' IRSHAD QAISAR, J.--Through this single judgment, this Court shall dispose of W.P. No. 2874/2009, W.P. No. 1296/2012, W.P. No.1022/2012 and 626/2012 as through these petitions the petitioners have challenged the vires of certain paragraphs and schedule of "Shariah Nizam-e-Adl Regulation, 2009" (NWFP Regulation No. 1 of 2009).
2. The particulars of these writ petitions are as follows;-
(i) W.P. No. 2874/2009 titled Yousaf Ayub Khan etc v. Government.
(ii) W.P. No. 1296/2012 titled Dr. Adnan Khan v. Government.
(iii) W.P. No. 1022-P/2012 titled Hazrat Usman v. Government.
(iv) W.P. No. 625-M/2012 titled Fahim Aftab v. Government of Khyber Pakhtunkhwa etc.
3. Writ Petition No. 2874/2009 has been filed by Yousaf Ayub Khan President NWFP Local Councils Association and Zila Nazim, Haripur and W.P. No.1022/2012 has been filed by Hazrat Usman, Advocate Mingora Swat, whereby they are seeking the declaration (with the consequential relief's) that paragraph 7, schedule III and other provisions of "Shariah Nizam-e-Adl Regulation, 2009" providing for "Executive Magistrate" including "District Magistrate" and inter alia, entrusting them the judicial functions, are ultra-vires to Articles 2-A, 175(3) and 203 of the Constitution of Islamic Republic of Pakistan, 1973, also seek the directions to the respondents for immediately taking necessary steps and measures, as deem fit and appropriate, to ensure the complete independence of "Judiciary" from the "Executive". They have also challenged paragraph 19(2) of the said Regulation and all the corresponding laws (Acts, Ordinances, Regulations, Rules and Notifications), entrusting the Executive officers with Judicial powers of any nature being contrary to the Constitution.
4 The petitioners have prayed for the following reliefs;- "that this Hon'ble Court may be pleased to strike down all the laws (Acts, Ordinances, the Regulations, Rules and Notifications) issued there under entrusting the Execution Officer with Judicial powers of any nature not conforming with the Constitutional provisions, more particularly Articles 2-A, 175(3) and 203 and the Objective Regulation thereof".
5. Writ Petition No. 1296/2012 filed by Doctor Adnan Khan a citizen, member of the Bar and a former Civil Judge challenged vires of paragraphs 5(e), 7, Schedule-III, Paragraph 19(2) of Shariah Nizam- eAdl Regulation, 2009, with the prayer that on acceptance of this petition the above provisions of law may be struck down and declared as nullity in the eyes of law. Similarly all the notifications issued in the light of above mentioned law for the appointment of Executive Magistrate and conferment of powers over them may be set aside
6. Writ Petition No. 625/2012 filed by Fahim Aftab (party to a complaint filed under section 133 Cr.P.C) asked for the following prayer;- "To declare that Shariah Nizam-e-Adl Regulation, 2009, NWFP Regulation No. 1 of 2009 is discriminatory law and inconsistent with the fundamental rights as envisaged in Chapter-I of Part-II of the Constitution of Pakistan 1973".
2. To issue direction to the Provincial Government to deploy Police force in the said area of Malakand as the law enforcing agency, conducting investigation in criminal cases according to Cr.P.C. 1898".
7. The impugned Regulation No. 1 of 2009 sought to introduce executive magistracy in the Provincially Administered Tribal Area of N.-W.F.P. Except the tribal areas adjoining Mansehra District and Former State of Amb and to entrust it with judicial powers to conduct trials and impose punishment. Paragraph 2 Clauses (b), (c) and (g) defined Dar-ul-Dar-ul-Qaza, Dar-ul-Qaza and Qazi while paragraph 5 shows types of Courts. Paragraph 6 deals with the appointment, powers and functions of Qazis while paragraph 7 create the concept of Executive Magistrate, and as a consequence vide paragraph 19(2) of the Regulation, the Code of Criminal Procedure (Amendment) Ordinance, 2001 (XXXVII of 2001) applied to the said area vide Notification No.1/93- SOS-II (HD)/2001 dated 27.04.2002 was repealed.
8. Since the interpretations of Provincial and Federal Law and Constitution were involved; therefore, this Court vide order dated 11.11,2009 issued notice to Attorney General of Pakistan and Advocate General with the direction to file parawise comments with the observation;- "to explain its position with regard to its Constitutional obligation with regard to the promulgation of the new laws/enactments creating parallel forums with powers to exercise judicial authority and whether it, does not offends against Article 2-A and the law laid down in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 Sc 105)".
