Qazi Faez Isa, C.J.--These two petitions have been filed assailing The Code of Criminal Procedure (Balochistan Amendment) Act, 2010 (Act XV of 2010), published in The Balochistan Gazette on December 10, 2010, and The Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010 (Ordinance, III of 2010), published in The Balochistan Gazette on November 23, 2010 (respectively the impugned Ace and the impugned Ordinance).
2. Mr. Muhammad Kamran Khan Mulakhail, a practicing lawyer, who is also a Member of the Balochistan Bar Council and Member of the Judicial Commission of Pakistan for Balochistan, is the petitioner in Constitutional Petition NO. 649 of 2011. The petitioner in Constitutional Petition No, 202 of 2011 has described himself as the "President of Local Council Association of Balochistan" and former Nazim City District Government Quetta.
3. That the impugned Ordinance was repealed vide Section 75 of the impugned Act; however, sub- section (1) of Section 75 of the Act sought to save the actions done, penalties imposed, inquiries conducted etcetera under the Ordinance. The impugned Ordinance and the impugned Act (hereinafter collectively referred to as "the impugned laws") sought to introduce executive magistracy in the Province of Balochistan and to entrust it with judicial powers to conduct trials and impose punishments. Section 4 of the Act bifurcated magistrates into judicial magistrates and executive magistrates respectively as under:-- "(a) Judicial Magistrates:--
(i) Magistrates of the First Class;
(ii) Magistrates of the Second class: (iii)Magistrates of the Third class; and (iv)Special Judicial Magistrates. (b) Executive Magistrates:--
(i) District Magistrates;
(ii) Additional District Magistrates;
(iii) Sub-Divisional Magistrates;
(iv) Special Executive Magistrates;
(v) Magistrates of the First Class; (vi)Magistrates of the Second Class; and
(vii) Magistrates of the Third Class. "
Section 12 of the impugned Act added a proviso to Section 28 of the Criminal Procedure Code, 1898 ("Code"). Section 28 of the Code and the newly added proviso as reproduced hereunder: "28. Offences under Penal Code. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may he tried; (a)by the High Court; or (b)by the Courts of Sessions; or (c)by any other Court by which such offence is shown in the eighth column of the second schedule to be triable."
"Provided that the offences falling under Chapters VIII, X, XIII and XIV of Pakistan Penal Code, 1860 (Act XLV. of 1860), except offences specified in Section 153-A and Section 281 of the aforesaid Code, shall be tried by the Executive Magistrate and the expression "Magistrate" used in the said eighth column shall mean Executive Magistrate of the respective class." Section 13 of the impugned Act also added a proviso to Section 29 of the Code. Section 29 of the Code and the proviso added thereto are reproduced hereunder:-- "29. Offences under other laws.
(1)Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court.
(2)When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offences shown in the eight column of the second schedule to be triable." "Provided that the offences . punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates. "
3. The offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code respectively pertain to offences against the public tranquility (Chapter VIII), offences of the contempt of the lawful authorities of public servants (Chapter X), offences relating to weights and measures (Chapter XIII) and offences affecting public health, safety, convenience, decency and morals (Chapter XIV). The two offences that have been excluded for trial by the Executive Magistrates are the offences promoting enmity between different groups, etcetera (Section 153-A Pakistan Penal Code) and the offence of exhibition of false light, mark or buoy (Section 128 Pakistan Penal Code), for which offences imprisonment may respectively extend to five years and seven years. Save these two offences all offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code would after the enactment of the impugned laws be tried by the Executive Magistrates. In addition offences mentioned in other laws that are punishable with imprisonment for a term not exceeding three years would also be tried by the Executive Magistrates.
4. The impugned laws also gave some of the powers vesting in police officers (under Sections 128, 129 130 and 131 of the Code) to .Executive Magistrates. Section 190 of the Code, whereby the cognizance of offences is taken, was also substituted. The Section 190 of the Code both before and after its amendment are reproduced hereunder: Section 190 of the Code before its amendment:-- "190. Cognizance of offences by Magistrate.
(1) All Magistrates of the first Class, ,or any other Magistrate specially empowered by the Provincial, Government on the recommendation of the High Court may take cognizance of any offence: (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police-officer; (c)upon information received from any person other than a police-officer, or upon his own knowledge or suspicion. that such offence has been committed which he may try or send to the Court of Sessions for trial.
(2) A Magistrate taking cognizance' under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial."
Section 190 of the Code after its amendment:-"190. Cognizance of offences by Magistrate.
(1) Except as hereinafter provided any District Magistrate, or a Sub Divisional Magistrate, or any other Magistrate specially empowered in this behalf may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police officer; (c)upon information received from any person other than police officer, or upon his own knowledge or suspicion, that such offence has been committed.
(2) The Provincial Government may empower any Magistrate to take cognizance under sub- section (1) clause (a) or clause (b) of offences for which he may try or send to the Court of Sessions for trial.
(3) A Magistrate taking cognizance under sub-section (1) of the offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to the Court of Session for trial."
6. Section 53 of the impugned Act also sought to give power to transfer cases to the Executive Magistrates by amending Section 192 of the Code. Previously only a Sessions Judge was empowered to transfer a case from one Judicial Magistrate to another. The impugned Act also sought to add Parts IV and V, after Part III to Schedule III of the Code. Part IV set out the "Ordinary Power of District Magistrate" and Part V the "Ordinary Powers of District Magistrate". Part IV and Part V are respectively reproduced hereunder: PART-IV Ordinary Powers of a Sub Divisional Magistrate Appointed Under Section 13:--
1. The ordinary powers of a Magistrate of the First Class.
2. Power to direct warrants to landholders, Section 78.
3. Power to issue search warrant otherwise than in course of an inquiry, Section 98.
4. Power to issue search warrant for discovery of persons wrongfully confined, Section 100.
5. Power to require security to keep peace, Section 107.
6. Power to require security for good behavior, Section 109.
7. Power to require security for good behavior, Section 110.
8. Power to discharge sureties, Section 126-A.
9. Power to make orders as to Local nuisances, Section 133.
10.Power to make orders prohibiting repetitions of nuisances, Section 143.
11.Power to make orders under, Section 144.
12.Power to make orders etc. in possession cases, Section 145, 146 and 147.
13.Power to depute subordinate Magistrate to make local inquiries, Section 148.
14.Power to order police investigation into cognizable case, Section 156.
15.Power to receive report of police officer and pass order, Section 173.
16.Power to hold inquests, Section 174.
17.Power to issue process for person within local jurisdiction who has committed an offence outside the local jurisdiction, Section 186.
18.Power to entertain complaints, Section 190.
19.Power to receive police reports, Section 190.
20.Power to entertain case without complaints, Section 190.
21.Power to transfer case to a subordinate Magistrate, Section 192.
22.Power to pass sentence on proceedings recorded by a Subordinate Magistrate, Section 349.
23. Power to forward record of inferior Court to District Magistrate, Section 435(2).
24. Power to sell property alleged or suspected to have been stolen etc., Section 524.
PART-V Ordinary Powers of District Magistrate 1 The ordinary powers of a Sub-Divisional Magistrate.
2. Power to require delivery of letters, telegrams, etc., Section 95.
3. Power to issue search warrants for documents in custody of postal or telegraph authority, Section 96.
4. Power to require security for good behavior in case of sedition, Section 108.
5. Power to release person imprisoned for failing to give security, Section 124.
6. Power to cancel bond for keeping the peace, Section 125.
7. Power to order preliminary investigation by Police officer not below the rank of Inspector in certain cases, Section 196-B.
8.Power to tender pardon to accomplice at any stage of a case, Section 337.
9.Power to hear appeals from order requiring security for keeping the peace or good behavior, Section 406.
10. Power to hear appeals from order of Magistrate refusing to accept or rejecting sureties, Section 406-A.
11. Power to hear or refer appeals from convictions by Magistrate of the second and third classes, Section 407.
12. Power to call for records, Section 435.
13. Power to order inquiry into complaint dismissed, or case of accused discharges, Section 436.
14. Power to appoint person to be public prosecutor in particular cases, Section 492(2).
15. Power to issue commission for examination of witness, Sections 503, 506.
16. Procedure on forfeiture of bond, Section 514.
17. Power to hear appeals from or revise orders passed under Section 515.
18. Power to withdraw cases other than appeals, and to try or refer them for trial, Section 528-A.
19. Power to compel restoration of abducted female, Section 552. "
73. In the aforesaid Code, in schedule IV,
(a) In Part-I, after Entry No, 1, the following new entries shall be inserted namely;
(2) Power to issue process for persons within local jurisdiction who has committed an offence outside the local jurisdiction, Section 186.
(3) Power to take cognizance of offences upon complaint Section 190.
(4) Power to take cognizance of offences upon police report, Section 190. -
(5) Power to take cognizance of offences without complaint, Section 190.
(6) Power to transfer cases, Section 192.'
