed either by the learned High Court or by the Civil Court. He next contended that grant of injunction is causing recurring financial losses to the Petitioner – a National Asset. 14. As against this, the learned Counsel for the Respondent No.1 has contended that the contract was assumption based and under Article 6.1 of the contract the Respondent No.1 had to pay 88% of carrying capacity of the train whereas the actual occupancy was 60 to 65%, therefore, the Respondent No.1 was not obliged to make payment in excess of the said 60- 65% of the carrying capacity of the passengers and luggage. He next contended that it has been pointed out in the report of M/s Deloittee Pakistan that contractual payment to Pakistan Railways at the rate of 88% of the full capacity revenue of the train was a major contributor to the deficit. The learned Counsel further submits that the High Court as well as the Civil Court had rightly allowed the Application of the Respondent No.1 while taking into account the language of clause 5(vi) addendums to the agreement, which restricts the parties from suspending the operation of the Business Train. C.Ps.No.130/15 etc. 8 15. He next contended that the Respondent No.1 has paid excess amount to the Petitioner on the basis of report of M/s Deloittee Pakistan, as the amount agreed upon by the Respondent No.1 was assumption based. He submitted that the Respondent No.1 has also made huge investments for operating the Business Train and their investment should also be saved. 16. We have heard the learned Counsel for the parties and have perused the record. In the first place, we are not persuaded by the contention of the learned Counsel for the Respondent No.1 that the contract between the parties was assumption based and the Respondent No.1 was not obliged to pay the amounts agreed by them in terms of the contract. If the Respondent No.1 had made financial commitments, they are bound to own them and could not switch over their burden, inter alia, on the ground that 88% capacity of passenger and luggage, normal business class fares for passenger and luggage and compensation as per Article 6.4 were assumption based and absolved them from payment of the agreed amounts in view of the report of Deloittee. The dispute raised by the Respondent No.1 in regard to the quantum of payment based on the report of M/s Deloittee Pakistan has no binding effect, as financial commitments made by the parties to the contract would not be defused by the aforesaid report. The plea of misrepresentation in such like contracts is hardly a ground to allow a party to withdraw itself from its financial commitments. In law, before entering into contracts of the nature, the parties do their home work. 15. The clause pertaining to continuous of operation of the Business Train, as has been incorporated in the Addendum to the agreement, C.Ps.No.130/15 etc. 9 was introduced for public welfare and has to be read alongwith immediate succeeding clauses of the agreement. The mode for termination of the contract has been provided under independent clauses and Addendum to the agreement has no nexus with it. The clauses of the contract, in no way, can be construed to absolve the Respondent No.1 from discharging its obligation by not paying the agreed amounts on the ground that financial commitments were assumption based, therefore, they were not obliged to pay, as has been contended by the Respondent No.1. 16. It has been shown from the record that the Respondent No.1 has invoked the arbitration clause, therefore, the dispute will be determined through Arbitration, but at the same time, a restraining order against recovery of the amounts by the High Court and the Civil Court in terms of Section 41 (b) of the Arbitration Act without examining the three ingredients for grant of injunction i.e prima facie case, balance of convenience and irreparable loss, is not sustainable at law. Unrestricted permission to the Respondent No.1 for plying the Business Train without discharging their obligation of payment of amounts agreed in the agreement cannot be termed as justifiable grounds for grant of injunction. In the case in hand, prima facie, the Respondent No.1 has defaulted in paying the agreed amounts towards fares besides the investment, as is evident from the record, therefore, grant of injunction of the nature to the disadvantage of the Petitioner was not justified. 17. We are informed that the Respondent No.1 has appointed his Arbitrator, and accordingly direct the Petitioner to appoint their Arbitrator within the stipulated time incorporated in the short order. We, for the C.Ps.No.130/15 etc. 10 aforesaid reasons, have converted these petitions into Appeals and allow the same, by our short order of even date, which is reproduced here-under:- “ Chief Justice Judge Judge Islamabad, 27-10-2015 Sohail**

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE UMAR ATA BANDIAL Civil Petition No.1340/2014 (On appeal from the judgment dated 26.06.2015 passed by the Lahore High Court in W.P.No.13040 of 2012) Himesh Khan …Petitioner VERSUS The National Accountability Bureau (NAB), Lahore & others ..Respondents For the petitioner: Mr. Azam Nazeer Tarar, ASC Syed Rifaqat Hussain Shah, AOR For respondent No.1-3: Mr. Mehmood Raza, Addl. P.G. NAB Respondent No.6: Mr. Anwar Mansoor Khan, Sr. ASC Date of hearing: 14.4.2015 JUDGMENT Dost Muhammad Khan, J.— Himesh Khan, the petitioner herein, along with several co-accused, is facing criminal charges in NAB Reference No.62 of 2008 before the Accountability Court. 2. When the petitioner was the chairman of Bank of Punjab during the year 2004, the proprietor of Haris Steel Industries obtained loan facility of Rs.250 millions from the bank. This credit facility was enhanced subsequently by the committee comprising co-accused Haroon Aziz (G.M), Hameed –ur- Rehman (G.M) and Shoaib Qureshi 2 (G.M). Co-accused, Sheikh Muhammad Afzal, proprietor of Haris Steel Industries managed to open 23 fake accounts in collaboration and collusion with the co-accused, who were by then bank officials to defraud the bank. 3. When the financial scam was detected, the NAB intervened by initiating inquiry followed by investigation, as a result whereof the above Reference was filed. The said Reference is pending before the Accountability Court-V, at Lahore, where co-accused of the petitioner have been granted bail, while he is in custody since 16.07.2009. The petitioner unsuccessfully sought post arrest bail from the learned Division Bench of the High Court and the last in the series is the one under challenge in this petition dated 26.06.2014 again declining the relief of grant of bail to him. 4. Keeping in view the above facts and circumstances, the petitioner is behind the bars for the last about five years. The calendar of witnesses would show that in all about 150 witnesses are to be examined. Initially 72 witnesses were examined when by then co- accused Sheikh Muhammad Afzal was at large on bail due to plea bargain with the NAB however, when the said accused tracked back and did not fulfill his obligation under the plea bargain, he was re- arrested therefore, all the witnesses examined were to be re-called for cross-examination and a second round of trial in this manner commenced. We asked the learned Additional Prosecutor General, NAB and Mr. Anwar Mansoor Khan, learned Sr. ASC, representing the Bank of Punjab that, whether the trial is likely to be concluded in the next couple of months, they replied in the negative with the plea that the petitioner and his co-accused have prolonged the trial, getting 3 unnecessary adjournments and if they indulge in the same and similar practice then it is difficult to conclude the trial in the said period. 