9. The respondents Nos. 1 and 2 submitted their comments wherein they raised preliminary objection to the effect that petitioners have no locus standi to file petitions as they are not aggrieved party within the meaning of Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973. Therefore these petitions are not maintainable and liable to be dismissed. They have also given the reason for the promulgation of the Regulation No.1 of 2009. In Para No.8 of the comments it is contended that this arrangement in no way offend the separation of judiciary from executive as it was done in 1996 under the separation of Executive from Judiciary through an Ordinance and Magistracy functioned unobjected till 2001, when the posts of Deputy Commissioner/Assistant Commissioner/Extra Assistant Commissioner were abolished. As far the issue of amendments in Criminal Procedure Code is concerned prior to the passage of 18th amendment the same was on the concurrent list as per Article 70(4) read with Fourth schedule of the Constitution. And the Federal and Provincial Governments both were empowered to make amendments in the criminal procedure code. After the passage of 18th amendment the Concurrent List has been done away, however, under amended Article 142(b), still the Parliament and the Provincial Assembly have powers to make laws with respect to Criminal Law, Criminal Procedure and Evidence.
10. At the very outset of the arguments Mr. Abdul Latif Yousafzai, learned Advocate General and Syed Atique Shah, learned Additional Attorney General raised objection to the maintainability of the petitions on the grounds that the petitioners do not come with in the definition of aggrieved person under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is contended that petitioners had not personally suffered as a consequences of the impugned law nor any case of the petitioners are pending as a consequence whereof they will be personally affected by its determination by Executive Magistrates instead of Judicial Magistrates. These objections were negated by learned counsel for the petitioners and contended that through these petitions the impugned laws have been assailed in the public interest. That one of the petitioners Fahim Aftab is a party in criminal complaint while the three petitioners are advocates and the guardian of the Constitutional rights of the public. Now the question is that whether a person who is not personally aggrieved can assail a law enacted in contravention of fundamental rights?
11. In Pakistan we have written Constitution and it is incumbent on every one to comply there with.
Article 8 of the Constitution stipulates that;-
1. "any law in so far as it is inconsistent with the rights conferred by this chapter (chapter-I Fundamental Rights), shall, to the extent of such inconsistency be void"
2. "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".
5. Sub-Article (5) of Article 8 further lays down;- "The right conferred by this Chapter shall not be suspended except as expressly provided by the Constitution".
12. Article 199(2) of the Constitution of Islamic Republic of Pakistan, 1973 also removes the 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 I of the Part II shall not be abridged".
' In this respect guidance is sought from case Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883. The relevant paragraph 23 of the said judgment is reproduced.
"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 tiave 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."
' Reference may also be made to Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7 wherein it is held that "the High Court is empowered to examine the vires of civil/criminal law on the touchstone of Constitution". Reference may be made to a case Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507 wherein it is held; "It needs to be kept in view that apart from the jurisdiction vested in High Court by virtue of clauses
(a) and (b) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 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 183(3); it may be seen that under Article 4 every body has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void".
13. Neither the learned Advocate General nor Additional Attorney General has attributed any ulterior motive to the petitioners. From the careful perusal of the contents of petitions it reveals that they have knocked the door of Constitutional Court to assist their fellow citizens in leading their lives in the glow of Constitution and to enjoy the right provided therein. It is settled law that if a person, who has no personal interest and in the larger interest comes forward and question such lacunas the doors of the Court should not be shut for him, but rather kept open for him. Thus the objection taken to the maintainability of the petitions on the ground that they are not aggrieved person and therefore cannot approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are not tenable for the reasons stated above and thus rejected. Moreover three petitioners are advocates and one is affectee and they have the right to challenge the vires of law as the custodian of law as well as the affectee.
14. Through the present petitions the petitioners have challenged the Constitutional Validity of Paragraphs 5(e), 7, 19(2) and Schedule 3 of Shariah Nizam-e-Adl Regulation, 2009, Repeal of Code of Criminal Procedure (Amendment) Ordinance 2001, Notifications relating to establishment of Court of Executive Magistrate in PATA on the grounds that these are against the spirit of Provision of Articles 2-A, 175(3) and 203 of the Constitution of Islamic Republic of Pakistan 1973.
