(Appellate/Review Jurisdiction)
Mohammad Azam Khan, C J.
Ch. Muhammad Ibrahim Zia, J.
Raja Saeed Akram Khan, J.
Civil appeal No. 11 of 2014
(PLA filed on 7.1.2014)
Bashir Ahmed Mughal, District & Sessions Judge, Now holding the post of Chairman Banking Tribunal and the Chairman Income Tax Appellate Tribunal Azad Jammu and Kashmir Council, Muzaffarabad. APPELLANT
6. Syed Khalid Hussain Gillani, Chairman Service Tribunal Azad Jammu and Kashmir.
7. Narigis Aftab Raja, Chairperson Azad Jammu and Kashmir Council Service Tribunal.
… PROFORMA-RESPONDENTS
FOR THE RESPONDENTS: Mr. Asghar Ali Malick, Advocate.
… APPELLANT
… RESPONDENTS
FOR RESPONDENTS No.1&2: Mr. Asghar Ali Malick, Advocate.
FOR RESPONDENTS No.5&6: Mr. Abdul Rashid Abbasi,& Raja Ibrar Hussain, Advocates.
…. RESPONDENTS
Date of hearing 3.6.2014.
JUDGMENT:
Ch. Muhammad Ibrahim Zia, J.—The above titled appeals by leave of the Court have arisen out of the consolidated judgment of the High Court dated 4.12.2013 whereby both the writ petitions No.752/2009 and 373/2013 have been dismissed by the majority judgment, whereas the titled review petition has been filed against the order dated 8.4.2014 whereby on the application filed by the petitioners, the interim injunction was granted till disposal of appeals.
2. The subject matter involved in the titled appeals relates to the law for appointment of the Judges in the Shariat Court of Azad Jammu and Kashmir. The precise facts involved in the titled appeals as stated are that the appellants in both the appeals herein and proforma-respondent No.6 in appeal No. 1/2014 filed separate writ petitions before the High Court. Writ petition No. 752/2009 was filed by the appellant in appeal No. 11/2014 and proforma-respondent No.6, who are District and Sessions Judges by designation. They called in question the procedure for appointment and removal of the Judges of the Shariat Court of Azad Jammu and Kashmir as well as vires of the Azad Jammu and Kashmir Shariat Court Act, 1993 on various grounds. The appellants and proforma-respondent No.6, in their writ petition averred that for the purpose of hearing the appeals, references and revisions against the orders/judgments of various criminal Courts and to examine and decide the questions; whether any law or provision of law is repugnant to the injunctions of the Holy Qur’an and Sunnah or not, the law for establishment of the Shariat Court known as the Azad Jammu and Kashmir Shariat Court Act, 1993 (hereinafter to be referred as Act, 1993), is presently enforced. Whereas previously through an Ordinance, for establishment of the Shariat Bench, the law known as the Shariat Benches of Superior Courts Ordinance, 1979 was promulgated. They have specifically challenged the vires of sections 3 and 11 of Act, 1993. They also referred and discussed the previous judgment of this Court handed down in the case reported as Azad Govt. & 3 others vs. Genuine Rights Commission AJK & 7 others [1999 SCR 1]. The appellants and proforma-respondent No.6 in appeal No. 11/2014, in their memo of writ petition have incorporated numerous legal precedents from Pakistan Jurisdiction especially the famous judgment recorded in the case reported as Aljehad Trust through Raeesul Mujahideen Habibul-Wahab-ul-Khairi & others vs. Federation of Pakistan & others [PLD 1996 SC 324] and prayed as follows:-
“9. It is therefore, most respectfully prayed:
(a) that with a view to secure the independence of judiciary in Azad Jammu and Kashmir the Respondents may kindly be directed to amend the Section 3 of the Shariat Court Act so as to provide procedure for consultation with the Chief Justice of Azad Jammu & Kashmir and the Chief Justice of the Shariat Court before making appointment of Judge Shariat Court.
(b) that with a view to secure the independency of the Judiciary in Azad Jammu and Kashmir the respondents may kindly be directed either by amending Shariat Court Act or by enacting any other law so as to provide a mechanism as to under what law in view of Section 3(5) of Shariat Court Act a Judge of the Shariat Court is to be removed from office.
(c) that until the Section 3 of Shariat Court Act is amended suitably so as to provide procedure with consultation with the Chief Justice of Azad Jammu & Kashmir and Chief Justice of Shariat Court before making appointment of Judge of the Shariat Court, the Respondent No. 2 may kindly be restrained from making any appointment of the Judge of the Shariat Court.
(d)Any other relief admissible under law may also be granted.”
3. Whereas in appeal No. 99/2014 the appellant who is an Advocate of Supreme Court has challenged the vires of Act, 1993 on the ground of being offending the Constitutionally guaranteed fundamental rights and the independence of judiciary. He has also prayed for cancellation of the appointment order of respondents No. 5 and 6 as Judges Shariat Court. He also challenged the proposals for appointment of one, Hamid Raza, respondent, against the post of Judge, Shariat Court on the ground of political motivation, favoritism and nepotism of hi-ups of the State. The main ground agitated in the writ petition is that according to the provisions of Act, 1993 the qualification, the terms and conditions and privileges of the Judge Shariat Court are same as of the Judge High Court, and the Shariat Court is also vested with the powers which were already conferred upon the High Court but the appointment of the Judges according to Act, 1993 depends upon the sweet will of the executive. It is further averred in the writ petition that in the Azad Jammu and Kashmir, the Political parties are unanimous on the point that the basic amendments are required in the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution Act). In this regard proposals have already been submitted. He has also questioned the hasty mode and manner regarding the appointment of respondents No.5 and 6. The appointment of the Judges is purely made by the President on the advice of the Prime Minister who have no concern with the qualification of the Judges, whereas according to his version, even a Naib Qasid has to be appointed on the recommendations of the appropriate selection Committee. Both the appointed Judges are residents and voters of the Prime Minster’s and President’s Election Constituencies. They, being voters and supporter have been rewarded by these appointments. According to the nature of the Job, only the Chief Justices are the concerned persons who can determine the suitability, eligibility and competence of the persons to be appointed as Judge Shariat Court. Such like appointments clearly offend the constitutionally guaranteed fundamental rights which amounts to shake the confidence of the public in the judiciary and also is against the concept of independence of judiciary. He finally prayed as follows:-
“Prayer:
by accepting this writ petition, the section 3(2) of the Azad Jammu & Kashmir Shariat Court Act, 1993 may kindly be declare against the constitution, fundamental rights, independence of judiciary.
It is further prayed that the notification dated 15.11.2012 bearing It is therefore, very humbly prayed that No. LD/AD/2031-80/2012 may kindly be set aside as being political motivated, based upon favoritism, nepotism and sweet will of the high-ups of the State and against the scheme of Constitution. Any other relief which this Hon’ble Court deems fit in the circumstances of the case may also be granted”
4. Both the writ petitions were seriously contested by the respondents. They filed written statements. After completion of the required proceedings, fina through the impugned majority Judgment of two judges, these writ petitions have been dismissed whereas the third member of the bench has issued the prayed writs.
5. Before proceeding further as it has been mentioned hereinabove that the mode of appointment of respondents No.5 and 6 is also specifically challenged which has been discussed in the minority judgment, thus, without adding anything llyfurther, it will be useful to reproduce here the same as under:-
“40. There is yet another aspect of the matter that mode of appointment of a Judge of the Shariat Court is not transparent. In order to visit the procedure adopted for appointments of the incumbent judges of the Shariat Court, record was sent for from the Law Department. It is astonishing to observe that Law Department is not in possession of original record of appointment of the Judges and mere photocopies of some documents are present on record of the Law Department alongwith notification of appointment. A perusal of these documents reveals that Law Department moved summary for approval of the Prime Minister of only two persons i.e. the incumbent Judges, which was approved by the Chief Executive without any further scrutiny or investigation. No panel of suitable candidates was moved in the case of appointment of private non-petitioners 5 and 6. Summary moved by Secretary Law on 15.11.2012 states that he was directed to propose names of only 2 persons for appointment as Judges of the Shariat Court. Para 2 of the summary is reproduced herein under for proper appreciation:-
2- متذکرہ بالا خالی اآسامیوں کے خلاف حسب ہدایات بذیل وکلاء صاحبان جو کہ مطلوبہ اہلیت کے حامل ہیں کے اسمائے گرامی بطور پینل پیش خدمت ہیں:
|
نمبر شمار |
اسمائے گرامیٍ |
اہلیت |
|
1۔ |
چوہدری مشتاق ، ایڈووکیٹ سپریم کورٹ ساکن میرپور۔ |
موصوف بطور ایڈووکیٹ عدالت العالیہ دس سال سے زائد تجربہ کے حامل ہیں اور گزشتہ عرصہ میں ایڈووکیٹ جنرل تعینات رہ چکے ہیں۔ لہذا مطلوبہ اہلیت کے حامل ہیں۔ |
|
2۔ |
سردار محمد شہزاد خان، ایڈووکیٹ ہائی کورٹ ساکن راولاکوٹ۔ |
موصوف 1996سے ایڈووکیٹ عدالت عالیہ کے طور پر باقاعدہ وکالت کر رہے ہیں۔ لہذا بطور ایڈووکیٹ ہائی کورٹ زائد از دس سال تجربہ کے حامل ہیں۔ لہذا مطلوبہ اہلیت کے حامل ہیں۔ |
(Underlining is mine)
41. It may also be noticed here that while describing eligibility of Justice Sardar Muhammad Shehzad Khan, it has been stated that he has been practicing as Advocate High Court since 1996. This statement is not found true, as record of office of Registrar of the High Court shows that Justice Sardar Muhammad Shahzad Kahn was enrolled as Advocate High Court on 26.05.1997. All the proceedings pertaining to appointment pf non-petitioners No. 5 and 6 have been undergone in a mechanical and telegraphic manner. Summary by Secretary Law was moved to the Prime Minister under the pretext that Minister Law was not present in headquarter. Rules of procedure provide that Secretary Law has to move such a summary through Minister Law, which has been violated. It is also worth mentioning that all the procedure was undergone in a hurry and approval of the Prime Minister, the President and the Chief Secretary was obtained on same date i.e. 15.11.2012. Notification impugned was also issued on the same date. Approval of the Prime Minister, the President and Chief Secretary was obtained through fax. It also appears from the correspondence through fax that summary by the Secretary Law was moved on 15.11.2012 on 09:05PM and it was sent back to the Secretary Law at 09:28PM. It appears that whole the procedure was undergone just in 25 minutes and that too, in the darkness of night.”
6. There is also a review petition filed by the Azad Jammu and Kashmir Government and others against the order dated 8.4.2014 whereby the interim injunction was granted till disposal of appeal. As in the captioned appeals final arguments have been heard and the controversy is being finally resolved in appeals, thus, in this state of affairs, the review petition which has become practically infructuous is not pressed by the learned counsel for the petitioners. Therefore, the same shall be deemed to have been dismissed being infructuous.
7. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants in appeal No. 11/2014 and Mr. Sadaqat Hussain Raja, Advocate, appellant in appeal No. 99/2014 adopted almost one and the same line of arguments. While dealing with the question of aggrieved person, in appeal No. 11/2014, titled Bashir Ahmed Mughal vs. Azad Govt. & others, it is contended that the appellant is still below the age of 62 years and eligible for elevation as Judge High Court/Shariat Court. Even otherwise, the vires of the statute, i.e Act, 1993 has been challenged. Any State Subject can challenge vires of law, therefore, the writ petitions have been filed by the legally aggrieved persons, hence were maintainable. Both the learned Advocates seriously challenged the majority judgment and submitted that it appears that the whole judgment is in fact replica of the Genuine Rights Commission’s case [1999 SCR 1]. The learned Judges who have handed down the impugned judgment have not applied their judicial mind for drawing the final conclusion. Thus, it is obviously clear that the legal and factual propositions raised in the writ petitions have not been properly appreciated and attended to by the learned Judges. Mere reproduction of the Genuine Rights Commission’s case [1999 SCR 1], is not a proper legal course for disposal of the writ petitions. However, despite all this the learned Judges are also of the view that the arbitrary appointment of a person as Judge of Shariat Court without consultation with the Chief Justices is not approved in the Judgments of the Superior Courts, however, it appears that they felt handicapped due to Genuine Rights Commission’s case [1999 SCR 1]. The learned Judges also expressed their earnest desire of suitable amendments in the law and constitutional reforms as is evident from para 53 of the impugned judgment. They also strongly argued that on one hand both the learned judges in para 57 of the impugned judgment have drawn the conclusion that the basic concept of establishment of the Shariat Court is to bring the laws of the state in line with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (P.B.U.H) and for this purpose the learned judges have discussed section 4 of Act 1993 but on the other hand, they have ignored that there is no provision for prescribing the special qualification of the judge of the Shariat Court to distinguish it from the constitutional High Court already established. According to the constitutional provisions of the Islamic Republic of Pakistan, 1973 for achieving this special purpose the provisions of law for specific distinguished qualification are provided. The learned judges also drawn the conclusion that since its establishment for last two decades the basic function of the Shariat Court is not visible. Thus, it is clear that establishment of the Shariat Court is a fruitless act. Same like in para 58 of the impugned judgment it has been clearly observed by both the learned judges that the purpose of independence of judiciary cannot be achieved unless and until the appointment of judges of the Shariat Court is made in consultation with the Chief Justice. They have also expressed their earnest desire that the law should be made so as to provide for mandatory consultation with both the Chief Justices before making appointment of judges of the Shariat Court and other provision for independence of judiciary, but amazingly, despite drawing this conclusion they have dismissed the writ petitions which makes their judgment as self contradictory.
8. They submitted that a thoughtful consideration of the majority judgment clearly reveals that both the learned judges have drawn independent conclusion that the appointment of judges of Shariat Court without consultation of the Chief Justice, is against the concept of independence of judiciary and expressed their earnest desire but at the end only it appears that they felt helpless due to the findings recorded in the Genuine Rights Commission’s case [1999 SCR 1].
9. Both the counsel also submitted that Act, 1993 is a very defective law and against the basic spirit and concept of the independence of judiciary. There is no provision for removal of judges of Shariat Court which means that the removal rests upon the sweet discretion of the appointing authority. They seriously argued that all the qualifications, terms and conditions of a judge Shariat Court have been borrowed from the constitution but only for the purpose of mode of appointment, Act, 1993 has been enforced which practically amounts to bypass and supersede the constitutional provisions through sub-constitutional law. They also argued that if the qualifications and other terms and privileges are the same then how without any distinction establishment of another Court is justified. They also submitted that in all the constitutional states, appointments in the judiciary and public offices are always being made on the basis of determination of merit and for this purpose for all such appointments, the law has provided the mode of selection on merit. Whether it is through the selection authority or by means of consultation but there is no concept of appointment without fulfilling the basic concept of determination of merit, suitability or eligibility. In this regard they referred to the provisions of the number of different laws existing on the statute book i.e Constitution Act, as well as the constitutional provisions of the different states of the world. It is also forcefully argued that according to the Constitution Act, Islam is the state religion and the conclusion drawn in the Genuine Rights Commission’s case [1999 SCR 1] and in the impugned majority judgment offends the principles of Islam which strictly emphasize the independence of judiciary. There are number of the verses of the Holy Qura’n on the subject of independence of judiciary thus, the conclusion drawn that there is no provision of independence of judiciary in Constitution Act, is not consistent with the spirit of the constitution and its provisions. It is also argued that the latest view on the subject is expressed by this Court in the case reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], which was referred to but has not been considered and discussed in the impugned judgment. It is settled principle of law that if there are two views on a legal proposition, the latest one has to be followed. They also submitted that the principle of law enunciated by the Supreme Court of Pakistan has equal binding force upon the High Court of Azad Jammu and Kashmir. In support of their arguments they placed reliance upon the cases reported as Riaz Ahmed vs. Amin Beg & others [PLJ 1978 SC(AJK) 2], President’s Reference No.1 of 1998 [PLJ 1998 SC(AJK) 102], Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501] Azad Jammu and Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341] and Aljehad Trust through Raeesul Mujahideen Habibul-Wahab-ul-Khairi & others vs. Federation of Pakistan & others [PLD 1996 SC 324] and submitted that in view of the constitutional provisions and the principles of law enunciated in the Superior Court’s judgments and even the conclusion of both the learned judges expressed in the referred paras of the impugned judgment clearly leads to the conclusion that the petitions filed by the appellants have to be granted in letter and spirit for supremacy of law, independence of judiciary and upholding the dignity of the Courts. They prayed for acceptance of the appeals and grant of the prayed relief in the appeals.
10. Mr. Abdul Rashid Abbasi, Advocate the learned counsel while arguing on behalf of respondents submitted that the vires of law can only be challenged if it is against the fundamental rights or the scheme of constitution. According to the constitutional provisions there is no bar to establish the court under a different law. The appellants have failed to point out that Act, 1993 offends the fundamental rights or the scheme of the constitution. He submitted that this Court has already resolved all these questions and propositions in the case reported as Azad Govt. & 3 others vs. Genuine Rights Commission AJK & 7 others [1999 SCR 1], which is holding the field. The proposition of independence of judiciary has elaborately been discussed in paras 22 to 25, thus, the impugned majority judgment is quite in accordance with law, constitution and the principle of law enunciated by this Court. He seriously objected to the summoning of record relating to appointment of the respondents, judges, as discussed in the minority judgment. He contended that although there is always a room for improvement in the law. The Act, 1993 can be amended prospectively but presently the existing provisions of the statute are not in conflict with any of the provisions of the constitution Act. He placed reliance upon section 4 of the Constitution Act and the cases reported as Azad Govt. & 3 others vs. Genuine Rights Commission AJK & 7 others [1999 SCR 1], Reference No.1 of 1998 [1998 CLC 1331], Syed Abul A’la Maudoodi v. Government of West Pakistan [PLD 1964 SC 673] and Syed Mumtaz Hussain Naqvi & others vs Raja Muhammad Farooq Haider Khan & others [2014 SCR 43].
11. Raja Abrar Hussain, Advocate the learned counsel for the respondents submitted that para. 42 and 53 of the impugned majority judgment are clear which are quite consistent with the principle of law laid down by this Court in the case reported as Azad Govt. & 3 others vs. Genuine Rights Commission AJK & 7 others [1999 SCR 1], which is of binding nature. Thus, the impugned judgment is quite constitutional one which does not call for any interference. So far as the question of principle of law laid down in the case reported as Azad Jammu and Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341] is concerned, in that case the violation of constitutionally guaranteed fundamental rights has been discussed whereas no such proposition is involved in the case in hand. He submitted that the Courts are bound to interpret the law as it is and they cannot legislate the law. The appointments of the incumbent judges of the Shariat Court have been made according to law. If there is any desire expressed by the learned judges for amendment in the law, it is prospective and not retrospective. He also pointed out that in the Shariat Court previously all the appointments have been made without consultation and presently another judge is also holding the post whose appointment was also made in the same manner, therefore, there should be no discrimination. He also submitted that the appellants have not specifically challenged the mode of appointment, therefore, these appeals have no substance and are liable to be dismissed.
12. Mr. Asghar Ali Malik, Advocate the learned counsel while following the arguments of Mr. Abdul Rashid Abbasi, Advocate submitted that the appellants are not aggrieved persons, therefore, these appeals are not maintainable.
13. Raja Muhammad Hanif Khan, Advocate the learned counsel in rebuttal submitted that there is no question of discrimination. So far as the appointment of other learned judge in the Shariat Court is concerned, in that case the process of consultation was adopted by the Government. He further submitted that even in the impugned majority judgment the independent judicial mind of the judges as depictable from the judgment, is clear that they have also drawn the conclusion that appointment with consultation of Chief Justice is constitutional requirement for independence of judiciary. He referred to the case reported as Shahid Nabi Malik and another vs. Chief Election Commissioner Islamabad and 7 others [PLD 1997 SC 32].
14. We have considered the arguments of the learned counsel for the parties, gone through the record carefully and also the case law referred by the learned counsel for the parties. In this case writ petitions have been heard by the full bench of the High Court. Two learned judges of the High Court by majority have dismissed these writ petitions. A careful examination of the impugned judgment reveals that although they have expressed their desire for suitable amendments in law to provide mode for appointment with consultation of the Chief Justice for upholding the independence of judiciary. However, according to their view this Court has already decided all these issues in the case titled Azad Government & others vs. Genuine Rights Commission & others, [1999 SCR 1], thus, following the dictum laid down in the supra case, they have dismissed the writ petitions. They have also observed that although according to the consensus of the judgments of the Supreme Court of Pakistan consultation for appointment in the judicial office is mandatory but as the judgment of the Supreme Court of Pakistan is not binding on the High Court of Azad Jammu and Kashmir, hence, the principle cannot be followed, whereas the other learned Judge who dissented, drawn the conclusion that the judgments of the apex Court of Pakistan are also having the binding force upon the High Court of Azad Jammu and Kashmir. He has drawn the conclusion that the appointments of the judges of the Shariat Court without consultation of the Chief Justices are unconstitutional, against the concept of independence of judiciary hence, are illegal.
In the case in hand, from perusal of the majority and minority judgments of the High Court, an interesting proposition is emerged. On the very nucleus point involved in the case i.e “the appointment of Judge of the Shariat Court with consultation of Chief Justices” there is unanimity of opinion among all the three Judges. Reference to the minority judgment is not required as it is clear that on this proposition, the writ petitions have been accepted. We would like to refer here some portions of the impugned majority judgment which expresses opinion and desire of the signatory judges. It will be useful to reproduce here para. 42, which reads as under:-
“42. In view of what has been stated above, we are of the opinion that the provision of making appointment of Judge of the Shariat Court under Section 3 of the Shariat Court Act, 1993 without consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court which is necessary under the Interim Constitution in case of appointment of Judges of the High Court, thereby bestowing unfettered powers on the Executive to make appointment of Judge Shariat Court in an arbitrary manner, is not good from any angle as the practice of arbitrary selection has been in vogue since past some times even during the pendency of lis”
(underlining is ours)
The same view has been further expressed in para 53, which is reproduced as under:-
“53. Although above quoted decisions/ judgments and legal provision of Constitution of Pakistan do not approve the practice of arbitrary selection of persons for appointment as Judges of the Shariat Court and making appointments without consultation with the Chief Justices, however we are constitutionally barred from passing any order which is not in consonance with the judgment of the Hon’ble apex court. However, we express our earnest desire for law/constitutional reform.
(underlining is ours)
In para 58 of the impugned majority judgment, the learned judges have also opined regarding the importance of consultation of Chief Justices in the following manner:-
“58. There is no doubt that independence of Judiciary, of which Shariat Court is an important part, cannot be achieved unless consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court is mandatory before making appointment of Judges of the Shariat Court of Azad Jammu and Kashmir…”
(underlining is ours)
They also expressed their earnest desire in para 59 of the impugned majority judgment to provide for mandatory consultation with both the Chief Justices in the following words:-
“59. It is pertinent to repeat that no such provision is provided in Interim Constitution Act, 1974. However, we earnestly desire that law should be made so as to provide for mandatory consultation with both the Chief Justices before making appointment of Judges of the Shariat Court and other provision for independence of judiciary and separation of judiciary from executive.”
(underlining is ours)
Thus, it is clear that on the point of maintaining the independence of judiciary, the appointments of the Judges of Shariat Court with consultation of the Chief Justices, all the learned Judges are unanimous. These findings have not been challenged by the respondents which have attained finality. Therefore, except one hurdle i.e the judgment in Genuine Rights Commission’s case, [1999 SCR 1], according to both the majority and minority views of the learned judges of the High Court in the Shariat Court, the appointments of the Judges without consultation of Chief Justices are against the concept of independence of Judiciary and illegal.
16. In this state of affairs, the scope of controversy among the parties has been narrowed down, only to the extent of the effect of the Genuine Rights Commission’s case [1999 SCR 1] which in the light of the spirit and scheme of the Constitution Act, has to be appreciated and determined for disposal of the captioned appeals by this Court. In this regard, according to our own study and considered view, the provisions of sections 3, 4 and 31(5) of Constitution Act are having overriding effect in relation to legislation and interpretation of law. According to the spirit of the Constitution Act, there can be no law which takes away, abridges or is inconsistent with the constitutionally guaranteed fundamental rights or is made in contravention of the provisions of section 4 of the Constitution Act. Same like, Islam is the state religion and under the provisions of section 31(5) of the Constitution Act, no law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur’an and Sunnah. Keeping in view these constitutional parameters we proceed further to deal with the propositions raised in these appeals.
