1. TANZIL-UR-RAHMAN, C J.---The petitioner has challenged several provisions relating to the jurisdiction and powers of this Court and terms and conditions of the Judges of this Court as contained in President's Order No.1 of 1980 titled as Constitutional (Amendment) Order, 1980, promulgated on 27th May, 1980, amended by President's Order No.7 of the 1983 and further amended by President's Order No.2 of 1984 and President's Order No.l4 of 1985, on the ground that they are repugnant to the Injunctions of Islam laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).
2. 2.The petitioner, to be exact, challenged the provisions of Articles 203-B(c), 203-C(4-B)(5) and item No.43 of the Schedule under Article 2 of President's Order No.14 of 1985 (Revival of the Constitution of 1973 Order, 1985) promulgated on 2nd March, 1985. The said provisions read as under:-- "Article 203-B(c).--`Law', includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or Tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure; and Article 203-C(4-B).--The President may, at any time, by order in writing,--
(a) modify the term of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
3. Article 203-C(5)------A Judge of a High Court who does not accept appointment as a Judge 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."
4. Item No.43 of the Schedule "Sr.No.No. of Article of Chapter etc.Amendments made
43. 203-C. After clause (4-A), the following new clauses shall be inserted, namely:--- "(4-B) The President may, at any time, by order in writing,---
(a) modify the term of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
5. Explanation.--In this clause and clause,(4-C), `Judge' includes Chief Justice.'
6. (4-C) While he is performing the functions which he is required under clause (4-B) to perform, or holding any other office assigned to him under that clause, a Judge shall be entitled to the same salary, allowances and privileges as are admissible to the Chief Justice or, as the case may be, Judge of the Court."
7. 3.The petitioner, in support of its petition, submitted that several President's Orders. As aforesaid, containing the provisions, challenged by him in his petition are `Laws' and therefore, this Court has jurisdiction to examine them. In this respect he also referred to Article 227(1) of the Constitution wherein it has been specifically provided that "no law shall be enacted which is repugnant to such Injunctions". The submission of the petitioner, who also happens to be an Advocate, to say the least, is misconceived and not tenable. This Court was created by P.O. No.1 of 1980 which is called "the Constitution (Amendment) Order, 1980", whereby a new Chapter as "Chapter 3-A" was added to the Constitution and an Article, after Article 203, as Article 203-A was newly inserted in the Constitution which specifically provides that-- "Art. 203-A The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution.
8. Article 203-B(c), as challenged, further provides that-- "law" includes any custom or usage having the force of law but does not include the Constitution. Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees of banking or insurance practice and procedure; and Similarly, the provisions of sub-clause (4-B) of sub-Article (4) of Article 203-C of the Constitution provides that:-- "The President may, at any time, by order in writing,--
(a) modify the term of appointment of a Judge;
(b) assign to a Judge any other office; and
(c) require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate."
9. And sub-clause (5) of the said Article 203-C further provides that: "A Judge of a High Court who does not accept appointment as a Judge 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."1 2 3 4.The above provisions as challenged, do not come within the definition of law. They are, in fact, the Constitutional provisions as incorporated, from time to time, during 1980. And 1985 by virtue of different Constitutional Amendment Orders promulgated by the President "in pursuance of the Proclamation bf the 5th day of July, 1977 read with the Laws (Continuance in Force) Order, 1979 (C.M.LA. No.1 of 1977) and in exercise of all powers enabling him in that behalf."It may be noticed that the power of President to amend Constitution was recognized by the Hon'ble Supreme Court in Begum Nusrat Bhutto's case (PLD 1977 SC 657).
5. It has been provided in sub-Article (2) of Article 175 of the Constitution 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." The jurisdiction of the Federal Shariat Court or for that matter of any other Court is to be conferred on it by the Constitution or law. The jurisdiction exercisable by this Court has been specifically conferred on this Court by virtue of Chapter 3-A within the limits prescribed by Article 203-B(c) of the Constitution, and since the Constitution has been specifically saved from examination of this Court or, in other words, ousted from the jurisdiction of this Court, the provisions challenged before us, by the petitioner fall outside the sphere of activity and pale of jurisdiction of this Court. There can hardly be any cavil on the point that ordinary law and the Constitution are two different pieces of legislation. In fact, the distinction between the law and the Constitution is made clear by the provisions of Article 203-B(c) itself which has removed any difficulty in interpreting the word "law" which relates to non-Constitutional or sub--Constitutional piece of legislation. It further goes to say that the law include custom or usages having the force of law. Reliance may be placed on the following paragraph of the judgment appearing at pp. 66-67, in the case of The State v. Zia-ur- Rahman and others (PLD 1973 SC 49):-- "The Constitution, as defined by K.C. Wheare, for countries which have a written Constitution, `is a selection of the legal rules which govern the Government of that country and which have been embodied in a document or collection of documents.' It generally embodies, the fundamental principles upon which the Government of the country should be established and conducted, but there is no set pattern or form provided for a Constitution. It may take a variety of forms. Some Constitutions endeavour to lay down in detail the whole Governmental structure of the country while others merely establish the principal institutions of Government and fill in the details by sub-- Constitutional laws organising the institutions and regulating the exercise of public power through the organs or institutions so set up. Of late the practice has also gown up of incorporating within the Constitution itself a declaration of fundamental rights and even basic principles of State policy.
