SHARAF FARIDI and 3 others vs THE FEDERATION OF ISLAMIC REPUBLIC OF 'PAKISTAN through Prime Minister of Pakistan and anothers

' AJMAL MIAN, C.J.--By this common judgment, I intend to dispose of the above two petitions. The brief facts leading to the filing of the above petitions are as follows:- C.P. No,D-123 of 1974: ' The above petition, hereinafter referred to as the first petition, was filed on 6-2-1974 by the Karachi Bar Association and M/s. Sharaf Faridi and Qazi Mahfooz Ahmed, the President and the Vice- President respectively of Karachi Bar Association at that time whereby the petitioners have prayed for the following reliefs:- "PRAYER ' The petitioners therefore pray as under:-

(a) That this Hon'ble Court be pleased to declare that the Sind Ordinance X of 1973, the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and the Notification dated 23-10-1973 are without lawful authority and of no legal effect and ultra vires of the Constitution to the extent of inconsistency with, contradiction to and in violation of Articles 4, 14, 175 and 203 of the Constitution; and/or

(b) That this Hon'ble Court be pleased to restrain the Respondent from giving effect directly or indirectly to the provisions of the impugned Ordinance and Rules made and the Notification issued thereunder to the extent of inconsistency with, contradiction to and in violation of Articles 4, 14, 175 and 203 of the Constitution; and/or

(c) That this Hon'ble Court be pleased to award costs of the petition;

(d) That this Hon'ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case."

C.P. No,D-891 of 1987: ' The above petition, hereinafter referred to as the second petition, was filed on 2-9-1987 by the 4 Members of the Pakistan Bar Council whereby the petitioners had prayed for the following reliefs:- "PRAYER ' That in view of what is stated hereinabove, it is, therefore, prayed by the petitioners that this Hon'ble Court may be pleased to:-

(a) Direct the Respondent No,1 to implement the provisions of Article 175(3) and to refrain from taking any action or step in violation thereof;

(b) Direct the Respondent No,2 to refrain from assigning any executive duties or any work in the nature of executive duties to the Members of the subordinate judiciary including all Magistrates, Sub-Divisional Magistrates and District Magistrates and Additional District Magistrates performing judicial duties at present;

(c) Direct the Respondent No,2 to take steps for forwarding/ transferring all matters pertaining to the appointments, transfers, postings, promotions, removals, and dismissals of all officers performing judicial functions within the Province of Sind to the superior judiciary i.e, High Court of Sind forthwith or within such period this Hon'ble Court may determine;

(d) Declare that Articles 196(b), 200(1), 200(4), 203-C(4), (4-A) and (4-B) and 248 of the Constitution of Pakistan are in conflict with Article 2-A of the Constitution and therefore inoperative and of no legal effect; and/or

(e) Grant such other/further/additional relief or reliefs that this Hon'ble Court may deem fit to grant in view of the nature and circumstances of the case."

During the pendency of the above petition an application for amendment of the petition was filed which was allowed, in consequence whereof an amended petition was filed on 6-3-1989, wherein inter alia in the prayer clause the following new para. As para. D-1 was added in addition to the above-quoted paras. Of the prayer. Above newly-added para. D-1 reads as follows: D-1) Declare that--

(i) the Constitution (Fifth Amendment) Act, 1976 amending the original Article 196 of 1973 Constitution as well as the Revival of the Constitution of 1973 Order, 1985, amending the amended Article 196 of 1973 Constitution,

(ii) the Constitution (Fifth Amendment) Act, 1976 adding proviso to Article 200 of 1973 Constitution as well as the Revival of the Constitution of 1973 Order, 1985 increasing the period from one year to two years in the proviso so added by the Constitution (Fifth Amendment) Act, 1976 and also the Constitution (Third Amendment) Order, 1985 in so far it further amends Article 200 of 1973 Constitution,

(iii) the proviso to sub-Article (4) as well as sub-Article (5) of Article 203-C inserted through the Constitution (Amendment) Order 1 of 1980 as well as the Constitution (Third Amendment) Order No,24 of 1985 in so far as it increases the period from one year to two years in the proviso to sub- Article (4) of Article 203-C and also the addition/insertion of sub-Articles (4-B) and (4-C) through the Revival of the Constitution of 1973 Order No,14 of 1985, are void, inoperative and of no legal effect inasmuch as the aforesaid amendments are contrary to and inconsistent with one of the basic structures of 1973 Constitution that is the "Independence of Judiciary" as enshrined in Article 2-A as well as in sub-Article (3) of Article 175 of 1973 Constitution; ' It may be pointed out that the above first petition relates to the subordinate judiciary, whereas the second petition covers superior judiciary as well as subordinate judiciary.

' In my view the case of the superior judiciary stands on different footings from the case of the subordinate judicary, and therefore, I intend to deal with the same separately.

2. M/s. Sharaf Faridi and G.M. Qureshi, petitioners Nos. 1 and 3 respectively in the second petition, have submitted the arguments in support of their petition. We have also heard M/s. Ali Ahmed Fazeel, Khalid M. Ishaque and Muhammad Ali Sayeed as Amicus Curiae, whereas the Federation and the Provincial Government were represented by Mr. Qadir H. Sayeed, learned Deputy Attorney- General and Mr. A.A. Muhammadally, learned Additional Advocate-General. Mr. Abul Khair Ansari, Advocate also appeared in the case. According to him he was instructed by the learned Attorney- General, whereas Mr. Qadir H. Sayeed, submitted that he was instructed.

3. Mr. Sharaf Faridi, who argued the case tenaciously in support of the second petition submitted as follows:-

(i) That after the expiry of the period specified in Article 175 of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, this Court is competent to enforce the provisions of the above Article as to the separation of judiciary from the executive.

(ii) That the effect of the incorporation of the Objectives Resolutions by Article 2-A in the Constitution is that this Court can strike down various provisions of the Constitution and of the other enactments which may militate against the separation and independence of the judiciary.

(iii) That the amendments which have been made from time to time in the Constitution from 1976 in the various Articles relating to the working of the superior judiciary affect the basic structure of the Constitution inasmuch as they adversely affect the independence of judiciary and, therefore, this Court is competent to strike down the said amendments.

(iv) That in case of subordinate judiciary apart from the Objectives Resolution and Article 175, Article 203 has been violated by the Provincial Government.

' Mr. G.M. Qureshi has dilated upon more in detail on the question of change in the basic structure of the Constitution.

' Mr. Syed Sami Ahmed, appearing for the petitioners in the first petition, has submitted that the petitioners through the first petition have impugned 3 legal instruments namely, Sind Civil Servants Ordinance, 1973, which is now Act XIV of 1973, Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and Notification dated 9-10-1973 as being violative of Articles 175(3) and 203 of the Constitution.

' Mr. Khalid M. Ishaque appearing as Amicus Curiae submitted as follows:-

(i) That there is a- distinction between jurisdiction of the superior Courts and of the subordinate Courts inasmuch as the former have jurisdiction in respect of all matters except those in respect of which jurisdiction has been expressly taken away, whereas the latter have jurisdiction in respect of the matters of which jurisdiction has been expressly conferred by law.

(ii) That after the expiry of the period mentioned in Article 175(3), this Court is competent to grant relief as to effect the enforcement of the above Articles.

(iii) That in the Islamic concept the entire power is judicial power and, therefore, the judiciary comes first whereas in the western concept the judiciary comes last.

' Mr. Muhammad Ali Sayeed contended that on the basis of the state of pleadings in the second petition, no relief can be granted. He further submitted that Article 175 is not a self-executory Article but is of the nature of a declaratory Article like Article 4 of the Constitution.

' Whereas Mr. Ali Ahmed Fazeel has urged that after the expiry of the period, specified in clause 3 of Article 175 and thereafter after the expiry of a reasonable period, the Court by virtue of clause 6 of Article 268 of the Constitution notwithstanding that no adaptations have been made in the relevant laws, can construe the same with all such adaptations if a case is brought before it.

' Mr. Qadir H. Sayeed, learned Deputy Attorney-General, who appeared for the Federal Government submitted that the Federal Government is not opposed to the implementation of Article 175 but the modality as to how to implement it is to be worked out, and that no direction can be issued to the legislature to legislate as it is a collective body which goes on changing.

' Mr. A.A. Muhammadally learned Additional Advocate-General who appeared for the Provincial Government submitted that the Provincial Government has no objection to the implementation of Article 175 of the Constitution but it would require some time to implement the same.

' Mr. Abul Khair Ansari has drawn our attention to the separation of judiciary from the executive brought about by Hazrat Umar Farooq.

4. Mr. Sharaf Faridi in furtherance of his above first submission that after the expiry of the period specified in Article 175 of the Constitution of the Islamic Republic of Pakistan, this Court is competent to enforce the provision of the above Article as to the separation of judiciary from the executive has invited our attention to Article 175 and has contended that sub-clauses (1) and (3) of the above Article are to be read in conjunction and, therefore, the superior as well as subordinate judiciary should have been progressively separated from the executive within 14 years period, which expired on 14-8-1987. In this regard it may be pertinent to reproduce the above Article, which reads as follows: "175.--(1) There shall be a Supreme Court of Pakistan, High Court for each Province and such other Courts as may be established by law.

(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day".

' It may be noticed that under clause (1) of above-quoted Article 175 it has been provided that there shall be a Supreme Court of Pakistan, a High Court for each province and such other Courts as may be established by law, whereas under clause (2) it has been laid down that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. It may further be noticed that clause (3) provides that the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. It will not be out of context to point out here that originally the period specified in the above clause (3) was three years. This was substituted by the Constitution (Fifth Amendment) Act No,LXII of 1976 to five years and then to 14 years by the President's Order No,14 of 1985. There seems to be no doubt that sub- clause (3) of above-quoted Article 175 enjoins that the Judiciary shall be separated progressively within a period of fourteen years. Mr. Sharaf Faridi's contention that the term "Judiciary" employed in above clause (3) of Article 175 includes superior Courts as well is not without force. But if we read the above clause keeping in view the past judicial history of prepartitioned India the above clause is more aptly applicable to subordinate judiciary, particularly to Magistracy.

' Mr. Sharaf Faridi has vehemently urged that the separation of judiciary will include independence in all financial matters, appointments and other administrative matters. He has also invited our attention to Article 50 of the Indian Constitution contained in Part IV relating to the Directive Principles of State Policy, which provides that "The State shall take steps to separate the judiciary from the executive in the public services of the State". He has pointed out that Article 175 of the Constitution is more positive in its nature and effect inasmuch as it specifies the period, within which the judiciary was to be separated and that Article 50 of the Indian Constitution is given in the Chapter of State Policy, whereas Article 175 of the Constitution is a part of the operative part of the Constitution.

' We enquired from Mr. Sharaf Faridi, as to whether anywhere in the world the judiciary has its separate annual budget as to make it financially independent, his reply was that not to his knowledge, but his submission was that there is no parallel provision in any of the Constitutions of the world to that of Article 175 of the Constitution and, therefore, the factum that there is no precedence for having independent annual budget for judiciary in any other country of the world should not come in our way of holding that the separation of the judiciary as contemplated in Article 175 of the Constitution and independence of the judiciary as envisaged in the Objectives Resolution cannot be achieved without having independent annual budget for the judiciary. In other words, the judiciary should generate its own annual income according to its annual requirements. In my view, this may not be practicable. I am inclined to hold that the requirements of above Article 175 will be met if the judiciary has effective say in formulation of its annual demands. To put it differently, the executive should place annual funds as per requirements at the disposal of the judiciary for operating it without being- interfered with by any agency of the Executive. Mr. Sharaf Faridi has submitted that even though in Indian Article 50 of the Indian Constitution is a part of Chapter IV containing State Policy but the effect to it is given by the Indian Courts. In support of his above submission he has referred to the case of Gurdial Singh v. The State AIR 1957 Punjab 149, the case of Baichand v. Mandsaur Municipality AIR 1960 Madhya Pradesh 20 and the case of Jai Singh Pyara Singh v. Gram Panchayat Singhanwala' and another AIR 1965 Punjab 232.

' In the first and third cases certain provisions of Punjab Gram Panchayat Act, 1952 and in the third case section 187 of the Madhya Pradesh Municipalities Act, 1954 were tested as to their validity in terms of Article 50 of the Indian Constitution and it was held that the said provisions were not ultra vires.

' In my view the above cases have no direct application to the instant cases. Mr. Faridi then invited our attention to the case of Chandra Mohan v. State of Uttar Pradesh and others AIR 1966 SC 1987, in which the Indian Supreme Court while construing Article 233 of the Indian Constitution which provided that, "Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State", held that the exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is, he can only appoint a person to the post of District Judge in consultation with the High Court and that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein.