17. The first and the most important point requiring deliberation is; whether according to the scheme and spirit of the Constitution Act, the status of the judiciary is independent or subservient?. According to the provisions of section 3 of the Constitution Act, Islam is the state religion of the Azad Jammu and Kashmir whereas under the provisions of sub-section 5 of section 31 of Constitution Act, no law shall be repugnant to the teachings and requirements of the Holy Qur’an and all the existing laws shall be brought in conformity with the Holy Qura’n and the Sunnah of the Holy Prophet (P.B.U.H). Thus, the basic spirit, essence and scheme of the Constitution Act has been derived from the sources of the Holy Qur’an and Sunnah of the Holy Prophet (P.B.U.H).
18. Now the question arises what is the status of judiciary according to the Holy Qur’an and Sunnah. The question hardly requires much labour as the Supreme Court of Pakistan in the case reported as Syed Zafar Ali Shah & others vs. General Pervez Musharraf, Chief Executive of Pakistan and others [PLD 2000 SC 869] while deliberating on this point has observed as follows:
“207. First of all, reference may be made to Sura Al-Nisa, Verses 135-136 English rendering whereof by Allama Abdullah Yousaf Ali reads thus:-
‘O Ye who believe!
Stand out firmly
For justice, as witnesses
To Allah, even as against
Yourselves, or your parents,
Or your kin, and whether
It be (against) rich or poor;
For Allah can best protect both
Follow not the lusts
(Of your hearts), lest ye
Swerve, and if ye
Distort (justice) or decline
To do justice, verily
Allah is well-acquainted
With all that ye do.’
The footnote to the above translation is as under:
‘Justice is God’s attribute, and to stand firm for justice is to be a witness to God, even if it is detrimental to our own interests (as we conceive them) or the interests of those who are near and dear to us. According to the Latin saying, “Let justice be done though heaven should fall.’
‘But Islamic justice is something higher than the formal justice of Roman Law or any other human law. It is even more penetrative than the subtler justice in the speculations of the Greek philosophers. It searches out the innermost motives, because we are to act as in the presence of God to Whom all things, acts, and motives are known.’
208. On the question of jurisdiction and power of this Court, we would like to observe that we have to decide the present controversy acceding to our conscience and the law. It would be pertinent to quote the following extracts from a letter sent by Hazrat Umar to Abu Musa Al-ash’ari, Governor Basra/Chief Qazi:-
‘Administration of Justice is a decisive ordinance of God and (of the Prophet (P.B.U.H) which must be followed.’
‘Decide after careful consideration (and execute it), if a suit is filed before you; for the announcement of a rightful judgment without its execution is useless.’
‘Use your brain about matters that perplex you and to which neither the Qur’an nor the Sunnah of the Holy Prophet (P.B.U.H) seem to apply. Study similar and analogous cases and evaluate the situation through analogy and adopt the judgment which is most pleasant to God and most in conformity with justice so far as you can see’.”
Even on the scope of independence of judiciary, in the same judgment after making survey of the constitutional provisions as well as the case law it has been further observed as follows:-
“209. The basic functions of the Judiciary are to promote the administration of justice, to protect Human Rights and to maintain Rule of Law in the country. The 6th Conference of Chief Justices of Asia and the Pacific held at Beijing on 19th August, 1995 adopted the ‘Beijing Statement of Principles of Independence of Judiciary in the LAWASIA Region’ as follows:
‘1. The Judiciary is an institution of the highest value in every society.
2. The Universal Declaration of Human Rights (Art. 10) and the International Covenant on Civil and Political Rights (Art. 14(1) proclaim that everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent Judiciary is indispensable to the implementation of this right.
3. Independence of the Judiciary requires that;
(a) the Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and
(b) the Judiciary has jurisdiction, directly or by way of review, overall issues of a justiciable nature.
‘33. The Judiciary must have jurisdiction overall issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
34. The jurisdiction of the highest Court in a society should not be limited or restricted without the consent of the members of the Court.’ (The underlining is by way of emphasis.”
210. The independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that “the independence of Judiciary shall be fully secured”; and with a view to achieve this objective, Article 175 provides that “the Judiciary shall be separated progressively from the executive.” The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualifications for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a Judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgments in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive.
211. In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This 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.”
(underlining is ours)
The same view has been expressed by the eminent jurist, Muhammad Anum Saleem, Advocate, Lahore High Court on the topic of “Saga of Judicial Independence in Pakistan, reported in [PLD 2003 Journal 41].
“When the integrity and independence of the judiciary are at stake, all other questions become unimportant. When the sappers and miners are at work, undermining the foundations of our judicial structure, it is idle to discuss questions of details of construction or reconstruction of the edifice.
The doctrine of separation of power grew out of centuries of political and philosophical development. Its origins can be traced to the fourth century B.C. when Aristotle in his treatise titled Politics described three agencies of Government, the General Assembly, the Public Officials and the Judiciary. In Republican, Rome, there was a somewhat similar system consisting of Public Assemblies, the Senate and the Public Officials, all operating on a principle of checks and balance. Following the fall of the Roman Empire, Europe became fragmented into nation-states and from the end of the middle ages until the eighteenth century the dominant governmental structure consisted of a concentrating power residing in hereditary rulers, the sole exception being the development of English Parliament in the seventeenth century. With the birth of Parliament, the theory of three branches of the Government reappeared, this time embodied in John Locke’s Two Treatises of Government (1689) where these three powers were defined as “legislative”, “executive” and “federative”. Locke, however, did not consider the three branches to be co-equal nor were they designed to operate independently. Locke considered the legislative branch to be supreme, while the executive and federative functions, internal and external affairs respectively, were left within the control of the monarch, a scheme which obviously corresponded with the dual form of Government prevailing in England at the time, the Parliament and the King.
The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Law appeared in 1748. The Frenchman based his theory on his understanding of the English system, which, since the time of Locke, had generated a more independent judiciary and a tendency towards a greater distinction among the three branches. In discussing the importance of clear delineation of power among the three branches, Montesquieu wrote:
‘When the legislative and the executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’
Again, there is no liberty if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator; were it joined to the executive power, the Judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or the people, to exercise those three powers; that of enacting the laws, that of executing the public resolution, and of trying the cases of individuals.
Montesquieu also observed that, in the British System, the judiciary ranked “next to nothing” when compared with the other branches of Government. Seventeen years later, Balckstone noted the importance of a more powerful and independent judiciary, in his Commentaries:
‘Were it the judicial power joined with the legislative, the life, liberty and property of the subject would be in the hands of arbitrary judges, whose decision would be then regulated only by their own opinions and not by any fundamental principles of law, which though legislators may depart form, yet judges are bound to observe were it joined with the executive, this union might soon be an overbalance for the legislative.’
Several references can also be found in the Holy Qur’an establishing the principle of separation of judiciary from the executive. The Holy Prophet in the earlier years of Islamic rule separated the judiciary from the executive by appointing a separate “Qazi” for each district. The concept of justice in Islam is different from the concept of “remedial justice” of the Greeks, the “natural justice” of the Romans, or the formal justice of the “Anglo Saxons”, Justice in Islam seeks to attain a higher standard of justice, which may be denoted by “Absolute or Fair Justice”. In Surah Al-e-Imran, Qur’an provides:
‘O ye who believe: stand out firmly for justice, as witness to Allah, even as against yourselves, or your parents, or your kin and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts of your heart, lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well acquainted with all that ye do (4:135)’
In Surah Maida, Qur’an provides:
‘O ye who believe: stand out firmly by Allah as witness to fair dealing and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just that is next to piety: and fear Allah, for Allah is well acquainted with all that ye do (5:8)’
After the Independence in 1947, the question of separation of judiciary from the executive was one of the serious issues to receive the attention of lawmakers. In 1951, the Chief Justice of the Lahore High Court, at the request of the then Chief Minister of Punjab, suggested outlines of a scheme for partial as well as complete separation of the two organs. It was suggested that to completely separate the judiciary from the executive, the Judicial Magistrates alongwith their administrative heads should be subordinate to the High Court. However, the scheme could not be effectively implemented lacking a legal force. Even the Constitutional commitments contained in the Objectives Resolution adopted by the First Constituent Assembly of Pakistan soon after the Independence in 1947, that “the independence of judiciary shall be fully secured” could not materialize due to the early dissolution of the Constituent Assembly. As the Objectives Resolution was not adopted as part of the Constitution in 1956, Article 30 was added to the Constitution wherein it was stated that “the State shall separate the judiciary form the executive as soon as practiceable”. However, before any action could be taken pursuant to Article 30, the 1956-Constitution was abrogated.
The 1962-Constitution of Pakistan meekly mentioned the goal of independence of judiciary “which should be ensured without delay”. A real, effective and assertive move towards this goal was, however, achieved by the recommendations of the Law Reforms Commission headed by Chief Justice, Mr. Justice Hamood-ur-Rehman which recommended complete separation of judiciary from the executive and proposed a phased program covering a span of five years to complete the task. Consequently, Law Reforms Ordinance was promulgated in 1972, which can be called the foundation stone of the separation of judiciary in Pakistan. The recommendations were not only given effect through an Ordinance but also given Constitutional force through Article 175(3) of the Constitution of Pakistan, 1973.
Under Article 175, as originally enacted, it was provided that the judiciary shall be separated from the executive progressively within three years from the date on which the Constitution came into force, that is, 14 August 1973. However, this period of three years was subsequently extended to five years by the Constitution (Vth Amendment), Act 1976 and then to fourteen years by the Presidential Order of 1985. Since, however, the separation was not affected even by this extended date, two Constitutional petitions were filed by Sharaf Faridi and some other members of the Pakistan Bar Council in the Sindh High Court and by Azizullah Memon and other members of the Balochistan Bar Association in the Balochistan High Court, under Article 199 of the Constitution complaining of the Government’s defiance shown on this subject and seeking issuance of direction to appropriate authorities. A Full Bench of the Sindh High Court, after thoroughly examining all the issues, reached the conclusion (by majority of 5 to 1) that the Constitutional obligation contained in Article 175(3) had indeed been disregarded and that appropriate direction could be issued by the High Court. The High Court, inter alia, directed that the Government of Pakistan should initiate all legislative, administrative steps to bring the existing laws relating to or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months from the date of order. Besides these specific directions, some important findings were recorded in respect of several other matters including the matter of financial independence of the judiciary. In this connection, it was observed:
‘The requirement of above Article 175 will be met if the judiciary has effective say in formulation of its annual demands. To put it differently, the executive should place annual funds as per requirement at the disposal of the judiciary for operating it without being interfered with by any agency of the executive.’
Both the judgments of the Sindh High Court and the Balochistan High Court were challenged by the Government of Pakistan in the Supreme Court. The Government of Pakistan in Sharaf Faridi’s case contended that the time frame given by the High Court was inappropriate to bring about such a massive change. The Supreme Court, while upholding the High Court’s decision on merit, extended the time period for implementation of the direction given by the High Court, Subsequently, in line with the Supreme Court’s judgment, Judicial Magistrates were separated from magistracies amd tje former were directed to act under the control of High Court and were supposed to have no connection with the executive. No provision was, however, made for granting financial autonomy to the judiciary, which is still dependent on the executive for funds. As a saving grace, only the power of reallocation of the approved budget under various heads was given to the Chief Justice of Pakistan as per the requirement.
Remarkable progress has been made by the judiciary after the landmark judgment pronounced in Sharaf Faridi’s case supra. For instance, a Full Bench of the Supreme Court in Malik Asad Ali’s case held that the concept of independence of judiciary is not an end in itself but is a means to promote impartial decision-making and to preserve, protect and defend the Constitution against encroachment from any other organ of the State. In this context, an independent judiciary free from a tinge of executive control is a guarantee, which according to Objectives Resolution cannot be abridged or abrogated.