15. Learned counsel for the petitioners contended that Executive Magistrates including District Magistrates and inter alia entrusting them the judicial and trial function are ultra vires to Articles 2- A, 175(3) and 203 of the Constitution and are totally against the independence of judiciary from the executive. That entrusting the Executive Officers with the judicial powers of any nature is being contrary to the Constitution. That through the cover of paragraph 7 of the Regulation, the institution of Executive Magistrate with judicial powers have been illegally revived inspite of the fact that the institution of Executive Magistrate has already been abolished through Code of Criminal Procedure (Amendment) Ordinance 2001. That the revival of this Executive Magistrate system is without lawful authority. That introduction of Executive Magistrate contravenes Article 175(3) of the Constitution, which provide that "Judiciary shall be separate progressively from the executive within 14 years from the commencement day," i.e. From August 14, 1973, which period of 14 years came to an end on 18.08.1987 and the impugned law is in Contravention of Article 175(3) of the Constitution of Islamic Republic of Pakistan 1973. That Constitution envisages independent of "Judiciary" and any forum created with an "Executive" as adjudicator of civil/criminal or fiscal cases/issues is clearly in conflict with the Provisions of Articles 4, 8, 9, 25 and 175 thereof. That Article 25 of the Constitution envisages equality before law, including process of law, hence subjecting the citizen to two set of judicial system is but discriminatory, as well. That the Constitution is based on the principle of trichotomy of powers, in which "Executive", "Legislative" "Judiciary" have their own functions independent from each other. That the function of the Executive Officers as Judges cannot reflect fairness and impartiality. That non fixation of the tenure of such Executive Officers also undermines their independence and fairness. It is further contended that by way of ordinary legislation, the powers and jurisdiction of the Constitutional Courts cannot be restricted, as has been done through this Regulation. Hence same is also violative of Provisions of Article 203 of the Constitution.
That provisions of the Regulation have been enforced within the ambit of Article 247 of the Constitution. But the very commendable act of enforcing the "Shariah Laws" has been done in an unlawful manner as para No. 7 of the Regulation is inconsistent with the Constitution. No legal requirement has been imbedded in the Regulation as to the qualification/knowledge of Executive Magistrate with reference to Shariah laws. That para 7(3) is in conflict with the Provisions of Article 228 of the Constitution. That vide para. No.19(2) of the Regulation, by way of mere repealing Ordinance No. XXXVII of 2001, the provisions relating to powers and procedure to be followed by the Executive Magistrate have not been revived, by virtue of Sections 6-A and 7 of the General Clauses Act 1897 (X of 1897). That para. No.7 is also void in view of Article 143 of the Constitution, dealing with the inconsistency between Federal and Provincial law. That the exercise of powers by Government under Article 247(3) of the Constitution is void. That Malakand Levies registered the cases under section 154 Cr.P.C, carry out investigation and after completion of investigation submit challan under section 173 Cr.P.C. They are untrained and are not authorized by Provincial Government to conduct investigation and submit challan. That illiterate and untrained persons supervise investigation while under Cr.P.C. Only Police is authorized to conduct investigation in criminal cases.
This practice of investigation is contrary to the basic principle of equal treatment and due process of law.
16. These arguments were rebutted by Advocate General and Additional Attorney General and stated that Executive Magistrate has been revived in PATA through promulgation of Shariah Nfzam- e-Adl Regulation, 2009, in accordance to the provision of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. That before the 18th Amendment the criminal law was on the Concurrent Legislative List of the Fourth Schedule of the Constitution and the Provincial Government was also empowered to do legislation on it and even now Provincial Government is still empowered to legislate on the subject under amended Article 142(b) of the Constitution. It is further contended that Executive Magistrate was revived to save the writ of the State in the area.
17. Under the Constitution the fundamental rights are entrenched for every citizen and they are guaranteed against the excesses of all branches of Government including the legislature, be it the Federal Government or the Provincial Government. Now it is to be seen whether the impugned paragraphs of Regulation No, 1 are in violation of the Constitution and they should be struck of from the Regulation which is meant for the establishment of Nizam-e-Sharia in the area? The Constitution provides for independence of judiciary and its separation from Executive as specifically mentioned in Article 175(3), within fourteen years, from the commencement day (President's Order No. XIV of 1985), but even then it was not done after the lapse of 14 years. Thus the citizen were compelled to knock the doors of Superior Courts for the independence of judiciary from executive. The superior judiciary after a long historical contemplation and endows discussed the principle of separation of executive from the judiciary, fundamental rights on the subject of trial, Articles 2-A, 142, 143, 175, 202 and 203 and other questions and issues raised in those petitions are similar to the present petitions.
18. For the proper appreciation of the background of independence/separation of judiciary reference may be made to Hamoodur-Rehman's report in connection with the Law Reforms Commission 1967-70. In Sharaf Faridi's case known as "Judicial Case" Hon'ble Judge of Sindh High Court Mr. Justice Ajmal Mian discussed this report in detail. It would be useful to get the guidance from the strenuous efforts made by Superior Courts as many of the questions raised herein have already been determined and settled in case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404 matter of separation of the Judiciary from the Executive and the subject of independence of the judiciary were dilated upon, Wherein it is held;.- "It contemplated trichotomy of powers 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, mainly to act as the watch dog and to ensure that none of the organ of the Government functionaries acts in violation of any of the provisions of Constitution or any other law the supervision and control over the subordinate judiciary vested in 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 Article 203 of Constitution, besides, it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objective Regulation".