7. In view of the fact that interpretation of Law and Constitution was involved, notices were issued to the Attorney General for Pakistan and the Advocate General of Balochistan. We also appointed Mr. M. Zafar and Mr. Muhammad Riaz Ahmed, Advocates as amicus to assist the Court. Time, however was repeatedly sought both by the Province and Federation. Consequently, on August 8, 2011 the following inter alia order was passed: "We had admitted this petition for regular hearing on 4th April 2011 and since then a number of dates have passed. It was specifically stated in order dated 4th April 2011 that in view of the urgency of the matter it should be fixed at an early date.
In view of the fact that the petition primarily involves interpretation of the Constitution and whether the Criminal Procedure (Balochistan) Act, XV of 2010 was in accordance with the provisions thereof we fail to understand what could be filed by way of comments /counter affidavit unless of course the respondents want to disclose the reasons which necessitated in enacting the said legislation, the disclosure of the reasons and objectives of the said legislation, the discussion in parliament and summary moved to the cabinet for recommending the said legislation.
In the interest of justice time is granted as the aforementioned matters may help in the determination of this petition."
8. The Province of Balochistan through the learned Advocate General filed "Statement of Objects and Reasons" that purportedly necessitated the enactment of the impugned Act, which is reproduced hereunder: STATEMENT OF OBJECTS AND REASONS Consequent upon abolition of Local Government Ordinance, 2001 and revival of office of Deputy Commissioner in the Province, it has become expedient to restore/revive Magistracy system as it stood prior to introduction of Local Government System in 2001. The restoration/revival of Magistracy System in the Province requires amendments to be carried out in the Code of Criminal Procedure 1898 (V of 1898). Accordingly, a draft bill containing amendments in the Code of Criminal Procedure 1898 (V of 1898) has been prepared and submitted for approval by the Provincial Assembly. The Provincial Cabinet in its meeting held on 2nd September 2010, has already approved its placement before the Provincial Assembly."
However, the minutes of the referred to Provincial Cabinet meeting were not produced. Learned Advocate General further stated that no discussion took place in the Provincial Assembly when the Bill, which resulted in the impugned Act, was presented.
9. Mr. Amanullah Kanrani learned Advocate General and Dr. Khalid Ranjha, learned counsel for the Government of Balochistan in C. P. No, 202/2011, raised objections to the maintainability of the petitions on two grounds, firstly, that the petitioners do not come within the definition of 'aggrieved person' under Article 199 of the Constitution and, secondly, that the petitioner in C.P. No, 202/2011 has already approached the Hon'ble Supreme Court seeking the same relief; therefore it would not be appropriate for this Court to proceed with the hearing of these petitions until the matter has been decided by the apex Court. We accordingly proceed to first decide the question of maintainability of the petitions.
10. In support of the first objection it was contended that admittedly the petitioners had not personally suffered as a consequence of the impugned laws nor do the petitioners have any case pending against them as a consequence whereof they may be personally affected by its determination by an Executive Magistrate, instead of a Judicial Magistrate. Through these petitions the impugned laws have been assailed in the public interest. In Pakistan we have a written Constitution and it is incumbent on everyone to comply therewith (Article 5). Sub-article (1) of Article 8 of the Constitution stipulates that, "any law ... in so far as it is inconsistent with the rights conferred by this Chapter ['Chapter 1 - Fundamental Rights'], shall, to the extent of such inconsistency, be void" And sub-article (2) of Article 8 provides, that, "The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void". Sub-article (5) of Article 8 further lays down that, "The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution." Article 199(2). of the Constitution also removes any barrier or obstruction that may be placed in the way of a person approaching the High Court for enforcement of Fundamental Rights as the said provision stipulates, that, "Subject to the Constitution, the right to move a High Court for enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged."" Accordingly, if a person files a petition alleging that a law contravenes any Fundamental Right conferred by the Constitution this Court is obliged to examine the same in its constitutional jurisdiction. To contend otherwise would render Article 8 bereft of meaning and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution.
11. The next question to be considered is, whether a person who is not personally aggrieved may also assail a law enacted in contravention of the Fundamental Rights. In repelling the objection as to maintainability Mr. Farhat Nawaz Lodhi, Advocate placed reliance upon the case of Ardeshir Cowasjee v. Karachi Building Control Authority. 1999 SCMR 2883, and Paragraph 23 of the said judgment (at page 2905), reproduced hereunder: "13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise:--
(i) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223).
(ii) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416).
(iii) Mr. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66).
(iv) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473).
(v) Al-Jehan Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v.
Federation of Pakistan and others (PLD 1996 SC 324).
(vi) Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161).
(vii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388). ... The appellants are entitled to a declaration in terms of subparagraph (ii) of Paragraph (a) of Clause (1) of Article 199 of the Constitution that the approval of the building plan of Respondent No, 5 in respect -of the Plot is without lawful authority and of no legal effect in view of the violation of Articles 40 and 52-A of the Order read with Para. 3 of Schedule 'D' to the Regulations. As a consequential relief, the appellants are also entitled to seek removal of the unauthorized structure from the Plot. Even otherwise, the appellants have sufficient interest to ensure that the Plot should not be used for any other purpose than for which it was carved out pursuant of K.D.A. Scheme No, 5.
12. Criminal law and criminal procedural law may have an effect on the life of citizens or may do so in the future. A person may wait to be charged with a crime and then file a constitutional petition challenging the constitutionality of such law or he/she may do so immediately upon its promulgation. It is preferable that if any law, which may impact upon any inalienable human right, is assailed sooner rather than later if it be deemed to have been enacted in contravention of the Constitution. In the case of Pakistan human rights are categorized as Fundamental Rights' in the Constitution. The certainty of the applicability of laws also requires that laws, the constitutionality of which is suspect, are assailed at the earliest. Ensuring compliance of laws with human rights/Fundamental Rights and certitude of laws forms the bedrock of civilized society; in such societies everyone knows their obligations and how they will be dealt with if charged of having committed an offence. A person may also not have sufficient time to assail such laws when he or she is facing trial, and the trial may be over before a challenge can be launched against it.
Moreover, persons who do not have the requisite knowledge and or wherewithal to assail such laws may still come within its ambit. Therefore, public spirited persons, including lawyers, acting bona fide in the public interest, may assail such laws. The Constitution, including the Fundamental Rights enshrined therein, must not be permitted to be trampled upon, and if a public-spirited person acting in the public interest brings the same to the High Court's attention he should not be discouraged. This Court, in the case of Balochistan Bar Association v. Government of Balochistan, PLD 1991 Quetta 7, held that the High Court was empowered to examine the vires of the Civil Law (Special Procedure) Ordinance, ,I of 1968 and the Criminal Law (Special Procedure) Ordinance, II of 1968 on the touchstone of the Constitution. The petition was filed by the late Mr. Muhammad Nawaz Marri, Advocate (as he then was), in his capacity as President of the Balochistan Bar Association. The appeal against the said judgment of the Balochistan High Court was dismissed by the Supreme Court (PLD 1993 Supreme Court 341). A more recent example of the Courts exercising jurisdiction and striking down a law when approached by public-spirited citizens is the case of Mobashir Hassan v. Federation of Pakistan, PLD 2010 Supreme Court 265, wherein the Hon'ble Supreme Court, struck down the National Reconciliation Ordinance, 2007 ("NRO"). The petitioner, Mr. Mobashir Hassan was neither a beneficiary of the NRO nor had been denied its benefit and therefore not an 'aggrieved person' in the narrow sense; but such purported lack of locus standi did not impede his right to approach the Court. Dr. Khalid Ranjha contended that the power of the Supreme Court emanates from Article 184(3) and it can strike down a law, which power does not vest in the High Court. We are afraid we can not agree with him as there is nothing in the Cnstitution which makes this distinction; on the contrary the Hon'ble Supreme Court in the case of Human Rights Commission of Pakistan v. Government of Pakistan, PLD 2009 Supreme Court 507, held that:- "It needs to be kept in view that apart from the jurisdiction vested in the High Courts by virtue of clauses (a) and (b) of Article 199(1) a special jurisdiction is conferred by clause (c) which a High Court shares with the original jurisdiction of this Court under Article 184(3) ..
"The power to enforce fundamental rights has been conferred upon the superior Courts through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with finidainental rights is to be treated as void."
13.Neither the learned Advocate General nor Dr. Ranjha have attributed any ulterior personal agenda or motive to the petitioners, nor have we discerned any, thus we can only conclude that they have approached this Court to assist their fellow citizens in leading their lives in the glow of the Constitution and to enjoy the rights provided therein. The Courts have opened its doors to such persons and categorized petitions seeking enforcement of Fundamental Rights as public interest litigation and not insisted on the applicability of the strict rules of locus standi. In the case of S.P.
Gupta v. Union of India, 1981 (Supp) SCC 87, advocates, who successfully assailed the manner in which judges were appointed to the higher judiciary under Article 226 of the Indian Constitution (similar to Article 199 of the Constitution of Pakistan), were referred to as public-minded or public- spirited individuals. In the unreported case of Muhammad Alam v. Planning Development Department, Constitutional Petition No, 351/2009, this Court had held, that: "Therefore, if a person, who has no personal interest and in the larger public interest comes forward and questions such spending the doors of the Court should not be shut, but rather kept open for him. Such a public spirited person, who has taken on himself the burden of expressing public outrage or grievance can be categorized as an 'aggrieved person, in terms of Article 199 of the Constitution. He takes time out from his private life and puts .in considerable effort guided by public zeal to take the matter to Court. He is part of the public whose interest he represents, thus he too can be categorized as 'aggrieved' even in the narrow sense of the word."