In Mehram Ali’s case, the Supreme Court, while taking a giant leap forward, held that any Courts/Tribunals which are manned and run by Executive Authorities without being under the control of High Courts in terms of Article 203 of the 1973-Constitution cannot meet the mandatory requirements of the 1973-Constitution. Therefore, any Court/Tribunal which is not subject to judicial review and administrative control of High Court or Supreme Court does not fit within the judicial framework of the Constitution. The judgment, while declaring the act of establishing Anti Terrorism Courts by Nawaz Sharif Government (read the executive) as null and void being ultra vires to the Constitution, had far reaching consequences when analyzed in the context of separation of judiciary.
However, in utter disregard of the Supreme Court decision in Mehram Ali’s case supra there still exist for like the Custom Courts and Income Tax Tribunals. These Courts/Tribunals adjudicate the matters and punish for offences, however, they are neither under the administrative control of High Court or Supreme Court nor are they free of the executive control. These parallel fora represent the highhandedness of Executive Authority in Pakistan which have refused to tow the line set by the highest judicial forum of the country (the Supreme Court) as well as the most sacrosanct document of legislation (the 1973 Constitution). The 1973-Constitution does not envisage any parallel structure of justice other than the courts established under Article 2013. The practice of establishing these parallel structures of justice only undermines the concept of separation of judiciary by the executive. Our legal system has taken a long time and unabated struggle of the legal community to achieve this objective that is being relegated so conveniently. The lawyers should resist this attack and defend the courts from this peril by taking up this matter in the courts in Public Interest Litigation. As attorneys and counselors at law, it is their duty to see that no harm is done to the usefulness or prestige of the court and the principle of separation of judiciary from the executive.
A factor threatening the separation of judiciary is the appointment of sitting Judges as Secretary, Law, Justice, and Parliamentary Affair. Besides, the temporary appointment of Chief Justice of Pakistan as the President of Pakistan during the latter’s absence (when the Parliament and Senate are not in session) and the appointment of Chief Justice of the respective Province as Governor of the Province during the latter’s absence can also be termed as a practice which should be immediately abandoned. The practice, though justified on the idea of necessity, only propagates the interaction between the judiciary and the executive. Further, the nomination of sitting judges on the Board of Governors of State run Colleges and Universities by the Government should also be curtailed which not only affects the efficiency of Judges but also creates a dangerous liaison between the judiciary and the executive.”
(underlining is ours)
In another case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudury vs. President of Pakistan through Secretary and others [PLD 2010 SC 61], the status of judiciary in Islam has been discussed at pages 263 and 264 as follows:-
“The status of Qazi/Judge is at a very highest pedestal in Islam as is evident from the portions of the following text books:-
‘1. Islamic Law and Constitution by S. Abul A’LA Maududi.
‘The scope of the Judiciary (which is the terminology of Islamic Jurisprudence is called Qada) also becomes well prescribed by the acceptance of the de jure sovereignty of God Almighty. When Islam established its state in accordance with its eternal principles, the Prophet himself was the first Judge of that state, and he performed that function in strict accordance with the Law of God. Those who succeeded him, had no alternative but to base their decisions on the law of God as transmitted to them through the Prophet. (Page 224).’
‘The Qadis were also directly appointed by them. But the Caliphs could not ordinarily terminate their services nor influence their decisions, so much so that if in their personal capacity or in their capacity as the executive head, anybody brought a suit against the Caliphs, they had to appear and plead their cases before the Qadis like any commoner’. (Page 226).
‘It is the independence and impartiality of the judiciary which ensures the internal peace of a country and the tranquility of is people. No amount of rights and privileges written in the Constitution can give the people any satisfaction if the courts, owing to the interference of the people in power are not free to administer unfettered justice.’ (Page 319).
‘2. Adab ul Qazi compiled by Mehmood Ahmed Ghazi
آداب القاضی
محمود احمد غازی
“نظامِ قضاء کی اہمیت:
قضاء ایک نہایت باعزت منصب ہے۔ اسکا احترام اور تعظیم کرنا فرض ہے۔ دین میں اس کام کی جو اہمیت اور مقام و مرتبہ ہے اس سے واقفیت حاصل کرنی چاہیے۔ یاد رکھنا چاہیے کہ اس کام کے لیے رسول اور انبیاء بھیجے گئے۔ جب تک نظامِ قصا صحیح طور پر قائم رہے گا اس وقت تک زمین و اآسمان بھی قائم رہیں گے’۔ (Page 386)
‘اہمیت و فضیلت کے اعتبار سے قضاء کا مرتبہ ثبوت کے فوراً بعد ہے۔ اس لئے کہ اللہ تعالیٰ نے مخلوقات کو پیدا کیا ہے۔ ان کا شریعتوں پر عمل کرنے کا پابند کیا اور ان کے درمیان اپنے پیغمبروں اور رسولوں کو قاضی بنا کر بھیجا تاکہ ان کے درمیان فیصلے کریں’۔(Page 386)
‘3. Urdu Daeera Mahaaraf-e-Islamia, under Danish Gah Punjab, Lahore
“اردو دائرہ معارفِ اسلامیہ:
“عدالت کا حاکم سلطنت عثمانیہ کے نظام عدلیہ کے اعلیٰ ترین عہدوں میں سے ایک تھا۔ اس عہدے پر جو لوگ فائز ہوتے تھے ان کا منصب رئیس العلماء یعنی شیخ الاسلام کے بعد سب سےبلند سمجھا جاتا تھا۔ ان کا لقب صدر (رتبہ صدر الصدور) ہوتا ہے اور مکتوبہ عرائض میں انہیں سماعت لو یعنی “فیض آب” کے لقب سے خطاب کیا جاتا ہے۔” (Vol – 16/I, Page 46)
‘4. Report, Islami Nizam-e-Adal(اسلامی نظام عدل) Islami Nazariati Council dated 5th May, 2000
قاضی کا مقام:
‘اسلام نظام عدل میں عدالت (جج) کا مقام انہتائی اہمیت اور عظمت کا حامل ہے۔ قرآن حکیم میں آنحضرت صلی اللہ علیہ وسلم کی زبان مبارک سے کہلوایا جا رہا ہے۔
(“میں تمہارے درمیان عدل کرنے پر مامور کیا گیا ہوں’) (سورۃ شوریٰ۔ 15)
19. According to verse No. 134 of Surah Al-Nisa, (translation of the verse is hereinabove incorporated), it has been clearly commanded by the Allah Almighty that the basic spirit of the administration of justice is application of independent mind. Same like, according to the Sunnah of the Holy Prophet (P.B.U.H) and the traditions set by the Khulfa-e-Rashideen, there is no argument except that in Islam without independence there is no concept of judiciary. Thus, in the light of the provision of section 3 and sub-section 5 of section 31 of the Constitution Act, it can be safely concluded that the scheme of the Constitution Act speaks of the independent judiciary.
20. In this regard we may also refer to the first schedule of the Constitution Act which consists of the contents of the oath of the Chief Justice or the Judge which reads as follows:-
“OATH OF OFFICE
Chief justice of Azad Jammu & Kashmir
Judge of the Supreme Court of A.J.K
I …………. having been appointed Chief Justice of Azad Jammu and Kashmir or Judge of the Supreme Court of Azad Jammu and Kashmir 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 Azad Jammu and Kashmir, without fear or favour, affection or ill-will’.
“Oath of Chief Justice
Judge High Court
I …………. having been appointed Chief Justice or Judge of the High Court of Judicature, Azad Jammu and Kashmir State, do solemnly swear that I we 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 Azad Jammu and Kashmir, without fear or favour, affection or ill-will.”
(underlining is ours)
This Schedule is part of the Constitution. The phraseology used in the oath of a judge clearly indicates the scheme and spirit of the Constitution which speaks of independence of judiciary by using the expressed words “without fear or favour”, “affection or ill-will”. Whereas no such words are visible in the oath proforma of the other public office holders like the President, Prime Minister, Minister, Speaker, Member of Legislative Assembly and Advisor etc. because all these offices are not independent according to the spirit of the Constitution rather they are responsible to the Legislative Assembly. The survey of the above referred case law and the constitutional provisions makes it abundantly clear that Islam is the State religion of the Azad Jammu and Kashmir. According to the constitutional provisions and command of Almighty Allah, independence of judiciary is most sacred and important requirement of the State. This aspect of the matter according to the spirit of the Constitution Act has not been considered by this Court while handing down the judgment in the Genuine Rights Commission’s case [1999 SCR 1]. Thus, having due respect and regard of the Judges who delivered the supra judgment, keeping in view the concept of the constitutional and Islamic spirit, we are unable to agree with the opinion expressed in the judgment that in the Constitution Act, there is no concept of independence of judiciary. In our considered humble opinion, there is no concept of judiciary without independence. The view expressed in the supra judgment is result of over-sighting the provisions of sections 3 and 4 of the Constitution Act which represents the true scheme and spirit of the Constitution. Therefore, the expressed view cannot be termed as principle of law enunciated according to the spirit of the Constitution Act, hence, has not attained binding force.
21. The next important constitutional provision in this context is section 4 of the Constitution Act, sub-sections 1 and 2 of which speak as under:-
“4. Fundamental Rights:- (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 section, shall to the extent of such inconsistency be void.
2. No law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this sub-section shall to the extent of such contravention, be void.”
Thus, according to these expressed constitutional provisions it is clear that the scheme and spirit of the Constitution Act and all the laws is to protect, advance, and safeguard the constitutionally guaranteed fundamental rights. Any law the application of which results into abridging and taking away such rights is null and void even before its inception
22. While interpreting the term, “null and void” the Supreme Court of Pakistan, in the case reported as Dr. Mobashir Hassan and others v Federation of Pakistan and others [PLD 2010 SC 265], has observed as under:-
“55. As far as the term ‘void’ is concerned, it has been defined in Black’s Law Dictionary, 7th Edn. (1999), as “of no legal effect; null.” Corpus Juris Seccundum, Vol. 92 at pp 1021 to 1022 defines ‘void’ as follows:-
‘The word ‘void’ may be used in what is variously referred to as its literal, absolute, primary, precise, strict, and strictly accurate sense, and in this sense it means absolutely null; null and incapable of confirmation or ratification; of no effect and incapable of confirmation; of no force and effect; having no legal force or binding effect, having no legal or binding force; incapable of being enforced by law; of no legal force or effect whatever, that what has no force and effect; without legal efficacy, without vitality or legal effect; ineffectual; nugatory; unable in law to support the purpose for which it was intended.’ (Emphasis added).
56. The expression ‘void’ has also been commented upon in Province of East Pakistan v. M.D. Mehdi Ali Khan (PLD 1959 SC 387), Syed Abdul A’la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), Bhikaji Narain v. State of M.P. (AIR 1955 SC 781). This Court in Haji Rehmdil v. Province of Balochistan (1999 SCMR 1060) defines that term “void” signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever. Similary, the word “void ab initio” has been defined in Black’s Law Dictionary, 7th Edn. (1999) as “null from the beginning’.”
The Supreme Court of India, in a case reported as Mahendra Lal Jaini, v. State of Uttar Pardesh and others [AIR 1963 SC 1019], while dealing with the identical proposition and provisions observed as follows:-
“23. It is however urged on behalf of the respondents that this would give a different meaning to the word “void” in Art. 13(1) as compared to Art. 13(2). We do not think so. The meaning of the word “void” in Art. 13(1) was considered in Keshava Madhava Menon’s case, 1951 SCR 228: (AIR 1951 SC 128), and again is Behram Khurshid Pesikaka’s case, (1955) I SCR 613: ((S) AIR 1955 SC 123). In the later case, Mahajan C. J. pointed out that the majority in Keshava Madhava Menon’s case, 1951 SCR 228: (AIR 1951 SC 128), clearly held that the word “void” in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statue was void ab initio. Thus, in our opinion, if we may say so with respect, follows clearly from the language of Art. 13(1), which pre-supposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws in so far as they were unconstitutional was only that it nullified them, and made them ‘ineffectual and nugatory and devoid of any legal force or binding effort.” The meaning of the word “void” for all practical purposes is the same in Art. 13(1) as in Art. 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre Constitutional laws could not become void from their inception on account of the application of Art. 13(1). The meaning of the word “void” in Art. 13(2) is also the same viz., that the laws are ineffectual and nugatory and de-void of any legal force or binding effect, if they contravene Art. 13(2). But there is one vital difference between pre-Constitution and post-Constitution laws in this matter. The voidness of the pre-Constitution laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for sometimes and for certain purposes; the voidness of post-Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose. This distinction between the voidness in one case and the voidness in the other arises from the circumstance that one is a pre-Constitution law and the other is a post-Constitution law; but the meaning of the word “void” is the same in either case, namely, that the law is ineffectual and nugatory and devoid of any legal force or binding effect.”