' In this judgment the Hon'ble Judges set out the concept of the trichotomy of powers prevailing in the Constitution, the special role of judiciary and stressed that Parliament could not encroach upon the judicial domain. In the judgment it is further held that;- "The denial and failure to establish independent Courts and Tribunals by separating them from executive, negates Article 9 of the Constitution of Islamic Republic of Pakistan 1973. That a mandatory duty has been cast upon the executive and legislative to separate the judiciary from executive but they have remained completely ilent, dormant and unconcerned. Such omission to exercise jurisdiction not only violates Article 175 but infringes fundamental rights as well. In such circumstances necessary orders can be passed and directions in mandatory form can be issued to ensure enforcement of provisions of the Constitution and to prevent the breach of fundamental right".
' When against this judgment of Sindh High Court the Government of Sindh filed an appeal in Supreme Court it was dismissed vide judgment Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 and held that "the independence of judiciary means;-
(a) "that every judge is free to decide matters before him in accordance with assessment of the facts and his understanding of law without improper influence, inducement or pressures, direct or indirect, from any quarter or for any reason, and
(b) that the judiciary is independent of the executive and legislature and has jurisdiction, directly or by way of review, over all the issues of a judicial nature".
19. Agitation against law similar to Regulation No. 1 of 2009 had been continuing since long. These have been challenged in the Supreme Court from time to time. There are chain of authorities where the Supreme Court has assumed jurisdiction of judicial review, which even otherwise is the final arbiter of dispute in order to maintain check and balance. For these reasons, the independence of the judiciary has been guaranteed and secured.
20. In the case "Dr. Mubasher Hussan v. Federation of Pakistan" (PLD 2012 SC 265) the august Supreme Court had declared the NRO to be illegal, un-Constitutional and void ab-initio.
21. In the Al-Jehad Trust's case "PLD 1996 SC 324, 429" although the august Supreme Court stated with reference to the appointment of Judges of superior judiciary but the principles applies with equal force to all judicial appointments including those of in the District Judiciary. The dictum laid down in Al-Jehad case was soon reaffirmed by Supreme Court in case of Mehram Ali and others v.
Federation of Pakistan" (PLD 1998 SC 1445-1474) and "Sheikh Liaqat Hussain v. Federation of Pakistan" (PLD 1999 SC 504, 658). This dictum has also been reiterated in Sindh High Court Bar Association v. Federation of Pakistan PLD 2010 SC 879, 1182 Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407.
' In the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) the august Supreme Court after considering the relevant Constitutional Provisions and precedents laid down guiding principles, some of these are as follows;-
(I) That Articles 175, 202 and 203 of the Constitution provide a frame work of judiciary i.e. Supreme Court, a High Court for each province and such other Courts as may be established by law.
(ii) That the word "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 in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Court, which is the exclusive in nature, comprehensive in extent and effective in operation.
(iv) Any Court which is not under the administrative control of High Court and/or the Supreme Court does not fit in within the judicial frame work of the Constitution.
(v) That the independent 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".
' In the case of "Muhammad Irshad v. Assistant Commissioner Swat and others" (PLD 1990 Peshawar 51), this Court held "Provisions of Regulation laying down procedure for trial of offences mentioned therein and remedies provided thereto are violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In the case of Government of Balochistatz through Additional Chief Secretary v. Aziz Ullah Memnon and 16 others (PLD 1993 SC 341) it is held;- "Article 25---Any law made or action taken in violation of principles contained in Article 25 is liable to be struck down "where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution separation of judiciary from executive being the cornerstone of independence of judiciary, unless it was independent, the fundamental right of access of justice could not be guaranteed".
22. In case Accountant General Sindlz v. Ahmad Ali Qureshi PLD 2009 SC 522 it is held;- "In broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all the matters including pay and pension which is an essential component of independence of judiciary".
23. The above said dictum has also been reiterated in Sindh High Court Bar Association v. Federal of Pakistan. (PLD 2010 SC 879, 1182) and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). In the latter case at page 467 the Supreme Court, after examining the case law, recorded that;- "It is an undisputed trend of our Constitutional system that in matter of appointment, security of tenure and removal of Judges the independent of judiciary should remain fully secured."
In the above judgment and particularly in Sharaf Faridi case it is held that; "the supervision and control over the judiciary vested in the High Court under Article 203 of Constitution, keeping in view Article 175, is exclusive in nature and any notification empowering any executive functionary to have control over the subordinate judiciary will be violation of above Article 203 of the Constitution. Beside it would militate against the concept of operation of powers and independence of judiciary".
' These pronouncements were unambiguous and provide the norms to be adhered to in the appointment process for the district judiciary.
