AMIR-UL-MULK MENGAL, J.--One of the Advocates of Quetta for Mr. Azizullah Memon, filed C.P.
No,150 of 1987 on 23-9-1987 praying for giving effect to Article 175(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") and keeping in view the importance of the points involved in the petition a larger Bench was ordered to determine the issue. However for one reason or the other this petition remained pending until an amendment was sought for by the petitioner on 15th day of August, 1989 adding the following prayers:- "The learned Court may be pleased to declare that:-
(i) The Ordinances known as Ordinance-I and Ordinance-II of 1968 are repugnant to the context of Independence of Judiciary as recognized and enforceable under Article 175(3) of the Constitution.
The learned Court may be pleased to issue appropriate directions to respondent No,2 to revoke and remove from the Statute Book the Ordinance-I and Ordinance-II of 1968."
The order of Larger Bench was, however, withdrawn on 10-6-1990 and it was ordered that the petition may be heard by a Division Bench of this Court. In the meanwhile following petitions were filed by different petitioners, which involve common questions of law, therefore, we propose to dispose of all these petitions through this common judgment:--
(1) Constitution Petition No,77 of 1990.
(2) Constitution Petition No,08 of 1990.
(3) Constitution Petition No,57 of 1990.
(4) Constitution Petition No,17 of 1990.
(5) Constitution Petition No,63 of 1990.
(6) Constitution Petition No,213 of 1990.
(7) Constitution Petition No,18 of 1990.
(8) Constitution Petition No,83 of 1990.
(9) Constitution Petition No,95 of 1990.
(10) Constitution Petition No,97 of 1990.
(11) Constitution Petition No,98 of 1990.
(12) Constitution Petition No,113 of 1990.
(13) Constitution Petition No,106 of 1990.
(14) Constitution Petition No,107 of 1990.
(15) Constitution Petition No,141 of 1990.
(16) Constitution Petition No,136 of 1990.
(17) Constitution Petition No, 58 of 1990.
2.It may be pointed out that during the arguments Mr.Azizullah Memon, through an application dated 16-8-1990 did not press his original prayer regarding separation of judiciary from the executive as the said matter is subjudice before the Supreme Court. However, he urged that he would like to press into service the point of separation of judiciary from executive as well as the concept of supremacy of judiciary as envisaged by Objectives Resolution which is now part of the Constitution in context of declaring the Civil Law (Special Procedure) Ordinance I of 1968 (hereinafter referred to as the "Ordinance-I of 1968") and Criminal Law (Special Provisions)
Ordinance II of 1968 (hereinafter referred to as the "Ordinance II" of 1968) to be void as being inconsistent with the Constitution.
3.In all the remaining petitions amongst other grounds also the petitioners have challenged the vires of Ordinance-I of 1968 and Ordinance-II of 1968.
4.It is worth mentioning that the Government of Balochistan was pleased to withdraw Ordinance-I of 1968 on 23-6-1988 from the areas where it was originally made applicable vide Notification No Legis:/1-45/Law/72 and instead extended the jurisdiction of Civil Courts Ordinance, 1962 to the abovesaid areas, therefore, we would like to confine our discussion only regarding Ordinance-II of 1968.
5.It may further be observed that since in all these petitions the vires of Ordinance-II of 1968 have been challenged, therefore, we do not feel the necessity to refer to the facts of each case in detail, rather we would like to dilate upon and determine the moot question of vires of Ordinance-II of 1968.
6. Heard Barrister Qazi Faiz Issa, Mr. Muhammad Aslam Chishti, Mr. Azizullah Memon and Mir Muhammad Nawaz Marri, Advocates for the petitioners and Mr. Iftikhar Muhammad Chaudhary, learned Advocate-General, Balochistan and Mr. Muhammad Riaz Ahmad, learned Standing Counsel for the respondents.
7.Before touching the crucial points of determination it would be expedient and proper to briefly outline the history of the special laws which have been enforced in this part of the country through different stages and which otherwise were akin in its nature and similar in its application and designed to meet the peculiar circumstances of the area.
8.For the sake of brevity we would not make reference to different laws which were simultaneously made applicable to different regions of British Balochistan and Kalat States, such as Balochistan Agency Laws, Forest Law and Civil Justice and Criminal Justice Laws, because mainly it was the Frontier Crimes Regulation (F.C.R.) which held the field.
9. As far as F.C.R. Is concerned, it was initially enforced in the area known as British Balochistan since the times when the Britishers established their hegemony over the area. As known to us all, the legal system imposed by the Britishers in general and in this area in particular was mainly intended to rule through a class of persons who otherwise had social influence and status in the society and their loyalty to the British Raj was above board. The object was to rule the general masses through a class of loyal notables from amongst the area thus ostensibly depicting a policy of non-interference in their centuries old system of riwaj; although in fact the object was to keep them away from a universally recognised judicial system and instead to give them a sugar-coated legal device. This object in view the Britishers formulated F.C.R. And imposed it in the areas, inter alia, consisting of present Province of Balochistan.
10. From plain reading of entire Regulation it becomes abundantly clear that the legal system was so devised as to clothe a class of notables known as 'Council A of Elders' with legal power to sit and decide cases alongwith the Executive Officers who had final authority to pass judgments on the recommendations so made by the Council of Elders. No rules regulating the proceedings or mode of taking evidence universally known and recognised were adopted. Furthermore the District Magistrate and for that matter the Additional District Magistrate etc. (generally the Britishers) were empowered to overrule the finding of such Council of Elders and to remand cases to the second council of elders according to their whims and caprice. The concept of collective fine on tribes or villages etc. Was also initiated. The investigation into the cases was mostly conducted through levies which then was almost a private force of tribal Sardars and notables who had a direct control over it. Personal knowledge of a member of Council of Elders used to be regarded as sufficient evidence for conviction of an accused person or determination of their property rights.