The objections taken to the maintainability of the petitions on the ground that petitioners. are not aggrieved persons and therefore cannot approach this Court under Article 199 of the Constitution and that the High Court does not have the power to strike down any law even if it violates the Constitution are not tenable for the reasons stated above. We now attend to the remaining objection that the petitioner (in C.P. No, 202/2011) has filed a petition under Article 184(3) of the Constitution in 2009 before the Supreme Court and has sought the same relief therein therefore this Court should hear these petitions after the case before the apex Court has been decided. The paper book of the said petition was provided to us (but not its number) and we have gone through the same. The only portion in the said petition which may be deemed to be relevant is the allegation that, "a conspiracy to restore Executive Magistracy had been hatched up." In the said petition filed before the Supreme Court the petitioner appeared to have been aggrieved by the abolition of the previous (Nazim based) system of local government and as consequence. had also sought for the Nazims to retain their non judicial powers of the executive magistrates and prayed that executive magistrates may not be given judicial powers and functions." The impugned laws had not been assailed in the said petition, nor could the same have been challenged, since neither the impugned Ordinance nor the impugned Act had been enacted at that time; the petition was filed before the Hon'ble Supreme Court in the year 2009. Accordingly, since the relief claimed in these petitions is wholly different from the relief claimed in the petition filed in the Supreme Court, the contention of the respondents' counsel that the petitioner (in C. P. No, 202/2011) has already approached the Hon'ble Supreme Court seeking the same relief is misplaced and the objection to the maintainability of the petition on this ground rejected.
15. Mr. Farhat Lodhi and Mr. Kamran Mulakhail have assailed the impugned laws on the following grounds:
(1) The introduction of executive magistracy contravenes Article 175(3) of the Constitution, which provides, that, "The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day", i,e, from August 14, 1973 (as provided in sub-article (2) of Article 265), which period of fourteen years came to an end on August 18, 1987, and the impugned laws are a regressive step and in contravention of Article 175(3) of the Constitution;
(2) That the Constitution is based on the principle of trichotomy of powers in which the Executive, Legislature and Judiciary have their own defined functions independent from each other and the Executive cannot be been given judicial powers as it would encroach upon the exclusive domain of the Judiciary;
(3) The Balochistan Provincial Legislature was not competent to legislate in respect of criminal law and criminal procedure as the same had already been legislated upon by Parliament and the impugned laws, being contrary to the laws on the said subjects as enacted by Parliament, therefore, the same were void as stipulated by Article 143 of the Constitution;
14. The Constitution (Eighteenth Amendment) Act, 2010 (which came into effect on April 19, 2010). omitted the Concurrent Legislative List (as hitherto before provided by sub-article (4) of Article 70), which List contained matters in respect of criminal law, criminal procedure and evidence, but these subjects were retained by Parliament as per Article 142(b);
(5) Article 10A of the Constitution inter alia stipulates that, "in any criminal charge against him a person shall he entitled to a fair trial and due process" and that a person would be deprived of fair trial and due process before an executive magistrate, having no legal training, no security of tenure and who may not be immune from the pressure of the Executive;
(6) The Objectives Resolution, which is now a substantive part of the Constitution provides for the independence of the judiciary but this provision would stand negated and rendered null and void if a person is tried by an executive officer over whom the Judiciary has no control;
(7) Chapter VII of the Constitution entitled 'The Judicature' does not envisage executive Courts and the same, have no place in the Constitution; the only exception being the recognition of the existing executive magistrates at the time that the Constitution was adopted (in 1973), but the same only permitted to continue for a limited period as sub-article (3) of Article 175 mandated that the Judiciary must be separated from the Executive by the date stipulated therein, which has long passed;
(8) Article 202 of the Constitution grants to the High Court the power to make "rules regulating the practice and procedure of the Court or any Court subordinate to it" however the High Court has no power to make rules regulating the practice and procedure of the Executive Magistrates that have been introduced by the impugned laws;
(9) Article 203 of the Constitution mandates that the High Court "shall supervise and control all Courts subordinate to it" but the Executive Magistrates are within the supervision and control of the Executive and not within the supervision and control of the High Court; and
(10) The impugned laws do not require that Executive Magistrates have any legal education or training and Section 14(3) of the impugned Act empowers the Government to appoint "any person" as an Executive Magistrate, and theoretically even a parliamentarian may be appointed as an executive magistrate.
They have also placed reliance on a number of cases which have been referred in this judgment.
16. A plethora of case law has developed over the years discussing the principles of separation of Executive from the Judiciary, Fundamental Rights on the subject of trials, Articles 142, 143, 175, 202 and 203 of the Constitution, and the other questions and issues raised in these petitions. It would be useful to examine the same as many of the questions raised herein have already been determined and settled. In the celebrated case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404, decided by a Full Bench of the Sindh High Court by a majority of six to one, matters of separation of the Executive from the Judiciary and the subject of independence of the Judiciary were dilated upon. Mr. Justice Ajmal Mian, the then Hon'ble Chief Justice of the Sindh High Court held, that: "I may observe that 1973 Constitution was framed with consensus of all the political parties and the members of the national Assembly. It contemplated trichotomy of power between the three organs of the State, namely, the legislature, the executive and the judiciary. Each organ of the State was to function/operate within the bounds specified in the Constitution. The judiciary was assigned very important role to play, namely, to act as the Watch Dog and to ensure that none of the organs or the Government functionaries acts in violation of any of the provisions of the Constitution or of any other law. Since the above role entrusted to the judiciary under the Constitution was very delicate, it was envisaged that the judiciary would be independent and separate from the other organs of the State. " [At page 427-428] "I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution, Besides, it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution. " [At page 438] "Since the various Federal and Provincial Governments after the enforcement of the Constitution in 1973 have failed to do what they were/are required to do under the. Constitution, direction/ directions under Article 199 can be issued to them to do the same, and similarly a prohibitory direction can also be issued not to do which is not permitted by the Constitution. I may observe that in order to bring the existing laws in conformity with Articles 175 and 203 of the Constitution, not only some administrative actions are required to be taken but also some legislative measures are needed. " [At page 442] Mr. Justice Saleem Akhtar agreed with Mr. Justice Ajmal and also added his separate and powerful note setting out the concept of the trichotomy of powers prevailing in the Constitution, the special role of the Judiciary, and stressed that Parliament could not encroach upon the judicial domain. He interpreted Article 9 of the Constitution to include the provision of an impartial Court or tribunal without which a fair trial is mitigated and stated that a mandatory duty had been cast by the Constitution upon the Executive and the Legislature to separate the Judiciary from the Executive, as under: "In a set-up where the Constitution is based on trichotomy of power, Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst various organs of the State and also checks the excessive and arbitrary exercise of power by the Executive and the Legislature. Judiciary has been termed as a watch dog and sentinel of the rights of the people and the custodian of the Constitution. It has been described as "the safety valve" or "the balance wheel" of the Constitution. The jurisdiction and the perimeters for exercise of power by all the three organs have been mentioned in definite terms in the Constitution. No organ is permitted to encroach upon the authority of the other and the Judiciary by its power to interpret the Constitution keeps the Legislature and Executive within the spheres and bounds of the Constitution.
The Constitution is a living document which reflects the aims and aspirations, genius and genesis, temper and thinking of the people. Here I would refer to a classical observation of my Lord the Chief Justice Muhammad Haleem in Benazir Bhutto's case PLD 1988 SC 416 that "the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future ". It is "Law of the Laws". [At page 444] "The sanctity of the State which includes the Legislature not to make any law by which any Fundamental Right may be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. Therefore, under Article 8(2) a limitation has been placed on the Legislature not to curtail the Fundamental Rights or abridge them by any law. The restriction has been placed on the Executive and the Legislature as by legislation and by executive act, the Fundamental Rights are infringed, violated or curtailed. " [At page 446] "The Parliament in our Constitution does not enjoy the supreme status like the British Parliament which is not governed by any written Constitution. In our Constitution the legislative authority of the Parliament is governed and limited by the provisions of the Constitution. The Indian Constitution is similar to our Constitution. Basu while referring to "In re: Delhi Laws Act, 1912." (1951) S.C.R. 747 in his book "Commentary on the Constitution of India" remarked as follows: "A written Constitution, thus, provides the organic or fundamental law, with reference to which the validity of the laws enacted by the Legislature are to be tested. A law enacted by the Legislature cannot transgress or violate the provisions of the fundamental law. Thus, the Parliament under the Indian Constitution cannot be said to be a sovereign Legislature in the Dicean sense. "
For the purpose of the present case in my humble view Article 9 will be attracted which reads as follows: "No person shall be deprived of life or liberty save in accordance with law."