' Similar view was taken by Supreme Court in Benazir Bhutto's case PLD 1989 SC 416 the SC.
24. The terms "access to justice to all" mentioned in Article 4 of the Constitution include the doctrine of due process of law, the tribunal or the Court before which the rights of parties are adjudicated is so constituted which gives reasonable assurance of the honesty and impartiality of its judges that it is a Court of competent jurisdiction.
25. The Universally adopted and recognized basic principle of the independence of judiciary requires that;- "The judiciary shall have jurisdiction over all issues of a judicial nature" and that "Everyone shall have the right to be treated by ordinary Courts or Tribunals using established legal procedure".
' Condition of service and tenure of Judges were also recognized to be important.
26. Our Constitution is based on the principle of trichotomy of powers in which Executive, Legislative 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 defined domain of the judiciary. The Objective Resolution, which is a substantive part of Constitution. (Article 2-A) provides for the independence of the judiciary but this provision would be negated and rendered null and void if a person is tried by an executive officer over whom the judiciary has no control as envisage by Article 203 of the Constitution, 1973, i.e. Each High Court shall supervise and control all Courts subordinate to it. Our Constitutional Courts have consistently held that the process of appointment to the judiciary must be carefully scrutinized through the lens of Constitutional principles such as the principles of separation of powers.
27. The august Supreme Court gave a well defined meaning and outlined the scope of the separation of powers and judicial independence as mentioned in our Constitution. It is in the backdrop of the judicial pronouncement referred to above, and the interpretation of the Constitution made therein, that Rules for recruitment of judicial officers were framed in different provinces and in our province "the North West Frontier Province Judicial Service Rules 2001" were promulgated. In Rule 3 of the above Rules the detail of Constitution of judicial service is described.
Which is comprised of;- a. District and Session Judge/Zilla Qazi. b. Additional District and Sessions Judge/Izafi Zilla Qazi. c. Senior Civil Judge-cum Magistrate, empowered under section 30 Cr.P.C./Aala Alaqa Qazi; d. Civil Judge cum Judicial Magistrate/Alaqa Qazi.
Note. The designation of Zilla Qazi, Izafi Zilla Qazi, Aala Alaqa Qazi and Alaqa Qazi wherever used in these Rules, shall be deemed to be relevant only to the Provincially Administered Tribal Areas of the North West Frontier Province".
' In Rule 4 it is emphasis that the appointment to a post shall be made by the High Court.
"In Rule 5 method of Recruitment was also given... Appointment to Service shall be made in the following manner;- a. Appointment to a post of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi shall be made by initial recruitment; b. Appointment to a post of Senior Civil Judge cum Judicial Magistrate empowered under section 30 Cr.P.C/Aala Alaqa Qazi shall be made on seniority cum-fitness basis from amongst the Civil Judge-cum-Judicial Magistrate/Alaqa Qazi on the recommendation of Departmental Promotion Committee. c. Appointment to a post of Additional District and Sessions Judge/lzafi Zilla Qazi shall be made to the extent of;-
1. Not less than two-third by promotion, on the recommendation of Departmental Promotion Committee from amongst the holders of the post of Senior Civil Judgecum-Magistrate, empowered under section 30 Cr.P.C/Aala Alaqa Qazi, and; ii. Not more than one-third by initial recruitment from amongst the members of the Bar. Public Prosecutors/ Government Pleaders and Additional Public Prosecutors/ Additional Government Pleaders; d. Appointment to a post of District and Sessions Judge/Zilla Qazi shall be made by promotion on the recommendation of the Departmental Promotion Committee, on the basis of seniority-cum- fitness, from amongst the holders of the post of Additional District and Sessions Judge/Izafi Zilla Qazi; e. Appointment by initial recruitment to a post of Civil Judgecum-Judicial Magistrate/Alaqa Qazi shall be made on recommendations of the commission based on the result of a competitive examination to be conducted by it in the subjects specified in the Appendix to these Rules.
' In the impugned Regulation Qazi has been defined in paragraph 2(1)(g) which is as follows;- 'Qazi means a duly appointed Judicial Officer as specific and designated in column No. 3 of Schedule II which consists of;- Schedule II". i. District and Sessions Judge/Zilla Qazi; ii. Additional District and Sessions Judge/Izafi Zilla Qazi; iii. Senior Civil Judge/Judicial Magistrate under section 30 of Cr.P.C. 1898 in Aala Alaqa Qazi; iv. Civil Judge/Judicial Magistrate/Alaqa Qazi.