Provisions were made enabling the executive authorities to refer any criminal case to Jirga particularly pertaining to Pathans and Balochs of the area. However, there was a provision in the F.C.R. That it might apply to a class or group of persons which would be notified as and when desired by the Government. The classification, therefore, was neither reasonable, nor rational.
11.After inception of Pakistan, however, the provisions of F.C.R. Were challenged at different times in, the superior Courts of the country. In case of Malik Toti Khan v. District Magistrate, Sibi and Ziarat PLD 1957 (W.P.) Quetta 1 as well as PLD 1957 (W.P.) Peshawar 100, Division Bench declared sections 1(4)(5), 11, 12, 14, 15, 16, 17, 19, 40 and 41 of the F.C.R. As being repugnant to Article 5 of the then Constitution of Pakistan which embodied equality-before-law clause and in which it was held that such classification was not a rational and reasonable classification.
12.When Martial Law was imposed in the country in 1958 and the Constitution of Pakistan, 1956 was abrogated, the fundamental rights were suspended and once again the F.C.R. Was enforced in this area till the time when in the year 1963 Governor of West Pakistan enacted West Pakistan Criminal Law (Amendment) Act, 1963, to replace F.C.R.
13.Since at present the aforesaid law is not under our consideration, therefore, we make a passing- by reference to it as well as to the Ordinance of 1965 which held the field for a short span of time, after repeal of Pakistan Criminal Law (Amendment) Act of 1963.
14.After the aforesaid law was repealed the two Ordinances were promulgated in the year 1968 by the Governor of Erstwhile West Pakistan in 1968 which are known as Ordinance-I of 1968 as well as Ordinance of 1968.
15.Before dilating upon the vires of Ordinance I of 1968 and Ordinance II of 1968, it would be worthwhile to point out that initially the aforesaid twin Ordinances (Ordinance I of 1968 and Ordinance-II of 1968) were not made applicable to the Provincially Administered Tribal Areas where still it was the F.C.R. Which was in practice. However, in the year 1979 the F.C.R. Was challenged before the Shariat Bench of this Court, as it was then constituted, in the case titled Maulvi Muhammad Ishaque Khosti v. Government of Balochistan as reported in PLD 1979 Quetta 217 on the ground that it was repugnant and violative of Islamic injunctions as enunciated by Holy Qur'an and `Sunnah'. The Shariat Bench declared the F.C.R. As a law of "convenience" or "expediency" and its provisions as against the Islamic Injunctions. F.C.R. Was ultimately declared a bad law by reason of its repugnancy with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him).
16.Soon after the pronouncement of this judgment Ordinance II of 1968 was made applicable to the Provincially Administered Tribal Areas of the Province of Balochistan vide Regulation known as Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Balochistan) Regulation, 1979.
17.With this brief survey of the special laws we would now proceed to deal with the real issue as raised before us by the petitioners.
18.For the sake of convenience, however, it would be profitable to take Ordinance II of 1968 in order to see whether it is repugnant to the Objectives Resolution, fundamental rights as guaranteed by the Constitution, Article 175(3) of the Constitution, leaving Ordinance I of 1968, as it has already been withdrawn and stands repealed.
19.Barrister Faez Qazi in support of his petition after giving brief survey of the special laws urged the following points before us:--
(i) That the twin Ordinances are basically against Articles 4, 5, and 9 of the Constitution as well as violative of Article 25 of the Constitution. He referred to sections 3(2), 5, 6, 7, 11, 12, 14 and 17 to 22 of Ordinance II of 1968 in this respect.
(ii) It was also contended by the learned counsel that the entire proceedings under the two Ordinances are conducted by the Executive: Officers who in turn are not subordinate to this Court, thus the concept that subordinate Courts should be under the supervision and control of superior Courts is violated (Article 203 of the Constitution).
(iii) The learned counsel also seriously objected to the preventive provisions as contained in Ordinance particularly the provisions regarding collective security urging that these provisions militate against human rights and dignity as the innocent persons are equally fined for no fault of theirs.
(iv) It was also contended that as in the scheme of the Ordinance only Executive Officers figure from the trial upto the revisional stage, therefore, these Ordinances are violative of .Article 175(3) of the Constitution.
(v) Learned counsel also attacked the aforesaid special laws on the ground that classification so made is neither rational and reasonable nor intelligible and discernible; 20.Mr. Muhammad Aslam Chishti, the learned counsel in addition to the grounds referred to hereinabove added as under:-
(i) that the Objectives Resolution by virtue of Article 2-A has now become a part of the Constitution which envisages independence of judiciary. Such guarantee of independence of judiciary cannot be achieved in a legal system where justice is administered through executive officers; it was further submitted in this regard that the Magistrates do not figure at all in the scheme of the Ordinance.
