GOVERNMENT OF BALOCHISTAN through AdditionalChief Secretary vs

1. SALEEM AKHTAR,J.--- All these appeals will be disposed of by this judgment as common question of law is involved therein.

2. 2.The respondents had challenged the vires of the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968). By the impugned judgment the High Court of Balochistan held that the provisions of the Ordinance are hit by Articles 2, 21, 9, 14, 25 and 175 of the Constitution. The main ground on which It has been struck down is that it is in conflict with fundamental rights guaranteeing equality before law, equal protection of law and Article 175 which guarantees separate and independent judiciary. In the Province of Balochistan applicability of this law has its historical background. In the area known as British Balochistan and Kalat States, Balochistan Agency Laws, authorised civil justice and criminal justice laws were prevalent and particularly Frontier Crimes Regulation (F.C.R.) was operative. The F.C.R. Was promulgated in the area known as British Balochistan which was made applicable to Baluchis and Pathans. A system had been evolved by introducing notables as Council-of-Elders with limited legal power who were to sit and decide along with executive officers in whom vested the discretion and final judgment. The Council-of-Elders was only authorised to make recommendation on question of fact. F.C.R. Was challenged in Malik Toti Khan v. District Magistrate, Sibbi PLD 1957 (W.P.) Quetta 1 and Khan Abdul Ghaffar Khan v. The Deputy Commissioner, Peshawar PLD 1965 (W.P.) Peshawar 100. The Courts struck down the discriminatory provisions of the F.C.R. As violative of equality clause. After the abrogation of the Constitution of 1956 and imposition of Martial Law in 1958 the F.C.R. Was enforced in Balochistan till it was replaced by West Pakistan Criminal Law (Amendment) Act, 1963. Its object was "to provide for the more speedy trial and more effective punishment of certain heinous offences". It was extended to West Pakistan except Tribal Areas and was to come in force at once except Quetta and Kalat Divisions where it was to come in force on a date appointed by a notification not exceeding twelve months from the date of first publication of this Act in the official Gazette. Section 3 of this Act empowered the Commissioner to withdraw criminal case against any person from the Criminal Court and refer to the Tribunal provided he is of the opinion that it is inexpedient in the interest of justice that the case be tried by a Criminal Court mentioned under section 6, Cr.P.C. The Commissioner was empowered to refer any criminal case pending in the Court except as provided in the Act to the Tribunal appointed by the 'District Magistrate. The provisions of Evidence Act except sections 121 to 126 were not applicable. The Tribunal was to submit its report to the District Magistrate who was not bound to accept it and pass order of conviction, acquittal or remand. Then came Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965 (PLD 1965 W.P. Statutes 96), which was extended in the first instance to Divisions of Quetta and Kalat and areas . Specified in the First Schedule. Its preamable recites that the people of Quetta and Kalat Divisions and certain other areas of West Pakistan have desired the introduction in the said areas a 'system of civil disputes and the trial and punishment of offences more suited to their requirements and in consonance with the special conditions prevailing in the said areas. It was in view of this demand that an inexpensive and speedy system of administration of justice was provided through this Ordinance. The object was that on demand of the people of the area a judicial system had been provided which was speedy, inexpensive and suited to their social economic and customary conditions. The Ordinance was extended to the Divisions of Quetta and Kalat and the areas specified in the First Schedule. The Government was authorised to extend its operation by notification in any other areas in the Province, or to exclude its operation to the area to which it was extended. The Government had thus an unfettered and unguided discretion to extend or limit its operation. The provisions of this Ordinance regarding trial of offences are almost same as in the West Pakistan (Criminal Law Amendment) Act, 1963 which aimed at providing for more effective punishment for certain heinous offences and to take more effective steps for eradication of corruption. The Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965 recites primarily a different object unconnected with the wishes of the people. This Ordinance remained in operation till the Civil Procedure (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance I of / 1968) and the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968) were promulgated. Initially both these Ordinances were challenged through Constitution Petitions filed by the respondents, but in view of the fact that Ordinance I of 1968 was withdrawn, the respondents amended their petitions and restricted challenge to Ordinance II of 1968. It would be pertinent to mention that Ordinance I of 1968 related to the civil proceedings and was made applicable to the areas specified in the Schedule. It provided adjudication of disputes by a Tribunal appointed, controlled and headed by executive officers as under Ordinance II of 1968, but it has now been repealed and the civil disputes are being tried and adjudicated upon by ordinary law and the Courts established under it.