' He has further referred to the case of Union of India v. Sankalchand Himatlal Sheth and another, AIR 1977 SC 2328, in which a sitting Judge of the Gujarat High Court was transferred to the High Court of Andhra Pradesh in terms of Article 222 of the Indian Constitution which provides that "The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court within the territory of India and that when a Judge is so transferred, he shall, during the period he serves as a Judge of the other Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix", the order of transfer was challenged. The High Court allowed the petition. Appeal filed by the Union of India was not pressed before the Supreme Court but the learned Judges delivered their judgments as the matter involved a question of public importance. The majority view was that the power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the Executive with a weapon to punish a Judge who does not tow its line or who for some reason or the other has fallen from grace. It was further held by the majority that the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President and such consultation should be meaningful. In other words, it was held that the President cannot transfer a Judge of a High Court to another High Couit unless it is in public interest and unless the Chief Justice of India is consulted. However, the minority view written by Bhagwati, J. Did not dissent from the above conclusion but held that under the above Article the transfer can be only consensual, that is, with the consent of the Judge. There is an elaborate discussion in the majority and the minority judgment as to the reason for arriving at the above conclusions. It may be advantageous to reproduce para. 43 from the majority view and the relevant portion of para. 60 from the judgment of Bhagwati, J.: Para 43 from the judgment of majority: "43. Article 222(1) postulates fairplay and contains built-in safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice.

Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge of this constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfairplay, if the due procedure is followed. I must add that Mr. Seervai did not argue that the order of transfer is bad for non-compliance with the principles of natural justice."

Relevant portion of para. 60 from the judgment of Bhagwati, J:-- "60. I have, therefore, no doubt that when a Judge is transferred from one High Court to another, he is appointed to the High Court to which he is transferred and it is only when he assumes charge of the office of Judge of that High Court by making and subscribing an oath or affirmation before the Governor of the State, that he ceases to be a Judge of the High Court from where he is transferred.

Now, it is difficult to believe that the Constitution-makers could have never intended that appointment of a Judge to a High Court or to the Supreme Court could be made without his consent. How would such appointment become effective unless the Judge who is appointed makes and subscribes an oath or affirmation before the Governor, in case of appointment to the High Court and before the President, in case of appointment to the Supreme Court. And that would plainly be a matter within the volition of the Judge. It is, therefore, obvious that the volition of the Judge who is transferred is essential for making the transfer effective and there can be no transfer of a Judge of a High Court without his consent. This is the position which emerges clearly from a consideration of the conspectus of the relevant constitutional provisions."

' Reference may also be made to the following cases which were relied upon by M/s. Sharaf Faridi and G.M. Qureshi:

(i) Samsher Singh v. State of Punjab and another, AIR 1974 SC 2192, in which the Indian Supreme Court while construing Article 235 of the Indian Constitution which provides that "the control over District Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court; but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law," held that the request by the High Court to have the enquiry for charges of misconduct against the member of the subordinate judicial service through the Director of Vigilance was an act of self-abnegation and that the High Court should have conducted the enquiry preferably through District Judge. It was further held that the members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity, and that the High Court acted in total disregard of Article 235 of the Constitution by asking the Government to enquire through the Director of Vigilance.

(ii) S.P. Gupta and others v. President of India and others, AIR 1982 SC 149. In the above case a number of writ petitions were filed in different High Courts inter alia challenging the various circulars/orders of the Government of India transferring Chief Justice/Judges from one High Court to another, offering the Additional Judges of some High Courts to be the permanent Judges of some other High Courts and not extending the period of certain additional Judges. The above writ petitions were transferred to the Supreme Court of India under Article 139 as they raised issues of great constitutional importance affecting the independence of judiciary. They were argued for 35 days. The judgment in the case runs into 500 printed pages. All the Judges were unanimous on the point that the lawyers had interest and locus standi to file the petitions and that consultation with constitutional functionaries must be meaningful and result-oriented and that the proposal can emanate from any of the constitutional functionaries and none of the constitutional functionaries can exercise veto to this matter. On the question whether the opinion of the Chief Justice of India enjoys primacy over the other constitutional functionaries, Gupta, Tulzapurkar and Pathak, JJ, held that primacy should be given to the opinion of the Chief Justice of India, but the majority comprising of B hag wati Desai, S.M.F. Ali and Venkataramiah, JJ. Held contrary. There was also unanimity of view that the transfer of a Judge from one High Court to another must be in public interest and not by way of punishment. It was further held by all the Judges except Bhagwati, J.

That the consent of the Judge concerned was not necessary. It was further held that while considering the question of transfer personal inconvenience and language problem should also be taken into consideration.

(iii) State of Kerala v. A. Lakshmikutty and others AIR 1987 SC 331, in which the facts were that the State Government had earlier resolved to appoint as District Judges four out of the five persons recommended by the High Court but later on declined to appoint any of them from the panel of names forwarded by the High Court on the ground of non-representation of candidates belonging to Latin-Catholics and Anglo-Indians, other backward classes and Scheduled Castes. Upon writ petitions filed by the persons involved, Kerala High Court issued a writ of mandamus to the State.

Government to act on the recommendation of the High Court to fill up the five vacancies for the posts of District Judges reserved for district from the practising members of the Bar under Article 233(1) of the Constitution. It was held by a Division Bench that the advice tendered by the Council of Ministers to the Governor to reject the panel of fourteen names forwarded by the High Court could be subject to judicial review. Upon appeal filed by the State of Kerala, the Supreme Court set aside the judgment of the High Court to the extent that the mandamus issued by the High Court was set aside. Instead the writ in the nature of mandamus was issued to the State Government requiring it to communicate its views to. The High Court to elicit its opinion within six weeks on it from the date of judgment if any and to make fresh efforts to find suitable candidates from the communities or groups of communities passed over before taking a final decision in the matter.

The State Government's decision not to make appointments from the panel forwarded by the High Court and to re-notify the vacancies was also quashed."

5. I may observe that the Indian Supreme Court while construing the above-referred Articles of the Indian Constitution has inter alia evolved the following principles of law:

(a) That the consultation by the Governor in respect of the appointments of persons to be and the posting and promotion of District Judges with the High Court concerned in terms of Article 233 of the Indian Constitution, is mandatory and the power can be exercised by the Governor only in consultation with the High Court.

(b) That the High Court cannot divest or abnegate the power vested in it in relation to the persons belonging to the judicial service of a State and holding post inferior to the post of District Judge in respect of control, posting and promotion etc. In terms of Article 235 of the Indian Constitution and it cannot get an enquiry of misconduct conducted by a Government functionary.

(c) That the President can exercise the power to transfer a Judge from one High Court to another High Court under Article 222 of the Indian Constitution if the following requirements are ' complied with though the same have not been expressly provided in the above Article:

(i) That the transfer should be in public interest and not to punish the Judge.

(ii) That the President should consult the Chief Justice of India, which should be meaningful inasmuch as all the relevant facts necessitating the transfer should be placed before the Chief Justice.

(iii) That the Chief Justice should consider all the relevant facts before consenting to a transfer.

(iv) That the constitutional functionaries while having meaningful consultation cannot veto each other.

(d) That the lawyers have interest and locus standi to challenge through a Constitutional Petition an order of transfer or any other adverse order relating to a Judge of a High Court.

' It may be observed that the relevant provisions, of the Constitution pertaining to transfer of a High Court Judge to another High Court and his appointment to the Federal Shariat Court are referred to and discussed hereinbelow. However, it will suffice to observe that I am inclined to hold that a transfer of a High Court Judge to another High Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object, and that the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.

' As regards the appointments of the Judges to the superior Courts, it was vehemently urged by Mr. Sharaf Faridi that the appointments should be solely made on the recommendations of the Chief Justice of Pakistan and the Chief Justice of the High Court concerned and that there should not be any say in the above matter of the Executive. It' was also submitted by him that since under Articles 177, 182, the appointments of the Chief Justice of Pakistan and the Judges of the Supreme Court are to be made by the President and so also of the Chief Justices and the Judges of the High Courts under Articles 193 and 196 of the Constitution, the advice of the Prime Minister contemplated in Article 48 is not required and that such advice will militate against the concept of the separation and independence of the judiciary. Reliance was placed on an unreported judgment, dated 21-12- 1988 given by a Division Bench of the Lahore High Court in Petition No,810 of 1988 holding that the appointment of 11 Additional Judges to the said High Court without advice of the Prime Minister was legal. In this regard, it may be stated that the above Articles 177, 188, 193 and 196 of the Constitution are in their original form except as to the appointment of an Acting Chief Justice of the High Court.

In my view, it is not necessary to examine the above question any further in the instant cases.

However, it will sufficie to observe that the consultation with the Chief Justice of C Pakistan and the Chief Justice of the High Court concerned by the President should be meaningful as observed in the above-cited Indian Supreme Court cases.

' As retards Mr. Sharaf Faridi's contention that the superior judiciary should be independent in administrative matters, it may be stated that except in case of leave, the Judges of the superior Courts can only be dealt with for misconduct or other disciplinary matters by the Supreme Judicial Council constituted under Article 209 of the Constitution.

6. This leads us to the question, whether upon the expiry of the period mentioned in clause (3) of Article 175 of the Constitution, this Court can issue any direction in respect of the appointment or the transfer of the Judges of the superior Courts or can it declare any provision of the Constitution as ultra vires the Objectives Resolution or destructive to the basic structure of the Constitution. In order to dilate upon the above complex issue, it may be pertinent to refer to the relevant provisions of the Constitution which have been assailed, by Mr. Sharaf Faridi in the amended form:

(i) Article 196 of the Constitution which deals with the appointment of an Acting Chief Justice of a High Court, originally provided that in case of vacancy or absence of a Chief Justice of a High Court the President shall appoint the most senior of the other Judges of the High Court to act as Chief Justice. The above provision was amended by Constitutional (Fifth Amendment) Act, 1976, Act LXII of 1976, hereinafter referred to as the 'Fifth Amendment and in place of the words "the most senior of other Judges of the High Court" the words "one of the Judges of the High Court who have not previously held the Office of Chief Justice of the High Court otherwise than under this Article", were substituted, which remained intact till today.

(ii) Clause (1) of Article 200 originally provided, that the President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent, and after consultation by the President with the Chief ,Justice of Pakistan and the Chief Justices of both High Courts. To the above clause (1) a proviso was added by the Fifth Amendment, providing that "provided that such consent or consultation with the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not exceeding one year at a time". It may be observed that explanation to the above proviso provides that in this Article "Judge" does not include a "Chief Justice". It may further be stated that by President's Order No,14 of 1985 in place of the period of one year, period of two years was substituted in the above-added proviso by the Fifth Amendment and clause (2) of above Article 200 was also substituted providing that "where a Judge is so transferred or is appointed to an office other than that of Judge at a place other than the principal seat of, the High Court, he shall, during the period for which he serves as a Judge of the High Court to which he, is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine". It may further be stated that sub-clause (3) to above Article 200 was added by Constitution (First Amendment)

Act, 1974 (33 of 1974) with effect from 4-5-1974 providing that, "If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary, and while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court." Whereas the explanation referred to hereinabove providing that High Court include Bench of a High Court was added by President's Order No,14 of 1985 and clause (4) was incorporated by the President's Order No,24 of 1985 which provided that "A Judge of a High Court who does not accept transfer to another High Court under clause (1) shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of length of his service as Judge and -total service, if any, in the service of Pakistan".

' It may not be out of context to mention that under Article 7 of the Provisional Constitution Order, 1981 (hereinafter referred to as the PCO) Benches for the High Courts in the Provinces were constituted, namely, for Lahore High Court a Bench each at Bahawalpur, Multan and Rawalpindi, High Court of Sind a Bench at Sukkur, Peshawar High Court a Bench each at Abbottabad and Dera Ismail Khan and High Court of Baluchistan a Bench at Sibi. Clause (5) of Article 7 of the Provisional Constitution Order provided that a Bench shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.

' It may also be stated that a new Chapter 3-A was added in the Constitution by President's Order No,1 of 1980, in May 1980 adding new Articles 203-A, 203-B, 203-C, 203-D, 203-E, 203-F, 203-G, 203- H, 203-I and 203-J creating a new Court by the name of Federal Shariat Court and also providing appeal to the Shariat Appellate Bench of the Supreme Court. It may be pertinent to state that under Article 203-C of the newly-added Articles a Judge of a High Court could be appointed for a period not exceeding one year without his consent as a Judge of the Federal Shariat Court which period was extended to two years by President's Order No,24 of 1985. It may further be observed that under clause (5) of above Article 203-C it has been provided that a Judge of a High Court who does not accept appointment as a Judge of the Federal Shariat Court shall be deemed to have retired from his office and, on such retirement shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.

' 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. But the above amendments/additions in the Constitution were made from time to time to keep the judiciary docile and subservient. The introduction of the provision for transfer of a High Court Judge to another High Court without his consent under the Fifth Amendment for one year then under President's Order No,14 of 1985 for 2 years and so also appointment of a High Court Judge to the Federal Shariat Court without his consent for the above period, at the peril of his being stand retired, in case of his refusal to accept transfer or appointment, or the provision relating to the nomination of a High Court Judge to any of its Benches, created under the PCO for a minimum period of one year are the amendments/additions which militate against the concept of the independence/separation of judiciary, as envisaged by the Constitution.

7. Thus the question arises, whether the above amendments/additions to the Constitution can be struck down either being violative to the Objectives Resolution which has become part of the Constitution because of incorporation of Article 2--A or being destructive to the Basic Structure of the Constitution.

' Prior to incorporation of Article 2-A by President's Order No,14 of 1985 the Objectives Resolution was used as a preamble to 1956 Constitution, 1962 Constitution, the Interim Constitution of 1972 and 1973. In the case of Miss Asma Jilani v. The Government of the Punjab and another reported in PLD 1972 SC 139, Hamoodur Rehman', C.J. Observed that: "In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "cornerstone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an.