' These are the same Judicial Officers, the detail of which have been given in Rule 3 of the Judicial Services Rules 2001. In para No. 5 of the Regulation the detail of these Court have been given in clauses 'a', 'b', 'c' and 'd' i.e. Court of Zilla Qazi, Court of Izafi Zilla Qazi, Court of Aala Alaqa Qazi and Court of Alaqa Qazi.
28. In paragraph 6 under the heading of "Qazis and their powers and function" certain conditions were imposed for their appointment. In sub-para. No.1 of paragraph 6 it is specifically stated;- "Any person to be appointed as Ilaqa Qazi in the said area shall be a person who is duly appointed Judicial Officer in the NWFP. Preference shall be given to those judicial officers who have completed Shariah course from a recognized institution".
29. Beside the above noted Courts of Qazi in column No. 'E' of para. No. 5 Court of Executive Magistrate was also introduced and constituted. In the impugned paragraph 7 the powers and functions of Executive Magistrate are given which is reproduced as under;- (7). Executive Magistrate.
1. In each district or protected area, there shall be a District Magistrate, Additional District Magistrate, Sub-Divisional Magistrates and other Executive Magistrates as the Government may deem necessary to appoint.
2. The District Magistrate and all other Executive Magistrates shall discharge their functions, responsibilities and exercise their powers according to the established principles of Shariah and other laws for the time being in force in the said area.
3. Keeping peace, maintaining order, enforcing the executive authority of the Government and "Sadd-e-Zara-e-Jinayat" shall be the duty, responsibility and power of the District Magistrate. For this purpose he may take action against an individual under the established principles of Shariah.
4. The cases included in schedule III to this Regulation shall be exclusively triable by Executive Magistrates.
Explanation... The expression "Sadd-e-Zara-e-Jinayat" means and includes all actions and steps taken under the Shariah laws and any other law in force for the time being for the control of crimes.
30. Neither any criteria for the appointment of those Executive Magistrates nor the terms and conditions of their service has been described. The impugned Regulation does not require that the Executive Magistrates have any legal education and training and instead of their appointments by High Court as required under Article 203 of Constitution, it empowered the Government to appoint them as it may deem necessary and theoretically an illiterate person could be appointed as an Executive Magistrate. Even if it be presumed that the Government will only appoint Government Servants as Executive Magistrate, they would have no legal training, nor are they required to acquire any training before being granted judicial power. While against them the Qazis/Judicial members are required to acquire a legal decree after studying law for many years and they are appointed, provided they pass the prescribed test and interview as required in Rule 5 of the Judicial Service Rules 2001 and paragraph 6 of this Regulation 2009. While the Executive Magistrate envisaged under the impugned Regulation would be not better then layman. Neither they were made under the supervision of High Court nor were they appointed by High Court. Rather this prerogative was given to Government and vide notification No. SO (FATA)/HD/1- 60/NRA-09 dated 02.10.2009 the Additional Chief Secretary (Home) Government of NWFP, appointed different government officers as District Magistrates, Sub- Divisional Magistrates and Executive Magistrates and entrusted them with the powers of First Class Magistrates.
31. Article 202 of the Constitution, authorizes High Court 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. 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 law. It has rightly being held by the Superior Courts;- "That they would be nothing but Kangaroo Courts or Mock Courts in which the principles of law and justice are disregarded or perverted".
32. If one takes a deep scrutiny of the provisions of impugned law, it will be clear that Government conferred unrestricted and unfettered power in the executive to administer criminal justice, when regular Courts, consisting of Civil Judges/Judicial Magistrates having qualification as required by the said Regulation and Subordinate Judicial Service Rules 2001, have been established in the area to adjudicate civil and criminal disputes. 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. From the cognizance of the schedule offences as provided, in schedule I the Executive' Magistrates came into the power.
They are the dominating figure in the extra trial. Since our Constitution is based on the principle of trichotomy; therefore, to impose executive Magistrates, without control of High Court the Government creates, discrimination in the area and negates the very concept of justice and violates fundamental rights. These impugned paragraphs thus create a bar against the right of citizen to approach the established Courts of law and to be governed by the general criminal law and procedure applicable in the entire country. In the presence of normal Courts the addition of Executive Magistrate in the area is not based on any rational classification or intelligible differentia.
Moreover by these provisions the rights of access to Courts and justice has been denied, which is by itself an infringement of fundamental rights which provides that every citizen shall be entitled to equal protection of law and will not be deprived of life and liberty save in accordance with law. The provisions of Articles 4, 8, 9, 10-A and 25 do not permit the legislature to frame such law which may offend the fundamental rights. Since the Constitution envisages independent judiciary, separated from the executive and in the present case the Government Officers having no required knowledge, degree and training have been appointed by Government, therefore the Executive Magistrates created under the paragraphs 5(e) and 7 under the control and superintendence of executive for adjudication of criminal cases as given in Schedule III of the Regulation will be in a complete conflict with Articles 4, 8. 9, 10-A, 25, 175 and 203.