3. As the provisions of Ordinance II of 1968 will have to be tested on the touchstone of fundamental rights and independence of judiciary, it would be appropriate to first examine the provisions of the said Ordinance. The Preamble starts with the statement that "it is necessary to make special provisions for the trial of certain offences in certain: areas to meet the special requirements of those areas". Therefore, to begin with the Legislature had in mind special requirements of a particular area and therefore it was thought fit that in the circumstances and situation in that particular area the Ordinance should be promulgated and a procedure for trial should be imposed completely different from the Code of Criminal Procedure. A comparative study of the objects of the aforestated enactments seems to be to provide a special procedure different from the, ordinary law of the land for speedy trial and effective punishment according to the conditions operating in those areas. It is the Act of 1963 alone which refers to the wishes of the people of the area. Whatever may have been the wisdom of the Legislature, the fact remains that these enactments were challenged as violative of fundamental rights guaranteed under the Constitution. How can it be the desire of the people and requirement of the area that trial should be according to a procedure which has been imposed since 1901 and held to be violative of equality clause. Significantly the same law in one shape or the other with legislative ornamentation has been imposed. Under the Ordinance the Deputy Commissioner or the Tehsildar or the Naib- Tehsildar has the exclusive jurisdiction to take cognizance of a scheduled offence. The term "scheduled offence" has been defined in section 2(e) as an offence made punishable by the Pakistan Penal Code. Section 3(1) provides that the scheduled offence shall be tried only in the manner as provided by the Ordinance to the exclusion of all other laws which may be in force.

3. Subsection (2) excludes the applicability of the Code of Criminal Procedure and the Evidence Act except as provided by the Ordinance. Under section 4 the Deputy Commissioner or if so empowered under section 22-A, the Tehsildar or the Naib-Tebsildar, has exclusive power to take cognizance of a scheduled offence and constitute a Tribunal consisting of a Government official not below the rank of a Tehsildar or Naib-Tehsildar who shall be its President and four other members all to be appointed by the Deputy Commissioner or the Tehsildar or Naib-Tehsildar as the case may be. In selecting the members of the Tribunal integrity, education, social status and representative character of such persons shall also be considered. The quorum of the Tribunal shall consist of the President and two other members. The procedure provided under section 9 is that for the purpose of arriving at a finding on the question referred to it, the Tribunal shall give opportunity to parties to appear before it. The evidence produced is to be recorded in such manner as the Tribunal thinks fit, but it has the discretion to 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.

4. An opportunity to cross-examine the witnesses to the opposite-party is also to be given. The Tribunal has the power to enforce attendance of witnesses and production of documents as provided in the Code of Criminal Procedure. The report of the Tribunal shall be submitted to the Deputy Commissioner containing the reasons for such finding. The Deputy Commissioner is empowered to reject it if the Tribunal has not given finding on the question referred or there is material irregularity or that the proceedings have been conducted in such a way that it would result in miscarriage of justice. The Deputy Commissioner can remand the question to the same Tribunal or to any other Tribunal. Where the Tribunal gives a report unanimously or by majority of four-fifth of its members the Commissioner may either convict and pass sentence or acquit the person or persons so found guilty unless remanded on the aforesaid grounds. Where the Tribunal unanimously or by majority of four-fifth of its members reports a finding of not guilty, then the Deputy Commissioner shall acquit that person, but where the report and finding is given by a majority of less than four-fifth, then unless the Deputy Commissioner remands the case it is in the discretion of the Deputy Commissioner to either convict the accused or acquit him. The Deputy Commissioner is empowered to pass sentence prescribed for the offence or may impose fine in lieu thereof or in addition thereto. The sentence may extend to seven years or sentence of whipping or transportation for a term extending seven years. The power to pass sentence exceeding seven years and not exceeding fourteen years by the Deputy Commissioner is subject to confirmation by the Commissioner. Section 15 permits compounding of offence for which rules have to be framed.

5. Preventive measures can be taken under section 18 by the Deputy Commissioner. He has the power to demand security from male adult members of family and also to impose collective fine.

6. Appeal from the order of the Deputy Commissioner lies to the Commissioner. The Government has the revisional powers to call for the record of any proceeding pending or disposed of by a Council, Deputy Commissioner or Tehsildar. The parties are entitled to be represented by a legal practitioner of their choice before the Tribunal. Section 29 bars the jurisdiction of the Courts from questioning the proceedings and decision given under the Ordinance. This Ordinance has repealed the Quetta and Kalat Civil and Criminal Law Ordinance, 1965 (West Pakistan Ordinance III of 1965), in so far as it relates to the trial of offences and preventive proceedings. It was made applicable to Divisions of Quetta and Kalat and was extended to Quetta Municipality and Cantonment on 8-4- 1972. There is thus a partial repeal of West Pakistan Ordinance III of 1965 to the extent of the provisions which relate to trial of offences and preventive proceedings. Even otherwise section 3 excludes applicability of any other law for the trial of scheduled offences.

7. 4.The first challenge to the Ordinance is on ground of equality before law as guaranteed by Article 25 of the Constitution which reads as follows:-- "25.--(1) 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."