' It may be pertinent to point out that in a subsequent case the effect of the Objectives Resolution and of the above-quoted observation in the above case of Miss Asma Jilani in relation to the Objectives Resolution came up for consideration before the Supreme Court namely, in the case of the State v. Zia-ur-Rehman and others reported in PLD 1973 SC 49. Hamoodur Rahman, C.J.

Observed as follows : "Having said this much about the constitutional position of theCourts and their relationship with the other equally important organ of the State, namely, the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can., in the exercise of its judicial power, strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void.

' This will be no part of its function of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. If in fact the document contains the expression of the will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too the Objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it.. If it appears only as a preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of the law-maker, it may be looked as to ascertain the true intent, but it cannot control the substantive provisions thereof. This does not, however, mean that the validity of no Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body, itself are limited by some supra- Constitutional' document.

' It is contended on behalf of the respondents that this Court has, in the case of Asma Jilani v. The Government of the Punjab PLD 1972 SC 139, already declared that the Objectives Resolution adopted by the first Constituent Assembly of Pakistan on the 7th of March 1949, is the "grund norm" for Pakistan and, therefore, impliedly held that it stands above even the Interim Constitution or any Constitution that may be framed in the future. I regret to have to point out that this is not correct."

' The view found favour with the Honourable Supreme Court in the above Ziaur Rahman's case was reiterated in the case of Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd. And others PLD 1977 SC 397 and the case of Fauji Foundation and another v. Shamimur Rehman, PLD 1983 SC 457.

' In the former case it has been held that, "In Pakistan, this Court in the case of Ziaur Rehman PLD 1973 SC 49 has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as. "national inspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra- constitutional instrument". Whereas in the latter case the learned Chief Justice of Pakistan reaffirmed the view taken in the above Ziaur Rehman's case after referring to some of the cases of the Indian Supreme Court. The position which has emerged from the above-cited cases is, that the Honourable Supreme Court of Pakistan's view has been consistently that a constitutional provision cannot be assailed on the ground that it was against the Objectives Resolution or to put it differently against grand norm. However, it may be pointed out that the above judgments pertain to the period prior to the incoporation of Article 2-A of the Constitution by President's Order No, 14 of 1985, which was promulgated on 2-3-1985, which provides that "The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly." The question, therefore, arises whether the above incorporation entitles the Court to declare any of the provisions of the Constitution as being ultra vires.

' Mr. Sharaf Faridi has vehemently contended that the Objectives Resolution is a supra- constitutional provision, whereas Mr. Khalid M. Ishaque appearing as amicus curiae has contended that the Objectives Resolution has now become part of the Constitution and, therefore, is to be given effect. He has riot urged that it is a supra-constitutional provision. It will suffice to observe that Article 270-A which was originally incorporated by President's Order No,14 of 1985 was substituted by Act No,XVIII of 1985 with effect from 30-12-1985 whereby the National Assembly and the Senate reaffirmed the various amendments made in the Constitution. In the case of Federation of Pakistan and another v. Malik Ghulam Mustaf Khar and others reported in PLD 1989 SC 26 Full Bench comprising of the learned Chief Justice and nine learned Judges of the Supreme Court proceeded on the assumption that Article 270-A was competently incorporated. In this view of the matter, I am inclined to hold that it is not open to this Court to hold that any of the constitutional provisions is violative of the Objectives Resolution.

8. As regards the submission that the aforesaid amendments in the Constitution were destructive to the basic structure of the Constitution, it may be observed that Mr. G.M. Qureshi has relied upon the Indian Supreme Court's judgments in support of his submission. In this regard, it may be mentioned that in the case of Shankari Prasad v. Union of India AIR 1951 SC 458 the Indian Supreme Court held that the amendment of the Constitution curtailing fundamental rights contained in Part III of the Indian Constitution passed by the Parliament was valid. The aforesaid view was reaffirmed by the Indian Supreme Court in the case of Sajjan Singh v. State of Rajasthan AIR 1965 SC 845. However, the above view was overruled by the Indian Supreme Court in the well- known case of L.C. Golak Nath and others v. State of Punjab and another AIR 1967 SC 1643 in which it was held that 'the Indian Parliament was not competent to curtail any of the fundamental rights provided in above Part -III of the Indian Constitution. The above view had come up for consideration before the Indian Supreme Court in the case of His Holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another, in connection with the Constitution 24th Amendment Act which was passed by the Indian Parliament to get over the above decision of the.

Indian Supreme Court in Golak Nath's case. A Special Bench of 13 Judges unanimously upheld the constitutional validity of the aforesaid Constitution 24th Amendment Act, 1971 and in doing so it overruled its earlier judgment in Golak Nath's case. It further held that all Articles including those relating to fundamental rights can be amended provided that the basic structure and framework of the Constitution are not altered. According to the Indian Supreme Court in the above case the following were the basic structure and framework of the Indian Constitution:

(i) Supremacy of the Constitution;

(ii) Republican and Democratic form of Government;

(iii) Secular character of the Constitution;

(iv) Separation of powers between the legislature, the executive and the judiciary;

(v) Federal character of the Constitution.

' The above view was reaffirmed in the subsequent cases by the Indian Supreme Court. In this regard, reference may be made to the case of Indira Nehru Gandhi v. Raj Narain, reported in AIR -1975 SC 2299, in which clauses (4) and (5) inserted in Article 329 by Constitution 39th Amendment Act of 1975 were assailed. It may be stated that clause (4) purported' to deny the right of appeal against an election to the Parliament. It was held that the same was liable to be struck down on the ground that it violated the principle of free and fair election which was an essential postulate of democracy and which in its turn was a part of the basic structure of the Constitution.

' I may observe that in the above Fauji Foundation case PLD 1983 SC 457 some of the above judgments of the Indian Supreme Court were considered but the honourable Supreme Court has not accorded its approval to the above doctrine of basic structure and framework of the Constitution. In my view, the present cases do not involve the question of change in the basic structure and framework of the Constitution as the amendments in the aforesaid Articles relating to judiciary cannot be said to have altered the basic structure of the Constitution pertaining to the working of the judiciary. It is, therefore, not necessary to dilate upon the above question any further.

The upshot of the above discussions is that we cannot declare any of the constitutional provisions as ultra vires in the instant petitions.

9. This leads us to the question of subordinate judiciary. In this regard, it may be pertinent to point out that Hamoodur Rahman's Report in connection with the Law Reforms Commission (1967 to 1970) has thoroughly dilated upon historical background on the question of separation of judicial and executive functions and pointed out that originally the above functions were combined and were to be performed by the same person. In the last quarter of the 18th Century, the then Governor-General, Lord Cornwallis introduced the first change whereby the Revenue Collectors were debarred from trying revenue cases on the ground that the same officers who assessed the, revenue should not hear complaints against their own assessment as it was against the basic principle of justice that one should not be a Judge in one's own cause. In 1831 civil judicial functions were separated from the magisterial functions and in each district a Civil Judge was appointed for the performance of civil judicial functions but the Magistracy remained combined. A number of Committees and Schemes were prepared to separate judicial and executive functions, reference to which has been made in detail in the above report. In the above report it has also been pointed out that in erstwhile East Pakistan the Provincial Assembly passed Code of Criminal Procedure (East Pakistan Amendment) Bill, 1956 effecting a complete separation by creating two classes of Magistrates, Executive Magistrates and Judicial Magistrates. The Executive Magistrates were placed under the District Magistrates whereas the Judicial Magistrates were placed under the High Court through the District and Sessions Judges and they were to be appointed in consultation with the High Court like other judicial officers. In conclusion it was suggested that there should be complete separation of judiciary from the executive and that the pattern envisaged by the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 should be adopted in West Pakistan, in respect of Magistracy.

' In pursuance of the above Law Commission Report, Law Reforms Ordinance, 1972 (Ordinance No,XII of 1972) (hereinafter referred to as the Ordinance No,XII of 1972), was promulgated on 14-4- 1972 providing various amendments in the various enactments including in Pakistan Penal Code, Criminal Procedure Code, Evidence Act etc. Subsection (2) to section 1 of the above Ordinance provided that it shall come into force at once, except the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898 which shall come into force in any province with effect from such date not later than the first day of January 1973 as the Provincial Government may by notification in the official Gazette specify in this behalf. The above target date 1-1-1973 was amended and no time limit within which the Provincial Government was to enforce the provisions of the Cr.P.C. Remained the field. The above Ordinance XII of 1972 provided creation of two categories of the Magistrates, namely Special Judicial and Executive Magistrates. Amended section 14, Cr.P.C. Contemplated that the Provincial Government may on the recommendation of the High Court confer upon any person all or any of the powers conferred or conferable by or under this Code of a judicial Magistrate in respect of particular cases or to a particular class or particular classes of cases. It further provided that the Provincial Government may appoint Executive Magistrates for particular areas or for performance of particular functions and confer upon them all or any of the powers conferred or conferable by or under the Code on an Executive Magistrate, whereas substituted subsections (1) and (2) of section 17 of the Cr.P.C. Envisaged that all Judicial Magistrates appointed under sections 12, 13 and 14 shall be subordinate to the Sessions Judges who may from time to time make rules or give special orders consistent with the Code and any mile framed thereunder, whereas the Executive Magistrates were to be subordinate to District Magistrate. The necessary amendments in the other provisions of the Cr.P.C. Were also made in order to facilitate the separation of the judicial Magistrates from the Executive Magistrates. In the above. Ordinance XII of 1972, two other amendments which are worth mentioning, are, one relating to empowering a Sessions Judge to transfer cases from the file of a Magistrate to another Magistrate, namely, section 528 and the- incorporation of section 439-A conferring revisional power on the Sessions Judges. The provisions of the 'above Ordinance were not enforced in the Province of Sind by issuing requisite Notification as was contemplated under subsection (2) of section 1 of the said Ordinance. It appears that Ordinance No,14 of 1975 was promulgated by the Federal Government converted intO Law Reforms (Amendment) Act, 1976, which was made applicable to whole of Pakistan which inter alia incorporated clause (1-C) in section 528 providing that "any Sessions Judge may withdraw any case from, or recall any case which he has made over to any Magistrate subordinate to him, and may refer it for inquiry or trial to any other such Magistrate competent to enquire into or try the same. It may also be stated that explanation to newly-added clause provided that "all Magistrates shall be deemed to be subordinate to the Sessions Judge for the purposes of this subsection.

' After 2 days from the date of promulgation of the Ordinance by the Federal Government, the.

Sind- Government issued Notification under subsection (2) of section 1 of Ordinance XII of 1972 on 23-12-1975 enforcing the provisions mentioned therein relating to Cr.P.C. Which inter alia 'included section 439-A, Cr.P.C. Empowering the Sessions Judge to exercise revisional jurisdiction over the Magistrates. However, the provisions relating to the establishment of Judicial and Executive Magistrates separately were not included in the above Notification nor they have been enforced till today. It will not be out of context to mention that in 1952 Justice (retired) Din Muhammad, who was the then Governor of Sind converted all posts of City Magistrates, Additional City Magistrates and Resident Magistrates in Sind into posts of Civil Judges and 1st Class Magistrates and brought the incumbents in the cadre of Civil Judges and placed them under direct control of the District Judge and of the High Court. In other words, in the interior of Sind Civil Judges exercise the power of 1st Class Magistrates but unfortunately there are still Magistrates-in the interior of Sind exercising executive and judicial powers jointly.

10. Apart from Article 175, we have Article 203 of the Constitution which provides that "each High Court shall supervise and control all Courts subordinate to it". There were corresponding Articles in the earlier Constitutions, namely, 205, 102, 177 in the Interim Constitution of 1972, 1962 Constitution and of 1956 Constitution, respectively. There is similar provision in the Indian Constitution, namely, Article 227. There was also corresponding provision in the Government of India Act, 1935, namely, Article 224. It has been vehemently urged by M/s. Sharaf Faridi and Syed Sarni Ahmad that the effect of the above Article 175 read with Article 203 of the Constitution is that subordinate judiciary is to be exclusively under the judicial and administrative control of the High Court.

' Mr. Sharaf Faridi has referred to the provisions of the West Pakistan Civil Courts Ordinance, 1962, hereinafter referred to as the Ordinance, particularly sections 4, 5, 6 and 8. It may be observed that section 4 provides that "For the purposes of this Ordinance, Government may, by notification, divide the Province into civil districts, fix the limits of such districts and determine the headquarters of each such district". It may further be noticed that section 5 provides that "Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district. It further provides that the same 'person may be appointed to be District Judge of two or more districts. It may further be pointed out that section 6 provides that "Government may, in consultation with the High. Court, appoint as many Additional District Judges as may be necessary". Whereas section 8 lays down that the Government may, in consultation with the High Court fix the number of Civil Judges to be appointed, make rules prescribing qualifications for recruitment of persons as Civil Judges and appoint as many Civil Judges as may be deemed necessary. He has also referred to the various provisions of the Criminal Procedure Code, hereinafter referred to as the Code, section 7 of which inter alia provides that "Each Province shall consist of Sessions Divisions, and every Sessions Division shall, for the purposes of this Code, be a district or consist of districts and that the Provincial Government may alter the limits or the number of such divisions and districts. Section 8 inter alia lays down that the Provincial Government may divide any district into sub-divisions, or make any portions of any such district a sub-division and may alter the limits of any sub-division. Section 9 inter alia provides that the Provincial Government shall establish a Court of Session for every session's division and appoint a Judge of such Courts. Section 10 which inter alia lays down that in every district the Provincial Government shall appoint a Magistrate of the First Class who shall be called the District Magistrate and may appoint any Magistrate of the First Class to be an Additional District Magistrate. Sections 11, 12, 13, 15, 16 and 17 provide for appointment of subordinate Magistrates, conferment of powers on them, classification of the cases to be tried etc. Sections 22, 22-A, 22-B and 25 relate to the appointment of Justices of the Peace with certain judicial powers.