Referring to Article 8 of the Constitution learned counsel submitted that justiciability of the Ordinance has to be looked on touchstone of fundamental rights. It was also contended that the Government is empowered to withdraw provisions of Ordinance but cannot repose the same because it violates even the scheme of the Ordinance itself. He referred to different amendments made in the Ordinance and contended that reapplying the provisions of the Ordinance through a notification is ultra vires. It was also submitted that the provisions of the Ordinance are repugnant to the Islamic provisions of the Constitution as well as such provisions militate against the principles of policy. It was also submitted that these Ordinances have created anomalous situation and that sufficient erosions have already been made in these laws by the High Court in its decrees whereby Qanun-e-Shahadat was made applicable to the proceedings under the Ordinance and such provisions cannot be applied by illiterate members of the Tribunal. According to the learned counsel public image of justice is being eroded.
The learned counsel urged that question of classification arises only when laws are otherwise validly enacted.
21. Learned Advocate-General on the other hand placed before us a written list of the arguments he wanted to address. However, he summarised the same as under:-
(i) As regards constitutionality of Ordinances it was submitted that originally the Ordinances were promulgated by the Governor of West Pakistan, on 16-1-1968 but the same were laid before Assembly for approval which was accorded by the then Assembly on 12-6-1968. Thus these Ordinances cannot be said to be ultra vires as these were validly enacted instruments.
(ii) Learned A.-G. While reading from preamble of the Ordinances submitted that because of the 'special requirement' the Ordinances were enacted. He referred to the tribal set up of the province which according to him depict the special requirements.
(iii) Learned Advocate-General attempted to make us believe that Ordinance contains very useful and beneficial provisions as the complainant party is also allowed to put the legal wheel in motion.
It was further contended that there are chances of compromise which is compatible with the injunctions of Islam.
(iv) Learned A.-G. While referring to Article 268 of the Constitution submitted that these Ordinances are protected under the Constitution, therefore, according to him, these Ordinances cannot now be tested on touchstone of Article 4 or Article 25(2) of the Constitution.
According to the learned A.-G. Classification is very rational and reasonable and the same, therefore, cannot be declared as violative of the equality of laws clause of the Constitution.
22. Salient features of Ordinance-II of 1968 are that it provides special procedure for trial of the scheduled offences as described in section 2(e) of the Ordinance. The most special aspect of the Ordinance is that the Code of Criminal Procedure, 1898 (V of 1898) is barred to apply to any proceedings under this Ordinance. It may be mentioned here that even Evidence Act of 1872 was not made applicable to the proceedings conducted under the Ordinance but after promulgation of Qanun-e-Shahadat, 1984 this Court held that Qanun-e-Shahadat shall apply to the proceedings under the Ordinance. PLD 1987 Quetta 141.
23.It is the Deputy Commissioner who has exclusive jurisdiction to take cognizance of a scheduled offence committed within the District either on a complaint or a report or even upon information received from any person other than a police officer or upon his own knowledge or suspicion that such an offence has been committed.
24.After taking of cognizance the Deputy Commissioner shall have to refer the case to a tribunal constituted by him consisting of a President who shall not be an officer below the rank of Naib- Tehsildar and four other persons. The Tribunal then proceeds to determine the guilt or innocence of an accused person and submit its findings in the shape of a report to the Deputy Commissioner who acts according to section 11 of the Ordinance; having the authority either to acquit or convict an accused person or to remand the case to a second tribunal. Section 12 of the Ordinance provides for the punishment of the offence tried under the Ordinance. The D.C. Has been given powers to award the accused person any sentence of fine, whatever may be punishment provided for the offence in P.P.C. Thus even if a murder is proved, D.C. Can pass only an order of fine. He may in lieu of or in addition to such fine pass a sentence which may extend to 7 years. Subject to the confirmation of the Commissioner, he is competent to pass a sentence of imprisonment of either description for a term exceeding 7 years but not exceeding 14 years. Subject to the provisions of section 393, Cr.P.C. He may pass a sentence of whipping or of whipping and imprisonment of either description not exceeding five years. He is, however, further authorised under law to order the whole or any part of the fine recovered to be paid as compensation for any loss or injury. No Civil Court is competent to take cognizance against a claim to compensation based on such claim or injury.
25. Section 14 of the Ordinance is very relevant for our discussion because it was strenuously urged that the section discriminates between sexes and lays down that a married woman if knowingly and by her consent has sexual intercourse with any man who is not her husband shall be punished with imprisonment for a term which may extend to five years or with fine or with both, but there is no punishment provided for the man who commits adultery, particularly when section 497, P.P.C.
Stands repealed by Ordinance VII of 1979.
26.Another important aspect of the Ordinance in question is that it contains provision regarding compounding of offences including offence of murder, attempt to murder etc. In fact this provision is commensurate with the prevalent social system.
27.From section 17 to section 22 of the Ordinance we find provisions for prevention of offences or preventive detention. Section 17 of the Ordinance provides for security for keeping peace whereas section 18 prescribes power to demand security from adult members of the family regarding whom the Deputy Commissioner is satisfied that there existed a blood feud or there is a cause of quarrel likely to cause bloodshed.
Section 19 envisages procedure for inquiry. Section 20 lays down the procedure where there is a breach of bond executed under section 17. Similarly the Deputy Commissioner is empowered to arrest and keep in imprisonment a person who has defaulted security. Section 22 contemplates collective fine.
28.Any party aggrieved by any order made or decision given or sentence passed may prefer an appeal to the Commissioner of the Division within 30 days. There is also provision for Revision of the orders by the Government.
29. Another important aspect which differentiates this Ordinance from former F.C.R. Is section 27 where appearance of a legal practitioner has been allowed.
30.Section 28 of the Ordinance imposes a clear bar on the jurisdiction of the Courts and lays down that no proceedings under this Ordinance and no decision given, sentence passed or order made in any such proceedings shall be called in question in any Court or before any other authority.