8. This Article finds place in Part II of the Constitution which contains provisions relating to fundamental rights and principles of policy. Article 7 defines the "State" for purposes of Part II of the Constitution. According to it unless the context otherwise requires the State means "the Federal Government, Majlis-eShoora (Parliament), a Provincial Government, a Provincial Assembly and such other local authorities in Pakistan as are by law empowered to impose any tax or cess. "

9. Therefore, for purposes of applying fundamental rights guaranteed under the Constitution wherever the word 'State' is used, it shall include all the aforestated agencies and functionaries specified in Article 7. Article 8(1) commands that "any law, custom dr usage having the force of law shall in so far it is inconsistent with the fundamental rights guaranteed under the Constitution shall to the extent of inconsistency be void". Therefore, any law which is inconsistent with the fundamental rights will be void. Article 8(2) further commands and prohibits the State as defined in Article 7 from enacting any law which takes away or abridges fundamental rights guaranteed and any law made in contravention of this clause shall to the extent of inconsistency/contravention be void. Therefore, Article 8(1) and (2) relates to the existing laws as well as the laws which may be enacted after the promulgation of the Constitution. Sub-clause (3) (a) and (b) excludes the enactments and persons from the operation of Article 8(1) and (2), but it is not relevant for the present controversy. However, Article 8(4) further provides that the laws saved under clause 3(b) shall be brought in conformity with the fundamental rights within a period of two years from the commencing day or such period as may be extended by the Legislature. Article 8(5) further provides that the rights conferred by Chapter 1 of Part II shall not be suspended except as provided by the Constitution. Article 25 is one of the fundamental rights guaranteed by the Constitution and holds a pivotal position. It also guarantees an important right of all citizens to be treated equally before law without any discrimination and to claim equal protection of law without any distinction.

10. It prohibits discrimination on the basis of sex, but permits the State to make any special provision for the protection of women and children. To begin with the impugned Ordinance does not fall within the provisions of Article 25(2) and (3) nor it has been saved under Article 8(3)(b).

11. 5.The interpretation of Constitution attracts most of the principles employed in interpreting the Statutes, but care has to be taken that it is not restrictive, pedantic or limited. Unlike other enactments the Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare and amity among the citizens and the nations abroad. It is the basic structure on which the entire edifice is built and therefore it has to be interpreted in a manner to keep it alive and blossom in every atmosphere and in every situation.

12. The provision of equality before law and equal protection of law has been subject-matter of discussion by the jurists, commentators and several judgments of various Courts including our superior Courts. In Jibendra Kishore Achharyya Chowdhury and 58 others v The Province of East Pakistan PLD 1957 SC (Pak.) 9 the equal protection of law clause came up for consideration and it was observed as follows:-- "Whatever else the expression 'equal protection of law' may mean, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and properly and in pursuit of happiness.

13. Another generalisation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted: If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case, it cannot but be held that if in consequence of abolishing the system of private rents for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriating was a necessary and not an unreasonable classification."

14. Again, in Waris Meah v. The State and another PLD 1957 SC (Pak.) 157 it was observed:- "The Act namely, Foreign Exchange Regulation (Amendment) Act confers discretion of a very wide character .Upon stated authorities, to act in relation to subject falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents, him from invoking his fundamental right to equality of treatment under the Constitution. The scope of the unguided discretion was too great to permit of application of the principle that equality was not infringed by the mere conferment of unguided power but only by its arbitrary exercise. For in the discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view-point, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5(1) of the Constitution."

15. While dealing with the Punjab Control of Goondas Act, a Division Bench of the High Court of West Pakistan at Lahore in Bazal Ahmad Ayyubi v. The West Pakistan Province PLD 1957 Lah. 388 observed as follows:- "The Act does not fall within the mischief of Article 5 of the Constitution. Differentiation between classes of persons on the basis of a rational classification is immune from attack on this ground.

16. The equality clause in the Constitution does not prohibit different laws for those differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant authority to choose the appropriate law. Only irrational or arbitrary discrimination, such as, would amount to legislative despotism' would offend against Article 5.

17. It is only persons who behave in one or more of the ways specified in the Act that can be proceeded against under its provisions and they are susceptible of a reasonable classification. The orders that can be passed under the Act are clearly designed to effectuate the declared objects of the enactment. The Act is not ex facie discriminatory but if in its actual working, discrimination is exercised against an individual, there may be cause of action for appropriate relief. The Act as such cannot be assailed as bad.'

18. The equal protection clause was also considered in Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar.

19. 1.In Malik Muhammad Usman The State and another PLD 1965 Lah. 229 sections 8 and 11 of the Frontier Crimes Regulation providing for reference of proceedings to a Jirga were held to offend against Fundamental Right No, 15 of 1962 Constitution for the reason that the Commissioner and the Deputy Commissioner were given uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure which was not governed by any settled principle. The observations made in Jibendra Kishore and Waris Mcah were reiterated in East and West Steamship v. Pakistan (PLD 1958 SC 41) that "where a statute is not ex facie discriminatory but is capable of being administered in a discriminatory manner, the party challenging its constitutionality has to show that it has actually been administered in a discriminatory manner". Thus, where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution. In F.B. Ali's case PLD 1975 SC 506 the challenge to amendments in Pakistan Army Act and Ordinance IV of 1967 was made inter alia as violative of equality clause of 1962 Constitution. This Court repelled it on the basis of principles laid down in Waris Meah's case and observed that in this case if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not have succeeded as the offenders under the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offenders under the ordinary law. Fuji Foundation's case PLD 1983 SC 457 ruled that legislation in regard to an individual can be made provided it is not discriminatory. In I.A. Sherwani's case 1991 SCMR 1041 after considering the judgments in F.B. Ali's case PLD 1975 SC 506, Abdul Wali Khan's case PLD 1976 SC 57, Aziz Begum's case PLD 1990 SC 899 Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and several judgments of the Supreme Court of India, the following principles were deduced-- "(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; that reasonable classification is permissible but if must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based---

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."