' It was vehemently urged by Mr. Sharaf Faridi that the above provisions are violative of Articles 175 and 203 of the Constitution as the powers which are being exercised by the Provincial Government under the above various sections of the Ordinance and the Code should be exercised by the Chief Justice of the High Court or by the High Court.

' Whereas Mr. Syed Sami Ahmad has dilated upon in detail as to the administrative control of the High Court and has vehemently urged that the subordinate judiciary by virtue of above Articles 175 and 203 is under the administrative control of the High Court and the provisions contained in the Sind Civil Servants Act, 1973, hereinafter referred to as the Act, Sind Civil Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules and the Notification, dated 19-10-1973 gazetted on 23-10-1973 appointing the Chief Secretary as the Authorised Officer inter alia for the District 'and Sessions Judges and Additional District and Sessions Judges are of no legal effect and ultra vires the Constitution to the extent of inconsistency.

' He has also invited our attention to the Notifications dated 8-11-1960 and 22-4-1970 issued under the High Court of West Pakistan Delegation of Powers Rules, 1960 and notification, dated 19-10-1973 in order to urge that under the earlier notifications the Chief Justice was exercising the administrative power whereas under the impugned notification, dated 19-10-1973 gazetted on 23- 10-1973 the Chief Secretary has been notified as the Authorised Officer under sub-rule (3) of rule 2 of the Rules. It may be pertinent to point out that the latter notification was modified after the filing of the first petition by a Notification, dated 19-9-1974 under above sub-rule (3) of rule 2 of the Rules in place of 'Chief Secretary' Chief Justice' was notified as the authorised officer in respect of District and Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges. And Assistant Sessions Judges and Civil Judges.

' Mr. Sami, learned counsel for the petitioner in the first petition has also referred to the following cases:

(i) State of Haryana v. Inder Prakash Anand and others AIR 1976 SC 1841, in which the Indian Supreme Court while construing Articles 311 and 235 of the Indian Constitution held that the control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges. It has been further held that there is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner and that the High Court has administrative, judicial and disciplinary control over the members of the judicial service. It was further held that the recommendation of the High Court as to the retirement of District Judge under Article 311 was binding on the Government.

(ii) Chief Justice of Andhra Pradesh and another v. L.V.A. Dikshitulu and others AIR 1979 SC 193. In the above case the Indian Supreme Court while construing Article 229 of the Indian Constitution held that the word 'appointment' used in the above Article vests in the Chief Justice the whole power. Whereas while construing Article 235, it has been held by the Indian Supreme Court that the control over the subordinate judiciary vested in the High Court under Article 235 is exlusive in nature, comprehensive in extent and effective in operation, inasmuch as it comprehends wide variety of matters. Among others it includes disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of the District Judges and that the word 'control' is accompanied by the word 'vest' which shows that the. High Court alone is made the sole custodian of the control over the judiciary and that the High Court has the power to pass an order in relation to subordinate judiciary relating to suspension, transfer, recall of District Judges, award of selection grade, confirmation of District Judges and premature or compulsory retirement etc. ' Syed Sami Ahmad has also referred to the other two cases of the Indian Supreme Court reported in AIR 1966 SC 1987 and AIR 1976 SC 1841, which have already been referred to herinabove and discussed.

' Mr. Khalid M. Ishaque has referred to. The case of Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar.

164, the case of Shahbaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan and another PLD 1971 SC 677 and the case of Mst. Tahseen Akhtar v. Mahmood-ul-Hassan PLD 1971 Lah. 875, as to the interpretatioh of Article 102 of the late Constitution of 1962 which was the corresponding provision to the present Article 203, as pointed out hereinabove.

' In the first case of Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164, a Full Bench comprising of the learned Chief Justice and two Judges held that under Article 102 the High Court cannot interfere with order and'judgment of lower Court but it has power to supervise and 'control the Courts subordinate to it .In order to 'guide, eheck and encourage them.

' In the second case of Shahnaz Begum PLD 1971 SC 677 the Honourable Hamoodur Rehman, C.J.

Held that the High Court has and power of supervision or control over investigating agencies for th'e power of superintendence which is given by Article 102 of the Constitution of 1962 is only in respect of all other Courts that are subordinate to it.

' Whereas in the above third case of Tahseen Akhtar PLD 1971 Lah. 875, a learned Single Judge of the Lahore High Court has held that under Article 102 of the late Constitution of 1962 the power of Judicial control is to be used more sparingly and in appropriate cases in order to keep the subordinate Courts within the bounds of their authority.

' In my view the above cases are not directly on the point. It may be observed that the High Court exercises supervisory jurisdiction of two types i.e, judicial which is conferred on the High Court by virtue of Article 199 of the Constitution, provisions in the Civil Procedure Code, Criminal Procedure Code and the other relevant enactments either as an Appellate Court or Revisional Court and the second type of supervisory jurisdiction is administrative.

' In my view Article 203 relates more to administrative aspect than the judicial aspect as has been held in the above Karachi case of the Full Bench. The members of the Full Bench comprised of Qadeeruddin Ahmed, C.J., Abdul Kadir Shaikh and Muhammad Haleem, as their Lordships then were.

' Reference may also be made to the case of Karim Bakhsh v. Mst. Mubarik Jan reported in PLD 1970 Pesh. 169, in which a Division Bench of erstwhile High Court of West' Pakistan comprising of Qadeeruddin Ahmad, C.J. And Nasim Hasan Shah, J. As his Lordship, then was, held while construing above Article 102 of 1962 Constitution, that the power is meant to enable the High Court to discharge its duties as a Superior' Court towards fair and proper administration of justice, and that the High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Reference was made to the Privy Couficil's observation that the power of superintendence includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice. The relevant portion of the above to observation in the above case reads as follows: "As observed in Emperor v. Tarapore AIR 1940 Sind 230 at p. 244 "superintendence" includes the power to guide, advise and encourage Judges of the subordinate Courts. According to the Allahabad High Court "superintendence" includes the power to direct subordinate Courts and tribunals to carry out its orders vide Sant Lal Mahadeo Prasad v. Kedar Nath AIR 1935 All.

519. According to their Lordships of the Privy Council this includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration' of justice. See Rajkumar v.

Ramsundar AIR 1932 PC 69. The observations made in certain judicial pronouncements, while discussing the scope of section 107 of the Government of India Act, 1915, and Article 227 of the Indian Constitution which provisions are in many ways to the same effect as the provisions of Article 102 of our Constitution of 1962, indicate that the purpose of these provisions is not to convert the High Courts into Courts of Appeal or of revision--See Jalaluddin v. Jalaluddin 1962 SC (C.A.

602/61) and Rajkamal v. Indian Motion Pictures Union 1962 SC (C.A. 622/61), cited in Basu's Commentary on the Constitution of India, 4th Edn., Vol. IV, p.6. We respectfully agree with this view and our reason for holding this view is that this supervision and control is for making and keeping the administration of justice pure and not to help any particular party. This duty can be performed irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not."

' Reference may also be made to the Ballentine's Law Dictionary, Third Edition and Black's Law Dictionary, Fifth Edition for the meaning of the words 'control' and 'supervise'.

BALLENTINE'S LAW DICTIONARY 'Control: Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb 98 Ala 426, 432 Noun: A position of authority in direction and management.

'Supervise'. To exercise oversight. To keep under inspection. See Superintendence.

'Superintendence': Oversight, inspection, supervision. Moffitt v. Asheville, 103 NC 237, 9 SE 695. Care and oversight for the purpose of direction, and with authority to direct. The YY act of superintending.

"The word seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight." Dantzler v. De Bardeleben Coal & Iron Co. 101 Ala 309, 14 So 10.

BLACK'S, LAW DICTIONARY 'Control': v. To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.

'Control': n. Power or authority to manage, direct, superintend* restrict, regulate, govern, administer, or oversee. The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied by power or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2 d 972."

'Supervise'. To have general oversight over, to s erintend or to inspect. See Supervisor. 'Supervisor'. A surveyor or overseer. Also in some states, the chief officer of a town; one of a board of country officers.

' In a broad sense, one having authority over others, to superintend and direct.

' The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. National Labour Relations Act S. 2(11)."

' 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.

11. This leads us to the question, what relief or reliefs in the instant petitions can be granted. It was submitted by Mr. Khalid M. Ishaque that the judicial power includes the power to grant a relief which may be warranted by the facts of the case in hand. He -and Mr. Syed Sami Ahmad have relied upon the case of Merbury v. Madison 1 Cranch 137, 2 L. Ed. 60 (1803), in which Marshall, famous Chief Justice of the Supreme Court of the United States, observed as follows: "The Constitution vests the whole judicial power of the United Sates in one. Supreme Court, and such inferior Courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States."

' Mr. Khalid M. Ishaque to reinforce his above submission has also referred to certain passages from Encyclopaedia of the American Constitution by Leonard W. Levy, Essays in Constitutional Law by R.F. v. Heuston, From Brown to Bakke by J. Harvie Wilkinson III, Supreme Court and Judicial Law Making; Constitutional Tribunals and Constitutional Review by Edward McWhinney and State Politics and Islam by Mumtaz Ahmad. He has also referred to the case of Mohiuddin Molla v. The Province of East Pakistan aqd others PLD 1962 SC 119, the case of Commissioner, Khairpur Division, Khairpur and others v. Ali Sher Sarki PLD 1971 SC 242, and the case of Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32 to submit that if the Court has power to grant a relief, it has inherent power to pass any other interlocutory order to make the final relief effective. It will suffice to observe that the above American concept cannot be introduced while construing the provisions of the Constitution. It may be observed that clause (2) of Article 175 already referred to hereinabove provides that no Court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. That is why in the above famous case of Ziaur Rehman, Hamoodur Rehman, C.J. Observed that: "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will ,even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve."

' However, there cannot be any doubt that a Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief according to the circumstances of the case, if dictates of justice so demand even if such a relief has not been expressly claimed provided the relief to be given is within the compass of the jurisdiction of the Court.

' Mr. A.A. Fazeel has invited our attention to Article 268 and so also Mr. Khalid M. Ishaque and have submitted that since the adaptations in the various enactments were to be made within two years by the President or the Governor as the case may be subject to the passing of Act by the appropriate legislature and that in the absence of making such adaptations within the above period and even after the expiry of the period mentioned in clause (3).Of Article 175 and also after expiry of further reasonable period, this Court by virtue of clause (6) of above Article 268 is obliged to construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution. It will be advantageous to reproduce hereinbelow above clause (6) of Article 268 which reads as follows: "268 (6).--Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an order made under clause

(3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution."

' It will suffice to quote para. 38 from the recent judgment of the Hon'ble Supreme Court in the case of Sardar Ali v. Muhammad Ali reported in PLD 198'8 SC 287, at page 330: "38. The generalisation in some of the submissions that all these provisions are to be read with The Resolution, has not proved to be of much help. The Courts are required to act in accord with the Constitution and cannot ignore altogether the limitations mentioned above. They have to be reconciled. An attempt has been made in some recent judgments by the Sind High Court to rely on Article 268 of the Constitution for the proposition that The Resolution having become a part of the Constitution, "adaptations" can be made under clause (6) thereof by the Courts, "as are necessary to bring them in accord with the provisions of the Constitution". It is remarked that, prima facie this power existed for the transitional period, only for "adaptation" by not only the Courts but also by all "Tribunals" and "authorities", concerned with the enforcement of the laws. Such an interpretation of Article 268(6) cannot be upheld without a fuller examination and proper assistance. Moreover, this or similar other exercise has, for the same reasons, to be deferred till that type of cases come before the Court."

' I may observe that probably the attention of the Hon'ble Supreme Court to its earlier case, namely, Muhammad Din and others v. The State reported in PLD 1977 SC 52 at p. 65 was not invited during the arguments of the above-cited case of Sardar Ali. The relevant observations in the above earlier case read as follows: "This argument does not take note of the provisions of Article 268 of the Constitution which, inter alia, provides for continuance in force subject to adaptation of all existing laws to bring them into conformity with the provisions of the Constitution. The Constitution is the supreme law of the land and all existing and future laws will have to conform to its provisions to make them enforceable. It is not controverted that at the commencement of the Constitution of 1973, P.0.14 was "existing law".

Therefore, vide clause (3) of Article 268 it has to be read subject to necessary adaptation so as to bring it "into accord with the provisions of Constitution". Clause (6) imposes a further duty on Courts to read into an existing law, the necessary adaptation, notwithstanding that no adaptation has in fact been made in such law. Because of this provision in the Constitution, the power initially conferred on the President under Article 4 of P.0.14 of 1972 shall under the Constitution, be read as exerciseable in accordance with the advice tendered by the Prime Minister under Article 43 of the Constitution. It is therefore wrong to suggest that the transitional scheme underlying P.0.14 of 1972 has become unworkable since the commencement of the constitution."