10. In countries which adopt a detailed Constitution, the Constitution is thought of as an instrument by which Government can be controlled, and it is for this reason that generally some measure of rigidity in the procedure for the amendment of the Constitution is also introduced, and the Constitution is conceived of as a fundamental or an organic or a Supreme law standing in a somewhat. Higher position than the other laws of the country. It then assumes the position of a law on the basis of which the vires of all other sub---Constitutional laws and the validity of governmental actions can be judged. Thus, even non-Constitutional provisions, if incorporated in a Constitution, acquire a higher sanctity and stand on the same footing as strictly Constitutional provisions. No differentiation can be made between them, once they have been given a Constitutional status by being incorporated in the Constitution itself" at pp. 66-67 of the Report).
11. 6.The petitioner next submitted that by virtue of Article 2-A of the Constitution making Objectives Resolution to be the substantive part of the Constitution the provisions of Article 203-B(c) of the Constitution as to the restricted jurisdiction of this Court, transfer of Judges from High Court to the Federal Shariat Court and their consequential retirement upon refusal and terms of their appointments and their transfer are not in conformity with the Islamic Injunctions and as such the aforesaid provisions be struck down as repugnant thereto.
12. 7.The petitioner, in support of his submission, that by virtue of Article 2-A of the Constitution this Court has got power even to strike down the provisions of the Constitution, 1973, placed his reliance on two cases of the Sindh High Court and a judgment of the Lahore High Court, pronounced recently.
13. 8.In the Karachi case Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others (PLD 1987 Karachi 404), as referred to by the petitioner, one of us (Dr.Tanzil-ur-Rahman) as then Judge of the Sindh High Court interpreting the scope of Chapter 3-A vis-a-vis Article 2-A of the Constitution, after discussing the various aspects of the matter concluded his discussion as under:-- "The upshot of the entire discussion is that the Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provisions of the Objectives Resolution, by virtue of Article 2-A, are now part of the Constitution and justiciable. Any provision of the Constitution or law, found repugnant to them, may be declared by superior Courts, as void, subject, however, to the limitations imposed by Articles 203-A, B(c), 203-D, 203-G and 203-GG of the Constitution, whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law (as defined by Article 203-B(c) read with Article 203-G or any provision thereof, as repugnant to the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.), and that the said law or any provision thereof has been so declared by it.(Article 203-GG)."
14. (Paragraph 58, page 445 of the Report).
15. 9.In another Karachi case, Habib Bank Ltd. v. Muhammad Hussain and others (PLD 1987 Kar. 612) as referred to by the petitioner, one of us (Dr.Tanzil-ur-Rahman) as Judge of the Sindh High Court discussing the application of Article 2-A again observed that:-- "As it would appear, a special role has been assigned by the Constitution to the Federal Sharia't Court and in the matters its jurisdiction extends to, no other Court can slip in as envisaged in Article 203-G, but in all the matters relating to the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or, until expiration of 10 years from the commencement of Chapter III-A, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure, the Federal Shariat Court has no jurisdiction. This being so, in the aforesaid matters, the jurisdiction of other Courts does not stand ousted."
16. (Paragraph 25 at page 629 of the Report).
17. 10.In the Lahore case (not reported so far) Mst. Sakina Bibi v. Federation of Pakistan (Writ Petition No.26 of 1989), decided on 14-1-1992, reported as PLD 1992 Lah. 99 a Full Bench of the Lahore High Court while discussing the effect of Article 2-A with reference to various decisions of the High Court of Sindh and the Supreme Court came to the conclusion that:-- "In view of the above, our humble view is that Article 2-A is an effective and operative part of the Constitution and no court may refuse to enforce it. Consequently, the Federal Shariat Court shall exercise its jurisdiction assigned to it under Chapter 3-A of the Constitution, whereas, the High Courts shall exercise their jurisdiction with regard to all other laws. They may declare them repugnant to the Injunctions of Islam, as contained in Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and may also grant relief, as may be called for in the circumstances of the case." (Para. 36 of the judgment).