5. Mr. Anwar Mansoor Khan, learned Sr. ASC for the Bank of Punjab has filed CMA NO.1421/2015 to show that about 60 adjournments were sought by and allowed to the petitioner and his co- accused and cross-examination of one of the witnesses for the prosecution was dragged on beyond reasonable time and whatever delay in the conclusion of the trial has occurred that is due to the contribution of the petitioner and his co-accused. 6. We have gone through the order-sheets of Accountability Court-V, Lahore, however, in majority of the order-sheets the petitioner is shown present along with his counsel and except on few occasions, adjournments have been sought by his co-accused for one reason or the other and at some occasions due to absence of presiding officer or due to non-production of the accused from jail further progress in the case could not take place therefore, in our view, the delay in the conclusion of the trial could not be legitimately attributed to the petitioner but mainly due to the prosecution and the co- accused, for which the petitioner cannot be blamed. 7. Mr. Anwar Mansoor Khan, learned Sr. ASC then vehemently argued that the petitioner’s case falls under special law, which does not recognize the grant of bail and because the provision of section 497 Cr.P.C is not applicable therefore, the petitioner cannot be granted bail on the basis of statutory delay by pressing into service the proviso attached to section 497 Cr.P.C. 4 8. True that the statutory law on the subject under the National Accountability Ordinance, 1999 does not recognize the grant of bail to accused persons facing charges under the said law, however, in the case of Khan Asfandyar Wali v. Federation of Pakistan thr. Cabinet Division (PLD 2001 SC 607) the Supreme Court has devised a strategy for granting bail to such accused persons through constitutional jurisdiction of the High Court, provided their cases are arguable for the purpose of grant of bail. 9. The court cannot lightly ignore shocking delay in the conclusion of the trial of an accused person, provided he or they is/are not exclusively responsible for the same. 10. In the instant case, as explained above, several adjournments were allowed but due to the request of the co-accused or for some other reasons, not attributable to the petitioner and only few adjournments of negligible numbers were sought by the petitioner and that too for the reason that his counsel was busy in the superior court in some other cases. 11. The contention of the learned Sr. ASC for the Bank of Punjab that the petitioner even after such a long delay in the conclusion of the trial cannot be let free on bail because application of section 497 Cr.P.C with its 3rd proviso relating to grant of bail on ground of statutory delay is inapplicable and not attracted at all to his case, in our view, is not of paramount consideration. 12. Pakistan is a welfare State where liberty of individual has been guaranteed by the Constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the 5 provision of section 497 Cr.P.C in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period. This principle may be vigorously pressed into service in cases of this nature if the objects and purposes of mandatory provision of section 16 of the National Accountability Ordinance, 1999 is kept in view, which is reproduced below:- “S.16 Trial of offences [(a) Notwithstanding anything contained in any other law for the time being in force an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within thirty days]” 13. An accused person cannot be left at the mercy of the prosecution to rotten in jail for an indefinite period. The inordinate delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. In the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) the accused was facing charges under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) where under section 7 thereof grant of bail even in bailable offences was taken out of the discretion of the Court, however, it was held that despite of exclusion clause beneficial provision of section 497 Cr.P.C can be pressed into service in some genuine and rare cases to provide relief of grant of bail to a highly deserving accused, incarcerated in prison for a longer duration. 14. The grant of bail on account of inordinate delay in prosecution was discussed and guiding principle was laid down by this 6 Court in the case of Riasat Ali v. Ghulam Muhammad and the State (PLD 1968 SC 353), which is to the following effect:- “Criminal Procedure Code, S.497— Grant of bail in non- bailable offences:- Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused however, delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits.” There is also a long chain of authorities and dicta of this Court where bail has been granted on account of shocking delay in the conclusion of trial in cases falling under the NAB laws. Reference in this regard may be made to the case of Anwar Saifullah Khan v. The State (2001 SCMR 1040) where it was held that bail cannot be withheld as a punishment on the ground that the offences, the accused is charged for, are not bailable or grant of bail therein was falling within the prohibition. 15. Keeping in view the above principles of law and justice and the factual aspects of the case we are of the considered view that it is a fit case where bail is to be granted, more so, when co-accused including the real beneficiaries are enjoying the same concession, much earlier and only the petitioner has been kept behind the bars. The anxiety of the prosecution that the petitioner was brought from USA after hectic efforts and there is likelihood that he may abscond again if he is granted bail, can be addressed in an effective manner directing him to deposit his passport and all his travel documents with the Accountability Court till the conclusion of the trial. Accordingly, this petition is converted into appeal and allowed. 7 These are the detailed reasons for our short order of even date, which is reproduced herein below:- “After hearing the arguments of the learned ASCs for the petitioner and the bank as well as the learned Additional Prosecutor General, NAB, this petition is converted into appeal and allowed in the terms that petitioner Himesh Khan is admitted to bail on furnishing his surety in the sum of Rs.10,000,000/- (ten millions) and P.R. bonds in the like amount to the satisfaction of the Trial Court, in addition to deposit of his passport and other travelling documents, etc., if any, in his possession. Till further orders his name shall also be placed/retained on Exit Control List (ECL). Reasons to follow separately.” Judge Judge Judge Islamabad, the 14th April, 2015 Nisar/-‘ Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE YAHYA AFRIDI CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 (Against the judgment dated 19.2.2019 passed by Lahore High Court, Lahore in I.C.As. No. 1206 & 1207 of 2016) Province of Punjab thr. Secretary Excise & Taxation Department, Lahore, etc (in both cases) …Petitioner(s) VERSUS Murree Brewery Company Ltd (MBCL) Sindh Wine Merchants Welfare Association (in CP 1369-L/19) (in CP 1369-L/19) …Respondent(s) For the Petitioner(s): Ch. Faisal Fareed, Addl. A.G. Punjab MR. Rizwan Akram Sherwani, Dir. Excise & Taxation, Lahore Mr. Nadeem Salah-ud-Din, Sr. Law Officer, Excise Taxation & Narcotics Control Dept. For the Respondent No.1: (in both cases) Ms. Ayesha Hamid, ASC Date of Hearing: 24.11.2020 JUDGMENT Mushir Alam, J.