' Since the above point is not directly involved in the instant cases, it is not necessary to examine the same any further and the same can be examined when the case is brought before the Court involving the above question.

' Mts. Muhammad Ali Sayeed and Qadir H. Sayeed learned D.A.-G. Have submitted that no relief can be granted as Aricle 175 is not a self-executory Article and that it does not provide any penal consequences for its non-compliance.

' Whereas Mr. Sharaf Faridi has submitted that non-fulfilment of Article 175 amounts to subversion of the Constitution and, therefore, the penal consequences Envisaged by Article 6 of the Constitution (which provides that, "any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason" can be pressed into service. Mr. Faridi has also referred to the definition of the word "subversion" given in "The Shorter Oxford English Dictionary", Volume II: "Subversion" late ME (0) Fr. Subversion or late L. Subversio, -om-, (as pree.; see ON)

(1) Overthrow," demolition (of a city, stronghold, etc.). Now rare or obs.2. The turning (of a thing) upside down or uprooting it from its position; ,overturning, upsetting (of an object) Now rare.

1670.

3. In immaterial senses: Overthrow, ruin.

(2) The s. Of woods and timber.. Through my whole estate is almost tragical EVELYN.

(3) The decaye of healthe, and subversion of reason 1558. The s. Of several powers and states upon the continent 1798. Hence subversionary a. (rare) -next."

' I am not inclined to subscribe to the submissions made by M/s. Muhammad Ali Sayeed and Qadir H. Sayeed that no relief can be granted in relation to Article 175 but at the same time I am also not agreeable to the submission made by Mr. Sharaf Faridi that non-fulfilment of Article 175 amounts, to subversion in terms of Article 6 of the Constitution. ' Mr. Muhammad Ali Sayeed has referred to certain portion of the judgment of the Honourable Supreme Court in the above case of Fauji Foundation on Article 2 of the late Constitution of 1962 in order to contend that Article 175 of the Constitution is of similar nature to that of late 1962 Constitution, under which no relief could have been granted. The above contention seems to be contrary to the reasoning given in the judgment as my Lord the Chief Justice quoted the observations- of B.Z. Kaikaus, J. In the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (P D 1966 Supreme Court 1) on above Article 2, which were to the following effect: "It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2 enact that whatever action a particular person may take shall be immune from challenge.

All persons exercising authority in Pakistan must do so only in accordance with law."

' The Honourable Chief Justice of Pakistan after having quoted the aboveobservations and also certain observations from the case of The Province of East Pakistan and others v. Sirajul Haq Patwari and others (PLD 1966 SC 854) has observed that a clear distinction appears from the above as to the content of Article 2, in that it is not available for testing the vices of the law itself but only the actions under the law which could be judicially reviewed as for their validity.

' It will not be out of context to mention that under Chapter 2 of Part II of the Constitution certain provisions have been incorporated under the caption "PRINCIPLES OF POLICY". Clause (2) of Article 30 of_ the above Chapter provides "the validity of an action or of law shall not be. Called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground." From the above clause, it is evident that the framers of the Constitution provided expressly that in respect of certain provisions relating to the Principles of Policy no action will lie but there is no such provision in respect of Article 175 or Article 203.

' 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. There seems to be 'no controversy that direction/directions to take administrative actions/measures required by the Constitution and/or any other law, can be issued against the Executive. However, it is a debatable point, whether a direction can be issued to the legislature to discharge its constitutional obligation as to bring the existing laws in conformity with the provisions of the Constitution by legislating the required laws, but in my view, a direction can be issued to the Federal and Provincial Governments to initiate legislative measures for bringing the existing laws in conformity with the above Articles 175 and 203 of the Constitution.

' I am inclined to hold that there is a marked distinction between a direction to the Legislature to legislate and a direction to the Executive to initiate the legislative measures to bring the existing laws in conformity with the provisions of the Constitution. The latter in my view is permissible.

12. I would, therefore, allow the above two petitions in the following terms:-

(A) The respondent in the first petition i.e, respondent No,2. (i.e, the Province of Sind) in the second petition is directed--

(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No,XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control of 0 the High Court within a period of six months,

(ii) to issue necessary Notification under sub-rule (2) of Rule 2 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1978, and Rule 4 of the Sind Civil Services (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days,

(iii) to initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sind Civil Servants Act, 1973, Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution.

(B) Respondent No,1 (i.e, the Federation of Pakistan) in the Second Petition is directed to initiate all legislative/administrative steps/measures to bring the existing laws relating or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months.

'(1) I may mention that I have taken into consideration the financial implication arising out of proposed bifurcation of magistracy into judicial and executive. In this regard, I may observe that there are 76 Civil Judges third class/second class working in Karachi and in the interior of Sind.

Some work of the Magistates, who may be selected for executive work, can be transferred to the above Civil Judges, till the time some permanent arrangements are made.

14. Before parting with the above discussion, I may put on record our gratitude to M/s. Sharaf Faridi, G.M. Qureshi and Syed Sami. Ahmed, learned counsel appearing for the petitioners and M/s. Ali Ahmed Fazeel, Khalid M. Ishaque and Muhammad Ali Sayeed who appeared as amicus curiae, for their valuable assistance rendered by them for a good cause without having any monetary consideration. At the same time I may record that the stand taken by the learned counsel for the respondent Mr. Qadir H.Sayed, Deputy Attorney-General, Mr. A.A. Muhammadally, learned Additional Advocate-General Sind and Mr. Abul Khair Ansari was fair.

' The petitions stand disposed of in the above terms, with no order as to costs.

(Sd.)

Ajmal Mian, Chief Justice (Sd.)

Saeeduzzaman Siddiqui, Judge I agree and have appended my note of concurrence.

(Sd.)

Saleem Akhtar, Judge (Sd.)

Haider Ali Pirzada, Judge I agree and have appended my note of concurrence.

(Sd.)

Syed Abdul Rehman, Judge I agree.

(Sd.)

Abdul Rasool Agha, Judge ' SALEEM A KHT AR , J.--I had the privilege of reading the learned judgment of my Lord the Chief Justice and entirely agree with it. However, I wish to record additional reasons for reaching the same conclusion and granting the same reliefs. The facts and contentions of the learned counsel for the parties have been lucidly and clearly set out in the judgment of the learned Chief Justice and I need not repeat them here. The petitioners wish to enforce the provisions of the Constitution with regard to Judiciary and in that regard reference has been made to Article 175 which requires progressive separation of the. Judiciary from the Executive within a period of 14 years, which has expired as far back as on 14th August, 1987. The very words of Article 175 clearly establish that, the Judiciary is not separate from the Executive and it ought to have been done progressively. It is not the claim of any party that it has already been separated.

' 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 amonst 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 sentinal 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, geniuss and genesis, temper and thinking of the people. Here I would refer to a classifical 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".

' In the wake of controversy in the petitions it is necessary to first ascertain the principles of interpretation which may be applicable in such a situation. The governing principle is that as the Constitution is a document which affects the life, liberty and rights of the people and also provides for governance of the country, it has to be kept R alive to meet the social, moral, economic, political and legal demands and problems which may arise from time to time. It has been held in Benazir Bhutto's case at page 490 that "it would thus, be futile to insist on ceremonious interpretative approach to constitutional interpretation as hithereto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and Principles of Policy to all the segments of the population." Therefore, a flexible and progressive approach which may extend the benefits of the Constitution to the people at large has been, preferred over the ceremonious and rigid interpretative approach. In the State of Punjab v. Ajaib'

Singh and another AIR 1953 SC 10 harmonious construction which suppresses mischief and advances justice has been favoured.

' In Asma Jilani's case 1972 SCMR 139 the following observation was made: - "In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty. Of the subject is involved or some other grave injustic'e is likely to occur by strict adherence to the rule."

' The Constitution should not be interpreted in a narrow and pedantic manner. It should be given liberal and broad interpretation but any enactment which transgresses the limitations placed by Constitution would be declared void. If there is a conflict in the privisions of the Constitution they should be interpreted harmoniously so that without violating the other both can be practised and coexist. In such a situtation a construction which ensures smooth working of the Constitution in consonance with its other provisions should be adopted. No provision of the Constitution unless so provided by the Constitution itself is supreme to the other nor can it override the other provisions.

Such interpretation should be adopted which promotes harmony, consistency and keeps the Constitution alive and progressive.

' Keeping these principles of interpretation in view it has to be considered whether any Fundamental Right has been infringed by acts of omission or commission complained of by the petitioners.

' Mr. Sharaf Faridi has contended that the offending Articles which are contrary to Article 175 and such other laws and notifications which have been set out in the judgment of the learned Chief Justice violate Fundamental Rights as conferred by the Constitution. Fundamental Rights find place in Part II of the Constitution. Article 7 for the purposes of Part II i.e, the Fundamental Rights and Principles of Policy defines "State" as follows:- "7. In this Part, unless the context otherwise requires, "the State" means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess."

' It is pertinent to note that the definition of the word State is specially provided for this part and it will not be applicable to other parts of the Constitution. It covers the Federal Government, Majlis-e- Shoora (Parliament) which comprises of the National Assembly and the Senate, Provincial Government, a Provincial Assembly and such local or other authorities which are empowered by law to impose any tax or cess. Therefore, the Legislature and the Executive besides the local authorities as defined herein fall within' the meaning of State(, Article 8 (1) clearly provides that any law, custom or usage having the force of law which is inconsistent with the Fundamental Rights shall to the extent of inconsistency be void. The sanctity of the Fundamental Rights is protected by Article 8(2) which prohibits the State which includes the Legislature not to make any law by which any Fundamental Right may be 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 Rigths 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. But there is no mention of the Judiciary in the definition of the State, and therefore, it can be assumed` that the Judiciary, as the custodian of the Fundamental Rights has been charged with a duty as a watch dog to see that none of the Fundamental Rights are abridged taken away as provided by Article 8(2). The manner in which the Constitution restricts the Legislature and Executive from encroaching upon and violating the Fundamental Rights has been set out in Benazir Bhutto's case as follows:- "Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framer of the Constitution, that is, to keep, the Fundamental Rights at a high pedestal and to save their enjoyment from, legislative infractions. Sub-Article (1) of Article 8 lays down that any law in so far as It is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make laws which take away or abridge the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention be void. Article 8 places a restriction on the Legislature not to make 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. Article 199(1)

(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of law which is inconsistent with the Fundamental Rights shall be void.

Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself."

This dictum proves that the Fundamental Rights guaranteed by the Constitution are immune from the pale of legislative enactments and executive actions. 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."

' Similar provision finds place in various Constitutions of the world particularly in U.S.A. Where the 5th Amendment provides that no person shall be "deprived of life, liberty, or property, without due process of law".

' In the Indian Constitution Article 21 provides that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". Article 9 is very similar to these two provisions quoted above. The doctrine of due process of law in American Constftution has been commented upon and discussed in various authorities and judgments of our Courts and its applicability in the same manner with' full force in Pakistan was doubted but in Abul Aala Maududi's case PLD 1964 S.C.673 at page 710 Cornelius, C.J. Observed as follows:- "I would prefer to base such reliance as is required for the purposes of my arguments, on the necessity of "due process", upon the fact that it is an element of justice which forms an essential part of British Common Law, deriving from Royal .Statute of date as far back as 1951 A.D. The subject has been dealt with in Willoughby's Commentary on the Constitution of the United States, 1929, Volume III, page 1681, wherein it is shown that in those early statutes from which the Common Law has developed the expression "due process of law" was deemed to be synonymous with the expression "the law of the land". One of those statutes explained the expression "due process of law" as meaning "by indictment or presentment of good and lawful men where such deeds be done or by writ original of the common law" in other words by proper trial."

' In Benazir Bhutto's case the limits placed on the concept of judicial review by the Anglo-Saxon Jurisprudence were removed as according to Haleem, C.J.: "This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view be confined to the narrow limits of the rule of law in the context of a constitutionalism which makes greater demand on judicial functions. "

' It was further observed as follows:- "In this milieu, I am of the view that the adversary procedure, where a person wronged is the main actor if it is rigidly followed as contended by the learned Attorney-General for enforcing the Fundamental Rights, would become self-defeating as it will not then be available to provide 'access to justice to all' as this right is not only an internationally recognised human right' but has also assumed constitutional importance as it provides a broadbased remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permitting the Constitution and the basic values incorporated therein one of which is social solidarity, i.e,, national integration and social cohesion by creating an egalitarian society through a new legal order.': ' The right of "access to justice to all" is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of "due process of law". The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol.' II at page 1709, where the term "due process of law" has been summarized as follows:- "(1) He shall have due notice of proceedings which affect his rights.

(2) He shall be given reasonable opportunity to defend.

(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and

(4) that it is a Court of competent jurisdiction."

' It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent Judiciary which should be separate from Executive and not at its mercy or dependent on it ' Examining the present controversy from this angle it is clear that if the State as defined in Article 7 fails to establish independent and impartial Curts it offends Article 9 of the Constitution. The life and liberty of a person is not restricted only to the animal life but includes the right to mould it according to the guarantees provided under the Constitution, particularly the Fundamental Rights.