31.During the arguments the learned counsel for the petitioners while trying to prove that Ordinance II of 1968 is not a good law, invited our attention to its different provisions. The main thrust of the argument was that the entire scheme of the Ordinance is inconsistent with the concept of supremacy of judiciary (Article 2-A of the Constitution), the concept of separation of judiciary from the executive which otherwise is a mandatory requirement as contained in Article 175(3) of the Constitution as well as rule of subordination of all the Criminal Courts to High Court (Article 203 of the Constitution).
32.The Deputy Commissioner who basically is an Executive Officer prepares a list of members of the Tribunal, then nominates four out of the list in each case after taking cognizance of an offence even on his own personal knowledge or suspicion. The jurisdiction of the Courts including the High Court stands barred after taking of such cognizance and thus after obtaining a finding from the tribunal who is headed by an Executive Officer not below the rank of Naib-Tehsildar, the Deputy Commissioner may refer the matter to a second tribunal if he finds that there has been a miscarriage of justice, or if he finds that an accused person has been found guilty of murder even then he may acquit him or only impose a fine. Such arbitrary powers being exercised by the Deputy Commissioner are not subject to the judicial review of any ordinary Court in appeal or even in a revision.
33.Adverting to the substantive provisions of the Ordinance it may be noticed that section 14 of the Ordinance provides punishment for a married woman who knowingly commits adultery but no such punishment is provided for a man who commits adultery with such a married woman thus there is a clear discrimination on the basis of sex. As regards the preventive provisions, the Deputy Commissioner is empowered to impose fine or to demand security from any adult member of a family which according to him is found to belong to a faction or family having blood feud with another family irrespective of the fact whether such an adult is directly involved in the vendetta or not.
34.On the other hand learned Advocate-General, attempted to controvert the aforesaid submissions on the ground that the Ordinance was intended to provide a simple procedure. In a society where illiteracy rate is very high and the people prefer to appear before notables whom they know, they feel convenient as compared to a Judicial Officer who observes strictly the technicalities of law. Therefore, the provisions of the Ordinance best suit the citizens of such an area. It was further canvassed that besides the prosecutor, complainant can put the law into motion for redress of his grievance, furthermore all the scheduled offences are compoundable thus it was concluded that it is a good law.
35. We want to make it crystal clear that this Court is hardly concerned with good or bad aspects of a statute if the same has been validly enacted by a competent legislature provided any of its provisions is not violative of the Constitutional provisions. We, therefore, proceed to determine the question of the vires of Ordinance-II of 1968 in the context as to whether it is inconsistent with any constitutional provision or not.
36.But before doing so we want to answer the preliminary objection raised by learned Advocate- General that this Court has no jurisdiction to examine the constitutionality of the Ordinance. It was urged that fundamental function of the judiciary is not to legislate but to interpret the law and any law validly enacted cannot be subjected to judicial review of this Court.
37. There is no cavil to the proposition that primary duty of the judiciary is to administer or to interpret laws validly enacted but it is also the duty of the judiciary to review any law so made on the touchstone of legislative competence or fundamental rights or any limitations imposed by the Constitution of the country. We are mindful of the fact that our Constitution contemplates trichotomy of powers between three organs of the State i,e, Legislature, Executive and the Judiciary.
The powers of each of such organs are well defined in the Constitution and each of such organs has to operate within the limits so defined in the Constitution. The judiciary is not more superior in dignity to the legislature but it is the duty of the judiciary to ensure that none of the organs should act in violation of the pros 'isions of the Constitution. This role of the judiciary is popularly termed as 'watch-dog' or the 'balanced wheel' and while exercising such powers it has to ensure that no organ of the State should transgress into the realm of another and hence to keep the equilibrium.
38.It is now settled that the Courts are the creature of the Constitution, therefore, its powers are limited only to examine legislative competence or any other such limitation as is provided in the Constitution. At this juncture we would like to reproduce from the observations made by the Supreme Court of Pakistan in case of Fauji Foundation PLD 1983 SC 457:- "When a Court which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, it is not because the judicial power is superior in degree or dignity to the legislative power but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict so as to give effect to it or where the Legislature fails to keep within its Constitutional limits."
The Honourable Supreme Court has thoroughly dealt with the question regarding jurisdiction of the superior Courts to examine the statutes and the powers of the legislature. After a complete survey of the American and English Constitutional Laws in the aforesaid case, the Supreme Court defined the areas where judicial review can be made regarding legislative instruments. It was held that the sole judge of necessity of legislation rests with the law-giver and vires of legislation cannot be attacked by reference to such extrinsic factors. Therefore, the Courts cannot see and examine the legal justification for issuing a statute which is sole discretion within the competence of the law- givers and which cannot be judicially reviewed, except on legislative incompetency or constitutional limitations.
39.Similarly in Mrs. Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 after coming to the conclusion that section 21 of the Representation of the People Act, 1976 was violative of fundamental rights it was declared void to that extent. Therefore, if any statute or provision thereof are found to be infringing any fundamental right same shall stand void to the extent of such infringement. We, therefore, proceed to decide these petitions in the light of guidelines as enunciated by the Hon'ble Supreme Court.