"It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent Judiciary which should be separate from Executive and not at its mercy or dependent on it." [At pages 447-448] "The denial and failure to establish independent Courts and tribunal by separating them from Executive negates Article 9." [At page 449] "A mandatory duty has been cast upon the Executive and Legislature to separate the judiciary from Executive, but they have remained completely silent, dormant and unconcerned.
Such omission to exercise jurisdiction not only violates Article 175 but infringes Fundamental Right as well. In such circumstances necessary orders can be passed and direction in mandatory form can be issued to ensure enforcement of the provisions of the Constitution and to prevent the breach of Fundamental Right. " [At page 450] The judgment in Sharaf Faridi's case (supra) was assailed before the Hon'ble Supreme Court (Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105) but none of the findings of the Sindh High Court were set aside, and the appeal was dismissed; however, certain clarifications, elaborations, additions and modifications were made.
17. In the case of Government of Balochistan v. Azizullah Memon (supra) the Hon'ble Supreme Court held, that: "When regular Courts have been established in the area to adjudicate civil disputes, to provide for trial of criminal offences by tribunal (Jirga) under a different procedure, leaving the destiny entirely in the hands of the executive officers does not serve the object and purpose of the Ordinance. It is complete negation of the fundamental rights which guarantee equal protection of law, equality before law and right of access to justice unhindered and unfettered as provided by the Constitution and the Injunctions of Islam. " [At page 366] "Our Constitution is based on the principle of trichotomy of power in which executive, legislature and judiciary have their own functions independent from each other. None of these three organs are dependent upon the other nor one can claim superiority over the other. In this context and background to impose executive officers to carry out the judicial work by ignoring the Courts established in that area by itself creates discrimination and negates the very concept of justice and violates fundamental rights. " [At page 3661 "These provisions thus create a bar to the right of citizens to approach the established Courts of law and to be governed by the general criminal law applicable in the entire country. The exclusion is not based on any rational classification or intelligible differentia. " [At page 367] "12. Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. " [At page 367] "The right of access to justice is 'internationally well-recognised human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of .Human Rights and Article 14 of the United Nations Convention on Criminal Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law. " [At page 368] "It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it," [At page 368] "In fact the administration of justice cannot be made subject to or controlled by the executive authorities. The Constitution provides for separation of judiciary from the executive. It 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. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive officers. This is merely a semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance, II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent judiciary separate from the executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25." [At page 369] "The mandate and command of Article 175 must be obeyed and implemented; any laxity in this regard will amount to violation of Constitutional provisions and perhaps the judicial orders passed by the functionaries under the control and superintendence of the executive may be challenged, which will create embarrassing situation for the Government and the administration of justice shall be seriously jeopardized. In view of the fact that more than reasonable time has passed without any action being taken by the appellant to comply with Article 175, the request of the learned Advocate-General to grant sufficient time for introducing reforms cannot be acceded to. " [At page 373]
18. In Ms. Benazir Bhutto's case (PLD 1989 SC 416) the Supreme Court had observed as follows: "The right of "access to justice to all" is a well-recognized inviolable right enshrined in Article 9 of the Constitution. 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 Unites 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. "
19. In Mehram Ali v. Federation of Pakistan, PLD 1998 SC 1145, a case which has been relied upon by both sides, the Hon'ble Supreme Court after considering the relevant Constitutional provisions and precedents derived the following principles: "(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i,e, the Supreme Court, a High Court for each Province and such other Courts as may be established by law.
(ii)That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii)That our Constitution recognizes only such specific Tribunals to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.
(iv)That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court of Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution.
(vi)That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i,e, judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions."
20.Dr. Ranjha referred to the case of Khan Asfandyar Wali v Federation of Pakistan. PLD 2001 Supreme Court 607; a case in respect where the power of the Federal Government to promulgate laws for creation of offences and the procedure and punishments thereof and the establishment of Courts was in issue. However, the question for consideration herein is different as the Executive has been given judicial powers. He also referred to paragraph 178 of the judgment appearing at page 877 and contended that the executive magistracy, introduced by the impugned laws, is under the supervision and control of the High Court and as such it conforms to the constitutional mandate as it is compliant with Article 203. In fact the cited paragraph also refers to Article 175, which mandates the separation of the Judiciary from the Executive, that is, separation of judicial power from executive power. In the words of the Supreme Court: "However, the functioning of any Court or tribunal, beyond the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, does not fulfill the mandatory requirement of the Constitution, in that, under Article 203 of the Constitution read with Article 175 of the Constitution, the supervision and control of the, subordinate judiciary exclusively vests in the High Courts." We do not agree with learned counsel's contention that if the supervision and control test is met it suffices; because the supervision and control test is not the only test but one of the tests. The impugned laws must also be compliant with and reconcile with other provisions of the Constitution, including Article 175, and must not be offensive to the Fundamental Rights. Article 175(3) sought to bring to an end executive magistracy, and to revive or reenact it runs contrary to the provisions of Article 175. Neither the learned Advocate General nor Dr. Khalid Ranjha addressed this important aspect of the case. The Executive Magistracy setup pursuant to the impugned laws is not under the supervision and control of the High Court. It is not the High Court but the Government that has the power to appoint, transfer, discipline, remove, and grant powers to the Executive Magistrates. Therefore, it cannot fairly be contended that such executive magistrates are under the supervision and control of the High Court.
21.Dr. Khalid Ranjha, Advocate also referred to the Indian case Gopalan v. State of Madras, AIR
(37) 1950 Supreme Court 27, and paragraph 188 there from. In that case an unsuccessful challenge was made to the Preventive Detention Act, 1950 and it was contended that the same violated the Constitution of India. The due process doctrine as compared to the doctrine of police power was discussed in the cited paragraph. However, we do not see the relevance of the said case and the referred to paragraph. Reference was also made to the case of Abdul Hague v. State PLD 1976 Lahore 246, to canvass the proposition that all criminal Courts are amenable to the writ jurisdiction and to the case of Abdul Hafeez v. State PLD 1981 Supreme Court 352, wherein it was held that the High Court has revisional powers in respect of offences under the Drugs Act, 1976. Learned counsel contended that in respect of convictions this Court can be approached under its constitutional and revisional jurisdiction, even if the impugned laws do not specifically provide for the same. The question however is not to simply consider whether this Court has constitutional or revisional powers but a far more basic and fundamental question; whether an executive magistracy with judicial powers can be established. In addressing and answering this question the cited cases are not relevant. Moreover, not every person may have the resources to approach this Court. And if the mere possibility of approaching the High Court is set as a sufficient standard than it would be tantamount of denying the poor their rights and be contrary to sub-article (1) of Article 25 of the Constitution, which mandates that, "All citizens are equal before law and are entitled to equal protection of law."
22. The term "access to justice to all" mentioned in Article 4 of the Constitution included the doctrine of due process of law, a component whereof the Hon'ble Supreme Court has held to be impartiality.
In the case of New Insurance Limited v. National Bank of Pakistan PLD 1999 Supreme Court 1126, it was held, that: "That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality. " [paragraph 684 of the judgment] The Hon'ble Supreme Court also cited with approval the judgment in Ikhlaq Ahmed v. Government of Punjab, 1991 MLD 739, wherein it was held at page 72 that, "if the Government has the power to determine holding of a trial at a place other than the Court house the same would undermine the independence of the Judiciary." On this score too the impugned laws fall short. Admittedly the Government has not setup separate places (buildings) where the Executive Magistrates would adjudicate and they would be sitting in their offices and deciding cases. And one may rhetorically question whether the accused and lawyers representing them would feel comfortable and expect justice dispensed without fear or favor and without the influence of the Executive and members of the Government in such an environment. This therefore is yet another violation of the concept access to justice and due process. In Ikhlaq Ahmed's case reference was also made to resolution 40/32 adopted by the 7th United Nations Congress on the Prevention of Crimes on November 29, 1985, which stated that one of the basic principles of the independence of Judiciary requires that, "The Judiciary shall have jurisdiction over all issues of a judicial nature." Another principle cited was that, "Everyone shall have the right to be tried by ordinary Courts or tribunals using established legal procedures."
Conditions of service and tenure of judges were also recognized to be important and in this regard the following principles were noted: "The term of office of Judges, their independence, security, adequate remuneration, condition of service, pension and the age of retirement shall be adequately secured by law. "
And that: "11. Judges .shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties."
23.In the recent case of Accountant-General v. Ahmed Ali U. Qureshi, PLD 2008 Supreme Court 522, the Supreme Court interpreted the principle of independence of judiciary by giving it, to use its own words, an extended meaning which provided for the complete separation from executive authorities of the State in all matters, and held, that: "24. In the broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of the judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary... . " [At page 541] From this aspect to the Executive Magistrates introduced by means of impugned laws can not be said to conform to the principle of independence of judiciary.