- The Notification No. SO(E&M)/2-3/2011 dated 24.06.2015 was issued by Secretary Excise & Taxation, Government of the Punjab which provided a cause of action to Murree Brewery Company Ltd (MBCL) [Respondent] to challenge the levy of export duty on the goods manufactured by them and consumed outside of the Province of Punjab under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 [The Constitution]. The Constitutional Petition filed before the Honorable High Court was accepted vide judgment dated 19.02.2019 and the impugned notifications were declared ultra-vires for violating of the freedom of trade enumerated under Article 151 of the Constitution. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 2 2. The Chief Secretary, Government of Punjab, through Secretary Excise & Taxation preferred Intra-Court Appeals which were dismissed for being non-compliant with Article 174 of the Constitution, read with S.79 of the Code of Civil Procedure, 1908 (CPC), whereby it is stated that the case has to be filed in the name of the Federal or Provincial Government, as the case may be, and not through any of its functionaries. The Honorable High Court could not find any plausible explanation as to why the appeals were not filed in the name of the Province of Punjab but were instead instituted in the name of ‘Chief Secretary, Government of Punjab, through Secretary Excise & Taxation, Punjab Secretariat, Lahore’. The Honorable High Court also remained unconvinced by the argument that S.79 of the CPC amounted to a mere technicality. 3. Another aspect that the Court found peculiar was that the appeals were filed by the Chief Secretary, Government of Punjab through Secretary, Excise and Taxation Department, Government of Punjab but the Memorandums of Appeals were signed by Deputy Secretary, Excise and Taxation Department, Government of the Punjab. There was nothing on record to show that the Secretary, Excise and Taxation Department, Government of Punjab was the authorized authority to file appeals on behalf of the Chief Secretary, Government of Punjab, nor could anything be presented to show that the Deputy Secretary, Excise and Taxation Department, Government of Punjab was authorized to execute the documents on behalf of the Chief Secretary, Government of the Punjab. The Court, on the basis of the grounds noted above, dismissed the Intra-Court Appeals without dilating upon the merits of the case. Therefore, the Government of Punjab, through Chief Secretary has preferred an appeal to this Court against the impugned judgment dated 19.02.2019. 4. Arguments heard. Record Perused. 5. The controversy can be devolved into three fundamental questions. The first question is whether S.79 of the CPC amounts to a mandatory provision or directory provision. The second question is whether non-compliance with this provision could prove fatal to the CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 3 case. The third question is whether any circumstances exist that would act as an exception to the general rule. i. WHETHER S.79 OF THE CPC IS A MANDATORY OR DIRECTORY PROVISION: a. The test for Mandatory or Directory Provisions: 6. The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word ‘shall’ generally carries the connotation that a provision is mandatory in nature.1 However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non- compliance also serve as an instructive guide in deducing the nature of the provision.2 7. This Court opined in the case of The State Through Regional Director ANF v. Imam Baksh and Others3 that: “To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory. "In each case one must look to the subject 1 (1995) 1 SCC 133. Paragraph 5. 2 2017 SCMR 1427. Paragraph 6. 3 2018 SCMR 2039. Paragraph 11. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 4 matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured." Crawford opined that "as a general rule, [those provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory." In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man. According to Maxwell, "Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them." Our Court has held while determining the status of a mandatory or directory provision that "perhaps the cleverest indicator is the object and purpose of the statute and the provision in question." And to see the "legislative intent as revealed by the examination of the whole Act." 8. The Supreme Court of India has also dilated upon this issue in the case of Lachmi Narain v Union of India,4 which was upheld in the case of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd.5, that: “If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the interest that the provision is to be mandatory”. 4 (1976) 2 SCC 953. 5 (2020) 5 SCC 757. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 5 9. The Indian Supreme Court has also laid down certain non-exhaustive precepts in the case of May George v. Special Tehsildar and Ors.6 that: a) “While determining whether a provision is mandatory or directory, somewhat on similar lines as afore- noticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve; b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision; c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things; d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other; e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance of such provisions; f) Physiology of the provisions is not by itself a determinative factor. The use of the words 'shall' or 'may', respectively would ordinarily indicate imperative or directory character, but not always. g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not. h) The Court has to give due weight age to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.” 10. S.79 of the CPC is reproduced below: “79. * * * In a suit by or against the Government) the authority to be named as plaintiff or defendants as the case may be, shall be: a) in the case of a suit by or against the Central Government, Pakistan]; b) in the case of a suit by or against a Provincial Government, the Province; and” 6 (2010) 13 SCC 98; (2011) 9 SCC 354, Paragraph 20. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 6 11. The aforementioned Section has to be read in conjunction with Order XXVII of the CPC that reads as follows: “ORDER XXVII SUITS BY OR AGAINST [THE [GOVERNMENT]] OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY: 1) In any suit by or against [the [Government]], the plaint or written statement shall be signed by such person as [the [Government]] may, by general or special order, appoint in this behalf, and shall be verified by any person whom [ the [Government]] may so appoint and who is acquainted with the facts of the case. … 3) In suits by or [against the [Government]] instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert [the appropriate name as provided in section 79.” 12. The terminology contained in S.79 of the CPC does, in fact, contain the usage of the word ‘shall’. While this may ordinarily indicate a mandatory provision, we shall also be considering other factors. 13. The integral factor that is to be considered is the legislative intent and the purpose that was to be achieved by the application of this provision. The purpose to be achieved by S.79 of the CPC and the operation of Article 174 of the Constitution was aptly explained by the Honorable Sindh High Court in the case of Gul Ahmed Textile Mills Ltd. v. Collector of Customs (Appraisement) and 2 others7 which states: “In a Civil Suit after its admission, summons as prescribed are issued against all defendants to file their written statements. Now if some relief is being sought against Government without its proper impleadment as a Defendant, there would be no proper assistance or representation on its behalf, rather it would be a case of Ex-parte proceedings for all practical purposes…” 7 2019 MLD Sindh 144. Paragraph 10. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 7 14. Therefore, the legislative intent and the purpose of the operation of this provision is for the State, or the Province, to be adequately represented and defended through the impleadment of the proper department. This purpose cannot be achieved if the concerned and proper department is not made a party to the suit, nor can it be achieved if the State, or Province, are not named in the suit. 15. This Court, in previous matters before it, has held that S.79 of CPC is a mandatory provision where the State, or the Province, was either not impleaded in compliance with S.79 of the CPC, and Article 174 of the Constitution, or the concerned department was not made party to the suit. Reference can be made to the cases of Province of the Punjab through Member Board of Revenue (Residual Properties) v. Muhammad Hussain8, Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar9, and Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi10. ii. THE CONSEQUENCE OF BREACH OF S.79 OF THE CODE OF CIVIL PROCEDURE, 1908: 16. The general rule regarding the mandatory nature of S.79 of the CPC and Article 174 of the Constitution was explained in the Indian Supreme Court case of Chief Conservator of Forests, Govt. of A.P. v. The Collector11: “It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also, there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued.” This Court also held in the case of Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq 8 PLD 1993 SC 147. 9 1999 SCMR 16, Paragraph 9. 10 2010 SCMR 115, Paragraph 7. 11 AIR 2003 SC 1805. Paragraph 12. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 8 Hussain Khan Magsi12 that non-compliance of a mandatory provision would render the suit invalid as reproduced below: “Due to non-compliance of the mandatory provisions as enumerated in section 79, C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan, a suit against the functionary only is not maintainable as has been done in this case” 17. In light of what has been discussed above, as a matter of general principle, S.79 of the CPC is a mandatory provision to the extent where the Government is wrongly impleaded or the concerned and proper department is not made party to the suit. Such actions will render the suit invalid. However, it does not close the right of the person filing the proceeding to file the case afresh, subject to limitation, by impleading the correct Respondents in accordance with the provisions of S.79 of the CPC. iii. THE EXCEPTION TO THE GENERAL RULE: b. Misdescription or Misjoinder of a Party would not prove fatal to a case: 18. In this instant case, the Intra-Court appeals were filed as ‘Chief Secretary, Government of Punjab, through Secretary Excise & Taxation, Punjab Secretariat, Lahore’, whereas, the appropriate title, as filed in this Court is, ‘Province of Punjab through Secretary Excise & Taxation Department, Civil Secretariat, Lahore, etc’. The point of contention remained that where a suit is to be instituted against the Government, the authority in whose name the suit has to be filed is the Federal or Provincial government, and not any of its functionaries. Similarly, an appeal to the Honorable High Court should have been filed in the name of the Province through the head of the concerned functionary. 19. However, where the Government itself files the Appeal, albeit with the wrong description, the provisions of S.79 of the CPC amount to mere nomenclature, which, if not followed, do not render the suit unmaintainable. The rationale being that, as mentioned above in paragraph 13, the object and purpose of S.79 of the CPC is for the 12 Supra Note 10. Paragraph 7. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 9 Government to be properly represented and defended. The same purpose is still achieved where the Government themselves file an appeal, as in this case. While such misdescription is a contravention of S.79 of the CPC, it is not fatal to the case when it is indeed the Government filing the appeal themselves. 20. A similar matter was adjudicated upon by the Indian Supreme Court in the case of Secretary, Ministry of Works & Housing Govt. of India and Ors. v. Mohinder Singh Jagdev and Ors.13, wherein, even though the Appeal was filed by the Secretary, on behalf of the Union, the Court held that the case was maintainable. Such action would amount to merely a misdescription that can be remedied by the powers vested in the Court. The relevant portion has been reproduced below: “Having given due consideration to the contentions of the counsel and having gone through the facts and circumstances of the case, first question that arises is: whether the appeal has been competently laid? It is not disputed and cannot be disputed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs. Under Section 79 read with Order 27 Rule 1, Code of Civil Procedure, in a suit, by or against the Central Government, the authority to be named as plaintiff/defendant shall be Union of India. The Secretary, Ministry of Works and Housing is a limb of the Union of India transacting its functions on behalf of the Government under the concerned Department as per the business rules framed under Article 77 of the Constitution. Therefore, the appeal came to be filed by the Secretary, though wrongly described. The nomenclature given in the cause title as Secretary instead of Union of India, is not conclusive. The meat of the matter is that the Secretary representing the Government of India had filed the appeal obviously on behalf of Union of India. Accordingly, we reject the first contention. 13 (1996) 6 SCC 229. Paragraph 5. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 10 21. The Indian Supreme Court, in the case of Chief Conservator of Forests, Govt. of A.P. v. The Collector,14 also further clarified two distinctions for cases where the compliance of S.79 of the CPC would not prove fatal to the case as: “In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 of C.P.C. mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1 C.P.C. provides remedy when a suit is filed in the name of wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.” 22. This Court has also adjudicated on this matter in the case of Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi,15 wherein, it has been held that S.79 of CPC cannot be made the ground for a technical knockout. The relevant portion has been reproduced below: “We may mention here at this juncture that the provisions as contemplated in Section 79, C.P.C. cannot be made a ground for technical knockout and wrong description of a Secretary as functionary of the Government is always 'subject to correction’. In this regard we are fortified by the dictum laid down by this Court in case titled WAPDA v. Alam Khan16.” 23. Therefore, where there is a matter of misdescription of parties, the Court may, either on its own accord, exercising suo moto powers, or after an application being submitted to it, order that the name of any party improperly joined be struck out and the appropriate party whose presence is necessary to do complete justice be added to 14 Ibid. 15 Supra Note 10. Paragraph 6. 16 PLD 1991 SC 374. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 11 the suit under the powers conferred on it by S.153 and Order 1, Rule 10(2) of the CPC. 24. In the case cited as Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh17, learned bench of the Indian Supreme court was confronted firstly whether the presentation of a Memorandum of Appeal by an counsel without any authority in the shape of a vakalatnama is a valid presentation or not. The bench also incidentally considered the question whether such defect could be permitted to be rectified or not. While attending to such question learned bench of the Supreme court with approval relied on following dictum of Bowen L.J.18 "The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy." If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal." The Supreme Court after comparing the provisions of Order XLI, Rule 1, CPC, Order III, Rule 4, CPC and Order VI, Rule 14, CPC, held in paragraph-16 and 17 of its decision as follows: - "16. An analogous provision is to be found in Order VI, Rule 14, CPC, which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bona fide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment, or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing." 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :- 17 2006 (1) SCC 75, 18 Cropper v Smith (1884) 26 Ch. D. 700 (CA) CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 12 i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance. ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; iii) where the non-compliance or violation is proved to be deliberate or mischievous; iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court. v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant; 25. The courts are also encouraged to take a proactive approach to matters involving the misdescription of parties by exercising authority under S.15319 and Order 1, Rule 10 of the CPC and Order XXVII-A C.P.C, which provision is also made applicable to appeals (see Rule (4) ibid). Such misdescription, unless shown to mala-fide, and is not remedied when directed, is not fatal to the suit and the Courts should actively remedy the mistake so made and add Federal or provincial government as a party at any stage of the proceedings 26. This dictum laid down by this Court, in the case of Muhammad Anwar and 8 others v. Muhammad Ashraf20 also fortifies the principle that a misdescription of parties only amounts to a mere technicality that cannot be allowed to stand in the way of justice, which should be corrected by the Courts. The relevant extract is reproduced below: “It reflects from the scrutiny of record that Mst. Japan, their guardian ad litem, had two sons with the names of Muhammad Hayat and Qamar Abbas against whom suit had been filed which aspect lends support 'to the fact that factually Umar Hayat was intended to be impleaded as a party. In our considered view non-mentioning of the correct name, at the best can be considered as a lapse or omission and amounts to misdescription of a party and is always subject to correction which can be made by invoking the provisions as contained in section 153, C.P.C. and technicalities should not be allowed to 19 PLD 1993 SC 363. 20 PLD 2001 SC 209. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 13 stand in the way of justice because procedure ought not to be used for purpose of defeating justice and technicalities of procedure have to be avoided. "Independent of express jurisdiction conferred on Court by section 153 of Civil P.C., the Court also possessed inherent powers for allowing an incorrect description of a party in the pleading to be corrected.” 26. The Respondent No.1 was aggrieved by the notification dated 24.6.2015, subject matter of the Writ Petition, which was issued by the Secretary Excise & Taxation. In the title in the ICA’s Chief Secretary, Government of Punjab through Secretary Excise and Taxation is shown to be the appellant, instead of province of Punjab, which qualifies under the exception of misconception, as the correct name i.e Province of Punjab through Secretary, Excise & Taxation was not mentioned. Being a mere case of wrong, inaccurate, or misdescription of parties, the Court, being sanctuaries of justice, can rectify the bonafides error by exercising jurisdiction duly vested under S.153, Order 1, Rule 10 and Order XXVII-A of the Code of Civil Procedure, 1908 more particularly so when no prejudice is shown to have been caused to the Respondent, more particularly when the Secretary Excise & Taxation was the concerned Secretary competent authority to represent the Province of Punjab, in the matter in hand. 27. In conclusion, as a matter of general principle, the provision of S.79 of CPC is a mandatory provision which is applicable where the correct and appropriate department is not made party to the suit and/or the Government is wrongly impleaded. Such non- compliance will render the suit invalid for the want of necessary party. 28. In light of what has been said above, the Petitions are converted into appeal and stand allowed. The impugned judgment is set aside and the matter is remanded back to the Honorable Lahore High Court, Lahore, for decision on merits; The Appellant is directed to file amended title of the ICAs’ with proper description of the Appellant in conformity with Section 79 of the CPC and Article 174 of the Constitution. CIVIL PETITIONS NO.1369-L & 1370-L OF 2019 14 29. The above are the reasons for our short order dated 24.11.2020, which reads as follow: “For the reasons to follow, these petitions are converted into appeals and allowed. The impugned judgment is set aside and the matter is remanded to the learned High Court for decision on merits in accordance with law.” Judge Judge Judge ISLAMABAD 24th November, 2020. “Approved for reporting”