Thus, it is clear that any law which is inconsistent with the constitutional provisions of subsection 1 and 2 of section 4 of the Constitution Act or take away or abridges the fundamental rights is of no legal effect.
23. Now the question arises what are these fundamental rights. The sub-section 4 of section 4 of the Constitution Act enumerated rights Nos. 1 to 18 in brief which are “security of person, safeguard as to arrest and detention, slavery and forced labour prohibited, Protection against retrospective punishment, freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech, freedom of religion, safeguard against taxation of any particular religion, safeguard as to educational institutions in respect of religion etc., provision as to property, protection of property, equality of state subjects, non-discrimination in respect of access to public places, safeguard against discrimination in services and abolition of untouchability.” None of these enumerated fundamental rights is of such a nature regarding which judiciary is not concerned. Without judiciary no one can think that these rights can be enjoyed or protected. Keeping in view the scope and jurisdiction of the Shariat Court under Act, 1993, the very first right “Security of person” is directly concerned and thereafter all other rights are directly or indirectly concerned to the Azad Jammu and Kashmir Shariat Court. According to the enforced law, in all the criminal cases falling under Hudood and Qisas laws, the appeal/revision lies in the Shariat Court including the confirmation of death sentence. The Shariat Court is also vested with the appellate jurisdiction against the judgments and decrees of the Family Court passed in the matrimonial matters including the guardianship etc under the Guardian and Wards Act. Same like on the original side, the Shariat Court has to decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Qura’n and Sunnah of the Prophet (P.B.U.H.), which means that all the laws in this perspective are concerned to the Shariat Court’s jurisdiction. Thus, the Shariat Court according to its jurisdiction is deeply concerned with all the fundamental rights.
24. When we carefully examined the fundamental rights incorporated in the Constitution Act, briefly enumerated hereinabove, a very basic fundamental right No.15 which includes that all the State Subjects are equal before law and entitled to equal protection of law, appears to be a foundation upon which the whole structure of other fundamental rights is based. This Court in the famous Judgment reported as Azad Jammu and Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341], has struck down the Act passed by the Legislative Assembly being inconsistent with this constitutionally guaranteed fundamental right and observed that this right is more fundamental than all other fundamental rights. The observation of the Court is as follows:-
“In my view the guarantee of equality before law is more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations become meaningless without Right No. 15. The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law. Can a “law” contemplated by this right be discriminatory”. The answer to this question must be in the negative because it cannot be visualized that, for instance, persons belonging to a particular ideology or political creed may be deprived of liberty, under a harsher law than the others. Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc.
If Right No. 17 is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu and Kashmir will be reserved for sons of serving or retired Judges or that persons in Police service shall only be recruited from a particular tehsil or that only those who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If we test these laws against the touchstone of Right No. 17 the said laws will have to be declared valid. However, if Right No. 15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zafar is without substance.
The Interim Constitution Act through Right No. 15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularization in the phraseology these guarantees cover all law; dealing with state subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been nationalized were experienced in literally implementing these guarantees. These difficulties are real and substantial. Therefore, reasonable classification was recognized.”
(underlining is ours)
25. Yet there is another aspect of this fundamental right with reference to the legal provisions of the case in hand. In this fundamental right the terms used “equal before law” and “entitled to equal protection of law” are very important. The judiciary is the sole organ of the State to protect the constitutionally guaranteed fundamental rights. In this regard reference may be made to an authoritative judgment in the case reported as Khan Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division, Islamabad and others [PLD 2001 SC 607], wherein it has been observed as under:-
“165. It is a settled Constitutional principle that Bench should be independent of the Executive and arbiter of the Constitution to decide all disputed questions. This is so because the Superior Courts in the exercise of their judicial powers have to check the arbitrary exercise of power by any other organ or authority of the State. It rests with the Courts alone to define and limit the exercise of power by the Executive in terms of a legislative instrument. Viewed from this angle, it is the duty of this Court to protect the Fundamental Rights guaranteed under the Constitution and the independence of the judiciary. This Court is the ultimate guardian of the rights of the people. It is, therefore, the duty of this Court to authoritatively interpret not only the validity of the NAB Ordinance but also its scope.”
(underlining is ours)
The almighty Allah has also commanded in Surah Al Rehman verses Nos. 7, 8 and 9, the translation of which is reproduced as under:-
“7. And the heaven: He has raised in high, and He has set up the Balance.
8. In order that you may not transgress (due) balance.
9. So establish weight with justice and fall not short In the balance.”
It hardly requires any argument that the organ of the State, the judiciary is responsible to keep the scale of justice even. Thus, there remains no doubt in the mind of a prudent person that without independent judiciary, there can be no concept of equal treatment of law or equal protection of law. If the very basic foundation of the protection of fundamental rights is lost, then obviously result is clear that there will be no hurdle in taking away or abridging all the constitutionally guaranteed fundamental rights.
26. According to the provisions of subsection 1 and 2 of section 4 of Constitution Act, any law which takes away or abridges the fundamental rights is void. The term “takes away” is very much clear conveying the total deprivation of the rights or things. Whereas according to the meanings of the word “abridge”, it includes even curtailment or partial deprivation of rights or things. We would like to refer here some dictionaries defining the word “abridge” as under:-
In the Black’s Law Dictionary with Pronunciations, Sixth edition by Henry Campbell Black, M.A, (page 8), the word “abridge” has been explained as under:-
“Abridge: To reduce or contract; to diminish or curtail. Usually spoken of written language.
Copyright law. To epitomize, to reduce, to contract. It implies preserving the substance, the essence, of a work, in language suited to such a purpose. In making extracts there is no condensation of the author’s language, and hence no abridgment. To abridge requires the exercise of the mind; it is not copying. Between a compilation and an abridgment there is a clear distinction. A compilation consists of selected extracts from different authors; an abridgment is a condensation of the views of one author.
Abridgment. Condensation, contraction. As epitome or compendium of another and larger work, wherein the principal ideas of the larger work are summarily contained. Abridgments of the law are brief digests of the law, arranged alphabetically. In this context, the term “digest” (q.v) has generally supplanted that of “abridgement”.
As used in First Amendment (U.S. Const.) means neither more nor less than what it ordinarily means; abridgment occurs when legislative act either suppresses or substantially interferes with free speech. Keene v. Meese, D.C.Cal., 619 F.Supp 1111, 1123.
Abridgment of damages. The right of the court of reduce the damages in certain cases.”
In the kitabistan’s New Millennium Practical Dictionary, English-English-Urdu, by B.A. Qureshi, page 4, the word “abridge” has been defined as under:-
“abridge (a-brij) v.t make a book or story shorter خلاصہ لکھنا ، تلخیص کرنا abridgment n making shorter تلخیص something made shorter خلاصہ ، تلخیص We abridge something by rewriting it briefly. Abbreviate a word in writing or printing shorten something that is already long, and curtail one’s rights, speech, leave, etc, by cutting them short.”
In the Chambers 20th Century Dictionary, New Edition, 1983 Edited by E.M. Kirpatrick, at page 4,the word abridge has been defined as under:-
“Abridge v.t. to shorten: to epitomize: to curtail.Ns. Abridge ‘er; abridg’ment (sometimes abridge’ment) contraction: shortening: a compendium of a larger work: an epitome for synopsis: (prob.) a pastime (shake)”
In the Chambers 21st Century Dictionary Revised Edition, Edited by Mairi Robinson, the word abridge has been defined at page 5 in the following manner:-
“Abridge verb (abridged, abridging) to make (abook etc) shorter. abridged adj. abridgment or abridgment noun.”
(underlining is ours)
In our considered view absence of independent judiciary amounts to taking away and abridging the fundamental rights.
27. According to the modern principles of the jurisprudence and universally accepted Constitutional provisions, the basic essence and spirit in all the constitutions of the civilized states is the establishment of an independent judiciary and access to justice. The counsel for the respondents failed to refer to any precedent from any jurisdiction that any constitution of any state contains or speaks of the subservient judiciary. On this subject this Court has already handed down an authoritative judgment in the case reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] in which all the principles laid down in the famous judgment in Aljehad Trust’s case [PLD 1996 SC 324], have been discussed and followed in letter and spirit. Now another very scholarly latest judgment on the subject is also available, reported as Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501]. In this case on the legal proposition of status of Court with reference to the nature of jurisdiction and independence of judiciary especially with reference to the mode of appointment has been discussed. The apex Court of Pakistan while dealing with the question of maintainability of the constitution petitions under Article 184(3) has discussed the status of the Courts especially with reference to Article 9 of the Constitution, access to justice to all, after making survey of the previous case law on the subject has observed as follows:-
“28. It would be appropriate to first of all take up the objection 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 no impartial court or tribunal.
29. The scope of jurisdiction of this Court under Aritcle 184(3) of the Constitution by now is fairly settled in a plethora of case-law. In the case of Ms. Benazir Bhutoo 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 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, (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 trial 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 citizen has a right to challenge the same. Relevant paras therefrom read as under:–
‘12. Yet another objection raised was that the petitioner could not invoke Article 1984(3) of the Constitution as he has not been able to show whether any one, of his fundamental rights were 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 thereunder. 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 provision of the Constitution relating to the Judiciary. It is held by this Court in the case of Fazlul Qadeer Chowdry 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 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 hereinbefore 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 expression 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 (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 willfully, 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 defined 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 and 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 Constituion , 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 it onerous obligation to intervene to defend the said assault on the said fundamental right to life and to property of the said public.’
In Syed Mehmood Akhtar Naqvi v. Federation of Paksitan (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 1975SC 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 92, 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 is a sacred trust; and whereas it is the will of the people of Pakistan to establish an order wherein the independence of 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, N.W.F.P. 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:-
‘(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 pressure, 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 enjoys but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs of 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 Pervaiz 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 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 Kakr 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 Department 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.
(underlining is ours)
It is further observed in the same judgment of the apex Court of Pakistan reported as Sh. Riaz-ul-Haq and another v. Federation of Pakistan and others [PLD 2013 SC 501] in which the vires of the administrative Courts established under article 212 of the Constitution of Islamic Republic of Pakistan were challenged. While discussing the right of excess to justice, the Court has observed as follows:-
“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 rightly 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 aspiration of the people permeating the Constitution and the basic 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 well-recognized inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of due process of law. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term ‘due process of law’ has been summarized 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 as to mercy or dependent on it.’
In the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memom (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 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.
(underlining is ours)
Thus, the interpretation of the Constitutional provision of section 4 of Constitution Act in the light of the survey of case law leads to the conclusion that the right of access to justice and equal protection of law is the most fundamental right than any other right which can only be achieved through independent judiciary.
28. In the case reported as Aljehad Trust through Raeesul Mujahideen Habibul-Wahab-ul-Khairi & others vs. Federation of Pakistan & others [PLD 1996 SC 324], after referring to the Sharaf Faridi’s [PLD 1989 Karachi 40], 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 no efficacy or beneficial value to the public at large. The same view has been reiterated in the case of Aljehad Trust through Raeesul Mujahideen Habibul-Wahab-ul-Khairi & others vs. Federation of Pakistan & others [PLD 1996 SC 324], 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].
29. In the light of the above constitutional provisions and survey of the case law, it is clear that the fundamental rights can only be enforced or guaranteed by the independent judiciary which is the spirit and essence of the constitution as discussed hereinabove.
30. As we have observed hereinabove that the Azad Jammu and Kashmir Shariat Court according to the scope and jurisdiction conferred upon it, is directly and indirectly concerned with the constitutionally guaranteed fundamental rights, thus, its independence is constitutionally required. In the case reported as Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501], while dealing with the status of the Courts with reference to their assigned judicial functions, it has been observed as follows:-
“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
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 through 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 on 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 exercised 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.’
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 Nazir 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 forum also which are not the Courts stricto sensu. 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. I, p. 3671 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 say 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 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 orientation. 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, C.J. in Huddart Parker’s case has define 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 subjects, 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 the 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 and 2, C.P.C. 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 perform 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 establishment under section 3 of the Punjab Service Tribunals 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 appellant 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. …. Needles to observe that under section 5(1) afore referred, 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 Sargodah-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, C.J. 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 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, recognized by the Constitution or statute or by custom or equity which by the domestic law is declared to be the rule of decisions; 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 tribunals 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 was 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 that it is acting in a manner in which a judicial tribunal is expected to act.
