1. NASIM HASAN SHAH, J.---The Constitution of the Islamic Republic of Pakistan, 1973 in its preamble (now made a substantive part thereof vide Article 2-A) declares that "the independence of the judiciary shall be fully secured" therein.
2. Now. According to the consensus of the jurists, the independence of the judiciary means--- (a)that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and (b)that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.
3. In our Constitution, the specific provision designed to secure this independence is contained in clause (3) of Article 175 by enacting that: "The Judiciary shall be progressively separated from the Executive (Clause (3) of Article 175)
4. Under Article 175, as originally enacted, it was provided that the Judiciary shall be separated from the Executive progressively within-3 years from the date on which the Constitution came into force viz. 14-8-1973. However, the period of three years was subsequently extended to 5 years by the Constitution (Vth Amendment) Act, 1976 and then to 14 years by the Revival of the Constitution 1973 Order (P.0.14 of 1985). Thus, the period during which the Judiciary was to have been separated from the Executive was enlarged under various extensions up to the 14th August, 1987. Since, however, this was not effected even by this extended date and the mandate of the Constitution was not carried into effect two Constitutional petitions were filed before the Sindh High Court (C. Ps. Nos.D- 123%1974 and D-89/1987) by Mr. Sharif Faridi and some other members of the Pakistan Bar Council complaining of this defiance and seeking the issuance of appropriate directions against. The Governments concerned obliging them to implement the mandate of the Constitution.
5. The appellants pointed out that even prior to the enactment of the Constitution (in 1973), the Government had already promulgated an "Ordinance" entitled the "Law Reforms Ordinance 1972 (XII of 1972)" wherein provision, inter alia, was made to secure the separation of the judiciary from the executive. These Reforms were announced on 13th April 1972 through a stirring speech of the then President of Pakistan. On this aspect of the matter, the President had said:--- "A recurrent demand of the people since the days of the British in the Indo-Pak Sub-Continent has been the separation of Judiciary from the Executive. This was introduced by administrative order at one time in the Province of West Pakistan. Soon enough it was found that a half way house has no benefits, and the status quo was resumed. Things were not allowed to rest at that. So there came a time when a previous regime not only took administrative steps to tighten the executive power over subordinate criminal judiciary but actually pushed the clock of progress back by the enforcement of the West Pakistan Criminal Law Amendment) Act which introduced the Jirga system which was the very travesty of justice. The dispensation of justice became the hand-widen of the rulers. Before the Law Reforms Commission, 1967, an argument was sought to be made for retention of special tribunals: The Commission, after full consideration, rejected this view,, and accepted the popular demand that judiciary be separated from the executive. During the last two years, however, no action was taken on this report and matter, as it often happens, lay in cold storage.
6. The Law Reforms Ordinance, 1972, which is being promulgated today fulfils a long cherished desire of the people, justice henceforth will be completely independent of the executive, and independence is a basic requirement for impartiality. However, as the separation would involve a huge dislocation of machinery, the Provincial Governments have been empowered to enforce this part at any time up to the 1January next year. If a Provincial Government is able to do so earlier, it is permissible to enforce this provision forthwith. There would be no hurdle in its way towards the acceptance of the demand. Once excepted and written into law, it would be impossible for any subsequent Government to go back upon it. It will become a part of our way of life. The golden principle that justice is not only to be done but also must be seen to be done has now been implemented. There will be a separation of powers inasmuch as the prosecutors and the Judges will henceforth be completely separate. We trust that the stories of police high handiness and of the perversion of justice will become tales of the past."
7. Ordinance XII of 1972, which was promulgated immediately after the above eloquent speech of the President, made a large number of amendments in various existing enactment including the Pakistan Penal Code, Criminal Procedure Code, Evidence Act etc. Although subsection (2) .To section 1 of the above Ordinance provided that it shall come into force at once, but it contained an exception, as pointed out by the President in his speech, to the effect that the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898, whereby effect was to be given to the principle of the separation of the Judiciary from the Executive would come into force in each 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, however, amended subsequently and that too without specifying any time limit within which the Provincial Government was to enforce the new provisions of the Cr.P.C.
8. Meanwhile, the previous provisions of the Criminal Procedure Code continued to hold the field.st Under the provisions of the aforesaid Ordinance XII of 1972 two categories of the Magistrate, namely Judicial Magistrates and the Executive Magistrates were envisaged. Thus, in accordance with amended section 14, Cr.P.C., the Provincial Government could on the recommendation of the High Court confer upon any person all or any of the powers conferred or conferable by or under the Code of Criminal Procedure of a Judicial Magistrate in respect of the particular cases or to a particular class or particular classes of casts. It was further provided that the Provincial Government could 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, while the Executive Magistrates were to be subordinate to District Magistrates. Necessary amendments in the other provisions of the Cr.P.C. Were also made in order to secure the separation of the Judicial Magistrates from the Executive Magistrates.