20. Article 25 was considered recently in Inamur Rehman v. Federation of Pakistan 1992 SCMR 563 in which most of the aforestated judgments of this Court and judgments from the Superior Courts of India were considered. In this case provisions of MLR 104, Foreign Exchange (Prevention of Payment)

21. Act, 1972 (Act XXII of 1972), amending Ordinance of 1973 and action taken Under them were challenged on the ground of violation of Article 25. Analysing subsection (2) of section 2, Zaffar Hussain Mirza J., noted that the foreign exchange repatriated under MLR 104 and deposited with the State Bank can be subjected to "any" claim the value of which can be expressed in terms of money of any person who may apply to the Federal Government for payment of his claim and after explaining the meaning of the word "any" it was observed that:-- "In the context in which the word is used it quite plainly means without qualification any person having any claim to money from the person repatriating foreign exchange or having any claim whatsoever, without qualification except that such claim must be capable of being expressed in terms of money, which could be preferred under the subsection. There is no indication whatsoever that such claim must have a nexus with foreign exchange originally repatriated. In this view of the matter it follows that merely because a person has repatriated certain foreign exchange under the Martial Law Regulation, he is being put into a separate class and any claim, which would have gone to ordinary Court of law with all the advantages of the procedure applicable in the trial of suits, is being treated differently by a special procedure of determination by a non-judicial tribunal presided over by a persona designata. There appears to be no rational basis for such a classification. But for the repatriation of foreign exchange any such claim against such person would have passed through ordinary procedure applicable to generality of civil litigation with right of appeal etc. As discussed above, the constraints and prohibitions contained in Article 25 of the Constitution are equally applicable to substantive rights as well as procedural rights. As held in the case of Tote Khan PLD 1957 Quetta 1 making a distinction between a case referred to Riga and ordinary methods of defence available to a person tried by a regular Court of law, here also the persons who have declared and repatriated foreign exchange were being deprived of the benefits of a regular Court trial for adjudication of claims against them on no rational basis."

22. As the judgments from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on relational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25.

23. 6.We will now examine whether the provisions of the impugned Ordinance are discriminatory or vest unfettered discretion in the authorities and functionaries of the Government in exercise of their power under it. We have already stated in brief the salient features of the provisions of the Ordinance and the manner in which it is to be applied and the authority and power which has been conferred on the executive officers. The object of the Ordinance is to provide a system different from the recognised procedure for trial of certain offences in certain areas of West Pakistan specified in the Schedule to meet the special requirements of those areas. The learned Advocate-General contended that the special requirement of the area namely Balochistan is that it has a tribal society where usage and custom are deep-rooted and they require to be dealt with differently from other areas of Pakistan. This criterion may have been available to the appellant for making such laws in pre-independence period when the Britishers had ruled the country as a colony. They had their own policy to dominate and subjugate the citizens of this area, but after independence entire scenario has changed. The people who had fought for independence would clamour for a just and proper order which may be according to general law of the land, Constitution and Injunctions of Islam. During old days which may be about fifty years back roads, schools, colleges, hospitals, means of communication, trade and commerce and industrialisation were either extinct or of insignificant nature. But now the situation has completely changed. The civil law has been promulgated. The Courts have already been established. District Judges and Civil Judges are available in every District. All other laws regulating business, commerce, import, export drugs, admiralty, shipping and other various complicated laws including income-tax, sales tax and customs duty, patents trade marks, electoral laws and labour laws have been enforced and are being implemented. Industries are being established. New townships are coming up and therefore to think that the citizens of Balochistan are still in the old dark period of illiteracy and ignorance would be rather discrediting them. They have their own Assembly for which they elect members who enjoy the same powers which members of the other provinces of the country enjoy.

24. They elect members to the National Assembly, Senate and Local Bodies which make laws, rules and participate in the body-politics of the country in the same manner as others do. Then why those very persons who are working shoulder to shoulder with their other brethren in Pakistan should lag behind so far as the administration of law is concerned. Why this discriminatory and special treatment should be meted to them and they may be subjected to law which is completely different from the ordinary criminal law of justice. The special requirements of those areas as mentioned in the Preamble to the Ordinance could not be justifiably explained by the learned Advocate-General because mere existence of a tribal society or a tribal culture does not by itself create a stumbling block in the way of enforcing ordinary procedures of criminal law, trial and detention which is enforceable in the entire country.