37. In the case of Muhammad 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 been 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 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 applies law or custom or usage having the force of law. The ‘judicial power’ is thus for 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)]. Besides these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents 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, though 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, recognized 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 intents 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 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 Musharaf (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 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 treet 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 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 Court 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 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 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.”
As in the above referred judgment the status of the Service Tribunal was in question which according to the constitution is the administrative tribunal but with reference to its judicial functions, it has been concluded that it is the Court for the purpose of administration of justice. Its independence is necessary, thus, in this context, the Shariat Court of Azad Jammu and Kashmir according to the scope of jurisdiction assigned under the provisions of Act, 1993 or by any other law has to perform important role in the system of administration of justice. Under the constitutional provisions of the Islamic Republic of Pakistan, the Fedreal Shariat Court stands at a higher pedestal as compared to High Courts. Therefore, we do not feel any hesitation to hold that according to the nature of the judicial functions of the Shariat Court it is an important judicial institution for the purpose of administration of justice and its complete independence according to the spirit and scheme of the constitution is inevitable.
31. It is no more a dispute that for attaining and maintaining the independent status of the judicial organs, the mode of appointment is of much importance and without following the mode which is required according to the constitution for independent judiciary, no Court can be established. In this regard, this Court has already while following the golden principles of law laid down in the authoritative judgment of the Aljehad Trust’s case supra has observed in the case reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] as under:-
“22. The Supreme Court of Pakistan in a case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others [PLD 1997 SC 84], again reiterated the earlier view at page 134. It was observed in paragraph 66 as under:
‘66. The third point is whether appointment of Judges is executive power/action. This Court has already rendered authoritative judgment in the case of appointment of Judges in the superior Courts [PLD 1996 SC 324] in which all the Articles relating to judicature in the Constitution of 1973 have been interpreted to determine the scope of the word “consultation” in respect of appointments and such other allied matters. It is held as under:-
‘(i) The words ‘after consultation’ employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/ Executive.
(ii) If President/Executive appoints a candidate found to be unfit and unsuitable for Judgeship by the Chief Justice of Pakistan and Chief Justice of the High Court concerned, it will not be a proper exercise of power under relevant Article of the Constitution.
(iii) That the permanent vacancies occurring the office of the Chief Justice and Judges normally should be filled in immediately by not later than 30 days but a vacancy occurring before the due date on account of death or for any other reason, should be filled in within 90 days on permanent basis.
23. The word ‘consultation’ used in section 42(4) and section 43(2-A) of the Act, 1974 is used in similar sense as used in Articles 177 and 193 the Constitution of 1973. The Supreme Court of Pakistan has held that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is to be accepted in absence of sound reasons to be recorded by the President/Executive. While applying the above criteria, we will decide the matter in hand.”
Whereas the apex Court of Pakistan has also expressed its latest view in Sh. Riaz-ul-Haq’s case [PLD 2013 SC 501], as under:-
“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 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 appointment of District Judges under section 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 fulfill 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 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 honorable 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 recommendations by the honorable 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.’
49. In the case of Hazrat Baz v. Political Agent / District Magistrate Khyber (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 the 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.”
32. In this context let us have a survey of the constitutions of some states of the world relating to importance of consultation for appointment of the Judges and the concept of independence of judiciary. For this purpose, first of all we will look into relevant provisions of the Articles 233 and 234 of the Constitution of India which read as under:-
“233. Appointment of District Judges:– (1) Appointments of persons to be, and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
234. Recruitment of persons other than District Judges to the judicial service —- Appointment of persons other than District Judge to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.”
A bare reading of these Articles clearly speaks that all the appointments in the judiciary even at the district level are to be made with consultation. There is no concept of appointment of judges in an arbitrary manner by the executive at their whim.
33. In the constitution of the Kingdom of Saudi Arabia under Article 52, for appointment in the judiciary there is a higher council of justice with whose consultation and recommendations the appointments and determination of termination of the judges in the judiciary is made. According to the provision of Article 6 of this constitution, judiciary is an independent authority. There is no control over the judges in the dispensation of justice except in the matters of the Islamic Shariah.
Under the Constitutional Provisions of the Islamic Republic of Iran, the Supreme Leader shall appoint a just Mujtahid well versed in judiciary affairs and possessing prudence and administrative abilities as the head of the judiciary power for a period of five years who shall be the highest judicial authority. The chief of the Supreme Court and the Prosecutor-General must both be just mujtahids well versed in judicial matters. They will be nominated by the head of the judiciary branch for a period of five years, in consultation with the judges of the Supreme Court. The appointments in the judiciary including the Prosecutor General are made on the proposal of Just Mujtahid.
According to the provision of Article 138 of the Constitution of Republic of Turkey, the Judges shall be independent in the discharge of their duties. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. Judges shall discharge their duties in accordance with the principles of the independence of the courts and the security of tenure of judges. The qualifications, appointment, rights and duties, salaries and allowances of judges and public prosecutors, their promotion, temporary or permanent change in their duties or posts, the initiation of disciplinary proceedings against them and the subsequent imposition of disciplinary penalties, the conduct of investigation concerning them and the subsequent decision to prosecute them on account of offences committed in connection with, or in the course of, their duties, the conviction for offences or instances of incompetence requiring their dismissal from the profession, their in-service training and other matters relating to their personnel status shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges. All the appointments are made in consultation with the concerned bodies consisting of the Supreme Council of Judges and the Public Prosecutors.
Under the Constitutional Provisions of the Constitution of Egypt, interference in the affairs of the Courts under law shall constitute crime. Every judicial body administers its own affairs and has its own budget. The appointments in the judiciary are regulated by law who are selected by the Supreme Judicial Council of the Judiciary.
According to the Constitutional provisions of the Republic of Indonesia, the judicial power is independent and possesses the power to organise the judicature in order to enforce law and justice. All the appointments are made on the proposal of the Judicial Commission keeping in view the integrity, and a personality that is not dishonourable, and must be fair, professional, and possesses legal experience. Article 24-B of this Constitution speaks that there must be an independent Judicial Commission which shall possess the authority to propose candidates for appointment as justices of the Supreme Court and possesses further authority to maintain and ensure the honour, dignity and behaviour of judges.
According to the Constitution of the Malaysia, the appointments in the judiciary are made by the President on the advice of the Prime Minister after consulting the conference of rulers. The appointments are also made in consultation with the Chief Justice.
In the United Kingdom, the appointments in the superior judiciary are also made on the recommendations of the Selection Commission consisting of the Senior Judges.
In Ireland, the appointments of Judges are made on the recommendations of the Judicial Appointment Advisory Board.
Even according to the provisions of the Constitution of United Arab Emirates, the appointments in the judiciary are made by a decree issued by the President of the Union after approval by the Supreme Council.
Thus, according to the survey of the constitutional provisions of the different states, whether democratic or non-democratic, the common feature is that the appointments are made in the judiciary in consultation with or on the recommendations of the concerned bodies consisting of the Chief Justices, Judges and Jurists of the country. Thus, it can be safely held that according to the universally applicable principles, there is no concept of subservient judiciary in the world rather there is a universal consensus on the independent status of the judiciary. For upholding the independence and dignity of the judiciary with minor modification according to the constitutional structure and scheme of the different states, the power of appointments in the judiciary does not arbitrarily or solely vest in the ruler rather all the appointments are made in consultation with the Chief Justices or the prescribed bodies or persons commonly consisting of the Chief Justices, Jurists or the persons or office holders concerned with the field of administration of justice.
34 It is concluded that for independence of judiciary, the appointments in the Shariat Court in consultation with the Chief Justice of High Court/Shariat Court and the Chief Justice of Azad Jammu and Kashmir is the mandatory constitutional requirement. Thus, it is clear that the appointments in the judiciary without consultation with the Chief Justices are against the spirit of the Constitution Act. For establishment of independent judiciary and to protect the constitutionally guaranteed fundamental rights, in our considered view, in the light of the above discussed law, if any Court is established in violation of the spirit of the constitution without consultation of the Chief Justices, it amounts to abridge and take away the fundamental rights.
35. According to the celebrated golden principles of law, on the subject of interpretation of the constitutional provisions, the liberal interpretation in favour of safeguarding the fundamental rights is always preferred. Our this view finds support from the case reported as National Industrial Cooperative Credit Corporation Ltd. and another v. Province of Punjab/Government of Punjab and another [PLD 1992 Lahore 462], wherein coupled with this principle of interpretation of law, the independence of judiciary has been discussed in the following manner:-
“…. The rule for the interpretation of the Constitution as laid down by the Supreme Court in Jabindra Kishore’s case PLD 1957 SC 9 is that it is a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those provisions which were signed to safeguard the fundamental rights.
The independence of judiciary is, thus, a most sacred pillar on which the edifice as a safeguard against every type of injustices, i.e. social, political and economic has to stand and no inroad into the fundamental rights guaranteed to a citizen including the equality of status, and of opportunity before law, social, economic and political justice and freedom of thought, expression, belief, faith, worship and association can be made by the executive. However, as it is well-established that subject to law and public morality on the basis of reasonable classification, the Legislature can regulate the exercise of such rights guaranteed in the Constitution but in the light of the independence of judiciary, having been secured, guaranteed and being essential part of our ground norm, the same is enforceable.
In this view of the matter, the scheme of trichotomy of power as envisaged under the Constitution, into three organs of the State i.e. executive, legislature and judiciary gains importance, and therefore, none of these organs can make inroad or transgress the sphere of others. Thus, taking of adverse action against any person or body on the basis of its misdeeds, if any, is nothing but exercise of judicial power. In exercise of such power, it has to be seen whether care to comply with law and opportunity of being heard as a principle of natural justice was provided before taking any adverse action. The concept of independence of judiciary as guaranteed and enforceable under our Constitution would not authorize the legislature or the Provincial Government to enunciate a legislative judgment through a piece of legislation. In this behalf, a reference to the pronouncement of this Court reported as Naseer Ahmad Khan v. Province of West Pakistan PLD 1980 Lah. 684 would be useful. In the aforesaid case, a piece of legislation with regard to the acquisition of land was subject to the determination of this Court. While considering the scope of the function of each organ of the State, this Court observed as follows:-
‘But the fact that Court can look into the contents of the preamble does not necessarily mean that in all events, it can either start an enquiry or an inquest that the facts stated therein are not correct. It is for the Legislature to see the facts as it finds and proceed on their basis. It is its judgment of the facts and the situation requiring legislation. The Courts do not sit as Appellate Authority of facts over the legislature. Both the institutions are separate and independent in their own sphere. It is only where the Constitution permits one or the other to pass judgment or overrule the other, otherwise, each functions within the domain.’
It was further observed that act of Legislature confiscating or acquiring property of a named individual held would not enter into the idea of law. After the pronouncement of the Supreme Court in Fauji Foundation case PLD 1983 SC 457, the august Court in the judgment reported as Government of Sindh and another v. Sharaf Faridi 1990 SCMR 91 again upheld the majority of the Constitution by holding that usurpation of the judicial power was unknown to our Constitution. Similar view was adopted earlier by the Sindh High Court in the judgment reported as Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404. On this question, the judgments of Indian Jurisprudence are also available and with convenience, one can cite Bhari Lal v. Ramcharan AIR 1957 (MP) 165, in which the term judicial power has been dilated upon. Similarly in another judgment reported as Smt. Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299, it was laid down that the judicial power cannot be taken away. The Federal Court of India also followed this view in judgment reported as Piare Dusadh and others v. Emperor AIR 1944 FC 1 and it was held that the judicial power cannot be exercised by the legislature. The latest view of the Supreme Court as enunciated in Government of Sindh and another v. Sharaf Faridi and 3 others 1990 SCMR 91 is departure from the ratio of the judgment of Fauji Foundation case PLD 1983 SC 457, inasmuch as, at the time of the decision in the latter case, the Article 2A of the Constitution had not been made enforceable. Mr. Sharifuddin Pirazada while making brilliant exposition of this concept placed reliance upon a judgment of Australian High Court whereby the law as to the dissolution of Communist Party was struck down; reported in 1951 Vol. 83 CWLR 261.