The learned' Chief Justice has held that Articles 196(b), 200(1)(4) and 203-C(4-B) and (5) are in conflict with Article 175. I am constrained to hold that such provisions of the Constitution are not only in conflict with Article 175 but they encroach upon the Fundamental Right which guarantees a fair and proper trial by an impartial and independent judiciary. The denial and failure to establish independent Courts and tribunals by separating them from Executive negates Article 9.

' Although certain provisions of the Constitution as enumerated by my Lord the Chief Justice are in conflict with Article 175, the Court cannot declare them invalid. This aspect has been dealt with in the leading judgment and I need not repeat it here. It should be made clear that if any action is taken or order is passed which is in conflict with Article 175, the Court will be competent to examine and determine its validity. Any law, order, action or proceeding which offends the Fundamental Rights can be struck down. The question now arises that as the respondents have failed to discharge their constitutional duty and offended Article 9 can any relief be granted.

' In Abul Ala Maudoodi's case the High Court had held' that Fundamental Right was denied but did not grant relief on the ground that it was possible for the Government to amend Act XIV of 1908 with retrospective effect. The Supreme Court observed as follows:- "Where a Fundamental Right is denied, which the Courts are obliged to enforce (vide the new subsection (c) to clause (2) of Article 98 of the Constitution), a suppliant cannot be left to such a doubtful relief. On the view taken by the learned. Judge, it was incumbent upon him to seek some mode by which in law, it might have been possible for him to grant relief against the deprivation of Fundamental Right, which he had expressly found."

' It is the duty of the Court to ensure compliance of the Constitutional provisions. In Ziaur Rehman's case PLD 1973 SC 49, at IDD page 70 Hamoodur Rehman, C.J. While discussing the judicial power vested in Court observed:- "In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits,.The judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate, task as pointed out in the case of Fazlul Quader Chowdhury v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them.

' In Sayed Abul Ala Maudoodi's case PLD 1964 SC 673, at page 783 Hamoodur Rahman, J. (as he then was) observed as follows:- "The basic principle underlying a declaration of fundamental rights in a Constitution is that it must be capable of 'being enforced not only against the Executive but also against the Legislature by judicial process and this is the basic principle that has been incorporated into our Constitution by the combined effects of the new Article 6 paragraph (c) of clause (2) of Article 98 and clause (3) of Article 133 of the Constitution, as amended by the Constitution (First Amendment) Act."

' While analysing Article 8(1) and (2) in Benazir Bhutto's case PLD 1988 SC 483 it was emphasised that the Fundamental Rights were kept "at high pedestal and to save their enjoyment from Legislative infraction" and further that "sub-Article (2) of Article 8 places restriction on the Legislature not to make law which takes away or abridges the rights so conferrd.

' It therefore, follows that Legislature is also bound within the four corners of the Constitution.

' 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 FF 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.

' For these additional reasons as well I respectfully concur with the judgment and order of my Lord the Chief Justice.

' SYED ABDUL REHMAW, J.--I am in respectful agreement with the conclusion of the Hon'ble Chief Justice that the supervision and control over subordinate judiciary vested in the High Court under Article 203 of the Constitution, keeping in view Article 175 thereof is exclusive in nature, comprehensive and effective in operation. It comprehends the administrative power as to working of the subordinate Courts and Jisciplinary 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 subordinate judiciary will be violative of the above Article 203. 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.

2. In view of the controversy in the High Courts and the postponement by the Supreme Court of the resolution of the said controversy regarding the supra-constitutional status of the Objectives Resolution thereby giving it precedence over those provisions of the Constitution which were inconsistent with it as well as regarding the nature of Article 268(6) as to whether it was a transitory power and had existed for the transitional period only or is still available to the Courts, it was desirable that this exercise be deferred for some other appropriate occasion and the Hon'ble Chief Justice is right in not expressing a decisive finding on this controversy in this case.

3. The rule of law has been universal obligation of every civilized country. It means supremacy of law as opposed to the arbitrary authority of the Government. According to Dicey this supremacy guarantees three concepts (i) absence of arbitrary power, (ii) equality before law and (iii) rights of citizen. The rule of law is the very Bedrock on which the foundation of the entire Islamic justice is based. The concept of justice according to Surah: 4, Verse 135 of Holy Qur'an, is as follows:- "Surely We have revealed the Book to you with the truth that you may judge between people by means of that which Allah has taught you."0 you who believe, be maintainers of justice, bearers of witness for Allah's sake though it may be against your ownselues or your parents or near relations, be he rich or poor. Allah is most competent to deal with them both, therefore do not follow your low desires lest you deviate, and if you swerve to turn surely Allah is aware of what you do."

' In Surah 55: Verses 7-9 it is provided:- "He has set up the balance (of justice). In order that ye may not transgress (due) balance. So establish weight with justice and fall short in the balance." In Surah 5: Verse 9 it is said:- "0' you who believe: Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear God, for God is well acquainted with all that you do.

4. Justice Dr. Nasim Hasan Shah in his well-known book, Constitution, Law and Pakistan Affairs has dealt with the supremacy and separation of judiciary in the following words:- "To establish the supremacy of law and to enable the Courts to work without any fear or favour they were, in the Islamic system of Government, held in such esteem and were given such high status that no judicial system of the world even of today, can compare la, ourably with it. Judiciary in the Islamic system is separate from the executive and, enjoys full freedom, works quite independently without being influenced from any quarter. The eminent jurist of Islamic Law, Justice Ameer Ali, in his famous work, The History of The Saracens, while describing the administration of justice during the days of Caliph Umar quoted Von Hammer, according to whom "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 offices distinct from those of executive officers. The title of Hakim i.e, .Ruler, was reserved for the Kazi (judges). The judge was named and is still named the Hakim-ush-Shara' i.e, , ruler through the law, for law rules through the utterance of justice, and the power of the Governor carries out the utterance of it. Thus, the Islamic administration, even in its infancy, proclaims in word and in deed the necessary separation between judicial and executive power."

' According to Ameer All 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.

' In Pakistan a serious attempt is now being made to revert to the Islamic Ideals of administration of justice.

5. In my humble view it is not necessary for the Courts to strike down any provision of the Constitution if it is inconsistent with the Objectives Resolution or with any other provision thereof which stands on a higher pedestal and the Court can solve the problem by applying the principle of harmonious interpretation keeping in view the principles of Islamic ideology, morality, public good read with the judicial activism following the latest trend of the decisions of the Supreme Court and High Courts in our country. The most illustrious example of the application of these principles is provided in the case of Benazir Bhutto v. Federation of Pakistan reported in PLD 1988 SC 416 wherein while considering the scope of Article 270-A it was held that it was a new provision which was, differently worded in many respects from the earlier provisions giving constitutional validity. The legal provisions which had been given validity thereby were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent authority as enacted by sub-Article (3) of Article 270-A. If the legal measure is not itself in existence how can it be operative retrospectively. It was therefore held that Sub-Article 3 of Article 270-A is itself a clue to the 'prospective operation of laws which are saved as it gives to it a continuity but not those which are repealed. This was also against the principle of validation which is only the remedy to defeat the retrospection but does not care to any future operation of law. The Constitution had guaranteed to every citizen who was not in service of Pakistan the right to form a political party or to be a member of a political party and this right was subject only to reasonable restrictions imposed by law in interest of the soveregnty or integrity of Pakistan, public order and morality. Referring to the Objectives Resolution it was observed that ideology of Pakistan was based on Muslim nationhood and Islamic ideology, it means injunctions of Holy Quran and Sunnah. The word 'morality' was defined in the light of Holy Qur'an as {{URDU TEXT}} ' Therefore not only individually but also collectively Muslims had to live within an exclusively moral framework as enjoined by Holy Quran. The concept of democracy in our Constitution should therefore regarded to be imbibed with independence and collective morality as according to Islam. After taking into consideration the restriction imposed by Article 17(2) of the Political Parties Act it was held that compulsion of registration on the political parties could not be protected thereunder. Such compulsive registration having been made dependent upon satisfaction of the Election Commission was held to be a constraint superimposed on Article 17(2) and therefore violative of right itself and could not be regarded as reasonable restriction of the exercise of the right. Hence certain provisions of Political Parties Act were declared and held to be void on account of being inconsistent with the fundamental right enshrined in Article 17(2)(3) of the Constitution.

' Similarly in the Supreme Court case of Haji Saifulla (C.As.Nos. 314 to 317 of 1988 etc.) Lahore High Court had held the order of the President dated 29-5-1988 under Article 58(2)(b) of the Constitution dissolving the National and Provincial Assemblies and dismissing the Federal and Provincial cabinets as unsustainaing the Federal and Provincial cabinets as undsustainable in law but did not grant relief in the shape of restoration of the Assemblies and cabinets. The reasons for refusing to grant the relief of restoration in the words of the Lahore High Court are as follows:- "Since the orders dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining the respondents from preventing them from performing the functions of their offices and to a declaration that such of the respondents who presently hold Ministerial offices and listed posts be treated as having not been constitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions. However, certain other factors which have intervened and which deserve to be taken note of prevent me from granting these reliefs. Amongst these circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former Prime Minister, in accepting the action of the President and the Governors and declaring the decision of his party i.e, the Pakistan Muslim League, to go to the polls and seek the mandate of the people. In this connection, the statement made by the former Prime Minister appearing in the Pakistan Times newspaper of 18th July 1988, may be referred. Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and members, both at the Centre and the Provinces, supporting Mr. Muhammad Khan Junejo, the former Prime Minister and some Ministers and Members both at the Centre and the Provinces, supporting Mr. Fida Muhamamd Khan (the head of other faction of the Muslim League). In these circumstances, it cannot be said that the previous majority parties have the majority of the votes of the members in the Centre and the Provinces. If the reliefs are granted, the National and the Provincial Assemblies would be beset with major problems and conflict. Still further, on 20th July, 1988, the late President ordered that the general elections would be held on 16th November, 1988, which fact has been further confirmed in public statements by Mr. Ghulam Ishaq Khan, the present President and the Election Commission of Pakistan has taken serious steps to hold the general elections and in pursuance thereof has delimited constituencies and will soon finish the job of hearing appeals therefrom. The entire administrative machinery of the Federation and the Provinces is geared up to hold the general elections on 16th November 1988, and the people, who previously were not in a position to vote for candidates belonging to certain political parties which had been banned, are now ready and impatient to exercise their votes freely and voluntarily without any restrictions. Taking all circumstances into consideration, the discretionary jurisdiction of the Court under Article 199 of the Constitution does not permit me to grant the reliefs as prayed. I do not, therefore, propose to grant any relief."

6. The above judgment of Lahore High Court was upheld by the Supreme Court and the refusal to grant relief was approved and the above reasons for refusing to grant the relief were held to be cogent.

7. I am therefore in respectful agreement with the Hon'ble Chief Justice that since the respondents Nos.1 and 2, the Federation and the Provincial Government have failed to do what they are required to do under the Constitution, a direction under Article 199 can be issued to them to do the same and similarly a prohibitory direction can also be issued to them requiring them not to do which is not permitted by the Constitution.

8. It will not be out of place to enumerate the progressive and retrogressive steps taken from time to time in the direction of separation of judiciary from the executive enjoined in Article 175 (3) of the Constitution some of which also find place in the judgment of the Hon'ble. Chief Justice.

9. As pointed out by the Hon'ble Chief Justice a Law Reforms Commission (1967-70) was set up under the Chairmanship of Justice Hamoodur Rahman. The Commission submitted its report wherein it suggested various amendments in certain laws. The recommendations about separation of judiciary from executive find place at pages 231 to 267.

10. After tracing the brief history of the steps taken in this behalf from the days of British Government the Commission enumerated the post-independence development in Pakistan particularly the steps taken in the Province of Punjab when the committee headed by Mr. Akhtar Hussain, an old Executive Officer, prepared a scheme whereby partial separation was effected by appointing judicial Magistrates to exclusively dispose of criminal cases while the executive Magistrates were to continue to assist the District Magistrates in discharge of executive duties. The lacuna in the scheme which to my mind was kept deliberately, was that Judicial Magistrates were placed under the control of ADMs. This scheme therefore did not work satisfactorily for the reason that the impartiality and the' integrity of the Judicial Magistrates suffered a set-back due to the control of and interference by Additional District Magistrates whom the Judicial. Magistrates dare not displease as he was to write their Annual Confidential Report. Hence the scheme had to be discontinued. The Commission then discussed the various problems that could come in the way of separation of judicial Magistracy from the executive Magistracy. It did not approve of the discontinuance of the scheme of separation of Judicial Magistracy with the executive Magistracy in the Punjab and suggested that an Ordinance on the lines of similar law in erstwhile East Pakistan be passed whereby separation was effected in that province and was working very successfully.

11. On the recommendations of the Commission, Law Reforms Ordinance XII of 1972 was promulgated by the President on 13-4-1972. The Ordinance had to come into force at once except the provisions of the schedule relating to amendment in the Code of Criminal Procedure, 1898 which inter alia contained the recommendations for separation of Magistracy meant for doing judicial work from the Magistracy deployed in performance of executive functions of the provincial administration. The provisions relating to amendments in the Code of Criminal Procedure had to come into force in a province with effect from such date not later than 1-1-1973 as the Provincial Government may notify. The notification by the Provincial Government of Sind could not be issued prior to 1-1-1973. By an amendment carried into section 1(2) by Ordinance 24 of 1975 which was then replaced by a similar Act in 1976 after the word 'specify' the words "for different provisions and' were inserted. The amended subsection thus authorised the Provincial Government to issue notification enforcing various provisions of the schedule relating to amendments in the Code of Criminal Procedure from time to time. The first notification was issued on 23-12-1975 in consequence of Law Reformce Ordinance XII of 1972. This notification contained two important provisions regarding separation of Magistracy from Executive which are as under while the remaining provisions were aimed at expediting the trial of criminal cases and simplifying the procedure:- "Provisions for separation of Judiciary.--

(1) Sessions Judges were given power to transfer criminal cases from the Court of one Magistrate to that of other Magistrate though the power of District Magistrate as regards allocation of work among the Magistrates in the District was to remain intact.