25. 7.The learned Advocate-General contended that the Ordinance has been made applicable to the entire Province of Balochistan and there is no race or class discrimination. But why distinguish between Balochistan and N.-W.F.P. And between Balochistan and other provinces. On similar grounds the Criminal Law Amendment Act, 1963 went to the extent of stating that it was promulgated on the demands of the people. That aspect is lacking in Ordinance II of 1968. It may however be noted that vires of these laws were challenged. F.C.R. Was held to be invalid by the judgments referred above. The subsequent enactments by applying the Ordinance to the specified area instead of applying to Balochis and Pathans, have done away with the racial discrimination and curtailed the unfettered power of the Deputy Commissioner of picking and choosing the case for trial under the procedure provided by F.C.R., but instead chose to apply it to particular geographical area on the same ground and for the same object. If the object is to satisfy the special requirement of the area, then it could be achieved by providing a Jirga system having power to decide and adjudicate criminal cases. The role of the Tribunal (Jirga) headed by a Government executive officer having power to investigate the crime, record the evidence and submit report without the power to decide it, impose punishment or acquit according to usage, custom or practice for whose satisfaction it was created, can hardly achieve the object of the Ordinance or satisfy the demand, if any, of the people. If the demand is to provide speedy and inexpensive justice, the same can be done within the framework of the ordinary law governing the entire country. In Khan Abdul Akbar Khan v. Deputy Commissioner, Peshawar etc. (PLD 1957 Peshawar 100), F.C.R. Was challenged and Kayani, J. (as he then was) taking note that its provisions for trial have no nexus with the object, observed:-- "It may be that in 1901 the Pathans and Balochis were not sufficiently advanced to be able to avail of the ordinary law and that it appeared simpler, in suitable cases, to refer their dispute to their own Elders, who would naturally apply their own custom or the Muslim law to it, and if the Deputy Commissioner found it to be against good conscience, he would not accept the decision. But if that reading is correct, then the situation has radically altered and there is no problem facing the Government now so as to necessitate a classification. In fact, the Government also seems to have realized in 1954 the altered character of the situation by altering the definition of the "Council-of- Elders". The tribal elders were either too unenlightened to give conscientious decisions or too unreliable to give honest decisions; wherefore it became necessary to make a Section 30 Magistrate to preside over the Council. In actual practice, all the three members of the Council are now Magistrates. The Tribunal bond has snapped."

26. It is true that for the purpose of classification the distinction between a Pathan and a non-Pathan or a Biloch and a non-Biloch is real and substantial. But the process of classification has to be rational at all stages: the object for which discrimination is sought should also possess that quality."

27. At this stage we may also. Refer to the observation of Cornelius J. (as he then was) in Doso's case PLD 1958 SC 533, who did not find any repugnancy in the Frontier Crimes Regulation, but as pointed out by Ortcheson, J. In Muhammad Usman v. State PLD 1965 Lah. 229 that the observation of Cornelius, J. Does not seem to have been accepted by the other learned Judges. That observation does not have binding effect. Ortcheson, J. Rightly observed that Cornelius J., had later modified his view in The State v. Nawab Gil PLD 1963 SC 270 in which it was observed that the determination of expediency is entrusted to the executive, but the Courts "may be permitted to question whether it can ever be expedient to refer under section 11, for trial a set of facts which do not constitute a case at all". The observation in Doso's case in support of the F.C.R. With utmost respect is neither binding nor as discussed can it be applied in the present changed social, economic and political conditions.

28. 8.Now by the impugned Ordinance from the same "unenlightened" and "unreliable" class Tribunal is appointed headed by a Naib-Tehsildar, Tehsildar or Deputy Commissioner. The very concept of demand, wishes and requirements of the tribal society or the people has been eroded and vanished. It is thus clear that how a law which was not considered fit to govern only Baluchis or Pathans can be applied to an area where other than these people also live and were earlier considered fit to be governed by the ordinary law. The law which was made specifically for a particular class of persons with ritual dressing and ornamental amendments having the same original spirit and effect has now been imposed on everyone in the scheduled area. The generality of application of the impugned Ordinance has removed the earlier discrimination of Balochi and Pathan (as created by section 8 of F.C.R.) but has discriminated from the other areas of Pakistan which are similarly situated. This classification is neither rational nor based on any intelligible differentia. Further it can be noted that under section 1(3) the Government may, by notification on such a date specified therein, direct that the Ordinance shall cease to be in force in any area in which it is in force and shall be deemed to have been repealed in that area. The learned Judges of the High Court while adverting to the powers conferred by section 1(3) have narrated the facts how it has been fiddled and observed as follows:-- "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, reapplied 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.)

29. 4(5)/88 dated 23-61988 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 4.Pishin (ii) Municipal and Town Committees of Hari 5.Dera Murad Jamali Municipal and Town Committees Pishin 6.Loralai Municipal and Town Committees of Dera Murad Jamali 7.Turbat Municipal and Town Committees of Lorarlai 8.Kalat Municipal and Town Committees of Turbat 9.Kachhi (i) Municipal and Town Committees of Kalat 10.Lasbella (ii) Municipal and Town Committees of Mastung 11.Chagai (i)Municipal and Town Committees of Mach 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".