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam Civil petition No.1424 of 2016 Against the Judgment dated 08.2.2016 passed by Federal Service Tribunal, Islamabad in Appeal No. 194(R)CS/2013. Federal Public Service Commission thr. Its Secy. Petitioner(s) VERSUS Anwar-ul-Haq (Private Secretary) Islamabad & others Respondent(s) For the Petitioner(s): Mr. Abdul Rashid Awan, DAG Mr. Muhammad Ashraf, Director, FPSC For Respondent No.1: Mr. Ghulam Fareed, ASC Date of Hearing: 30.9.2016 JUDGMENT Mushir Alam, J-. Petitioner, Federal Public Service Commission (FPSC), has challenged the decision dated 8.2.2016 passed by the Federal Service Tribunal (FST) Islamabad, whereby setting aside the order dated 8.01.2013, passed by the competent authority, declining representation of the respondent seeking grant of BPS-19. The petitioner was directed to grant BPS-19 and re- designate respondent No.1 as Senior Private Secretary from the date he completed 12 years of service in BPS-17. 2. Facts in brief appear to be that the respondent No.1 was originally appointed on 2.12.1978 in Finance Division, as LDC, he was then promoted as Stenotypist on 19.02.1980. He was then appointed in the office of Wafaqi Mohtasib as Stenographer in (BPS- 15) on 19.02.1980, in which post he was confirmed on 08.12.1985. Later he was appointed in FPSC, in selection grade BPS-16 on 21.5.1998 with effect from 6.2.1997. However, his substantive post remained as that of Stenographer (BPS-15.). He earned promotion as Private Secretary (BPS-17) on 12.8.2011. Civil petition No.1424 of 2016 2 Pursuant to Office Memorandum (OM) dated 23.12.2011 (@ page 35) with the concurrence of competent authority post of Private Secretary was upgraded, to BPS 18. 3. On 05.6.2012 respondent No.1, made a request (@ page 26) for the grant of BPS-19 on the ground inter-alia that pursuant to OM dated 2nd June, 1983 his total length of service comes to 12 years, 03 months and 26 days, thus entitled him for the grant of BPS-19, which request was declined vide order dated January 8th 2013 on the ground that he does “not hold the required length of 12 years service in BS-17 and above as per clarification from Establishment Division vide their U.O No.4/1/98-R-6 (Pt-II) dated 30.11.2012,” which order of the competent authority was successfully challenged before the FST, and vide its impugned decision dated 08.2.2016 the petitioner was directed to grant BPS- 19 to the respondent and re-designate him as Private Secretary from the date of his completing 12 years of service in BPS-17 on the strength of formula laiddown in Establishment Division O.M dated 02.6.1983, with back benefit. 4. Mr. Abdul Rasheed Awan learned DAG, with vehemence urged that the respondent did not possess 12 years qualifying length of service in substantive post of BPS-17 and above. According to learned DAG, respondent was holding substantive post of Stenographer in BPS-15, when he was appointed in Federal Public Service Commission (in BPS-16 selection grade) he was promoted to BPS-17 on 12.8.2011, pursuant to OM dated 23.12.2011 his post was upgraded to BPS-18 (@ page 35), it was urged that upgradation of post of Private Secretary from BPS-17 to 18 is not a promotion in terms of Section 9 (1) of the Civil Servants Act, 1973. It was urged that the learned FST misdirected itself while treating respondent on substantive post, which is factually not correct. It was urged that OM dated 2nd June, 1983; was not correctly appreciated in proper perspective resulting into flawed judgment, which cannot be sustained and is liable to be set aside. He prayed accordingly. 5. Mr. Ghulam Fareed, learned ASC for the respondent No.1 supports the impugned decision of the FST. He has placed heavy reliance upon Finance Division O.M dated 23.12.2011 to claim upgradation to BPS-19 on the strength of his length of service in Civil petition No.1424 of 2016 3 lower grade, in accordance with O.M dated 02.06.1983, referred to in first mention O.M. He emphasized his service in lower grade is to be computed in accordance with formula given by the Establishment Division as per O.M. dated 02.06.1983. For the purpose of computing length of service in different grade to earn eligibility for BPS-19 he has placed heavy reliance on part (iii) to the O.M dated 2nd June, 1983, to urge that the impugned decision of FST is based on correct appreciation of facts and law does not call for interference. 6. Exercising right of rebuttal learned DAG has drawn our attention to proviso (ii) and (iii) of O.M dated 2nd June, 1983 to urge that upgradation to BPS-19 or otherwise cannot be claimed as a matter of right. It was urged that the minimum length of service in a particular substantive grade is considered for consideration of promotion in next higher substantive grade and not for the purposes of merely upgradation of the post. It was stated that the post of the respondent was being upgraded from time to time. He cannot claim upgradation as a matter of right. 7. We have heard the arguments and perused the record. In order to appreciate the contentions of both the learned counsels it would be beneficial to glance through Office Memorandum dated 23.12.2011 and 02.06.1983 respectively, relied upon by both the learned counsels in support of their respective contentions subject O.M dated 23.12.2011 reads as follow:- “Government of Pakistan Finance Division (Regulation Wing) OFFICE MEMORANDUM F.No.19(55)Legal-II/2010-1055 Islamabad, the 23rd December, 2011 Subject:- UPGRADATION OF THE POSTS OF STENOTYPIST, STENOGRAPHER AND PRIVATE SECRETARY The undersigned is directed to say that consequent upon approval of the Prime Minister of Pakistan, the posts of Private Secretaries, Stenographers and Stenotypist have been upgraded with immediate effect subject to fulfillment of the conditions mentioned against each:- Civil petition No.1424 of 2016 4 The incumbents of the upgraded posts will also stand upgraded and their pay will be fixed at the stage next above their basic pay in their lower pay scales. 2. The Establishment Division will amend the recruitment rules of the above said posts, accordingly. Sd/xxx (Muhammad Azam Awan) All Ministries/Divisions/Departments Section Officer (R-I)” 8. It is admitted position that the respondent No.1 was serving in BPS-16 in Selection Grade (his substantive grade remained BS- 15) before he was promoted to BPS-17 on 12.8.2012. Post of Private Secretary (BPS-17) was upgraded to BPS-18 subject to five years qualifying length of service instead of seven years. In terms of O.M dated 23.12.2011 which inter-alia provided that all the Private Secretaries “will continue to remain in BS-17 and will be granted BS-18 after putting in 5 years satisfactory service instead of 7 years”. However one time exception was created in subject O.M as reproduced above, which provided that “existing Private Secretaries in BS-17 will be granted BS-18 on one time basis, irrespective of their length of service in BS-17”. 