9. Two other amendments in Ordinance XII of 1972 are worthy of mention, one related to empowering Sessions Judges to transfer cases from the file of a Magistrate to another Magistrate (viz. Section 528) and the other was the incorporation of section 439-A conferring revisional powers on the Session Judges: Since the provisions of the above Ordinance were not enforced by issuing the contemplated notifications under subsection (2) of section 1 of the said Ordinance in the Province of Sindh (or for that matter in any other Province), two Constitutional petitions, referred to above, were moved. The Constitutional petitions were heard by a Full Bench of six Judges of the Sindh High Court. The grievance made in the said two Constitutional petitions was that the Governments concerned had failed to comply with their Constitutional obligation to effect separation of the judiciary from the executive, despite the expiry of the period prescribed in this behalf (14-8-1987). After thoroughly examining all aspects of the matter, the Full Bench reached the conclusion (by a majority of rive to one) that the Constitutional obligation contained in Article 175 (3) had indeed been disregarded and that appropriate directions could competently be issued by the High Court under Article 199 directing the authorities to fulfil them. Accordingly, the petitions were accepted vide judgment, dated 24-4-1989. Herein, it was pointed out that the Judiciary had to be separated from the Executive progressively within 3 years from the date of the commencement of the Constitution viz. 14-8-1973. The period of three years was, however, extended to 5 years by the Constitution (Vth Amendment) Act, 1976 and then to 14 years by the Revival of the Constitution 1973 Order (P.O. 14 of 1985). Thus, under the various extensions within which the Judiciary ought to be separated from the Executive the last date was to be the 14th August, 1987. The Constitutional petitions filed sought to enforce the mandate of the Constitution which the High Court could and should enforce and grant the requisite redress. Accepting the correctness of these submissions the following for principal directions were issued by the High Court by its judgment announced on 24-4-1989:
(i) that the necessary notification be issued in terms of subsection (2) of section 1 of Law Reforms Ordinance (Ordinance XII of 1972) for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control of the High Court within a period of six months;
(ii) that necessary notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978 and Rule 4 of the -Sindh Civil Services (Appointment, Promotion and Transfer) Rules, 1974, be issued to notify the High Court as the Authority within a period of sixty days;
(iii) that necessary legislative measures be initiated within the period of 6 months for making requisite amendments in the West Pakistan Civil Courts Ordinance, 1962, Criminal Procedure Code, Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and in the other enactments to make the same in conformity with Articles 175 and 203 of the Constitution;
(iv) that the Federation of Pakistan should initiate all legislative, administrative steps/measures to bring the existing laws relating to or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months.
10. Besides these specific directions some important findings were recorded in respect of several other matters including the matter of financial independence of the Judiciary. In this connection, it was observed:--- "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:"
11. One learned Judge of the Full Bench, however, dissented. He was of the opinion that the High Court was not competent to interfere in the matter as the provisions of Article 175(3) of the Constitution were not mandatory but simply directory in nature and, therefore, no writ could be issued to enforce compliance with such provisions of the Constitution. But the majority was of the contrary opinion, as noted above.
12. The judgments of the Sindh High Court directing 'the Governments concerned to take the steps indicated in their order were questioned by the Government of Sindh and the Federation of Pakistan by the above-noted three appeals before this Court. These appeals came up for hearing on 9-10-1989. Here the learned Attorney-General did not press the contention raised in the petitions for leave to appeal that the directions made by the High Court could not competently be made by it in exercise of its jurisdiction under Article 199 of the Constitution but simply urged that while the Government of Pakistan and the Government of Sindh have no serious objection to the finding that .It was obligatory to carry out the separation of the judiciary from the executive and were bound to implement the mandate of the Constitution in this behalf, they could not accept the time frame provided in the High Court's order for implementing the directions given in the judgment of the High Court. According to the learned Attorney-General the said time frame was not realistic and administrative chaos could result if the High Court's order was implemented in the terms in which it was made. This Court, noting that the Federal Government and Sindh Government was not questioning the competence and authority of the High Court to issue the necessary directions but was only aggrieved by the time frame prescribed in the judgment of Sindh High Court decided to suspend the operation of the aforesaid judgment. However, with a view to securing the implementation of the Constitutional mandate to separate the Judiciary from the Executive it decided to constitute a Committee to facilitate this process and directed the Committee to submit its report within 3 months. The Committee was to comprise the nominee for the Chief Justice of Pakistan, the nominees of the Chief Justices of all the High Courts, Federation and Provincial Governments of Pakistan, Bar Council and the High Court Bar Association. The Secretary, Ministry of Law and Justice was to be its convenor/member of the Committee. In pursuance of the order of this Court one of us (Nasim Hasan Shah, J.), was designated as nominee of the Chief Justice of Pakistan to act as Chairman of the Committee Here, it may be appropriate to mention that in so far as the judgment of this Court was likely to affect the other three Provincial Governments (of the punjab, N: W.F.P. And Balochistan) they too were impleaded as parties and notices issued to them.