40.Barrister Faez Qazi and Mr.MA.Chishti, both urged that the enactments under consideration are violative of Article 25 of the Constitution. Article 25 of Constitution reads as under:- "25. All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
41. Equality before law and equal protection of law are two different phenomena and the distinction is very often very inconspicuous. These concepts are borrowed from different Constitutions of the world, specially from English and American theories of rule of law. The concept of 'equality before law' has been derived from English Constitutional Law whereas concept of 'equal protection of law' has been taken from American Constitution. The 'equality before law' is a basic characteristic of English Constitutional Law which means that all men are equal before law. Thus all the citizens are equally subject to the ordinary law of the land being administered by the ordinary Courts.
42.However, in the commentary of Constitution late Muhammad Munir, former Chief Justice of Pakistan, has well said that "conditions since then have materially changed and the absolutism with which the doctrine was then propounded has been so much riddled with exceptions and qualifications that today it can hardly be stated as a general rule".
43. It is, therefore, almost settled that the concept of sovereignty has undergone a change and particularly our Constitution puts an embargo within the I meaning of Article 25, as well as a clog has been imposed of fundamental rights on the legislature. In our Constitution Article 8 reads as under:- 8.(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) ...................................
(a) ...................................
(b) ...................................
(i) ...............................................
(ii) ...............................................
(4).....................................
Provided that ..........................
Explanation.............................
(5).....................................
Hence the legislature shall not make any law which takes away or abridges a fundamental right or any law which is in contravention of the Constitution. Such law thus would be void to the extent of such contravention. Thus if put concisely the concept connotes the protection of equal laws which means that no person or class of persons shall be denied the same protection of law as is enjoyed by other persons or other classes in the same place and in the like circumstances".
44.As stated hereinabove that the rule of equal protection is also not absolute and this concept has also undergone substantial change. The Courts, therefore, have held permissible inequality provided the same is based on a classification which is further based on a rational and reasonable basis; where there is an object to be achieved and such classification has got nexus with such object or is relatable to the same, classification may be found reasonable.
45.The entire question, therefore, revolves on the pivotal point whether classification is based on rational and reasonable basis, having an object to be achieved through such legislation or not? For this purpose it may be noticed that the Governor of erstwhile West Pakistan was pleased to issue an Ordinance on 16-1-1968 which ultimately was laid before the Assembly of West Pakistan and was approved under Article 79(3) of 1962 Constitution. It became an Act on 12-6-1968. Preamble of the aforesaid Ordinance contemplates that it is necessary to make special provisions for trial of certain offences in certain areas of West Pakistan to meet the special requirements' of these areas.
Learned Advocate-General Balochistan laid great emphasis on the fact that these special provisions are for trial of offences to meet the 'special requirements'. Special requirements of these areas have been defined nowhere in the Ordinance. Learned Advocate-General, however, pointed out that the Court may take judicial notice of the fact that the people of these areas mostly belonged to different tribes and in case of any blood feud the process of revenge starts without seeing an end. Furthermore the literacy rate is very low and the people are poor and ignorant thus they are not well acquainted with the intricacy of a regular judicial system. According to the learned Advocate-General all these factors were in the mind of the legislature at the time of enacting the Ordinance. However, the learned A.-G. Failed to convince us as to what is the object for which such classification was required. He also could not point out any rational or reasonable basis for classification. Assuming for the sake of arguments that special requirements did exist but we fail to understand as to what was the object and how it could be achieved through this legislative instrument. Our attention was drawn to section 1(3) of the Ordinance as added by the West Pakistan Ordinance IX of 1968 published in the Gazette of West Pakistan Extraordinary on 16-9- 1968 wherein the Government was given power to direct by notification in the official Gazette that this Ordinance shall on such date as may be specified in the Notification cease to be in force, in any area and as such it shall be deemed to have been repealed. This power was exercised in a most whimsical and subjective manner.
46.The first step towards classification was taken when the application of the Ordinance was withdrawn from Quetta Municipal Area and Quetta Cantonment. It was, however, re-applied through another Ordinance in the year 1973. Soon thereafter with the change of the Government again Ordinance was withdrawn from the aforesaid areas. Similarly vide Notification No,50(Judl.)4(5)/88, dated 23-6-1988 as notified in the official Gazette the Ordinance was withdrawn from the following areas under section 1(3) of the Ordinance:-- Name of District Areas
1. Quetta. The whole Quetta District except Panjpai Tehsil.
2. Khuzdar Municipal and Town Committees of Khuzdar.
3. Sibi (i) Municipal and Town Committees of Sibi; and
(ii) Municipal and Town Committees of Harni.
4. Pishin. Municipal and Town Committees of Pishin.
5. Dera Murad Jamali.Municipal and Town Committees of Dera Murad Jamali.
6. Loralai. Municipal and Town Committees of Loralai.
7. Turbat. Municipal and Town Committees of Turbat.
8. Kalat. (i) Municipal and Town Committees of Kalat.
(ii) Municipal and Town Committees of Mastung.
9. Kachhi (i) Municipal and Town Committees of Mach.
(ii) Municipal and Town Committees of Dhadar.
10. Lasbella. Municipal and Town Committees of Lasbella.
11. Chagai. (i) Municipal and Town Committees of Nushki."
It is worthwhile to mention that simultaneously the appellate forum instead of the Commissioner was declared to be the Sessions Judge of the concerned District and revisional powers instead of Government were given to the High Court. This Ordinance also was not laid before the Assembly as required under Article 128 of the Constitution with the sole intention that it should lapse after the statutory period of 3 months. We find sufficient force in the contentions raised by the counsel for the petitioners that the application of the Ordinance in the areas where people live in like circumstances is neither universal nor uniform and it has been left entirely to the whims and caprice of the Government to decide without any rational basis to withdraw the Ordinance or re- apply the same in any area in a most subjective manner and there being no criterion in taking any such decision, hence------------the classification is neither intelligible nor reasonable nor it is discernible.