9. Upgradation is not a promotion, as generally misunderstood. Upgradation is carried out without necessarily to create posts in the relevant scales of pay it is carried out under a policy and specified scheme as done in the instant case through subject O.M dated 23.12.2011. It is resorted only for the incumbents of isolated posts, which have no avenues or channel of promotion at all. Upgradation under the scheme is personal to the incumbents of the isolated posts, to address stagnation and frustration of incumbent on a particular post for sufficient length of service on particular post without any progression or avenue of Sr. # Name of the Post Existing BS Upgraded BS Conditions 1 Private Secretary 17 - Will continue to remain in BS-17 and will be granted BS-18 after putting in 5 years satisfactory service instead of 7 years. The Private Secretaries in BS-18 will further be granted BS-19 after putting in 12 years service in BS-17 and above taking benefit of Establishment Division’s O.M. No.1/9/80-R-II, dated 2.6.1983. However, on grant of BS-19 nomenclature of the post will be Senior Private Secretary The existing Private Secretaries in BS-17 will be granted BS-18 on one time basis irrespective of their length of service in BS-17. 2 Stenographer 15 16 With enhancement of qualification for initial appointment from Intermediate to Graduation. 3. Stenotypist 12 14 With enhancement of qualification for initial appointment from Matriculation to Intermediate Civil petition No.1424 of 2016 5 promotion. Post of Stenographers/Private Secretaries is one of such kind of post, which has no avenues or channel of promotion to higher grades as may be available to other incumbents in civil service. Upgradation is carried out under a scheme and or a policy to incentivize and to encourage and to give financial benefits without creating additional vacancies of higher grade, upgradation by no standards could be treated and or considered as promotion to higher grade. Incumbent occupying ungraded post retain their substantive grade. 10. Now examining the case of the respondent No.1 he was serving as Private Secretary in substantive grade BPS-17 when, O.M dated 23rd December, 2011 was issued, which inter-alia provided that all those serving in BPS-17 having put in 5 years would be entitled to be upgraded to BPS-18 on satisfactory service in BPS-17 for a period of 5 years instead of 7 ½ years as earlier required per O.M dated 2.6.1983. However, in view of one time exception, all the Private Secretaries including the respondent No.1 working in BPS-17 on the date of issuance of O.M dated 23rd December, 2011 was upgraded to PBS-18, irrespective of length of service in BPS-17, respondent No.1 falling in such exception was accordingly promoted with merely little over 4 months service in BPS 17, as noted above, it is merely a financial benefit attached to upgradation, as and when such upgraded incumbent leaves or transfers or vacancy occurs for any reasons than the vacancy is of substantive post and not that of upgraded post and is accordingly filled up either by transfer, promotion or direct appointment as the case may be. 11. Claim of the respondent that he has put in 12 years of service in BPS-17 as per formula made applicable in terms of O.M dated 2.6.1983. To appreciate such contention it would be beneficial to examine such said Office Memorandum which reads as follows:- “GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No.1/9/80-R.2 Rawalpindi, the 2nd June 1983 OFFICE MEMORANDUM Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY INPROMOTION OF OFFICERS Civil petition No.1424 of 2016 6 In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division’s Office Memorandum No.1/9/80-R.II (A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:- For Grade-18 5 years in grade 17 For Grade-19 12 years in grade 17 and above For Grade-20 17 years in grade 17 and above For Grade-21 22 years in grade 17 and above Proved that:- i) Where initial appointment of a person not being a person in government service takes placed in a post in grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods: First appointment in Reduced by Grade-18 5 years Grade-19 12 years Grade-20 17 years ii) Where initial appointment of a person already in government service takes place, on recommendations of the Federal Public Service Commission in a post in grade 18, 19 or 20 the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i), iii) Where first appointment of a person other than a person covered by proviso (ii) was made to government service in grade 16 or below, one-half of the service in grade 16 and one fourth in grade 15 and below may be counted as service in grade 17 for computing length of service for the purpose of promotion only. Sd/xxx (Mashkoor Ahmad Khan) Joint Secretary To the Government of All Ministries/Divisions Pakistan” 12. From bare perusal of above criteria, it could be seen that same is applicable “for the purposes of promotion only”. Admittedly, case of the respondent No.1 is of upgradation and not that of promotion. As noted above upgradation is often misconstrued as promotion, what respondent No.1 requested through his application is promotion to grade BPS-19, for which a selection process, in terms of Section 9(1) of the Civil Servants Act, 1973, read with Civil Servant (Appointment, promotion and Transfer Rules), 1973 is to be followed, which cannot be bypassed under any circumstance. Civil servants are appointed and or promoted to the post and not to the grades. This Court in the case of Ali Azhar Khan Baloch and others versus Province of Sindh and others (2015 SCMR 456) in paragraph 138 @ page 514, has dealt with implication and purport of upgradation, as retreated in the case of Regional Commissioner Income Tax, Northern Region, Islamabad and another versus Syed Munawar Ali and others (2016 SCMR 859), held in para No.7 @ page Civil petition No.1424 of 2016 7 862 it was further held that “issue relating to upgradation of civil servants can be decided by a High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. The policy of upgradation, notified by the Government, in no way, amends the terms and conditions of service of civil the servant or the Civil Servants Act and or the rules framed there under. The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of upgradation, as it does not form part of the terms and conditions of service of the civil servants.” 