(2) Sessions Judges were invested with power of revision.

' Notification for the remaining provisions of Ordinance XII of 1972 to Code of Criminal Procedure all of which contained the provisions regarding separation of Judicial Magistracy from Executive Magistracy has, however, not been issued uptil now.

12. In this connection it will not be out of place to mention that after the promulgation of Ordinance XII of 1972 the question of issuing notification under section 1(2) of the Ordinance was taken up by the Provincial Government of Sind for the first time in 1973. The issuance of notification was opposed by the Home Department as the Executive Oficers were not prepared to part with the function of trying judicial cases obviously with ulterior motive with the result than even the procedural amendments of the Law Reforms Ordinance, 1972, which were aimed at expediting disposal of criminal cases were also held up, due to the deadlock. A working paper was prepared by the Law Department of Sind in which the amendments proposed by this Ordinance to the Code of Criminal Procedure relating to matters other than the separation of Judicial Magistracy from the Executive Magistracy to which there was no objection from those quarters were included in the list of the items for which the notification was proposed to be issued. The Law Department also suggested inclusion of two other important provisions in the working paper, which are summarised below. The one related to power of the Sessions Judge to transfer criminal, cases from one Magistrate to another Magistrate instead of D.M. And S.D.M. And the other relating to grant of revisional powers in criminal cases to the Sessions Judges instead of District Magistrate and Sub- Divisional Magistrate. The notification could not be issued at that time due to the revitalised opposition to the two provisions referred to above to which the Home Department had initially agreed. However, the then Prime Minister Mr. Z.A.Bhutto on coming to know of the above working paper sent for the same and ordered 'its implementation throughout Pakistan. Consequently an amendment was made in Ordinance XII of 1972 by issuing Ordinance XXIV of 1975 and Notification No,S.Leg.8/75 dated 23-12-1975 was issued in Sind on the lines of the proposals contained in the working paper referred to above.

13. It may be recalled that among all the provinces of Pakistan, Sind had the unique privilege of taking a major step towards the separation of Judicial Magistracy from the Executive Magistracy as early as 1952. Justice (Rtd.) Mr. Din Muhammad who was the Governor of Sind in those days prepared a scheme whereby he ordered the conversion of all the posts of City Magistrates, Additional City Magistrates and Resident Magistrates in Sind into the posts of Civil Judges and First Class Magistrates and bringing the incumbents in the cadre of Civil Judges and placing them under the direct control of the District and Sessions Judge and the High Court. This Scheme unlike the Punjab Scheme of 1953 has been working for the last 36 years successfully and is being applauded by the entire litigant public and the Bar. On the one hand it has minimised corruption in criminal Courts which was rampant in the days of the Executive Magistracy because the Executive Magistrates were under the control of the Revenue Department and had come from the ranks of Mukhtiarkars who did not enjoy good reputation as to their integrity. At the same time it improved the standard of working in the Magisterial Courts as the Civil Judges were Law Graduates and were recruited from bar and had therefore better knowledge and understanding of law in comparison to their predecessors who had risen from the ranks of Tapedar and clerks to the ranks of Mukhtiarkar and so on and had little knowledge of understanding of law. Unlike the Punjab Scheme, in this scheme A.D.Ms. Or D.Ms. Were not given any control whatsoever Judicial Magistrates, who were called Sub-Judges/Civil Judges and First Class Magistrates, what to say of writing their A.C.Rs, Hence the DMs. Or A.D.Ms. Or S.D.Ms. Could not dare to interfere into their work or pressurise them.

Unfortunately after the departure of Justice (Rtd.) Din Muhammad this scheme met step-mothers treatment at the hands of his successors and could not be completed. In Karachi the Courts of City Magistrates and Additional City Magistrates could not be converted into that of Civil Judges and First Class Magistrates. Even in Hyderabad and certain other cities and towns of Sindh certain important criminal Courts continued to be occupied by Executive Magistrates. Not only that but new posts of City Magistrates and Additional City Magistrates at certain places for doing judicial work were created and attempts were made to reverse the process of separation of Judiciary from the Executive from time to item after departure of Justice (Rtd.) Din Muhammad from Sindh.

However, now it is high time that the remaining items of the schedule of the Ordinance XII of 1972 relating to Code of Criminal Procedure all of which pertain to the separation of Judicial Magistracy from Executive Magistracy be enforced which can be enforced by simply issuing a notification under section 2(1) thereof which are the following:- ' Items 2, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, 15 (ii) 16, 17(ii), 18, 19, 20, 21, 22(ii), 23, 32, 32A, 41(i), 42, 43(i), 44, 45, 47, 48, 49(i), 50, 52, 54, 56, 57, 58, 59, 60(i), 63(i), 65(ii), 66, 68, 70(i)(ii), 71, 72, 79-A, 91(i), 96, 101, 106, 116, 117(ii), 138, 139, 140, 141(i) and 142, 143, 150, 151, 152-B, 153(ii), 161, 165, 170, 171, 183, 185(i), 186, 187, 188, 205, 210(vii)(a) and (b), 211(i), (iii) and (iv) and 212"

' These items provide mainly (1) that besides the High Court and the Courts constituted under any law other than Criminal Procedure Code for the time being in force there shall be two classes of criminal Courts in Pakisan namely Courts of Session and Courts of Magistrates. The Magistrates have been sub-divided into Judicial Magistrates and Executive Magistrates. The Judicial Magistrates were Magistrates of First Class, Second Class and Third Class and epecial judicial Magistrates while Executive Magistrates were sub-divided into District Magistrates, Additional Magistrates and S.D.Ms.(2) Judicial Magistrates were made subordinate to the Sessions Courts and High Courts while Executive Magistrates were made subordinate to S.D.Ms. And District Magistrates.

(3) The Judicial Magistrates had to take cognizance of all the- offences and try those which were triable by Magistrates and send to the. Sessions Court those offences which were exclusively triable by the Sessions Court.(4) The Executive Magistrates had only power to take proceedings for prevention of offences under Chapter VIII of Cr.P.C.

14. It would therefore appear that the prayer contained in clause (b) of the prayer clause in C.P.No,D-91 of 1987 can be effectually and satisfactorily granted to the petitioner if the remaining provisions of the above Ordinance are enforced by issuing a notification as suggested above.

15. Being thus fully in agreement with the conclusion arrived at by the Hon'ble Chief Justice I entirely concur with the orders passed by him granting reliefs enumerated therein to the petitioners.

16. I would however, observe additionally that the. Federal Government in view of what has been said in this judgment as well as in view of the rulings from Indian jurisdiction discussed in the judgment of the Hon'ble Chief Justice endeavour to develop traditions and practices whereby transfers of High Court Judges which may have the effect, of causing harassment or inconvenience to the concerned High Court Judge are avoided as far as possible. Healthy practices should be developed by not transferring a High Court Judge from one Court to another or from the High Court to Federal Shariat Court to which requires fresh oath, without his consent, and in no case without the concurrence of the Chief Justice concerned. After all in England from where we have- borrowed our entire legal and judicial system meaningful conventions and healthy practices are the cornerstone of their democratic, judicial, legal and constitutional edifice. In the same way promise to secure independence for Judiciary in Pakistan can also be fulfilled.

' MAMOON KAZI, J.--I have had the privilege of going through the judgment of my Lord the Chief Justice, proposed to be given by him. Although I find myself in complete agreement with most of the observations therein, and I say so with utmost respect and humility, however, I have reservations in respect of some of them, therefore, I would like to express my views by this separate note.

2. The relief claimed by the petitioners in these two petitions is set out in detail in the judgment of my Lord, the Chief Justice and I need not refer to the same again here. The paramount question, however, is whether this Court is competent to grant the relief claimed by the petitioners, while keeping itself confines within the perimeters set out in Article 199 of the Constitution.

3. Reliance has been placed by the petitioners on Articles 175(3) and 203 of the Constitution, which provide that: "(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day."

"203. Each High Court shall supervise and control all Courts subordinate to it."

4. While underlining the importance of Article 175(3), Mr. Sharaf Faridi, Advocate, the petitioner No,1 in C.P.No,D-891/87, who has addressed us on most of the issues raised in that petition, has argued that no provision like Article 175(3) can be found in any other Constitution, not even in the Indian Constitution. This Article, as is apparent thereform, now enjoins that the Judiciary shall be separated from the Executive within a period of fourteen years, which period, according to the petitioner, expired on 14th August, 1987. Therefore, according to the petitioner, there being a command of the framers of the Constitution, it requires compliance in letter and spirit, and in case of its failure, the Courts can enforce its compliance by issuance of a writ. The petitioner has emphasised that the provisions of Article 175 (3) are mandatory in nature and non-compliance therewith constitutes subversion of the Constitution, which can even be visited by a penalty contemplated in Article 6 of the Constitution. We inquired from Mr. Sharaf Faridi, to whom the command as postulated in Article 175(3) is directed as the Article itself is silent in this regard. His answer was that barring the Judiciary, the command is directed to the other two organs of the State viz., the Executive and the Legislature. Reference in this respect was made by him to Article 7 of the Constitution, which provides, the definition of "State".

5. Article 203 of the Constitution, according to the petitioner, is another Article, which vests the High Court with power of complete supervision and control over the subordinate Judiciary, which excludes all kinds of executive control over it.

6. Reference was also made by Mr. Sharaf Faridi to the Objectives Resolution, which is now enshrined in the Constitution as a substantive part thereof by virtue of Article 2-A introduced therein by P.O. 14 of 1985. This,, according to Mr. Sharaf Faridi, is a supra-constitutional instrument and every other provision of the Constitution is subordinate thereto and must be tested on the touchstone thereof. It may be pointed out that this Resolution envisages Pakistan, among other things, as an independent sovereign State with independent judiciary. Reference was made by the petitioner particularly to Articles 196(b), 200(1),200(4), 203-C(4),(4-A),(4-B) and 48 of the Constitution, which according to him, are in conflict with the Objectives Resolution and Article 2-A of the Constitution and, therefore, liable to be struck down as inoperative. The petitioner has also called in question the Constitution (5th Amendment), 1976, the Revival of the Constitution of 1973 Order, 1985. The Constitution (Amendment) Order 1 of 1980, and the Constitution (Third Amendment) Order No,24 of 1985, which amended Articles 196 and 200 of the Constitution, added proviso to sub-Articles (4) and (5) of Article 203-C, amended proviso to sub-Article (4) by increasing the period mentioned therein from one year to two years and further added sub- Articles (4-B) and (4-C) to Article 203-C, all of which, according to the petitioner, are in conflict with Article 2-A of the Constitution.

7. We have been also addressed by Mr. G.M. Qureshi, Advocate, the petitioner No,3 in C.P. No,D- 891/87 and Mr. S. Sami Ahmed, learned counsel, who appeared on behalf of the petitioners in C.P.No,D-123/74, besides the learned counsel, who appeared before us as amicii curiae. The view propounded by Mr. G.M. Qureshi has been that the above Articles have been introduced into the Constitution to undermine the independence r judiciary and are against the basic structure thereof as the Constitution envisages a completely independent Judiciary, free from any executive control.

8. It is pertinent to point out here that C.P.No,D-123/74 has been filed by the Karachi Bar Association and Mr. Sharaf Faridi and Mr. Kazi Mehfooz, Advocates to impugn the provisions of the notification, dated 23-10-1973, issued by the Government of Sind, the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and the Sind Ordinance X of 1973, which according to the petitioners, are in conflict with Articles 4, 14, 175 and 203 of the Constitution.

9. As far as the argument that the provisions of the Constitution coming into conflict with the Objectives Resolution are liable to be struck down is concerned, the same has been dealt with by my Lord, the Chief Justice in his judgment and it has been held that neither any provision of the Constitution can be tested on the touchstone of the Resolution or for that purpose, Article 2-A of the Constitution nor the same can be struck down by us as inconsistent therewith or being opposed to the basic structure of the Constitution and I find myself in respectful agreement with the views expressed by my Lord, the Chief Justice in this behalf and I need not dwell further on this issue. Suffice it to say, that while dealing with the present petitions, we are neither competent to go behind the aforesaid amendments introduced in the Constitution nor the same can be tested on the touchstone of the Objectives Resolution or Article 2-A of the Constitution.

10. However, the pivotal question is whether the provisions contained in Article 175(3) or 203 of the Constitution are enforceable by the Courts.