24.In Nadeem Ahmed, Advocate v. Federation of Pakistan, PLD 2010 Supreme Court 1165, the Supreme Court referred to the preamble of the Constitution and the right to a fair trial: "... the Constitution in its very Preamble laid down that, "the independence of the judiciary shall be fully secured." The judiciary has not been made part of the Executive or the Legislature (Article 7), its separation from the executive was made a constitutional command [Article 174(3)] and right to "fair trial" is acknowledged as one of the fundamental rights (Article 10A). " [At page 1180] "Judiciaries in all democratic setups are vulnerable to the power of legislatures to create, alter .or impair judicial structures including the mode of appointing, removing and remunerating the Judges. In our country, like in some others as well, this power is tempered with constitutional guarantees that restrict legislative control over the judiciary. The Parliament was conscious of this scheme, because other than inserting Article 175A, it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary. " [At page 1180-1181] Thus a fair trial is deemed to be vitiated if judicial functions are given to the Executive and its officers and the independence of the judiciary cannot be secured if the Executive is made a part of the Judiciary; and as examined in detail above both the constitutional requirements, of a fair trial and independence of the judiciary, have been contravened by the impugned laws.
25.The Constitution is based on the principle of trichotomy of powers in which the Executive, Legislature and Judiciary have their own defined functions independent from each other and the Executive cannot be given judicial powers as it would encroach upon the exclusive domain of the Judiciary. The Objectives Resolution, which is now a substantive part of the Constitution provides for the independence of the judiciary but this provision would stand negated and rendered null and void if a person is tried by an executive officer over whom the Judiciary has no control. Article 10A of the Constitution requires that, "in any criminal charge against him a person shall be entitled to a fair trial and due process." A person would be deprived of a fair trial and due process if he or she is tried before an executive magistrate. Chapter VII of the Constitution entitled 'The Judicature' does not envisage executive Courts and the same have no place in the Constitution; the only exception being the recognition of the existing executive magistrates at the time that the Constitution was adopted (in 1973), but the same only permitted to continue for a limited period as sub-article (3) of Article 175 mandated, that the Judiciary must be separated from the Executive by the date stipulated therein, which has long passed.
26.The impugned laws do not require that Executive Magistrates have any legal education or training and Section 14(3) of the impugned Act empowers the Government to appoint "any person" as an Executive Magistrate, and theoretically an illiterate person could be appointed as an executive magistrate. And even if it be presumed that the Government will only appoint Government Servants as executive magistrates they would have no legal training, nor are they required to acquire any before being granted judicial powers. A person acquires a legal degree after studying law for many years and judicial magistrates are appointed provided they pass the prescribed tests and interview demonstrating requisite knowledge of law, procedure and rules of evidence. The Executive Magistrates envisaged under the impugned laws would be no better than laymen.
27.Another aspect of the matter is that Article 202 of the Constitution grants to the High Court the power to make "rules regulating the practice and procedure of the Court or any Court subordinate to it," but the High Court has no power to make rules regulating the practice and procedure of the Executive Magistrates that have been introduced by the impugned laws. The Executive Magistrates, who do not have to be law graduates nor required, to possess any legal training, can hardly be expected to decide cases in accordance with laws. They would be nothing but 'kangaroo Courts' or mock Courts in which the principles of law and justice are disregarded or perverted. If such `Courts' are acceptable then what objection can one have to 'martial law Courts' established by dictators to try civilians? This nation has suffered at the hands of dictators, which is not just the rule of one person but also a system that he puts in place and where the first victim is justice. It is therefore incomprehensible why democrats would want to emulate dictatorial practices.
28. Magistrates and other judicial officers used to be appointed after they had passed the tests and interviews held by the provincial public service commissions till it was held by the superior Courts of Pakistan that such induction, into the judicial service infringed independence of judiciary.
In the case of Rasheed A. Razvi v. Province of Sindh, PLD 2010 Karachi 63, it was held, that: "93At the cost of repetition, when we again look at the impact of the impugned notification over the Sindh Judicial Rules, 1994, we find that in a crude manner, it is cutting at the very root of the concept of separation of power and independence of judiciary. On one hand, by addition of sub- Rule (aa) to Rule 2, it introduces a new institution "Commission" (S.P.S.C.), which is otherwise an alien to the Rules, and on the other hand, by amendment in Rule 5, it completely ousts the role of Provincial Selection Board and makes the highest Court of the Province simply an Institution, that can only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise. "
"94The doctrine of separation of Judiciary from the Executive and its independence is not only to be gauged on the yardstick of the relevant Constitutional provisions and the case law laid down by the superior Courts, but also from the public perspective, that places genuine expectations upon us in this regard. Judiciary to be independent and appear to be independent is of utmost importance so that people have faith and confidence in the Judges and for that matter also in the Institution that has been entrusted the task of their appointment. If the recruitment/appointment of Judicial Officers is entrusted to the Executive or to a body alien to judiciary then a huge question mark is placed on the whole process. " [At page 109] In the case of Muhammad Ali Satakzai v. Appointing Authority of the Addl. D&S Judges, 2011 PLC (C.S.) 78, this Court held, that: "Through above judgments, it has now been settled that the initial appointment / recruitment of Judicial Officers is integral part of the High Court, therefore, the process of appointment has to be fair, transparent and above all, should not be influenced by the Executive. The appointment of said Officers by the sitting Judges would ensure Selection of professional lawyers, who are regularly appearing before concerned High Court and subordinate Courts, where their skills, ability, competency and dignity are always under scrutiny. Thus, the sitting Judges are the best choice to undertake the exercise for the appointment/recruitment of Judicial Officers."
"Without prejudice to above, even otherwise, in our view, appearance before the Public Service Commission, amounts to degrading the post and status of the Judicial Officers, which should otherwise require to be protected. This can only be done, if they are called only to appear before the sitting Judges of the High Court which will ensure the prestige and honour of the judicial post, as well"
"Keeping in view the above discussion and ratio of the cited judgments, we are inclined to hold that under Article 175 of the Constitution, supervision and control over the Subordinate Judiciary vests in the High Court with administrative power and disciplinary jurisdiction over the Subordinate Judicial Officers. In such view of the matter the power of appointment of such officers must divert to the domain and supervision of the High Court. Hence, the selection / appointment of Judicial Officers by the Balochistan Public Service Commission is contrary to provisions of the Constitution and also, in negation of the judgments of the superior Courts referred to above. The Balochistan Public Service Commission has no authority to appoint such officers,.... " [At pags 86-87] "We accordingly issue the following directions:
(a) That the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, within sixty (60) days, enabling the High Court to conduct tests / interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(b)Similarly, the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Civil Judges/Judicial Magistrates Service Rules, 2002, within sixty
(60) days enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(c)Further, the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Qazis and Member Majlis-e-Shoora Service Rules, 2002, within sixty
(60) days, enabling the High Court to conduct tests / interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(d)The Balochistan Public Service Commission is, permanently, restrained from conducting any tests / interviews regarding any post of Judicial Officers in future. "[At page 89] The above mentioned judgment of the Balochistan High Court was upheld by the Hon'ble Supreme Court (Muhammad Ali Satakzai v. Appointing Authority, through Registrar Balochistan High Court, 2011 SCMR 1030). The Hon'ble Supreme Court concluded as under: "The grievance of the petitioners vis-a-vis introduction of the Public Service Commission in the process of selection of the District and Sessions Judges and of the Additional District and Sessions Judges had been accepted by the High Court declaring that the said part of the said rules were offensive of the concept of independence of judiciary and of separation of judiciary from the executive and consequently the said findings and the resultant declaration and directions of the High Court were also not open to any exception. " [At page 1033] Since the Executive Magistrates under the impugned laws are not appointed after conduct of tests/interviews for recruitment as judicial officers through a Commission, comprising of the Administrative Committee of High. Court, or a Committee of three or more Judges constituted by the Administrative Committee of the of the High Court they can neither be appointed nor entrusted with judicial powers. Moreover, the appointees receive training in the judicial academics.
29.In the same vein in the case of Muhammad Mansha v. State, PLD 1996 Supreme Court 229, the Hon'ble Supreme Court stated, that, "What the Constitution contemplates, therefore, is not a batch of unconnected Courts but a judiciary composed of superior Courts and subordinate Courts.
Subordinate Courts are therefore an integral part of the Judicial System of Pakistan." [At page 233].
Applying the said Supreme Court judgment a Division Bench of the Sindh High Court in the case of Amanullah. Khan Yousafzai v. Federation of Pakistan, PLD 2011 Karachi 451, held that," 'judicial service is essentially and structurally distinct and separate service from the civil, executive and administrative services of Pakistan and judicial service cannot be treated at parity with such services on any account nor can judicial service be combined, abolished, replaced, mixed up and or tied together with civil, executive and or administrative services. Judiciary as a whole is a separate and distinct class in itself[at page 469]. It was further held that any provision in an Act or a rule or notification empowering any executive functionary to have administrative supervision and control over the Subordinate Judiciary will violate Article 203 of Constitution and militate against the concept of separation and independence of Judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution.
30.The next question which needs consideration is whether the Balochistan Provincial Legislature was competent to legislate in respect of criminal law and criminal procedure as the same had already been legislated upon by Parliament. In Water and Power Development Authority v.