18. 11.As it would appear from the above-cited cases that by virtue of Article 2-A a High Court or for that matter any other Court is empowered to decide a question relating to a law or provision of law raised before him as to its repugnancy as laid down in the Holy Qur'an and Sunnah and grant such relief as permissible in law except the law or a provision of law which falls within the exclusive domain of the Federal Shariat Court by virtue of Article 203-B(c) of the Constitution. Thus, none of the three cases support the petitioner's plea that the Federal Shariat Court, notwithstanding the above bar, has jurisdiction in all matters. On the other hand, the above cases go against the proposition advanced by the petitioner.
19. 12.Mr. Aziz A. Munshi, learned Attorney-General submitted that the provision of Article 2-A of the Constitution was to be read with other provisions of the Constitution specially Chapter 3-A, including Article 203-A, 203-B and 203-D. The Constitution is to be read as an organic whole and Article 2-A could not be separated and read in isolation of other provisions on the subject. He thus submitted that the provision of Article 203-A of the Constitution relating to Federal Shariat Court shall have effect "notwithstanding anything contained in the Constitution". This meant, as submitted by the learned Attorney-General, that the functions of the Federal Shariat Court and its exercise of jurisdiction would also be notwithstanding anything contained in Article 2-A. This further meant, if any limitation was described by the provisions of Chapter 3-A on the exercise of jurisdiction by the Federal Shariat Court these were to be restrictive in terms of the provisions of the Constitution. The learned Attorney-General further submitted that one has to see what fell within the jurisdiction of the Federal Shariat Court in terms of Article 203-B(c) which defines "law" to be examined by the Federal Shariat Court "as custom or usage having the force of law" but does not include the Constitution, Muslim personal law------------." Therefore, the provisions of the Constitution and Muslim personal law, were expressly excluded by the Constitution itself from the purview of the Federal Shariat Court and on the basis of this reasoning one has to examine whether the Presidential Orders, in question, namely, P.O. No.1 of 1980, No.2 of 1982, No.7 of 1983 and No.14 of 1985 were' part of the Constitution or not or whether these Orders were ordinary statutory law of sub-Constitutional nature.
20. 13.Examining the Presidential Orders, in question, it may be observed that each of these Presidential Orders now sought to be examined by the Federal Shariat Court were Constitutional amendments and form part of the' Constitution itself. This being so, the jurisdiction of this Court stands excluded in so far as the examination of the provisions of the Constitution as contained in these Presidential Orders is concerned. The Presidential Orders are, in fact, a permanent feature of the Constitution by virtue of the 8th Amendment to the Constitution. The provisions of Article 2-A along with the limitation contained in Chapter 3-A of the Constitution are to be read together being the same part of the Constitution and we cannot strike down a provision of the Constitution by virtue of Article 2-A alone in exercise of our jurisdiction prescribed under Chapter 3-A of the Constitution.
21. 14.It is an accepted notion in the Constitutional law that the superior Courts are the creation of the Constitution and they exercise such jurisdiction which is conferred on them under the Constitution or law in Pakistan. Article 175(2) of the Constitution is specific on the point. It provides 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." Thus in Pakistan, the competency and jurisdiction of the Courts is relatable to power given to them by the Constitution or under that law. This Court, therefore, cannot stretch its jurisdiction under Article 2-A to matters specially excepted and barred by Article 203-B(c). Reference has also been made by the learned Attorney General to a Full Bench case of this Court reported as Dr. Mahmood-ur---Rahman Faisal v. Secretary, Ministry of Justice and Law and Parliamentary Affairs, Islamabad (PLD 1991 FSC 35) wherein it was held that Zakat and Ushr Ordinance, 1980 being applicable exclusively to Muslim citizens of Pakistan as well as bodies corporate or incorporate having such citizens, fell within the definition of Muslim personal law under Article 203-B(c) of the constitution of Pakistan and was thus immune from being challenged before the Federal Shariat Court. In the aforesaid judgment reliance was placed on the case of Federation of Pakistan v. Mst.
22. Farishta (PLD 1981 SC 120).
15. For the aforesaid reasons, this Court has no jurisdiction to examine the abovesaid provisions as they are substantive part of the Constitution which do not fall within the ambit of jurisdiction of this Court. The petition is, therefore, dismissed.
23. Of the Federal Shariat Court. Substituted successively by P.O. No.7 of 1983 and P.O., No.2 of 1984 and P.O. 1o.14 of 1985, Art.2 and Schedule to read as above. Substituted by P.O. No.5 of 1982, which means Judge of the Federal Shariat Court