11. Turning first to Article 175(3), the same, no doubt, enjoins that the Judiciary shall be separated from the Executive progressively within fourteen years and it places in this respect an obligation on at least two of the organs of the State viz., the Executive and the Legislature, but there is no indication of the intention of the framers of the Constitution regarding the effect of non- compliance with this Article. A question, therefore, arises whether provisions of the Article are self- executing or mandatory or they are simply directory. Referring to imperative and directory provisions, Maxwell on The Interpretation of Statutes, Tenth Edition, at page 375, says that: "The reports are .Full of cases dealing with statutory provisions which are devoid of indication of intention regarding the effect of non-compliance with them. In some of them the conditions, forms, or other attendant circumstances, prescribed by the statute have been regarded as essential to the act or thing BBB regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of which did not affect its validity or involve any other consequence than a liability to a penalty, if any were imposed for breach of the enactment (i). The propriety, indeed, of overtreating the provisions of any statute in the latter manner has been sometimes questioned, but it is justifiable in principle as well as abundantly established by numerous authorities."

' Denman, J., in Caldow v. Pixell (1877) 2 C.P.D.562, said: "the intention of the Legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative." N.S. Bindra, in his book known as THE INTERPRETATION OF STATUTES AND GENERAL CLAUSES ACT, third Edition, at page 446, says: "the basic test by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. In this way, the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the Legislature intended that it be met; if found to be unimportant, that it need not be met." Again at the same page, the commentary further says: "In each case, the subject-matter is to be looked to and the importance of the provision in question in relation to the general object intended to be secured by the Act is to be taken into consideration in order to see, whether the matter is compulsory or merely directory." The same author, while referring to self- executing and non-self-executing constitutional provisions, again says at page 682 "Constitutional provisions are not self-executing if they merely indicate a line of policy or principles, without supplying the means by which such policy or principles are to be carried into effect, or if the language of the Constitution is directed to the Legislature or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect.... The question whether a provision is self-executing is always one of intention, and to determine intent the general rule is that Courts will consider the language used, the objects to be accomplished by the provision, and surrounding circumstances The absence of penalty is one of the circumstances to be considered in determining whether a constitutional prohibition is intended to be self-executing; but is not sufficient of itself to postpone the operation of a provision which it appears from all the circumstances was intended to be self-operative."

12. The question is, how to give effect to the provisions of Article 175(3)? Can it be enforced by issuance of directions to the Executive without reference to the Legislature? What, if the Executive fails to get the required majority of the members of the Legislature to pass laws in order to give effect thereto? C n the Legislature be addressed by this Court by issuance of a writ ? The Court can strike down a law as invalid, but can the Legislature be compelled to make a law ? Article 175(3) is also silent as to the extent of the Executive's responsibility to give effect to the provisions thereof.

Apart from it the obligation cannot be carried out without financial implications or working out of modalities for its implementation. Can the Executive or the Legislature be compelled by issuance of a writ to discharge this constitutional obligation within the specified time without taking into consideration the means and resources at their command? No satisfactory answers can be found to these questions. It may be pointed' out that provisions which are incapable of being enforced cannot be construed as self-executing. Therefore, in my humble view, neither Article 175(3) is enforceable nor it confers any power on this Court to issue directions for its implementation. It may, however, be pointed out that my intention is not to overlook the importance of this Article as the provisions of the Constitution referred to by Mr. Sharaf Faridi and Mr. S.M.Qureshi are in direct conflict with the provisions of this Article and the declaration enshrined in the Objectives Resolution.

However, these provisions can always be available to the Courts to expound the other provisions of the Constitution when executive actions are impugned before them in individual cases.

13. I would now like to turn to Article 203 of the Constitution. This Article, repoduced above, provides that each High Court shall supervise and control all Courts subordinate to it. "Supervise", according to Ballentine's Law Dictionary means "to exercise oversight, to keep under inspection." "Control", according to the same dictionary means "to check, restrain, govern, have under command and authority." Basing his argument on this Aricle Mr. Sharaf Faridi hos referred to certain provisions of the Code of Criminal Procedure, such as sections 7,11,12,13,15,16,17, 22-A, 22-B and 25 and the West Pakistan Civil Courts Ordinance, such as sections 4,5,6 and 8, as being in conflict with the above Article. Mr. Sharaf Faridi was further supported by Mr. S.Sami Ahmed, learned counsel for the petitioners in C.P.No,D-123/74, according to whom, notifications issued under sub-rule (2) of Rule 2 of the Sind Civil Servants (Efficiency and Decipline) Rules, 1973 and rule 4 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 are in direct conflict with the provisions of Article

203. Similar provisions as Article 203 were also inserted into 1956 and 1962 Constitutions of Pakistan, which have now been succeeded by the 1973 Constitution.

14. Mr. S. Sami Ahmed has invited our attention to notifications, dated 8-11-1960 and 22-4-1970, issued under the High Court of West Pakistan (Delegation of Powers) Rules, 1960 and another notification, dated 19-10-1973 issued by the Government of Sind and has pointed out that although initially the Chief Justice had been assigned powers under the earlier notifications, but according to notification, dated 19-10-1973 subsequently published in the Gazette on 23-10-1973 the Chief Secretary, Sind has been notified as the authorised Officer under sub-rule (3) of Rule 22 of the aforesaid Rules. It may be pointed out that after filing of C.P. No,D-123/74, another notification was issued modifying the notification, dated 19-10-1973, where in place of 'Chief Secretary', "Chief Justice" was notified as authorised Officer in respect of the District and Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges, Assistant Sessions Judges and Civil Judges.

15. The learned counsel has placed reliance on the case of State of Haryana v. Inderparkash Anand AIR 1976 SC 1841 and Chief Justice of Andhra Pradesh and another v. L.V.A. Dikshitulu and others AIR 1979 SC 193. In the first case, the Supreme Court of India while referring to Articles 311 and 235 of the Indian Constitution held that the High Court exercises complete control over the subordinate judiciary, which was subject only to the power of the Governor in the matters relating to the appointment, dismissal, removal, reduction in rank, promotion, etc. Of the subordinate Judges. It was further held that the High Court had a complete administrative control over the subordinate judiciary. It was also held that the recommendations of the High Court in respect of the retirement of District Judge were binding on the Government. In the second case referred to above, Articles 229 and 235 of the Indian Constitution came under examination before the Supreme Court of India.

It was held that Article 229. Vests the Chief Justice with a complete power in respect of appointment of subordinate Judges and further, that the control postulated by Article 235 of the Indian Constitution was complete and comprehensive in nature.

16. As far as the proposition that Article 203 vests the High Court with wide powers of supervision and control over the subordinate judiciary is concerned, there can hardly be any cavil with the same. However, the cases cited by Mr. S.Sami Ahmed relate to individual executive actions, which had been called in question before the Court. What has been impugned before us is not any such executive action, but the legislation made by the Parliament and the notifications issued thereunder. It may be pointed out that Article 203 is general in terms and the power of supervision and control with which it vests this Court is an undefined power, which is to be regulated by the law made by the Parliament. We are not empowered in these petitions to go either into the vires of the Statute, or the rules or the notifications made or issued thereunder which have been impugned before us. Although, individual executive actions can be tested on the touchstone of Article 203 of the Constitution, but no writ invalidating any statute or any rule or notification, issued thereunder can otherwise be granted unless the rule or the notification is ultra vires the statute under which it has been issued. That is not the case of the petitioners. I am, therefore, unable to persuade myself to agree even with this contention of Mr. Sharaf Faridi and Mr. S. Semi Ahmad.

17. It now remains to be considered what are the powers with which this Court has been vested under Article 199 of the Constitution. According to clause (1)(a)(i) of this Article, subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved party, make an order: "directing a person performing, within the territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a Province or a Local authority, to refrain from doing anything, he is not permitted by law to do, or to do anything he is required by law to do. Paragraph (ii) further empowers the High. Court to make an order "declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federrtion a Province or a local authority has been done or taken withcut lawful authority and is of no legal effect". The above power of the High Court is akin to the power of the English Courts to issue writs of certiorari and mandamus. Article 199 further empowers the High Court to issue writs in the nature of habeas corpus and quo warranto but ih view of the nature of the relief sought in these petitions, reference to the same is unnecessary.

18. The question as to the power of the High Court to issue writs under Article 98 of the 1962 Constitution, to which Article 199 of the 1973 Constitution corresponds came to be examined before the Supreme Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Hamoodur Rahman, J. (as he then was), observe:- as follows: "In my opinion the learned Advocate-General of East Pakistan is perhaps nearer the mark than the others. In my view the words "in an unlawful manner" in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is male fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner."

' It may be pointed out that Article 4 of the 1973 Constitution corresponds with Article 2 of the 1962 Constitution to which reference was made in the aforesaid observations. This Article also came under examination before the Supreme Court in Jamal Shah v. Election Commission PLD 1966 SC 1 and it was held that:- "It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2 enact that whatever action a particular person may take shall be immune from challenge.

All persons exercising authority in Pakistan must do so only in accordance with law."

' The same view again found favour with the Supreme Court in Province of East Pakistan v. Sirajul Haq Pal wari PLD 1966 SC 854. In Fauji Foundation v. Shamimur Rehman, Article 2 was again examined by the Supreme Court and it was held that it did not invest the Courts in Pakistan with such wide powers as the due process clause of the American Constitution and the same was not available to the Courts for testing the wires of any law. Reference in the case was also made to the judgment of the Supreme Court in Abul Aga Maudoodi v. Government of West Pakistan PLD 1964 SC 673, wherein Cornelius, C.J. While dealing with the scope of Article 2 held: "judicial review is not necessarily based upon the rule of "due process" as incorporated in the Fifth and Fourteenth Amendments to the Constitution of the United States". It was however, held, that the Executive action can always be tested on the touchstone of Article 2.

19. A question, therefore, arises what is the import of the words "law", "lawful" and "lawful authority"?

The connotation of the term 'law' was considered by Hamoodur Rahman, J. In 'liss Asma Jilani v.

Government of Punjab PLD 1972 SC 139 and after referring to various authorities on the subject, he was of the view that: "So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This in my view, brings in the notion both of legitimacy and efficacy."

' The import of the word 'law' was once again considered by the Supreme Court in Brig. (Retd.) F.B.

All and another v. The State PLD 1975 SC 506 and it was held that in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of a competent law-giver. I would also like to refer to a judgment of the Indian Supreme Court on the point, reported as Rajkumar Nursing Pratap Singh Deo v. The State of Orissa (AIR 1964 SC 1793). It was held in this case tha "law" is "a body of rules which have been laid down for determinin legal rights and legal obligations which are recognised by the Courts." Law, in fact, is a command of a sovereign laying down a general course of conduct and requiring obedience. The words "lawful" or "lawful authority" would also have similar connotation, accordingly.

20. A question therefore arises whether the provisions of Articles 175(3) and 203 of the Constitution lay down a course of conduct, requiring compliance. This brings us to the same question, whether these provisions are capable of enforcement by the Courts. I have already pointed out that Article 175(3) is a non-self-executing provision, not capable of being enforced. Article 203 of the Constitution is also wide and general in terms and as already pointed out, the undefined power which it confers on the High Court requires to be regulated by further legislation. Accordingly, these provisions cannot be construed as laying down any law in terms of Article 199 or 4 of the Constitution. The words "a person performing functions in connection with the affairs of the Federation or a Province or a local authority", occurring in Article 199 are further indicative of the fact that only executive actions can be subjected to a judicial review under Article 199 of the Constitution and no writ of general nature can be issued. I am, therefore, constrained to hold that no writ can be issued by this Court to grant any of the reliefs sought in these petitions. No doubt, the object behind filing of these petitions is noble, but the Courts are creatures of the Constitution and no power can be exercised by them which has not been vested in them by the Constitution.

21. Reference was made by Mr. Khalid Ishaque, one of the learned counsel appearing as amicus curiae in this case, to Article 268(6) of the Constitution, as according to him, the Courts are empowered to W construe an existing law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution, notwithstanding the fact that no adaptation has been made in such law by an order made under clause (3) or clause (4) of Article 268.

Consequently, the argument was that a direction can be issued by us to the effect that the statutes, the rules or the notifications issued thereunder which come into conflict with Article 175(3) or Article 203 of the Constitution should be read with necessary adaptations to bring them into accord with the aforesaid Articles.

22. The relevant provisions of Article 268 are reproduced as follows: - "268.--(1) Except as provided by this Article all existing laws shall, subject to the Constitution continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.

(3) For the purposes of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order.

(4) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect to which the Provincial Assembly has power to make laws.

(6) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause

(3) or clause (4) construe the law with the provisions of the Constitution.

(7) In this Article, "existing laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notification and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day.

Explanation.........................................................

23. Nothing can be spelt out from Article 268 to empower this Court to issue a writ as proposed by Mr. Khalid Ishaque. First of all the opening words in Article 268(6): "any Court, tribunal or authority required or empowered to enforce an existing law" clearly indicate that this power can be exercised only in a given case and not generally. Secondly, no general direction can be issued in this respect by the High Court. The argument, therefore, on the face of it is unacceptable.

24. In the result, I would hold that these writ petitions are not maintainable and therefore, they are liable to be dismissed.

25. Before parting with this judgment, I would like to express my gratitude to Mr. A.A. Fazeel, Mr. Khalid Ishaque and Mr. Muhammad All Sayeed, learned counsel who appeared as amicii curiae, for their valuable assistance. ORDER OF THE COURT ' Since 5 learned Judges have concurred with the judgment of Ajmal Mian, C.J. And, as there is no dissenting judgment, the petition is allowed in terms of the above majority judgment.