Muhammad Riaz, PLD 1995 Lahore 56, a three Member Bench of the Lahore High Court held, that: "Thus by virtue of Article 143, Central Law is to prevail where, law of the Provincial Legislature in respect of matter enumerated in Concurrent List is repugnant to it. Article 143 is attracted only if the Provincial law is repugnant. to the law of Majlis-e-Shoora (Parliament) which means that the two cannot stand together. (See Zaver Bhatti v. State of Bombay AIR 1954 SC 752). A Provincial law may be repugnant in any of the following ways:
(i) Where there is direct conflict between the two provisions;
(ii) Though there may not be any direct conflict between the two statutes, but it is evident that the Parliament intended its legislation to be a complete and exhaustive Code relating to the subject, in such a case it shall be taken that Central law has replaced the Provincial law relating to the said matter. (State of Asam v. Horizon Union AIR 1967 SC 442).
In some cases it has been held that even where Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the Provincial Act. (See Tika Ramji v. State of Uttar Pradesh)
(AIR 1956 SC 676) and Deep Chand v. State of U.P. (AIR 1959 SC 648). ";[At page 67] In Quetta Textile Mills Limited v. Province of Sindh. PLD 145 Lahore 56, it was held, that "Doctrine of "occupied filed" was defined in 'NS Bindra's Interpretation of Statute' (9th edition), (a Butterworths Publication), by quoting Isaacs J. in Cycle Engineering Co. v. Cowburn (1926) 27 CLR 466, 488 in the following words, "If however a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field." [At page 101] "The Federal Legislature had already legislated and framed the law on the subject-matter or topic covered by the impugned Provincial Legislation. It is then said; the Law framed by the Parliament already occupies the field and there is no room or space left for the Provincial Legislator to enter.
Even, if the field is not occupied, and Provincial Legislature first ventures to legislate, on such unoccupied terrain then also, the Federal Legislation, (sic) being by the domain Legislature, push aside the Provincial Law to the extent it is in conflict with the Federal Law. In such a situation, it could be said that doctrine of repugnancy comes into play and not the doctrine of occupied field. " [At page 103] In Wattan Party v. Federation of Pakistan PLD 2006 Supreme Court 697, the Supreme Court held that the Court can in exercise of its powers under Article 8 strike down a Provincial law if it offends a Federal Law as stipulated in Article 143: "47. Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared unconstitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void- and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior Courts can strike down a law on the touchstone of the Constitution.The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the. Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. " [At page 731]
31. The Constitution (Eighteenth Amendment) Act, 2010 (which came into effect on April 19, 2010) omitted the Concurrent Legislative List (as hitherto before provided by sub-article (4) of Article 70), which List contained matters in respect of criminal law, criminal procedure and evidence, but these subjects were retained by Parliament as per Article 142(b). Articles 142(b) and 143 are reproduced hereunder: "142.SUBJECT-MATTER OF FEDERAL AND PROVINCIAL LAWS.
(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence; "143.INCONSISTENCY BETWEEN FEDERAL AND PROVINCIAL LAW.
If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis- e-'Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of the Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
32. The impugned laws seek to bring about large scale changes to the criminal law and the criminal procedure, including amending those provisions in respect of which the Federation had already legislated and inter alia undid the changes made to the Code by the Code of Criminal Procedure (Amendment) Ordinance, 2001 (PLD 2002 Central Statutes 92). The said Ordinance, which came into effect on August 14, 2001, removed the executive magistrates from the Code.
Section 6 of the Code as it stood both before and after the amendments, made by the Federal Law, i,e, the Code of Criminal Procedure (Amendment) Ordinance, 2001, are reproduced hereunder:
6. Classes of Criminal Courts and Magistrates:
(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:
(i) Courts of Session;
(ii) Courts of Magistrates.
(2) There shall be the following classes of Magistrates, namely:
(i) Magistrates of the first class;
(ii) Magistrates of the second class; and
(iii) Magistrates of the third class.
Sub-section (2) of Section 6 of the Code, before the amendment brought about by the abovementioned Ordinance, read as under:-
(2) There shall be the following classes of Magistrates, namely: "(i) Judicial Magistrates:--
(1) Magistrates of the First Class;
(2) Magistrates of the Second class:
(3) Magistrates of the Third class; and
(4) Special Judicial Magistrates. (ii) Executive Magistrates:--
(1) District Magistrates;
(2) Additional District Magistrates;
(3) Sub-Divisional Magistrates;
(4) Special Executive Magistrates;
(5) Magistrates of the First Class;
(6) Magistrates of the Second Class; and
(7) Magistrates of the Third Class. "
The impugned laws also added provisos to Sections 28 and 29 of the Code, respectively as under: "Provided that the offences falling under Chapters VIII, X, XIII and XIV of Pakistan Penal Code, 1860 (Act XLV of 1860), except offences specified in Section 153-A and Section 281 of the aforesaid Code, shall be tried by the Executive Magistrate and the expression "Magistrate" used in the said eighth column shall mean Executive Magistrate of the respective class.'
"Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates."
33. The aforesaid changes show that the Province of Balochistan sought to specifically undo the changes made to the Code by the Federation, which was in complete contravention of the Article 143 of the Constitution of Pakistan. Significantly, the Constitution (Eighteenth Amendment) Act, 2010, though doing away with the Concurrent List, specifically stipulated that either a Provincial Assembly or Parliament could make laws in respect of criminal law, criminal procedure and evidence (clause (b) of Article 142), but provided the Act of the Provincial Assembly was not repugnant to any provision of the Federal law (Article 143). It appears that the Constitution of Pakistan wanted uniformity of criminal law, criminal procedure and evidence in Pakistan, leaving the Provinces to legislate only in respect of such matters not already covered by the Federal law.
The Constitution (Eighteenth) Amendment Act, 2010, which inter alia amended Articles 142 and 143, came into effect on April 19, 2010 and the impugned Ordinance on November 23, 2010 and the impugned Act on December 10, 2010, therefore, care should have been taken not to transgress the Constitution. The impugned Ordinance enacted by Governor of Balochistan and the impugned Act passed by Balochistan Provincial Assembly were repugnant to the provisions of the Code, that had been enacted by Parliament. The repugnancy between the Federal and the Provincial laws is complete and absolute and no portion of the impugned laws can be incised and saved from the impugned Ordinance and the impugned Act, therefore, the impugned laws are void in terms of Article 143 of the Constitution.
34. That the Constitution of Pakistan was enacted in the year 1973 and Article 175 as it then stood required that the Executive be separated from the Judiciary within three years, i,e, by August 14, 1976. However, the said period was extended to five years by the Constitution (V Amendment) Act, 1976 and then to 14 years by the Revival of the Constitution, 1973 Order (P.O. 14 of 1985). After over twenty three years since the last extended period expired (August 18, 1987) a retrogressive step has been taken by reintroducing Executive Magistrates.
35. It would be useful to delve into the background of the subject, the concept of independent judiciary, not granting judicial powers to the Executive and the long journey that this nation has journeyed. Muhammad Ali Jinnah criticized the Press Act on September 19, 1918 for vesting vast powers in the Executive: "I have no hesitation in saying that the act has been administered in a most arbitrary manner; and you cannot prevent it; you cannot avoid it, because you must remember that we are all human; and when such arbitrary powers are given to Heads of Departments and to Executive Officers, it must be remembered that they are human, they have got likes and dislikes, and they have their prejudices."
When the Criminal Law (Emergency Powers) Bill was introduced in the Imperial Legislative Council the Quiad on February 6, 1919 scathingly dissected the same. He could not envisage a trial save a judicial trial in accordance with accepted rules of evidence and procedure. He attacked the said Bill in the Imperial Legislative Council rationally and with clarity: "My Lord, to any man who believes in law and justice, these measures must seem abhorrent and shocking... Now, before I deal with these Bills and the speech of the Hon'ble Home Member, I shall place before the Council the grounds on which I am opposed to these Bills. My first ground is this, that it is against the fundamental principles of law and justice, namely, that no man should lose his liberty or be deprived of his liberty, without a judicial trial in accordance with the accepted rules of evidence and procedure. My second reason is, that this is a wrong remedy for the disease, namely, these revolutionary crimes, although I for one am prepared to accept as correct the findings of facts of the Rowlatt Committee that the crimes of the nature indicated have-been committed. My third ground is that the powers which are going to be assumed by the executive, which means substitution of executive for judicial, such powers are likely to be abused, and in the past we have instances where such powers have been abused. My fourth ground is that there is no precedent or parallel that I know of in any other civilized country where you have laws of this character enacted.
My fifth ground is that this is a most inopportune moment. At this moment I can tell you that high hopes have been raised among the people of this country because we are on the eve of great and momentous reforms being introduced. My sixth ground is that the proposed measures intended only to deal with an emergency of a temporary character. And the last ground why I oppose this measure is that, my Lord, I do not wish to state it by way of any threat or intimidation to Government, but I wish to state it because it is my duty to tell you that, if these measures are passed, you will create in this country from one end to the other a discontent and agitation, the like of which you have not witnessed, and it will have, believe me, a most disastrous effect upon the good relations that have existed between the Government and the people... "
Therefore, my Lord, it is no use shirking the issue, it is no use hedging round the whole of this question. It is quite clear and it is obvious that this measure is of a most serious character. It is dangerous. It imperils the liberty of the subject and fundamental rights of a citizen and, my Lord, standing here as I do, I say that no man who believes in the freedom and liberty of the people can possibly give his consent to a measure of this character.