30. 9.This power to repeal in any area is unguided and unfettered depending entirely upon the mercy, whim and wishes of the Government. In the absence of any guidelines such repeal may be discriminatory and unreasonable. If the object of the Ordinance is to meet the undefined requirements of the area, then unless a criterion for repeal is laid down, the exercise of power may lead to discrimination, favouritism, despotic order and in spite of an area having achieved the level to be governed by general law will not get rid of the Ordinance. This provision by itself may be justified but its operation is destructive of equality clause and fundamental right to have equal protection of law. While referring to section 1(3) of the Ordinance Amir-ul-Mulk Mengal, J. Having full knowledge, experience and insight in prevailing conditions in Balochistan observed as follows:-- "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 peonle 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 at 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."

31. It was further observed:-- "... a person living in the suburbs of Quetta Municipal Corporation and a citizen 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.

32. 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 those areas are concerned."

33. Although areawise classification on the basis of local circumstances for applying different laws may be justified, it must be intended to achieve a lawful, rational and reasonable object which may not run contrary to the fundamental rights guaranteed by the Constitution and principles of justice and equality. The law should have real nexus with the object. It is not sufficient to decorate the Act by making provisions which may seemingly look like complying with the demands of justice as required by the Constitution but the effective and operative provision may in application be violative of these provisions. Such complex and compounded provisions will have to be examined and scrutinized to find out the real object and the effect of such provisions in their application.

34. Instance can be found in Muhammad Usman v. State PLD 1965 Lah. 229 (F.B.) in which the provisions of F.C.R. Declared by the Court as violative of fundamental right were amended by adding a new subsection (2-A) to section 40 in its application to Quetta and Kalat Divisions and subsection (4) of section 1 was removed with the effect that singling out Pathans and Balochis which had made it discriminatory did not exist but on an analysis of sections 8 and 11 of F.C.R. And relying on Abdul Akbar Khan PLD 1957 Pesh. (F.B.) 100, Malik Toti Khan etc. PLD 1957 Quetta 1, Abdul Ghani and another PLD 1964 (V P.) Lah. 612 and Waris Meah PLD 1957 SC 157 these provisions were held and it was observed:-- "It, therefore, follows that a person whose case has been referred to a Jirga for trial is deprived of the ordinary methods of defence available to a person tried for an offence by a regular Court of law. Although in certain instances, for example, in a murder case, he may receive a lower punishment than might be inflicted by a Sessions Judge, yet the process by which the final result is arrived at may be highly prejudicial to an accused person in a Jirga trial when judged in the light of accepted canons of a fair trial. It cannot be held that the classification mentioned in the Regulation for application of the relevant provisions is a rational or reasonable one. It is based principally on racial or tribal considerations, and to the extent that there is provision for other classes being added to the Pathans or Balochis for attracting the provisions of the Regulation, the classification may be wholly arbitrary and capricious at the sweet-will of the executive. In my opinion, therefore, the provisions are ex facie discriminatory and do not rest on any classification such as could take the enactment out of the mischief of Article 5 of the Constitution."

10. In the impugned Ordinance the process of applicability has been reversed. It has been applied to areas instead of tribe and race but the power to notify its cessation thereby repealing it from any area has been given to the Government without any guiding principle or fixed criteria for exercise of discretion. Thus a "repulsive procedure" as termed by Kayani, J. (as he then was) could be withdrawn or allowed to continue without' any reasonable ground. Even the power to notify the cessation of the Ordinance from any area must be based on certain grounds, reasonings and principles which are completely absent here. This offends against the guarantee contained in Article 25 of the Constitution.

35. 11.If one takes a deep scrutiny of the provision it will be clear that it a confers unrestricted and unfettered power in the executive to administer criminal justice. When regular Courts have been established in the area to adjudicate civil disputes, to provide for trial of criminal offences by tribunal (Jirga) under a different procedure, leaving the destiny entirely in the hands of the executive officers does not serve the object and purpose of the Ordinance. It is complete negation of the fundamental rights which guarantee equal protection of law, equality before law and right of access to justice unhindered and unfettered as provided by the Constitution and the Injunctions of Islam. From the cognizance of the scheduled offences as provided by section 4 of the Ordinance the Deputy Commissioner, Tehsildar or the Naib-Tehsildar come into the picture. They are the dominating figures in the entire trial and the appeal lies to the Commissioner. Our Constitution is based on the principle of trichotomy of power in which executive, legislature and judiciary have their own functions independent from each other. None of these three organs are dependent upon the other nor one can claim superiority over the other. In this context and background to impose executive officers to carry out the judicial work by ignoring the Courts established in that area by itself creates discrimination and negates the very concept of justice and violates fundamental rights. The Deputy Commissioner, Tehsildar or Naib-Tehsildar have the power to nominate the Tribunal. Although qualification of the members to be appointed as Tribunal has been specified, the vagueness and generality leaves so great discretion in the hands of these functionaries that they may choose anyone they like. The Tribunal is beaded by a Government official not below the rank of Naib-Tehsildar which as stated at the bar, has been amended to Tehsildar who shall be the President and four members are to be appointed by the Deputy Commissioner'. This Tribunal does not have the power to award any sentence. It can only give finding on a question referred to it under section 5 by the Deputy Commissioner or if so empowered by a Tehsildar or Naib-Tehsildar.