On the question of judicial power, the Judicial Committee of the Privy Council also upheld the supremacy of the said concept in the two judgments reported as Shell Company of Australia v. Federal Commissioner of Taxation 1931 Appeal Cases 275 and Labour Relations Board v. John East Iron Works 1949 Appeal Cases page 134.
Mr. H.M Seervai in his commentary upon the Constitutional Law of India in Vol. II discussed the concept of judiciary; he had gone to the extent of laying down the adverse action must proceed by a finding of the tribunal and if such power is exercised by the legislature, it would be ultra vires of the Constitution.”
(underlining is ours)
36. In the constitutional states, there is no concept of law which offends the concept of independence of judiciary. The Supreme Court of Pakistan in the case reported as Mahmood Khan Achakzai and others v. Federation of Pakistan and others [PLD 1997 SC 426] has observed as follows:-
“44. It therefore follows from what is stated above that this Court in Begum Nusrat Bhutto’s case held that imposition of Martial Law and promulgation of the Laws (Continuance in Force) Order were extra- Constitutional steps validated on the basis of doctrine of necessity in the light of the fact that 1973 Constitution still remained the supreme law which was held in abeyance and not abrogated on account of State necessity. This arrangement was to last for a short time to enable the Government to hold elections as soon as possible. Superior Courts continued to have power of judicial review to judge the validity of any act or action of Martial Law Authorities if challenged in the light of principles underlying the law of necessity. Another very important feature of this judgment is that C.M.L.A. was allowed to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling within the scope of law of necessity. Legislature measures included amendment to the Constitution as well. Record shows that Martial Law was imposed on 5th July, 1977 and on the same day in the morning C.M.L.A. called on the then Chief Justice of Pakistan Mr. Justice Muhammad Yaqub Ali and remained with him for some time. Proclamation of Martial Law was issued on the same day and it shows that Constitution was not abrogated but allowed to remain in abeyance. Presumption is that Proclamation was published after meeting with the Chief Justice. The Chief Justices of four High Courts were sworn in as Governors of the Provinces. There is no dispute about the fact that in the advent of Martial Law the Constitution of 1973 was not abrogated but was only held in abeyance. On 18th September, 1977 Begum Nusrat Bhutto filed direct Constitution petition in the Supreme Court against Chief of Army Staff challenging detention of her husband and other leaders of PPP and also imposition of Martial Law. On 20th September, 1977 order was passed by the Court that the detenus be brought and kept in Sihala Rest House in Rawalpindi. Two days later on 22nd September, 1977 C.M.L.A. Order No. 6 of 1977 was promulgated where under Sixth Amendment in the Constitution was withdrawn resulting into automatic retirement of Chief Justice Muhammad Yaqub Ali from the Supreme Court. In consequence Mr. Justice Anwarul Haq took over as Chief Justice and also headed the Bench which was seized of the case. It is therefore clear that before the case of Begum Nusrat Bhutto was disposed of with judgment in which validity of Marital Law and other such allied questions had to be decided, C.M.L.A. had already acted and had amended the Constitution in the manner stated above. Finally, in the judgment all such legislative measures have been given cover of validation on the basis of doctrine of necessity. On the same day President’s Order No. 9 of 1977 was promulgated requiring Judges of the Supreme Court to take new oath with omission of words “to defend the Constitution”. This was promptly done and nearly all the Judges with some exceptions in compliance took oath. The question of oath also came up for consideration in the case of Begum Nusrat Bhutto and it was held with the consent of all the counsel appearing in the case that oath was not an obstacle in the way of Judges who were hearing that case. Discussion on this point is in the judgment of this case at page 674 of the report, which shows that both Mr. A.K. Brohi and Mr. Sharifuddin Pirzada were of the view that the new oath had not in any manner restricted the independence of the superior judiciary nor affected their obligation to perform their judicial functions according to law and it only indicated that superior judiciary, like rest of the country, had accepted the fact, which was even otherwise also evident that on 5th of July, 1977 a radical transformation took place in the pre-existing legal order, Mr. Yahya Bakhtiar, learned counsel for the petitioner in that case also joined the other two counsel and submitted that oath did not in any way precluded the Judges from examining the question of the validity of the new legal order which could be decided in accordance with their conscience and the law.”
Thus, the scope of fundamental rights is very wide. It includes the full comprehensive enjoyment of the fundamental rights.
37. Now we would like to attend the point of the vires of the provisions of Act, 1993 in the context of independence of judiciary. For proper appreciation, it will be useful to reproduce here the relevant section 3 providing for the contents of the constitution of Shariat Court and section 6 which speaks of the jurisdiction for which this Court has been established. The statutory provisions are reproduced as follows:-
“3. The Azad Jammu and Kashmir Shariat Court Act:- (1) There shall be Shariat Court and it may hold sittings at other District Headquarters from time to time as the Chief Justice may appoint constituted for the purposes of this Act a Court to be called the Azad Jammu and Kashmir Shariat Court.
(2) The Court shall consist of the Chief Justice and one or more Muslim Judges to be appointed by the President.
Provided that a Judge of High Court may be appointed as a Judge of Shariat Court for a period not exceeding three years.
(3) The Chief Justice of the High Court shall be the Chief Justice of the Shariat Court.
(4) A person shall not be appointed as a Judge of Shariat Court, unless:-
(a) He has for a period, or for periods aggregating not less than ten years, been an advocate or Pleader of the High Court of Azad Jammu and Kashmir or High Court in Pakistan.
(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.
(5) A Judge of Shariat Court who is not a Judge of High 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.
(6) The Judge of Shariat Court, other than the Judge of High Court, holding office at the time of commencement of this Act shall be deemed to have been appointed under sub-section (2) and in terms of sub-section(5).
(7) The principal seat of the Court shall be at Muzaffarabad and it may hold sittings at other District Headquarters from time to time as the Chief justice may appoint.
(8) Before entering upon office, the Chief Justice and a Judge of the Shariat Court shall make before the President or a person nominated by him, oath in the form set out in the schedule.
(9) At any time when the Chief Justice or Judge is absent or is unable to perform the function of his office, or it is necessary to increase the number of Judges temporarily, the President shall appoint another person qualified for the purpose, for such period as the president may determine, to act as Chief Justice or, as the case may be, Judge.
(10) The President may, at any time in consultation with the Chief Justice, by order in writing modify the period of office of a Judge, who is appointed from Judges of the High Court.
(11) A Judge of Shariat Court who is not a Judge of High Court shall be entitled to the same salary, allowances, pension and privileges as are admissible to a Judge of High Court in Pakistan.”
The jurisdiction of the Court is mentioned in section 6, which reads as under:-
“6. Powers, Jurisdiction and Functions of the Court: (1) The Court may, on the petition of a citizen of Azad Jammu and Kashmir or the Azad Jammu and Kashmir Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.
(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision.
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision is so repugnant and specify the day on which the decision shall take effect.
(3) If any law or provision of law is held by the court to be repugnant to the Injunctions of Islam:-
‘(a) the President in the case of a law with respect to a matter not enumerated in Council List, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam, and
(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.”
38. The above reproduced provisions of Act, 1993 are appreciated on the touch stone of hereinabove principles regarding the appointment of the Judges in the Shariat Court. It is crystal clear that in this law, there is no provision for consultation with the Chief Justices for appointment on the post of the Judge Shariat Court which means that these appointments are purely depending upon the arbitrary discretion of the appointing authority i.e the President. Such mode of appointment surely is violative of the independence of judiciary. Thus, the subservient judiciary cannot safeguard or protect the constitutionally guaranteed fundamental rights which amounts to abridge the fundamental right of access to justice and the consequences of which are taking away and abridging the constitutionally guaranteed fundamental rights. Thus, any law, the application of which results into taking away or abridging the constitutionally guaranteed fundamental rights, under the provisions of subsection 1 and 2 of section 4 of the constitution Act, is null and void. Therefore, we do not feel any hesitation to declare that the provision of section 3 of Act, 1993 in its present shape empowers the executive authority to appoint the Judge Shariat Court without consultation with the Chief Justices which is in negation of the constitutional spirit of the independence of judiciary. It also amounts to abridge and take away the fundamental rights. Thus, this provision is null and void and inoperative. Any order of appointment made in exercise of these provisions in its present shape is of no legal effect.
39. In the Act, 1993, there is also no express provision for removal of the Judges of the Shariat Court. The logical consequences of which can be either the judges of Shariat Court are above law, or not accountable for any misconduct, or to be removed for physical or mental incapacity but such consequences are not digestible in any constitutional state. The other logical conclusion which can be presumed that their removal depends on the sweet will of the ruler is totally against the concept of independence of the judiciary. Thus, from this aspect, this law is also violative of the spirit of independence of judiciary which results into abridging and taking away the constitutionally guaranteed fundamental rights.
40. We would also like to discuss here another aspect of the matter. Since the inception of the Azad Jammu and Kashmir State, the High Court is efficiently and effectively performing the functions of administration of justice according to the assigned jurisdiction whether it is constitutional writ jurisdiction or any other jurisdiction as original, revisional or appellate, conferred under any other law including the confirmation of the death sentences. The “right of life” is very basic fundamental right whereas in the present scheme of law, the cases of confirmation of the death sentences are referred to the Shariat Court. Which is neither established under the constitutional provisions nor is according to the concept of the independence of judiciary. Thus, conferring upon such Court the powers of confirmation of the death sentence amounts to empowering such Court to deal with the most important constitutionally guaranteed fundamental right of life while taking away the same from the jurisdiction of the constitutionally established High Court. No doubt, according to the constitutional provisions, other Courts can be established but not as a parallel Courts for mere accommodation of some persons on the basis of favouritism or nepotism rather there should be some legal specific purpose for establishment of such Courts which cannot be achieved by the already established Courts. In this context section 46 of the Constitution Act is reproduced as follows:-
“46. High Court to superintend and control all Courts subordinate to it, etc.– (1) The High Court shall superintend and control all other Courts that are subordinate to it.
(2) There shall, in addition to the Supreme Court of Azad Jammu and Kashmir and the High Court, be such other Courts as established by law.
(3) A Court so established shall have such jurisdiction as conferred on it by law.
(4) No Court shall have any jurisdiction which is not conferred on it by this Act or by or under any other law.”
(underlining is ours)
The phraseology of subsections 2 & 3 speaks that such other Courts can be established by law in addition to the Supreme Court of Azad Jammu & Kashmir and the High Court. The establishment of such other Court does not mean for conferring the jurisdiction already vested in the Supreme Court and High Court or to establish parallel additional Supreme Court or the High Court. The word “in addition” clearly conveys the intention of legislature that for establishment of such Courts, there must be some additional object which cannot be achieved through the already established Courts. Otherwise the establishment of such other Court without the additional object or jurisdiction will amount to destruct the whole system of administration of justice which cannot be the true spirit of the Constitution or intention of legislature.
41. It is very astonishing that the qualifications, remuneration and privileges of the Judges of the Shariat Court are same as of the High Court, except the mode of appointment. The appointments of judges of the High Court are made after consultation with the Chief Justices which is quite in accordance with the constitutional spirit of the independence of judiciary whereas the appointments of the judges of the Shariat Court are made in a discretionary manner without any consultation.
42. In our considered view, the present composition of the Shariat Court appears to be superfluous because there is no special features, qualification or distinction in the composition of the Shariat Court except the mode of appointment. The examination of Act, 1993 reveals that it has been basically established to examine the status of law whether or not it is according to the injunctions of the Holy Qur’an and Sunnah. But regrettably, not a single person as Judge has been included to achieve this purpose. Whereas in this context Article 203-C of the Constitution of the Islamic Republic of Pakistan contains the provision in regard to the special qualification of judges “not more than three shall be the Aalim having atleast fifteen years experience in the Islamic law research or instruction” Thus, if at all there is any necessity of establishment of the Shariat Court for achieving the purpose, then there must be some distinction in its composition as compared to the High Court to justify the establishment of a separate Court. Otherwise, if the qualification and terms & conditions of the Judges of the Shariat Court are same, then why the jurisdiction which has been conferred upon Shariat Court cannot be exercised by the Judges of the High Court having same qualification and privileges.