Unfortunately, almost a hundred years after these great speeches were addressed to the imperial colonial power by the founder of this country, rather than going forward we appear to be receding away from the light and into the darkness. The Quaid-e-Azam continued his assault in the same mien, "It is not the wicked we want to protect... it is the innocent we want to save... Behave as a human and decent Government, and that is enough for you." Mr. Jinnah also pleaded the case of Balochistan as far back as 1927; when in his celebrated Fourteen Points, he required that provincial autonomy be given to Balochistan on the same lines as given to the rest of British India, and at a time when no other leader or party raised the issue of Balochistan. The criticism which the Quaid made of the 'Press Act and the Criminal Law (Emergency Power) Bill can to a word be made of the impugned laws; sadder still that this in the country which he helped found. The ideas of -Mr. M. A.
Jinnah deserve the highest respect and consideration in Pakistan and particularly since they are also embedded in the Constitution. Nations can not attain to greatness if they forego the teachings of its leaders who help raise it. Mr. Jinnah however was not alone in condemning the concept of giving the Executive judicial powers.
36. A Law Reform Commission was set up on May 27, 1967 under the Chairmanship of Mr. Justice Hamoodur Rahman, and its report is entitled, 'The Report of the Law Reform Commission 1967-70'
(hereinafter respectively "the Commission" and "the Report. The Commission traced the administration of justice from earliest Islamic times: "42. While dealing with the administration of justice during the Caliphate of Hazrat Umar, one may usefully refer to the following observations of Ameer Ali, in his "Short History of the Saracens ": "Justice was administered by civil judges who were appointed by the Caliph and were independent of the. governors, Umar was the first ruler in Islam to fix salaries for his judges, and to make their office distinct from those of executive officers. The title of Hakim i,e, ruler was reserved for the Qazis (judges). The judge was named and is still named, says Von Hammer, 'the Hakim-ush-Sharaa i,e, ruler through the law, for law rules through the utterance of justice and the power of the governor carried out the utterance of it. Thus the Islamite administration even in its infancy, proclaims in word and in deed the necessary separation between judicial and executive power'... The administration of justice was perfectly equal and the Caliphs set the example of equality by holding themselves amenable to the orders of the legally constituted judge."
"45. In so far as independence of the judiciary is concerned, we would like, at this stage, to refer to an instance of Hazrat Ali's Caliphate. The Caliph lost a coat of mail belonging to him on his way to Siffin. After the war, when he returned to Koofa, he saw his armour in the hands of a Jew. He told the Jew that the armour belonged to him. The Jew, on the other hand, stated that the armour belonged to him. Both of them went to the Court of Qazi Shurayh. The Caliph claimed the armour.
The Jew put forward a similar claim. The Qazi called upon the Caliph to prove his case through evidence. The Caliph said that his slave Qambar and his son Hassan were witnesses to the fact that the armour belonged to him. Qazi Shuray said that the evidence of a son was not admissible.
The result was that the judgment was given in favour of the Jew, who was so impressed that he embraced Islam and stated that the armour in fact belonged to the Caliph. This instance is a clear indication of the fact that the judiciary was independent and that even the Caliph was subject to the discipline of the Court. He enjoyed no immunity in a Court of law [pages 115-6 of the Report] 37.The Commission after thorough and painstaking research concluded that combining judicial and executive functions was also a main cause of delay in the disposal of case.
"Commission's conclusion
49. The Commission has carefully considered the matter both from the administration's point of view and from the point of view of expeditious disposal of cases. The Commission has found that the combination of judicial and executive functions has been one of the main causes of delay in the disposal of cases by the Courts. The employment of a Magistrate on some executive duty has always been welcomed by him so as to afford him a good excuse for not doing his primary duty of trial of cases. There has been a general feeling amongst the Magistrates that the disposal of cases is only of secondary importance because, if he is able to please the District Magistrate with his performance in the executive field, he is sure to earn a good report from him which ultimately would lead to his promotion. The District and Sessions Judges record their views regarding the judicial work done by the magistrates posted in the area under their jurisdiction and these reports are even considered by the High Courts but they, we regret to say, are not always taken into consideration by the Government at the time of their promotion."
"50. The Commission had called for the date-wise concise statements of proceedings showing the -history of old cases. An extract from the tabulated information has been reproduced in Appendix II to this Chapter. It will be noticed that one case was adjourned twenty-five times on account of engagement of the presiding officer on duties other than judicial work. Similarly, another case was adjourned for twenty-two times for the same reason. The absence of the presiding officer from his Court on dates when cases are fixed for hearing is also mainly responsible for the non-appearance of witnesses on future dates. Witnesses sent back once or twice without recording their statements are bound to show reluctance to appear before the Court on subsequent dates of hearing. For the same reason, the Investigating Officers also tend to lose interest in the diligent conduct of their cases and in procuring the attendance of witnesses, they are never sure as to whether the case will be taken up by the Court or not" [At page 249 of the Report] 38.The Commission also found that Executive Magistrates were not doing the judicial work themselves but were in the habit of assigning the same to their Readers which, to use the Commission's words, reduces judicial proceedings into a farce: "51. In West Pakistan, the engagement of the presiding officers in executive and miscellaneous duties has also given rise to a pernicious illegal practice which must be deprecated in the strongest possible terms. At many places visited by the Commission, it was stated by the members of the Bar that quite often the statements of witnesses in cases including commitment proceedings are recorded by the Readers of the Courts in the absence of the presiding officers and that this is done as a normal routine without any objection either from the prosecution or the defence. Some members of the Bar were quite frank in admitting before the Commission that they had accepted this as necessary evil because, otherwise the parties and the witnesses wilt have to wait for the whole day for the return of the presiding officer from his executive duties and that too with no certainty that the case will be taken up on that day ".
"52. Such a practice reduces a judicial proceedings into a farce, for it defeats the very purpose underlying oral examination of witnesses by the trial Court. The Reader is neither competent to record the demeanour of the witness nor to disallow irrelevant or inadmissible questions, nor does the record of the evidence taken down by him carry with it the guarantee of its correctness. The witness also is not likely in these circumstances to treat the proceedings with the sanctity normally attaching to Court proceedings. " [At page 250 of the Report]
39. The Commission also found that assigning both executive and judicial duties to Executive Magistrates resulted in them doing neither: "53.During the course of interviews, one Divisional Commissioner rightly remarked that the present day Magistrates had made the duality of their functions a good excuse for doing neither. Whenever they are asked to explain the low-disposal of judicial cases, they plead engagement in executive duties and whenever they are asked to explain their poor performance on the executive side, they plead pressure of judicial work. The Bar also complained that the magistrates made their engagement in executive duties a good excuse for remaining away from the Courts. " [At page 250 of the Report]
40. The lack of supervision and control of Executive Magistrates was another reason that prevailed with the Commission for recommending complete separation of the judiciary from the executive.
"54. It is furthermore the considered opinion of the Commission that lack of supervision and control by the District Magistrates is also responsible for the delay caused in the disposal of criminal cases.
Almost all the District Magistrates, who appeared before the Commission, conceded that on account of their own engagements in multifarious miscellaneous duties, they had practically no time to supervise the work of the Magistrates. Some of them have very frankly conceded that it was not possible for them even to carry out the periodical inspection of the subordinate Courts. At present, no District Magistrate himself tries any criminal case, because either he has no time or he has little interest in the work. There can be little justification for continuing such a system under which the work and conduct of the Magistrates, employed for the judicial work, remains unscrutinised by the concerned authorities. In order to put an end to all malpractices which have sprung up as a result of the deficiencies of the existing system, it is necessary that the caire of the Magistrates dealing with judicial work should be separated and made independent, so that judicial 'officers should do judicial work without any interruption. It is, therefore, the unanimous opinion of the Commission that it has now become essential that there should be a complete separation of the judiciary from the executive as a first step for the expeditious disposal of criminal cases. " [At page 250 of the Report]
41. The Commission recommended the setting up of a Judicial Service in each province to overcome the problems and difficulties of Executive Magistracy: "56. The splitting up of the existing Cadre of Magistrates into Executive and Judicial Magistrates may give rise to certain complications by affecting their immediate prospects of promotion and other terms and conditions of service. It will not be possible to permanently transfer these officers to the Judicial side without their consent. The solution lies in creating an integrated Judicial Service for each Province which should consist of,- (a)the existing members of the P.C.S. (Judicial); (b)optees from among the existing Magistrates; (c)officers of the P.C.S. (Executive Branch) deputed by Government to serve as Judicial.
Magistrates for a period of three to five years, so as to enable the new Cadre to function satisfactorily during the transitional period; and
(d) new entrants to the service, recruited through the Public Service Commission, by open competition from among law graduates.