47.Learned Advocate-General, however, took exception to the added sub-clause (3) of section (1) saying that this amendment in fact was made through an Ordinance which was never placed before the Assembly, therefore, this has no effect at all and may not be read in the statute. We do not associate ourselves with such a sweeping argument for the simple reason that this clause has been acted upon since 1973 till 1989 and is a part and parcel of the Ordinance for all practical purposes. The application of the Ordinance to different areas or withdrawal of the same from such areas has always been derived from section 1(3) of the Ordinance according to the choice of the existing Governments without any rational basis.
48.We fail to understand as to what is the basis of such classification qua its application or withdrawal from different areas where people are living in the like circumstances, where the rate of literacy hardly differs or for that matter where the people are amenable to same social taboos. To say that people living at Town of Khuzdar and Town of Chaman differ in their social set up or in pursuit of their economic gains or happiness from people of Dera Allahyar is a misnomer because there are colleges in all these areas and established police stations. The Ordinance is applicable in all the town areas like Sibi, Mastung and Pishin but the same is not applicable in Quetta and Dera Allahyar. Learned A.-G. Failed to advance a single argument to justify this classification. Therefore, it cannot be said that there is any rational or reasonable basis even for the classification amongst the citizens who lived in the like circumstances. The Government, thus, has been given unbridled, unfettered and unlimited powers to apply or withdraw the provisions of the Ordinance in any area of the Province without any rational basis thus discriminating amongst the people or class of people who lived in the like circumstances.
49.All such circumstances lead but to the irresistible conclusion that there is neither any object to be achieved through the application of these special laws, nor there is any rational basis for such classification.
50. Such classification in the broader sense could be viewed qua the ordinary laws of the land being administered by the ordinary Courts. There are areas in the other parts of the country which are as backward in their social set up and educational field as the citizens of the areas where Ordinance-II of 1968 has been promulgated but ordinary laws of administering justice are applicable in those areas and the classification even on that score is not reasonable.
51.We are conscious of the fact that the equal protection of law clause of the Constitution does not in any manner prevent the legislature to apply laws of different kinds to different parts of the country according to the circumstances prevalent in the areas because this concept does not necessarily mean application of the same laws and the same remedies to all the citizens rather it means the protection of equal laws to persons living in like circumstances. Here we would like to reproduce the references made in the case of Malik Muhammad Usman v. The State as reported in PLD 1965 (W.P.) Lahore 229. Mr.Justice Ortcheson (as he then was) taking note from Yick Wo v.
Hopkins (1886) 118 US 356 as under:-- "The guarantee of equal protection does not prevent the State from applying different laws or different systems of judicature to different parts or local sub-divisions of the country according to local circumstances, for the clause does not secure to all persons the benefit of the same laws and the same remedies. Equal protection of the laws is a pledge of the protection of equal laws."
And we cannot help but to reproduce the historical comments of late Mr.Justice Kayani which were also referred in the same judgment on page 235:- "Next we reach section 8 which makes the law a perfect ass, and the Deputy Commissioner can ride it to any goal within the five broad clauses of subsection (3). To enable him to take action, there should be a dispute (in the case of people other than tribesmen) which is likely to cause a blood feud etc., and he should be of the opinion that reference to a Council will avert the blood feud etc. How reference to a Council and decision by a Deputy Commissioner has the effect of scintillating goodwill and charming away hostility is not clear to me. But if any such magic could have been wrought by the Deputy Commissioner, why does section 8 forbid reference if the matter has already gone to the Civil Court? This must be on the assumption that resort to the Civil Court has the same salutary effect of averting a dangerous situation as reference to a Council. But if that be so, why is it not left open to a party to resort to the Civil Court after the reference has been made? It is clear that section 8 is misconceived and that in the garb of, resolving a dispute the Deputy Commissioner can encroach upon civil rights without reference to any except what appears to him to be in accord with good conscience or public policy. (S.9). If any good faith had existed in such a reference, the decision would have been made appealable to a superior Civil Court."
Although the aforesaid observations were relevant to the F.C.R. Which is no more in the field but the provisions are very much akin except for very little variation with similar provisions of the Ordinance-II of 1968. F.C.R. Was applicable only to Baloch and Pathan tribes whereas there is no such classification of race in the Ordinance. The classification, however, becomes relevant of its application to different areas where people live in the like circumstances and in a social set up which is not very different from those areas to which its application has been withdrawn. As for instance a person living in the suburbs of Quetta Municipal Corporation and a citizen living in Sub- Tehsil Punjab of District Quetta are living in like circumstances but are being governed by different laws, one under the ordinary criminal courts whereas the other under the provisions of the Ordinance. Although this classification is not based on the basis of race but it is very much relevant as far as the areas and the citizens living in these areas are concerned.
52.We now advert to the objection raised by learned Advocate-General that the burden lies on the petitioners to show before the Court that Ordinance does not rest upon a reasonable classification.
The counsel for the petitioners in reply thereto vehemently urged that the District Headquarters of entire Balochistan do not materially differ in the field of social set up or circumstances under which they act for the pursuit of happiness. There are established educational institutions and police stations. Hence denial of right to be treated in accordance with the ordinary law of the land to the people of these areas vis-a-vis the inhabitants of Quetta and Dera Allahyar is neither reasonable nor is based on any just rationale. This fact was impliedly accepted by the Government when by Notification No,SO(Judl.)4(5)/88, dated 23-6-1988 the application of the Ordinance was withdrawn from these areas. But for no rational cause and for the reasons best known to the Government it was re-applied to those areas.