43. As it has been observed hereinabove that the only difference is of mode of appointment. Such arbitrary mode which practically amounts to adopt a mechanism of bypassing the constitutional provisions providing the consultation with the Chief Justices, is one of the reasons to create doubts in the minds of the public at large regarding such Court’s establishment for accommodation of some persons on the basis of favouritism and nepotism. Ultimately, such like doubts result into damaging the dignity of the judiciary and shaking the public confidence upon such an important state organ. Therefore, in our opinion, if there is a necessity of establishment of the Shariat Court for achieving the specified purpose, then it must be given constitutional status and protection. In its composition there must be some judges having special qualification relevant to the specified purpose to be achieved, like the constitution of Islamic Republic of Pakistan which provides for induction of Ulema as Judge Shariat Court having atleast fifteen years experience in the Islamic law research or instruction.
44. The argument of the learned counsel for the appellants that the mode of appointment of respondents No.5 & 6 (in appeal No. 99/2014) is offending the spirit of the constitutional provisions and independence of judiciary does not require much proof as same has been discussed by the learned Judge of High Court in the minority judgment’s paras 40 and 41, reproduced hereinabove which clearly justifies this argument. In presence of the adapted mode, it can be presumed that the appointments are made in arbitrary manner without any meaningful consultation, application of mind, necessary required deliberations or comparison among the eligible State Subjects for determination of merit, eligibility and suitability. Such like appointments may justify the doubts of the people that same are the result of the favouritism and nepotism. However, without attaching any stigma to respondents No.5 & 6 or any other authority, we would like to observe here that for appointment of Judge of Shariat Court, the exalted office of a such superior Court vested with the jurisdiction of confirmation of death sentences and Islamisation of the laws, neither such arbitrary mode can be approved nor the same is according to the spirit of the constitution.
45. Now it is the turn of the question which emerged from the arguments of the learned counsel for the respondents as well as careful examination of the majority judgment i.e the effect of the previous judgment of this Court reported as Azad Government and others v. Genuine Rights Commission AJK and 7 others [1999 SCR 1], to be concluded. As we have discussed hereinabove that the learned Judges i.e the signatories of the impugned majority judgment also expressed their earnest desire for amendment in law providing for the provision for consultation with the Chief Justices for appointment of judge Shariat Court as is required according to the spirit of the constitution. But it appears that the learned Judges of the High Court hesitated and felt the judgment of this Court in the Genuine Rights Commission’s case [1999 SCR 1] a hurdle without interpretation of section 3 and 4 of the Constitution Act. The learned counsel for the respondents have also argued that at the time of appointment of the Judges in the Shariat Court, the binding judgment of the apex Court was operative and the appointments are legally made in its light. It is also argued that if at all this Court differs from the enunciated principle of law in the previous judgment, then it will be prospective and not retrospective. In our considered view all these eventualities have no substance. As discussed hereinabove that in the referred judgment, the conclusion is drawn without taking into consideration the Constitution Act as a whole, specially the provisions of section 3 and 4 of the Constitution Act which resulted into misconception that in the constitution Act, there is no concept of independence of judiciary. No doubt, the judgment of this court has binding effect according to the constitutional provision of section 42-B but in the case in hand, this constitutional provision is not attracted because no principle of law has been enunciated by this Court in the previous judgment on the basis of interpretation of Sections 3 and 4 of the Constitution Act, rather the previous judgment is based upon interpretation of the constitutional provisions of sections 41, 42, 46 and 46-A of the constitution Act. If for the sake of arguments it is presumed that in the previous judgment the principle of law enunciated by this Court is inconsistent, contravenes the provisions of section 4 of the Constitution Act, or resulted into taking away or abridging the fundamental rights, that will be void and inoperative to such extent. As under the provisions of section 42 of the Constitution Act, the Supreme Court of Azad Jammu and Kashmir has to exercise its jurisdiction subject to the provisions of the Constitution Act. Keeping in view the spirit and scheme of the Constitution, all the laws whether made by the legislative body or enunciated by the Courts are subject to the provisions of section 4 of the Constitution Act. If any such law is inconsistent, takes away or abridges the fundamental rights or is in contravention with the provisions of subsections 1 and 2 of section 4 of the Constitution Act, by operation of these constitutional provisions is void and is of no legal effect. According to our considered view, the provisions of subsection 1 and 2 of section 4 of the Constitution Act, are very basic provisions having overriding effect and all the laws have to be interpreted, implemented and enforced according to the spirit of these constitutional provisions.
46. There is also no doubt that the term “Law” not only includes the law made by the ‘legislative bodies’ but also includes the ‘Judge made law’. Our this view finds support from the case reported as Sultan and others vs. Additional Sessions Judge, Sargodha and others, [1983 P.Cr.L.J 2182], wherein it has been observed as under:-
“5….The word “Law” in Article 4 of the Constitution includes not only statute law but also judge-made law and principles settled by the Superior Courts in the exercise of judicial and quasi-judicial powers and the failure of a subordinate judge to exercise his powers in accordance with such settled and well-recognized principles would be violative of Article 4 of the Constitution and liable to be struck down by the Superior Courts under Article 199 of the Constitution. If any authority is required for this view, Smith Kline & French of Pakistan Ltd. Karachi v. A. Rashid Pal and another (PLD 1979 Kar. 212) may be referred…”
The same view has been affirmed by the apex Court of Pakistan in the case reported as Govt. of Pakistan through Director General, Ministry of Interior, Islamabad & others vs. Farheen Rasheed, [2011 SCMR 1]. It will be useful to reproduce here para 10 of the judgment which reads as under:-
“10. It is the inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the Constitution. It is the duty and obligation of the public functionaries to act within the four corners of the mandate of the Constitution and Law. Even the Chief Executive of the Country is not above the Constitution and is bound to obey the command of the Constitution as envisaged under Article 5(2) of the Constitution and law laid down by the Court in various pronouncements. See Ch. Zahur Ilahi’s case PLD 1975 SC 383 and Zahid Akhtar’s case PLD 1955 SC 530. The word law used in the Constitution has been interpreted to include all such principles as having the binding force on account of moral, customary or other sociological reasons. Late Hamood-ur-Rehman, J., defined the word law while interpreting Article 4 of the Constitution and the dictum laid down in Begum Agha Abdul Karim Shorish Kashmiri’s case PLD 1969 SC 14 as under;
‘Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts.’
Thus, any law whether it is made by the legislative bodies or is a Judge made law, if it abridges and takes away the fundamental rights or is made in contravention with the provisions of section 4 of the constitution Act is void having no effect.
47. As we have observed that in the previous pronouncement in the Genuine Rights Commission’s case [1999 SCR 1], the principle of law regarding the vires of Act, 1993 has not been enunciated on the touchstone of the provision of section 4 of the Constitution Act and the constitutional concept of independence of judiciary, thus, the said judgment is not a hurdle for deciding the writ petitions of the appellants. Even otherwise, in our considered view, no judge-made law can be applied or interpreted in such a manner which results into making any provision of the constitution as inoperative or redundant. If such like interpretation is allowed it amounts to subversion of the Constitution Act. Therefore, in the light of the hereinabove stated detailed reasons, the principle of law laid down in the referred Genuine Rights Commission’s case [1999 SCR 1, cannot be applied in the manner to make the provisions of sections 3 and 4 of constitution Act inoperative and redundant. Moreover, according to the celebrated principle of law, the Courts while interpreting the law do not legislate or create any new law or amend the existing law. The Courts only declare true meanings of law which are already existing. Such interpretation of law will be applicable from the date of enactment of the interpreted law. As in this case we have interpreted the constitutional provisions of section 3 and subsections 1 and 2 of section 4 of the Constitution Act, thus, this interpretation has to be deemed applicable from the date of enforcement of the Constitution Act. Our this view finds support from the principle of law enunciated by the apex Court of Pakistan in the case reported as Malik Asad Ali and others vs. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others [PLD 1998 SC 161], the brief verdict of the apex Court reads as follows:-
“135…..The Courts while interpreting a law do not legislate or create any new law or amend the existing law. By interpreting the law, the Courts only declare the true meaning of the law which already existed. Therefore, to that extent the law declared by this Court is applicable from the date the law is enacted.”
48. Any law which is against the independence of judiciary whether regarding exercise of its jurisdiction or powers for administration of justice or the mode of appointment amounts to take away and abridge the constitutionally guaranteed fundamental rights, such law if existing at the time of enforcement of the Constitution Act, to this extent is declared void and for future even before promulgation or enforcement has also been declared void.
49. The learned counsel for one of the respondents argued that the appointments of two Judges of the Shariat Court have been challenged whereas the appointments of the other judges made under the same law has not been called in question, thus, it is discrimination which is prohibited under the Constitution Act. In view of the peculiar facts of this case, we are not impressed from the argument for the simple reason that specific order against any person whose appointment order has not been challenged specifically before us cannot be passed without providing him an opportunity of hearing. If any one desires for specific findings regarding the appointment of any specific person, when it will be challenged, the Court will be in a position to record any specific findings in this regard. However, in this case, we have dealt with the question of vires of Act, 1993 on the basis of interpretation of the provisions of sections 3 and 4 of the Constitution Act and found the Act, 1993 partially ultra vires to the Constitution. In the light of the enunciated principle of law by the Courts referred to hereinabove, such interpretation will have to take effect from the date of enforcement of the Constitution Act and thereafter the enforcement of the impugned Act, 1993. Resultantly, in presence of such interpretation, the question of discrimination does not arise.
50. In the light of the hereinabove discussed detailed reasons, we conclude that the provisions of section 3 of Act, 1993 are partly ultra vires to the constitution Act to the extent of:-
i. empowering the appointing authority to appoint the judges of the Shariat Court without consultation of the Chief Justices;
ii. lacking the necessary provision of induction of Aalim Judge for achieving the specific object of Islamization of law;
iii. lacking the provision and procedure for removal of Judge of Shariat Court.
Thus, this law in the indicated terms is made in contravention of subsection 2 of section 4 of the Constitution being violative of constitutional spirit, independence of judiciary amounts to take away and abridge the constitutionally guaranteed fundamental right of access to justice and equal protection of law. Resultantly, the appointments of all the judges right from 1993 under this provision of law (except the proviso of subsection 2 of section 3 of Act, 1993), are void and also the impugned appointment notification bearing No. LD/AD/2031-80/2012, dated 15.11.2012 of respondents No.5 and 6 in appeal No. 99/2014 titled Sadaqat Hussain Raja vs. Azad Govt. & others, is declared without lawful authority. However, according to the spirit of the constitutional provisions i.e section 56 of the constitution Act and keeping in view the principle of law laid down by this Court in the latest judgment reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], all the acts done by the judges of the Shariat Court appointed under the provision of section 3 of Act, 1993 are declared valid on the principle of de-facto doctrine including the drawing of the financial benefits etc.
51 We hold that for establishment of the Shariat Court according to the spirit of the constitution for achieving the object mentioned in Act. 1993, legislation having following features is required:-
(a) There must be a provision for induction of atleast one Aalim Judge, possibly having the qualification as near to Mujtahid or atleast the qualification provided under Article 203-C of the Constitution of Islamic Republic of Pakistan i.e having atleast fifteen years experience in the Islamic law, research or instruction;
(b) the mode of appointment of judges with consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court who is also Chief Justice of Shariat Court; and
(c) providing mode of removal of judge of Shariat Court for misconduct, incapability of properly performing functions of duties by reason of physical or mental incapacity.
Keeping in view the status of the Court with relevance to the scope of jurisdiction, its establishment be provided through amendment in the Constitution Act.
Provided if for the time being the required amendment in the Constitution Act for any reason is not practicable, in that case, through sub-constitutional legislation having the mentioned features, the object can be achieved.
52. We are conscious of the fact that the implementation of this judgment without issuance of direction for taking immediate steps will create vacuum which will surely result into adversely effecting the interest of the public at large whose cases are pending before the Shariat Court. Therefore, the Government and other concerned authorities are directed to immediately under proviso of subsection 2 of section 3 of Act, 1993, appoint the judges of the High Court (who have already been appointed with consultation of the Chief Justices) as judges of the Shariat Court. However, the number of such judges may be determined with consultation of the Chief Justice of the Shariat Court as required according to the volume of work.
The captioned appeals along with the review petition stand disposed off in the above stated terms with no order as to costs.
Muzaffarabad,
25.8.2014 JUDGE CHIEF JUSTICE JUDGE