36. The finding of the Tribunal will be in the form of a report containing the reasons of such report. If the object of the Ordinance was to create a parallel forum for administration of justice to be manned by the elders or the local notables who may form the Jirga as the conditions allegedly do not permit cases to be decided by the Court and for better understanding of the local conditions, situations, revalries and enmities between the parties, then why they have not been authorised to decide the matter and why merely to submit a report which may not in all cases be binding upon the Deputy Commissioner. The power to impose penalty, convict and sentence or to acquit is entirely vested in the Deputy Commissioner. In section 11(3) it is provided that where the Tribunal unanimously or by a majority of four-fifth of its members reports a finding of guilty, the Deputy Commissioner if he does not proceed under subsection (2) and remand the case, may either convict and pass sentence or acquit the person or persons so found guilty. The Deputy Commissioner has thus an unfettered power to reject and bypass the finding of the Tribunal without any reason. Even if the Tribunal finds any person guilty, he can be acquitted. However, in cases where the Tribunal unanimously or by majority of four-fifth of its members reports a finding of not guilty the Deputy Commissioner shall acquit that person. No reason has been given nor there is any rationale behind the provision that a Tribunal which consists of notable experts having knowledge of usage, customs and local conditions may give finding which may be rejected by the Deputy Commissioner without any reason. Except in cases of remand no guidelines for exercise of discretion have been laid down by the Ordinance. An unfettered discretion has been conferred on the Deputy Commissioner who may reject the finding report of the Tribunal and give his own judgment without hearing the parties. This by itself is such an arbitrary power which cannot be conducive to the so-called special conditions of the area. The punishment as provided by section 12 which can be imposed by the Deputy Commissioner, also gives an arbitrary power to him. He is empowered to inflict punishment prescribed for the offence either in lieu of or in addition to such fine pass sentence of imprisonment for a term which may extend to seven years or whipping or sentence of transportation for a term which may extend to seven years. The imprisonment for a term exceeding seven years is subject to confirmation by the Commissioner. The entire hierarchy provided is from the executive officers. If the area is backward, unfit to be governed by the procedure provided for criminal justice in the country, then why the punishments should be less and more lenient than those provided by the Penal Code which has been made applicable. All these facts clearly contradict and negate the assertion of the appellant that the provisions of the Ordinance have nexus with the object of the Ordinance. The provisions for demanding security and imposing collective fine equally give unfettered discretion to the Naib-Tehsildar, Tehsildar and the Deputy Commissioner. The appeal is provided to the Deputy Commissioner and the Commissioner and revision has been provided to the Government. Section 29 of the Ordinance bars the jurisdiction of the Courts except as provided in the Ordinance and no decision given, sentence passed or order made in any proceeding under the Ordinance shall be challenged in any Court or before any authority. Thus there is a systematic exclusion of the Courts and the laws establishing hierarchy of Courts for determining the criminal liability of the citizen and imparting criminal justice. These provisions thus create a bar to the right of citizens to approach the established Courts of law and to be governed by the general criminal law applicable in the entire country. The exclusion is not based on any rational classification or intelligible differentia.

37. 12.Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Karachi 404 when after referring to Syed Abul A'la Maudoodi's case PLD 1964 SC 673 at 710 and Ms. Benazir Bhutto's case PLD 1989 SC 416 I had observed as follows:-- "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 summarised 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.

38. ' 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."

39. The right of access to justice is internationally well-recognised human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law. The right of equal access to ordinary Tribunals and Courts is recognised in other countries also. Reference can be made to Commissioners of Customs and Excise v. Cure & Deeley Ltd. ((1961)

40. 3 A.E.R. 641) and Ram Prasad v. State of Bihar (AIR 1953 SC 215). The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases where special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons on the Tribunal, providing procedure or imposing any sentence or conviction. Such special Tribunals and Courts must follow the ordinary rules of justice, equality and good conscience. In fact the administration of justice cannot be made subject to or controlled by the executive authorities. The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is ah important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive Officers. This is merely a semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from NaibTehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquillity or economic prosperity and well-being. The Constitution envisages independent judiciary separate from the executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25.

41. Separation of judiciary from executive is essential for its independence. The judiciary though an important pillar of the Constitution does not have the purse and power. The administrative mechanism devised is such that the judiciary is made dependent in matters of finances, development and its establishment. This aspect was considered in Sharaf Faridi's case PLD 1989 Kar.

404. While referring to Article 175 of the Constitution it was observed:-- " 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.

42. 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."