53.From the above discussion we have come to the conclusion that the petitioners have successfully made out a case that there is no reasonable classification in the application of the provisions of the Ordinance to people of the areas who live in the like circumstances. Furthermore there is no object specified and the classification has no nexus with such an object. This discrimination is very pertinent and offends Articles 4 and 25 of the Constitution.
54.Yet another objection raised by learned Advocate-General was that this Ordinance merely provides a procedure which in turn cannot be claimed as of right. To resolve this we would like to quote late MrJustice Kayani, "that justice is not necessarily the child of elaborate procedure and the law of procedure is not up often abused".
55. But here it may be pointed out that at least some procedure or even uniform rules may be prescribed to regulate the proceedings or mode of taking evidence etc. The Deputy Commissioner and the Members of the Tribunal are not Courts stricto senso as was held by this Court in the case of Mir Behman Khan v. Sardar Abdullah Khan PLD 1983 Quetta 52. It was held therein that there is no set procedure because the members of the Tribunal for the purpose of coming to a finding on a matter or issue referred to it, shall give opportunity to the parties to appear before it and take or hear in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or may be collected by the Tribunal; Provided that the Tribunal may in its discretion refuse to take or hear any evidence which in its opinion is being tendered for the purpose of vexation or delay or for defeating the ends of justice. Thus it was left to the members of the Tribunal to determine the manner which they think fit for collecting evidence. It is pertinent to mention here that this Court in case of Nazar Khan v. The State PLD 1987 Quetta 141 held that Qanun-e-Shahadat is applicable to the proceedings before the Tribunal. Learned Advocate-General, however, pointed out that Rules have been framed and the Ordinance with the Rules are a complete procedure, therefore, these provisions do not come within the purview of Article 25 of the Constitution.
56. Suffice it to mention here that a rule or procedure also comes within the purview of Article 25 in the same manner as any such provision of substantive law. We find support of this view from the answer of reference made by the President of India regarding Special Courts Bill under Article 143(1) of the Constitution of India wherein scope of Article 14 of the Constitution was considered, examined and explained in the following manner:-
(1) If the legislative policy is clear and definite, and as an effective method of carrying out that policy, a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation.
(2)
(3)
(4) ...........
(5) A rule or procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law."
Thus the objection does not find any favour.
57.We now advert to the second limb of the argument which is very important in resolving the issue and which was urged by the counsel for the petitioners as under:- With the continuance of the Ordinance-II of 1968 the concept of separation of judiciary from the executive as envisaged under Article 175(3) of the Constitution as well as rule of supremacy of law as contemplated under Article 2-A of the Constitution shall never be accomplished.
58.Mr.MA.Chishti persistently urged that with insertion of Article 2-A in the Constitution the Objectives Resolution became an integral part of the Constitution and the same shall have effect accordingly. Preamble to Article 2-A inter alia provides that "wherein the independence of the judiciary shall be fully secured"
59. In the light of the above provision of the Constitution, if we examine the provisions of the Ordinance II of 1968, we find sufficient force in the contention of the learned counsel that the concept of independence of judiciary is totally alien to the provisions of the Ordinance inasmuch as the entire criminal justice is administered by the executive officers instead of the judicial officers.
There is no concept of independent judiciary in the Ordinance because right from the rank of Naib- Tehsildar who investigates into the matter upto the Member Board of Revenue, who finally adjudicates upon the revision petitions, the whole heirarchy comprises of Executive Officers. In the scheme of the Ordinance there is no room for any judicial Magistrate and no authority whatsoever has been left to be exercised by the ordinary Courts. Thus the concept cannot be conceived in a system where all the judicial powers are exercisable by executive officers. To meet the aforesaid argument the learned A.-G. Submitted that the provisions of the Ordinance cannot be adjudged on the yardstick of the Objectives Resolution. In furtherance of his argument he canvassed that the High Court cannot strike down the provisions of the Ordinance on the ground that the same are violative of the Objectives Resolution and national aspirations or of high ethical notions or of philosophical concepts for the simple reason that it has been so held in case of Abdul Mujeeb Pirzada v. Islamic Republic of Pakistan as reported in January Part of PLD 1990 Karachi 9. We are unable to concur with the argument of learned A.-G. Because the Objectives Resolution has become a part of the Constitution through Presidential Order No,14 of 1965 by dint of insertion of Article 2-A to the Constitution. Article 2-A reads as under:- 2-A. The principles and provisions set-out in the Objective Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
60. We have also gone through the case of Abdul Majeeb Pirzada v. Islamic Republic of Pakistan as reported in January Part of PLD 1990 Karachi 9 and it may be observed that we have got all respect for the observations so made. There it was held that a provision of the Constitution on the ground of its being violative of the Objectives Resolution cannot be struck down. The ratio decidendi is inapt because there is vital difference between a provision of the Constitution qua the Objectives Resolution and a provision of a law. Hence there is a vital difference when the Court examines any provision of law in juxtaposition of the Constitution.
61. It may. Therefore, be observed that concept of independence of judiciary as envisaged in the Objectives Resolution can never be achieved through legal machinery under the Ordinance II of 1968 where the Executive Officers administer criminal justice and no judicial officer finds any mention anywhere in the Ordinance.