13. In order to appreciate contentions of respondent his tenure of his service in grade below PBS-16 given in paragraph 6 of his appeal before FST; is reproduced as follows:- “That the appellant fulfills/meet the requisite length of service as enunciated in O.M dated 23.12.2011. The detail of the same is reproduced below for kind perusal of this Learned Tribunal:- Sr.No. Post Period Length of service To be counted in the light of OM 23.12.11 & 02.06.83 1. LDC 2.12.1978 to 18.2.1980 1 year, 2 months, 16 days 3 months, 19 days 2. Stenotypist 19.2.1980 to 07.12.1985 5 years, 9 months, 19 days 1 year, 05 months, 07 days 3. Stenographer (BPS-15) 08.12.1985 to 05.2.1997 11 years, 1 month, 25 days 2 years, 9 months, 06 days 4. Stenographer Selection Grade (BPS-16) 06.2.1997 to 11.8.2011 14 years, 6 months, 5 days 7 years, 3 months, 2 days 5. Private Secretary (BPS-17) 12.8.2011 to 22.12.2011 4 months, 10 days 04 month, 10 days 6. Private Secretary (BPS-18) 23.12.2011 to 31.01.2013 1 year, 01 month, 8 days 1 year, 1 month, 8 days 7. Total 13 years, 02 months 02 days” 14. Even if request of the respondent No.1 is considered for upgradation to BPS-19, then also he has no case. Respondent No.1 was promoted in BPS-17 on 12.8.2011, merely after 4 months and 10 days pursuant to O.M dated 23.12.2011, his post of Private Secretary was upgraded to BPS-18. To claim benefit to O.M dated 2.6.1983, as reproduced above he counted 1/2 of his earlier 14 years service in BPS-16 (Selection Grade) from 6.2.1997 to 11.8.2011 as 7 years. From the calculation made by the respondent No.1, it is manifest that he made error in counting his service in BPS-16 (Selection Grade) as that of BPS-16 in substantive grade. As noted in the narrative above; he was serving in his substantive grade BPS-15 Civil petition No.1424 of 2016 8 when his was appointed in Federal Public Service Commission in BPS-16 (selection grade), merely serving in BPS-16 in selection grade, could not be counted as service in substantive grade BPS-16 but in BPS-15, therefore, such tenure of service could not be calculated ½ of 14 years but in fact ¼ of total service being below substantive grade BPS-16,(i.e. from 2.12.1978 to 11.8.2011 which comes to approximately 22 years calculating 1/4th of said period it comes to 5.5 years adding 4 months 10 day in BS-17 and 1 year 01 month and 8 days in BS-18 comes 6 years 6 months approximately in terms of formula (per proviso (iii) to O.M dated 2.6.1983) even if rounded up to 8 years that it does not meet the criteria of 12 years of length of service in BPS-17 and above required to be upgraded to BPS-19. In view of the discussion made above, impugned decision of the FST, cannot be sustained both on merits as well as for lack of jurisdiction, which is accordingly, set aside, instant leave petition is converted into appeal and is allowed accordingly. Judge Judge ISLAMABAD, THE 30th September, 2016 arshed Approved for Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Civil Petition No.1472 of 2013 (On appeal from the judgment dated 14.05.2013 passed by the Federal Service Tribunal, Islamabad in Appeal No.269(P)CS/2012) The Commandant Khyber Pakhtunkhwa Constabulary FC Head Quarters, Peshawar and another … Petitioners versus Amir Ullah Islam and another … Respondents For the petitioners: Ms. Shireen Imran, ASC For respondent No.1: Mr. Ijaz Anwar, ASC Mr. M.S.Khattak, AOR Date of hearing: 03.03.2014 ORDER Dost Muhammad Khan, J.— This CPLA is barred by 4 days. CMA No.5578/2013 has been filed, seeking condonation of delay on the ground that the impugned order is void ab initio, without jurisdiction and no limitation runs against the void order and because, the delay occurred in filing of the petition was due to misunderstanding and mis-calculation of time by the petitioner department. 2. We are in no manner convinced from the ground taken in the CMA and the submissions made at the bar by the learned ASC for the petitioners. On this ground alone, the main petition is CP 1472/13 2 liable to be dismissed, hence, the delay cannot be condoned and the CMA is dismissed. 3. There is another CMA No.5577/2013, seeking suspension of the operation of impugned judgment dated 14.05.2013 given in W.P.No.269(P)CS/2012, passed by the Federal Service Tribunal (FST), Islamabad. However, as we are deciding the main petition on merits, therefore, this CMA having become infructuous, is disposed of. 4. Precisely, stating facts of the case are that Amir Ullah Islam, respondent No.1 was working as Naib Subidar in Platoon No.276, Frontier Constabulary, was stationed at Khyber Pakhtunkhaw. During operation in F.R. Peshawar, he along with many others, allegedly, refused to launch strike against the militants, thus, the main charge against him and his co-employees, was that they had not only disregarded the command of the superior officer but also had shown cowardice. 5. Departmental inquiry was conducted but during that no opportunity of hearing was provided to him like his colleagues and at the conclusion he was dismissed from service. 6. After exhausting other remedies, he filed Appeal No.296(P)CS/2010 before the FST, Islamabad, which was allowed vide judgment dated 06.09.2010 directing the respondent (therein) to hold de-novo proceedings against the appellant(s) in accordance with the law and the rules, and also to reinstate him into service during the period of inquiry. CP 1472/13 3 7. It was further directed in the judgment by the FST that the inquiry be completed, preferably, within a period of four months and the question of payment of back benefits would depend upon the outcome of the fresh proceedings. 8. In the second round, same and similar treatment was given to respondent No.1 and not a little respect was shown to the judgment of the FST, as it was not complied with in letter and spirit, rather the inquiry was conducted in the old fashion and according to the whims and wishes of the superiors of respondent and that of the inquiry officer, as at that stage too, respondent No.1 was condemned unheard, so much so that he was not informed about the result of inquiry, thus, he again approached the FST, Islamabad, which passed the judgment dated 14.05.2013, impugned herein, and while relying upon the ratio decidendi, laid down by this Court in the case of Pakistan International Airlines Corporations v. Shaista Naheed (2004 SCMR 316) set aside the dismissal order of respondent, declaring it unlawful and illegal. It was further directed that the earlier judgment be given effect from 06.09.2010 in its letter and spirit by issuing clear order of reinstatement of respondent No.1 into service. However, the petitioners were not restrained from conducting fresh inquiry. 9. The learned ASC for the petitioners vehemently argued that the appeal filed before the FST was barred by time, however, this contention, in our view, has no legal force because the second inquiry conducted, was in disregard of the earlier judgment of the FST and because, the result of the same was not communicated to respondent No.1 as required under the rules. Moreover, the CP 1472/13 4 co-employees of respondent No.1 have already been reinstated into service as was stated at the bar. 10. Learned counsel for the replying respondent stated at the bar that the delay in filing the appeal before the FST was for the reason stated above, besides the fact that during that period the FST was not vested with the powers and jurisdiction to implement its judgments/orders till the time this Court directed the government to amend the law on the subject investing the FST with powers to implement its judgments and orders by adopting coercive measures. 11. The plea of the learned ASC for the replying respondent is based on sound reasons, to which no exception could be taken, more so, the petitioner-side has committed wrong to the respondent twice in two successive inquiries and also disregarded the binding judgment of the FST in this regard with all convenience. 12. Accordingly, for reasons stated above, the petition being barred by time and on merits too, does not deserve any indulgence by this Court, hence the same is dismissed and leave to appeal declined. Judge Judge Islamabad, the 3rd March, 2014 Nisar/* Not Approved For Reporting