13. The Committee appointed by this Court held five meetings on various dates. The first meeting was held on 9-12-1989 and the last one on 21-12-1991. In these meetings the problems and difficulties pointed out by the Provincial Governments in carrying out the Constitutional mandate into effect as also the measures being taken to fulfil their obligations in this respect were carefully considered and ways and means of overcoming these obstacles also discussed. The Chairman of the Committee pointed out to the representatives of the Provincial Governments that notwithstanding the difficulties with which they were confronted separation of the Executive from the Judiciary was an obligation cast upon them by the Constitution and this obligation could not be willed away or avoided. It had, willy nilly to be carried into effect despite all the difficulties. During the course of the deliberation of the Committee considerable -progress was achieved' in securing separation of the Judiciaryf rom the Executive and the steps being taken for this purpose the Provincial Governments were intimated by the representatives of the parties to the Committee during the period that the Committee remained seized of this matter.
14. In this respect the situation today is that in relation to the enforcement of the Scheme for separation of the Judiciary from the Executive in the Province of Sindh that 100 posts of Judicial Magistrates have been sanctioned. So far 25 Judicial Magistrates have been appointed on the recommendations of the High Court. Furthermore some candidates (seven in all) have been recently selected (for the posts of Judicial Magistrates) and their names forwarded to the Provincial Government for notifying their appointment and they are receiving judicial training in the Sindh Judicial Academy at present. On notification of their appointment, it is proposed to post them against the vacant Courts of Judicial Magistrates. The process of selection of 25 more Judicial Magistrates is in process and the last date for receipt of the applications has been fixed as 10-10-1993.
15. So far as the matter of control of the High Court over the subordinate judiciary is concerned the Chief Justice has been delegated powers of Authority under the Sindh Civil Servants (E&D) Rules in respect of Members of the subordinate judiciary and a separate Service Tribunal has been established for resolution of disputes of judicial officers. Rules for appointment, promotion and transfer etc. Of Judicial Officers have been drafted and are likely to be approved by the High Court soon.
16. Coming to the Punjab we are informed that 50 EAC/Magistrates have been placed under the control of the High Court while 29 Civil Judges have been conferred section 30 powers. These are in addition to the section 30 Magistrates already placed under the control of the High Court.
17. So far as the matter of control of the High Court over the subordinate judiciary is concerned, a separate Service Tribunal comprising of Judges has been constituted to hear appeals in regard to service disputes of the subordinate judiciary. A comprehensive Scheme proposing various service structures has also been sent to the High Court for its approval.
18. In so far as the question of financial independence is concerned, the Lahore High Court has been conferred the budgetary power of re--appropriation within the allocated Budget. A sum of 10 millions rupees has also been allocated for the construction of judicial offices. '
19. The position so far as the Provinces of Balochistan and N. W.F.P. Is concerned is somewhat vague.
20. In Balochistan, we were informed that 7 posts of Magistrates have been sanctioned but only 4 have so far been appointed who have started functioning in the areas where normal laws apply.
21. However, after the fording of this Court in the case of Government of Balochistan v. Ataullah Memon etc. That the provisions of Ordinance II of 1968 are void on account of repugnancy with the provisions of the Constitution, it has become necessary to appoint Judicial Magistrates in all the districts of Balochistan. A great deal of work has, therefore, to be done, which will take time.
22. But as regards the aspect of control of the High Court over the subordinate judiciary happily there has been considerable progress. Thus, the Chief Justice has been declared as Authority in respect of all the Judicial Officers including District and Sessions Judges, Additional District and Sessions Judges, Members of Majlis-e-Shoora, Civil Judges and Qazis for the purposes of taking disciplinery action under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983. Furthermore, a separate Service Tribunal consisting of High Court Judges for hearing of appeals of subordinate Judiciary has also been constituted.
23. Coming to the N-.W.F.P., we were told by the representatives of the Provincial Government that on account of some exceptional features exiting in the Province, speedy implementation of the Scheme for separating the judiciary from the Executive was not possible. However, in the matter of conferring control to the High Court over the subordinate judiciary some progress has been made.