43. This observation in effect finds support from Articles 81, 82, 121 and 122. The first two Articles relate to remuneration payable to the Judges of the Supreme Court and the administrative expenses including the remuneration payable to officers or servants of the Supreme Court. The expenditures are charged on the Federal Consolidated Fund which under Article 82 "may be discussed in, but shall not be submitted to the vote of, the National Assembly". The same provisions have been made in respect of High Court Judges and administrative expenses of the High Court. The financial requirements of the Supreme Court and the High Courts should be assessed by the Courts and after meaningful consultation with such Courts annual funds as per requirement be allocated and placed at the disposal of the Courts. All remunerations, expenses and disbursements relating to the judiciary should be made without any interference by any department which are usually technical in nature requiring compliance with certain rules and practice of other departments of the Government. In case of any objection, if approval of the Chief Justice concerned is given, it should stand waived and set aside. Such steps should be taken to avoid financial dependence of judiciary on the executive. Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well. The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassm ent at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separate from the executive and "High Court shall supervise and control all Courts subordinate to it". Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. Separation of Magistracy is the first-step towards separation and independence. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people.

44. 14.For a proper appreciation of the background of separation of subordinate judiciary reference can be made to Hamoodur Rehman's Report in connection with the Law Reforms Commission (1967-70). In Sharaf Farida's case known as "Judiciary case" Ajmal Mian C.J. (as he then was) referring to Hamoodur Rehman's Report observed that it-- ".... 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 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 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 *ere 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.

45. 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 the 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 in 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 rule 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 Sindh by issuing requisite Notification as was contemplated under subsection (2) of section 1 of the said Ordinance. It appears that Ordinance 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'."

46. 15.The basic structure for separation of judiciary is available and it needs certain notifications to be issued by the Provincial Governments. Two days after the promulgation of Ordinance XII of 1972, the Sindh Government issued notification under section 1(2) 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 Sindh converted all posts of City Magistrates, Additional City Magistrates and Resident Magistrates in Sindh 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 Sindh Civil Judges exercise the power of 1st Class Magistrates but unfortunately there are still Magistrates in the interior of Sindh exercising executive and judicial powers jointly. The structure and its implementation and proper functioning is available and should not pose any problem to other provinces. If in Sindh the Ordinance could be implemented within two days of the promulgation of the Ordinance XII of 1972, why it has not seen the light of the day in other provinces for the last more than twenty years. The mandate and command of Article 175 must be obeyed and implemented; any laxity in this regard will amount to violation of Constitutional provisions and perhaps the judicial orders passed by the functionaries under the control and superintendence of the executive may be challenged, which will create embarrassing situation for the Government and the administration of justice shall be seriously jeopardised. In view of the fact that more than reasonable time has passed without any action being taken by the appellant to comply with Article 175, the request of the learned Advocate- General to grant sufficient time for introducing reforms cannot be acceded to.

16. Agitation against law similar to Ordinance II of 1968 had been continuing since long. They had been challenged in several Courts from time to time and in view of Article 175 there was sufficient period at the disposal of the Government functionaries to have taken steps and see to it that such laws which offend against the fundamental rights be amended, or repealed. No appreciable steps were taken by the executive or by the legislature in this regard. After the Court has struck down the law on the touchstone of fundamental rights the learned Advocate-General is seeking moritorium for bringing a new law. Similar situation arose in the past in Malik Toti Khan's case PLD 1957 Quetta 1 thirty-six years back when Rahman, C.J. (as he then was) observed as follows:-- "I recognize that this decision may cause difficulties to the administration in Balochistan area where I understand that a sufficient number of judicial tribunals does not exist nor is adequate machinery for police investigation of criminal cases in existence. Such considerations, however, would be irrelevant when we are adjudicating on the effects of the fundamental rights guaranteed by the Constitution. The remedy lies obviously with the Legislature or with the executive authorities who can make good the deficiencies of the administration. The argument of inconvenience, cannot be allowed to override the Constitutional provisions guaranteeing fundamental rights to all citizens of Pakistan."

47. After passage of about four decades the situation has much improved, Courts have been established in every district and judicial officers are performing their duties and adjudicating civil cases, investigating agencies with sufficient experience and training exist, which have in the past handled criminal cases. The infrastructure for trial of criminal offences is available. It will only require issuance of notifications by the Government for trial of offences under the ordinary law in the entire province, which in adjudication of civil rights, is governed by the ordinary law of the land.

48. 17.In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9,- 25, 175 and 203 of the Constitution, the question arises what further relief should be granted as in the absence of Ordinance II of 1968 there should be some valid law to hold the field. It has been admitted that District Judges and Civil Judges are functioning in every district. In cases of violation of fundamental rights the Superior Courts are empowered to issue direction to the Federal Government or the Provincial Governments to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligations. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights.

49. In these circumstances, while maintaining the impugned judgments, we dismiss the appeals, declare Ordinance II of 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution and direct the appellant--

(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months;

(ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Courts, judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25 175 and 203 of the Constitution'within a period of six months.