The members of the combined Judicial Service would enjoy both civil and criminal powers and could be entrusted with both types of work simultaneously or separately, depending on the volume of work at each station. The strength of the new Cadre will have to be worked out by the Provincial Governments in consultation with the respective high Courts. " [At page 251 of the Report] 42.On page 252 of the Report the 'Summary of Recommendations' of the Commission were made, which were brief and to the point: "(1) There should be complete separation of the judiciary from the executive.
(2)The pattern envisaged by the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 (E. P. Act XXXVI of 1957) should be adopted in this behalf.
(3)The scheme for separation of the judiciary from the executive should be introduced through a phased programme extending over three to five years and there should be an integrated Judicial Service in each Province."
43. From the aforesaid it emerges that the impugned laws violate the Constitution of Pakistan, ignore the precedents of the superior. Courts of Pakistan, run counter to the principles that were dear to the Mr, Jinnah, infringe the principles governing judiciary during the D time of the Rightly Guided Caliphs, and oppose the recommendations of the comprehensive Report of the Justice Hamoodur Rahman Law Reform Commission; therefore, we looked forward to know the objects and reasons in enacting the same. The 'Statement of Objects and Reasons' which accompanied the Bill (that resulted in the impugned Act) stated that, it was expedient to do so: "Consequent upon abolition of Local Government Ordinance, 2001 and revival of office of Deputy Commissioner in the Province, it has become expedient to restore/revive Magistracy system as it stood prior to introduction of Local Government System in 2001." It is not clear how, with the abolition of Local Government Ordinance, 2001 and revival of office of Deputy Commissioner in the Province, the necessity to restore revise Magistracy system followed. The fact that no debate toil- place in the Balochistan provincial Assembly on the Bill leaves the mysterious purpose, of-the same shrouded.
The impugned Act also dose not any light in its Preamble from which we can gather the reasons' requiring its promulgation. The same only state, "Whereas it is expedient to further amend the Criminal Procedure Code, 1898, (Act V of 1898)), for purposes hereinafter." Both the Statement of Objects and Reasons' accompanying the Bill and the Preamble of the impugned Act use the word 'expedient', definition of which, includes, "advantageous for practical rather than moral reasons" and "something done or a method used to achieve an objective quickly, regardless of whether it is fair, right, or wise in the long term" However, in the present case we also do not know expedient reasons for enacting the same.
44. This Court has the highest respect for the democratic process and stands as a bulwark in support of democracy and democratic principles. It is through democracy that we attained independence and a country. Unlike many other countries, including the country which came to be known as the United States of America, there was no militia that by force of arms under the leadership of generals wrested freedom from a colonial power. Our founding fathers and mothers negotiated and compelled the British Colonial power to let the people express their desire through plebiscite. It was not power flowing from the barrel of guns, confronting opponents with bayonets, bullets or, bombs that helped achieve this country. It was the majesty of the pen, the flowering of the intellect the articulation of ideas and the skill of persuasion under a dedicated and committed leadership that galvanized the movement for Pakistan and raised the flag that came to be planted with honor and dignity in the comity of nations. An important and integral part of the message that appealed, spurred and motivated the public was the promise of justice that an independent nation would bring. Therefore the fact that no discussion took place of the Bill in the Provincial Assembly is a mystery and an enigma. We are confident if the Assembly had discussed, deliberated and contemplated the Bill they would not have passed it. Without any discussion and deliberation and the accompanying publicity on what was sought to be achieved the public are left mystified, particularly since there was no demand from any quarter to reintroduce the Executive Magistracy, nor had any political party in its (election) manifesto informed the people that they wanted to do so. On the contrary every political party had promised an independent judiciary, and some promising the restoration of Constitution in its original form, i.e as it stood in 1973. The Constitution as it then stood stipulated the separation of the Judiciary from Executive within three years, i,e, by August 14, 1976, which was extended to five years by the Constitution (V Amendment) Act, 1976 and then as a consequence of General Zia's Martial Law to 14 years. If the Provincial Assembly wanted to go backwards in time and wanted to reintroduce executive magistracy it could not do in view of Article 175(3) of the Constitution, which mandates the separation of the Judiciary from the Executive.
45.There is another matter of which we can not fail but to take judicial notice of. There is no opposition in the Balochistan Provincial Assembly and, except one every Member is in the Cabinet/Government. Moreover, a number of principal/major parties of the Province boycotted the elections as they stated that they apprehended that free and fair elections would not be possible when the country's President was a General who had seized power by violating the Constitution of Pakistan. Under such circumstances greater care and effort should have been taken to ensure that any major step that is being contemplated has public support. Rushing a Bill through the Assembly without any discussion thereon, either in the Assembly or public gatherings, seminars, conference or on media, raises legitimate public concerns, particularly as the Fundamental Rights of the people were to be adversely effected by the legislation. The manner in which the impugned Act was passed cannot be said to be as a consequence of participatory democracy. Whilst theoretically the Assembly can enact legislation as it chooses to, but not knowing what was in the mind of its Members is to some extent akin to a judge convicting or acquitting a person without giving any reasons; such a verdict even if it is correct it will find no acceptance in the minds and hearts of the people. Observations made in this paragraph however do not constitute any part of the reasons whereby we hold that the impugned laws violate the Constitution of Pakistan and are therefore void. These reasons have been given above and have been condensed in the following paragraph.
46.(1) Article 175(3) of the Constitution brought to an end executive magistracy, and to revive or reenact it, as done by the impugned laws, runs contrary to the provisions of Article 175 of the Constitution;
(2) "Such other Courts as may be established by law" mentioned in clause (1) of Article 175 of the Constitution relate to the subordinate Courts referred to in Article 203 thereof and not 'Courts' manned by executive magistrates, which are alien to the Constitution;
(3) The Constitution envisages trichotomy of powers between the three organs of the State, namely, the Legislature, the Executive and the Judiciary and the impugned laws in setting up 'Courts' of Executive Magistrates encroach upon the judicial domain, which is the Constitution does not permit;
(4) The Constitution guarantees an independent judiciary and the Executive Magistrates established under the impugned laws negate the concept of an independent judiciary
(5) Article 9 of the Constitution, guarantees that, "No person shall be deprived of life or liberty save in accordance with law" and the same includes the provision of an impartial Court or tribunal and a fair trial, and the 'Courts' of Executive Magistrates established under the impugned laws violate the said Fundamental Right;
(6) The impugned laws vitiate the "equal protection of law" principle guaranteed as a Fundamental Right under Article 25 of the Constitution;
(7) Article 10-A of the Constitution requires that in respect of all criminal charges brought against a person he "shall be entitled to a fair trial and due process" but the impugned laws drastically reduce if not destroy the possibility of either a fair trial or due process to a person charged of an offence;
(8) Independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions of judicial officers, all of which are contravened by the impugned laws; (9)Article 203 of the Constitution requires that, "Each High Court shall supervise and control all Courts subordinate to it," but as the Government amongst others has the power to appoint, transfer, discipline, remove, and grant powers to the Executive Magistrates they are not under the supervision and control of the High Court;
(10) "Access to justice to all" is assured to all under Article 4 of the Constitution which guarantee is infringed if trials are conducted by Executive Magistrates under the impugned laws;
(11) The Executive Magistrates would not be able to decide cases in accordance with laws, rules of evidence and stipulated procedures as they neither have nor are supposed to have knowledge of the same; (12)Holding of trials in places determined by the Government, in Government offices and other than in a Court house undermines the independence of the judiciary; (13)Article 202 of the Constitution grants to the High Court the power to make "rules regulating the practice and procedure of the Court or any Court subordinate to it but the High Court, has no power rules regulating/the practice and procedure of the Executive Magistrates that have been introduced by the impugned laws;
(14) Judicial officers can only be appointed through test and R. interviews conducted by a Selection Committee of the High Court;
(15) The impugned laws are repugnant to the Federal law on the subject therefore the same are void in terms of Article 1A9 of the Constitution.
46. Therefore for the above stated reasons these petitions are allowed in the following terms, but with no order as to costs:-- (a)The Code of Criminal Procedure (Balochistan Amendment) Act, 2010 (Act, XV of 2010) and the Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010 (Ordinance, III of 2010) are hereby declared to be ultra vices the Constitution of Pakistan, of no legal effect, and void ab initio; (b)Consequently, any rule, notification and order issued appointing any person as Executive Magistrate and granting such person powers to conduct trials and any other powers pursuant to the said Act or Ordinance are of no legal effect; (c)Resultantly, all proceedings pending before the Executive Magistrates appointed pursuant to the said Act and or Ordinance to be transferred to the Judicial Magistrates and or the Sessions Judges of the concerned districts, who upon receipt of such cases shall proceed therewith in accordance with law; and (d)All convictions awarded and acquittals made by the Executive Magistrates under the impugned laws being coram non judice are hereby set aside and all such cases to be adjudicated afresh by the Judicial Magistrates/Session Judges as the case may be.
In conclusion we would like to record our appreciation for the assistance rendered by learned counsel, learned amicus and Mr. Justice (R) Amjad Ali for providing us the correct text of certain amendments from official publications and copy of the Report of the Law Reform Commission (1967-70).