33. It is settled that the mandate and commencement of Article 175 must be obeyed and implemented; any laxity in this regard will amount to violation of Constitutional provisions. It is also admitted principle of law that a fair trial is deemed to be vitiated if judicial functions are given to the executive and its officer and the independence of the judiciary cannot be secured if the executive is made a part of judiciary. In similar nature of case the Balochistan High Court in case Muhammad Kamran Mullahkhail and others v. Government of Balochistan through Chief Secretary and others (PLD 2012 Balochistan 57) has held;- "(1) Article 175(3) of the Constitution brought an end to 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 tracheotomy 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 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)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15) The impugned laws are repugnant to the Federal law on the subject therefore the same are void in terms of Article 143 of the Constitution".
34. Keeping in view the above discussion and the ratio of the cited judgments, we are inclined to hold that under Article 203 of the Constitution supervision and control over the subordinate judiciary vest in the High Court and any Court created under any law which is not subject to the judicial supervision of High Court would be violative of the Article ibid.
35. In such view of the matter we have no hesitation to say that the provisions of the Regulation empowering the Executive Magistrates to exercise judicial functions are contrary to the provision of the Constitution and also in negation of the judgment of the superior Courts referred to above. The Government has no authority whatsoever, to appoint Government Officers to perform the judicial function.
36. The next question which needs consideration is the vires of paragraph 19(2) of the Regulation vide which the Criminal Procedure Code (Amendment) Ordinance 2001 (XXXVII of 2001), applied to PATA vide Home and Tribal Affairs Department's Notification No.1/93- SOS-II(HD)/2001 dated 27.04.2002 was repealed. Now it is to be seen whether the Governor was competent to repeal the Ordinance No.XXXVII of 2001 (Federal Law) and to legislate in respect of criminal law and criminal procedure through the impugned provision of the Regulation where the same has already been legislated by the Parliament and whether it is not against the provisions of Article 143 of the Constitution?
37. The impugned paragraph 19(2) sought to revive the relevant sections of Cr.P.C. In respect of which the Federation had already legislated and inter alia undo the changes made to the Code of Criminal Procedure through (Amendment) Ordinance XXXVII of 2001 which came in to force on 14.08.2001, removed the Executive Magistrates from the code. Before discussing the legal impact and validity of these amendments we deem it appropriate to reproduce the relevant sections of law before and after Amendments vide Ordinance No.XXXVII of 2001 which are as under;- ' After amendment section 4 "ma" was inserted, "Magistrate" means Judicial Magistrate and includes a Special Magistrate appointed under sections 12 and 14.
' Sub section (2) of section 6 before amendment. There shall be the following classes of Magistrates, namely;-
(i) Judicial Magistrates. a. Magistrates of the first class. b. Magistrates of the second class. c. Magistrates of the third class. d. Special Judicial Magistrates.
(ii) Executive Magistrates. a. District Magistrates. b. Additional District Magistrates. c. Sub-Divisional Magistrates. d. Special Executive Magistrate. e. Magistrates of the First Class. f. Magistrates of the Second Class. g. Magistrates of the Third Class.
' Subsection 2(6) after amendments.
' There shall be following classes of Magistrate. a. Magistrates of First Class. b. Magistrates of second class and c. Magistrates of the third class.
' Section 8(2) has been omitted. Sections 10, 11 and 13 in respect of appointment of District Magistrate, Executive Magistrate, and their powers by Provincial Government have also been omitted.
' Subsections (2), (3) and (4) of section 14 were omitted and in subsection (1) the word Executive Magistrate was also omitted.
38. Apart from above amendment, in the whole Cr.P.C. Wherever the word Executive and District Magistrate appeared these were amended and their powers were given either to Judicial Magistrate or Sessions Judge. In the Amended Ordinance XXXVII of 2001 directions were issued to the Provincial Government to exercise their powers in respect of grant and withdrawal of powers of Magistrate etc with the recommendation of the High Court.
39. Vide impugned paragraph the Federal statute has been repealed without observing the relevant provision of law and Constitution and sought to specifically undo the changes made to the Code by the Federation which was in complete contravention of Article 143 of the Constitution.
The said Article is reproduced as under;-
143. Inconsistency between Federal and Provincial Laws. - 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, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of [[Majlis-eShoora (Parliament)], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.
' In Wattan Party v. Federation of Pakistan PLD 2008 SC 697, the Supreme Court held that the Court can exercise its powers under Article 8 to strike down a Provincial Law, if it offends a Federal Law as stipulated in Article 143. The relevant para is reproduced as under;- "Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar All 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 jadicial 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."