62.Similarly separation of judiciary from the executive is not a mere desire but a Constitutional requirement and therefore, it has to be given effect to. This cannot be done at least in the province of Balochistan with the only exception of Quetta District or Sub-Division of Dera Allahyar where there is regular law for the simple reason that the Ordinance is a great impediment and an insurmountable hurdle in the way of separation of judiciary from the executive. If the Ordinance continues to be in force then the concept of separation of judiciary falls in fiasco. Both the concepts just cannot co-exist because with the removal of Deputy Commissioner and other Executive Officers and their replacement by the judicial officers, the entire edifice of the Ordinance falls to the ground. Thus a mandatory provision of the Constitution cannot be given effect to, if the Ordinance is not struck down.
63.The learned Advocate-General, however, submitted that steps are being taken by the provincial Government to separate the judiciary from the executive in Quetta District and Sub-Divisions of Dera Allahyar. It may also be pointed out that in the comments also the same plea has been repeated. This fact further substantiates the arguments of the counsel for the petitioners because it is only the area where Ordinance is not applicable that Government intends to separate the judiciary from the executive. But no such intention has been disclosed regarding the areas where Ordinance-II of 1968 is in force for the simple reason that it is not possible to do so.
64. Lastly the learned Advocate-General while relying on Article 268 of the Constitution submitted that all the existing laws have been protected, the Ordinance, therefore, is equally saved under Article 268 of the Constitution being an existing law. This argument is, however, equally fallacious because if the Courts find a law inconsistent with the Constitution, it is competent to strike it down to the extent of such inconsistency.
65.We, therefore, have come to the conclusion unhesitatingly that the entire provisions of the Ordinance-II of 1968 are inconsistent with Article 175(3) of the Constitution and are thus void on this score as well.
66.We would now summarily deal with remaining objections, one being that under section 1(3) of the Ordinance-II of 1968 the Government was empowered only to withdraw the provisions of the Ordinance in a particular area but it has no powers to reimpose its provisions, therefore, Notification No,SO(Jud104(5)/8842- 83, dated 31st January, 1990 has been issued without any lawful authority. From the perusal of the original text of the Ordinance it seems that Government was authorised to re-impose or re-apply the provisions of the Ordinance II of 1968, but when the Ordinance was placed before the Assembly for its approval, such authority was perhaps not approved because it is not found anywhere in the statute book. Furthermore in section 1(3) of the Ordinance the words are very pertinent because once the Ordinance is withdrawn from any area it shall be deemed to have been repealed. Without express powers in the Ordinance, the Government is not authorised to re-impose the Ordinance in the areas from where it has been withdrawn. The abovesaid Notification is, therefore, declared to have been issued without lawful authority hence is of no consequence.
67. But since we have observed, in the preceding paras that the provisions of the Ordinance-II of 1968 are inconsistent with the constitutional provisions, the same is void, therefore, this point loses its importance in such view of the matter.
68.Learned Advocate-General also raised the plea in C.P. No,77 of 1990 and C.P. No,150 of 1987 that the petitioners are not aggrieved persons because neither any proceedings are pending against them nor they have been convicted under the Ordinance. It may be pointed out that there are several petitions in which the petitioners have been convicted and some of the petitioners are facing trial under the Ordinance, therefore, they are aggrieved persons. This argument is thus not much relevant.
69. The upshot of the above discussion would be that we accept all these petitions and declare that Ordinance II of 1968 is inconsistent with Article 25, Article 2-A and Article 175(3) of Constitution of Pakistan, thus the same is void.
70.Constitution Petition No,113 of 1990 is in respect of Ordinance I of 1968 regarding which in the preceding paras we have already stated that since the same has already been withdrawn vide Notification No,Legis:/1-45/Law/72, dated 23-6-1988, therefore, we have to see only the effect of such withdrawal in respect of cases pending before the notification of withdrawal. Admittedly the suit filed by the respondent is dated 30-11-1985 prior to the withdrawal date. We, therefore, order that this Constitution petition may be fixed for hearing so as to resolve the issue regarding effect of withdrawal particularly in view of saving clause (2) of the Notification, only in respect of cases pending and which were filed before the notification of withdrawal.
71.The proceedings under Ordinance II of 1968 pending against the petitioners in all the remaining petitions except C.P. No,150 of 1987 and C.P. No,77 of 1990 (where no proceedings are pending against petitioners under the Ordinance II of 1968) are hereby quashed. Resultantly the convictions recorded in C.P. No,08 of 1990, C.P. No,79 of 1990, C.P. No,95 of 1990, C.P. No,136 of 1990, C.P. No,141 of 1990 and C.P. No,83 of 1990 are set aside as having been passed without lawful authority. However, the cases are remanded to be tried by the Courts of competent jurisdiction. In all the remaining cases where proceedings are pending under the Ordinance, the same shall also be tried by Courts of competent jurisdiction.
72.At the time of initial hearings we have dismissed the bail applications of the petitioners, therefore, no bail orders can be passed at this stage, although we are conscious of the fact that in some cases the petitioners are behind the bars for the last four years and in others mala fides have been alleged. The petitioners, therefore, are allowed to move fresh bail applications, if they so desire to competent Courts of law, who shall consider the same in the light of this judgment and in accordance with law on their own merits.
73. The consequence of what has been said above, would be that the petitions are allowed and Ordinance of 1968 is declared void being inconsistent with Constitutional provisions as mentioned hereinabove. However, the parties are left to bear their own costs.