40. Since this Regulation was promulgated in 2009; therefore, there is no need to discuss the Constitution 18th Amendment Act which came into force on 19.04.2010 which has also amended Articles 142 and 143 and thereby omitted Concurrent Legislative List but has retain the matter in respect of criminal law, criminal procedure and evidence in Article 142(b) empowering both Parliament and Provincial assembly to legislate on these subjects but the clog of Article 143 is still there.
41. Since Constitution is not merely an imprisonment of the past but is also alive to the unfolding of future, Constitution is the supreme law of all the laws; therefore, care should have been taken not to transgress the limits prescribed by the Constitution. But in the present case by adding paragraph 19(2) in the Regulation the provisions of Article 143 of the Constitution have been violated as it was in complete contravention of this Article.
42. It is alio important to add that though the Regulation has been promulgated by Governor under Article 247 of the Constitution. Of Islamic Republic of Pakistan, 1973, but the definition of state as given in Article 7 of the Constitution is fairly wide and encompasses all authorities which performs Executive and Legislative functions in any part of the country. The President and Governor while exercising their powers under Article 247 of the Constitution of Islamic Republic of Pakistan, 1973; therefore, cannot be excluded from the definition of "State" as far as the tribal areas are concerned.
In this respect reference is made to PLD 1995 SC 281 in the case of "Government of N.-W.F.P. v.
Muhammad Irshad" wherein it is held;- "Extraordinary Power, that has been vested in the President and the Governor has to be exercised in a manner that would facilitate the introduction of representative administration in tribal area and thus bring that at par with the other parts of Pakistan. Any legislative and administrative measures which obstruct or delay such ultimate goal is beyond the boundary of power vested in the President and the Governor. When the President or the Governor makes a law for the Tribal Areas which is different from that prevailing in the rest of the country it must be accompanied by good reasons- - - Omission in this regard would lay the President and the Governor open to charge of arbitrariness and on that account compromise the validity of their action whether it is in the legislative field or it relates to a purely administrative act".
43. In the sacred Nifaz-e-Nizam-e-Shariah, implemented through "The Shariah Nizam-e-Adl Regulation 2009", the Executive Magistracy has been wrapped, which is the memorial of the era of colonialism. It is not understood that even after 68 years of independence a few people still desire and even try to clamp the people into shackles of slavery. Constitution of our country is a collective public desire which declares independence of Judiciary and its separation from Executives. But there are few people who for their motives, and whims seek illegal and unconstitutional power to revive the Executive Magistracy, which is one of the remnants of colonial era.
44. In view of what has been stated above it is difficult to regard the impugned provisions in question as measures conducive to the peace and good governance of the area as the Courts of Judicial Magistrates are working there and the ordinary judicial system, which is in force in the other parts of Pakistan are working properly. But without any apparent justification they have introduced a setup which is repealed and which is condemned by the residents of the area. They can therefore hardly be regarded as legitimate exercise of the extraordinary power which the President and Governor are enforcing in reference to the area under Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, we have no hesitation to say that by creating the 'posts of Executive Magistrates efforts have been made to bring back the Constitutionally and Judicially withdrawn and condemned Executive Magistracy and thereby to defeat the Constitutional mandate and dictum of the Superior Courts.
45. In these circumstances and for above stated reasons, this and the connected petitions are disposed of in following terms;- a. Paragraphs 5(e), 7, 19(2) Schedule Ill and other relevant paras in respect of function of Executive Magistrate of Shariah Nizam-e-Adl Regulation 2009, (NWFP Regulation No. 01 of 2009), Notification No.SO(FATA)/HD/1-60/NAR/09 dated 02.10.2009 and other Notifications entrusting the Executive Officers with Judicial powers of any nature are hereby struck down being ultra vires of the Constitution as violates the requirement of Constitution and relevant trite law. b.
That any Rule, Notification and any order issued, declaring or appointing any person as Executive Magistrate and authorizing such persons of exercising powers to conduct trials and any other powers pursuant to invalid law as mentioned in Para (a) above, are also declared as void and of no legal effect. c. However, the conviction made and proceeding conducted by the Executive Magistrate, in pursuance of the above law are hereby saved and protected under the doctrine of past and closed transactions. d. Consequently all pending proceedings before the aforementioned invalidated Executive Magistrates, appointed pursuant to the aforementioned invalidated Law, to be transferred to the concerned Judicial Magistrates (Ilaqa Qazis) or to the Sessions Judges (Zilla Qazis) of the concerned District, who after receiving such cases shall proceed therewith in accordance with Law. e. The respondents are directed to take appropriate measures to bring the Regulation in conformity with the Constitution and dictas of the Superior Courts within a period not exceeding six months. Any step to be taken, which relates to the conferment of judicial powers, in the area shall be made in consultation with the High Court.