24. Thus, the Chief Justice has been notified as "Authority" under N.-W.F.P. Government Servants (E&D)
25. Rules in respect of Subordinate Judicial Officers and the High Court Judges have been appointed for hearing appeals-in regard to service disputes of the subordinate judiciary instead of their appeals being heard by the normal Service Tribunals. But in the vital field of bifurcation of the Judicial Magistracy from the Executive Magistracy the progress is modest. So far 25 Judicial Magistrates have been appointed and placed under the administrative control of the Peshawar High Court. This number is not only inadequate but the control that can be exercised over them is also insufficient as the said*Judicial Magistrates are not covered by the amendment made in N-.W.F.P. Government Servants (E&D) Rules, 1973. The reporting channel continues to remain the same and they are still under the control of the Provincial Government. To overcome these obstacles it has been suggested that the Scheme of separation of Judiciary from the Executive can be successfully implemented if another 50 posts of Civil Judges are created and these Judges are empowered to try criminal cases also along with their normal civil cases.
26. It would thus appear that it is not possible to issue precise directions indicating the date from which the separation of judiciary from the executive must be effected in the Provinces of N-.W.F.P.
27. And Balochistan We are informed that writ petitions similar to the two Constitutional petitions which were instituted in the Sindh High Court to enforce the command of the Constitution contained Article 175(3) have been filed both in the Peshawar High Court and Balochistan High Court and are pending disposal.
28. In the circumstances, it appears to be more appropriate if these writ petitions are taken up by the aforesaid High Courts at an early date for disposal and suitable directions issued to the authorities concerned in the light of the situation prevailing in the said two Provinces.
29. However, no such problems arise anywhere in Pakistan in so far as the question of ensuring the financial independence of the Judiciary is concerned. . In the impugned judgment of the High Court it has been observed that the mandate of Article 175 requiring separation of the Judiciary from the Executive shall be met if the Judiciary has an effective say in the formulation of its annual demands and this finding is elaborated by observing that this implies. That the executive shall place the annual funds allocated to the superior Courts at their disposal for operating them without interference by any agency of the Executive in accordance with their requirements.
30. The above finding of the High Court was not questioned or challenged eitper by the learned Attorney-General or by any of the representatives of the Provincial Governments and we too are in agree rent with it and would endorse this finding.
31. In our opinion, financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would-be competent to make reappropriation of the amounts from one head to another, create new posts, abolish .Old posts or change their nomenclature and to upgrade or downgrade etc. As per requirements of their respective Courts and this should be possible, as has been observed earlier, without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, an Accounts Officer of the Accountant- General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently.
32. The result of the above discussion is that this Court, while accepting the conclusion of the Sindh High Court as correct has also given due weight to the plea of the learned Attorney-General that the separation of the Judiciary from the Executive must be carried out in such a manner that administrative chaos does not result (which could be the result if the directions contained in the judgment of the High Court, dated 24-4-1989 were implemented exactly in accordance with its terms). It has, therefore, agreed to extend the date for the issuance of the requisite notifications under subsection,. (2) of section 1 of Ordinance XII of 1972 from 24-10-1989 (as ordered by the High Court) to 23-3-1994, the period for effecting the separation accordingly has been extended by more than for years. In this period considerable progress has already been achieved towards separating the Judiciary from the Executive and, in our opinion, if the Constitutional obligation cast on the Executive Government is seriously heeded to the remaining work still needed to be done in this connection can satisfactorily be completed by the Provincial Governments of Sindh and the Punjab in the next for or five months viz. Up to 23-3-1994, by which date these Governments are required by this Court's present order to issue the necessary notifications.
33. Since no such problem exists in carrying into effect the separation of the Judiciary from the Executive in the sphere of finance, the necessary steps in this behalf can be undertaken right away.
34. In the result, while upholding the judgment of the High Court in. The main, some modifications therein have been made. These have become necessary as some of the directions issued by the High Court in .Its impugned judgment have by now been already complied with, while some others, we felt, cannot appropriately be issued in these proceedings. In our opinion, the following directions will, consistent with the mandate contained in Article 175 of the Constitution suffice to secufe the separation of the Judiciary from the Executive, namely: (i)The Governments of Sindh and Punjab shall issue the requisite notifications in terms of subsection (2) of section 1 of Law Reforms Ordinance (XII of 1972) for enforcing the provisions of the aforesaid Ordinance by 23rd March, 1994, for bifurcating magistracy into Judicial Magistrates and.
35. Executive Magistrates and place all the Judicial Magistrates under the administrative control of the High Court; and
(ii) The Federal Government as also the Provincial Governments of Sindh, Punjab, N: W.F.P. And Balochistan shall not require the Supreme Court and the High Courts of the Provinces to seek their approval to incurring expenditure or any item from the funds allocates for them in the annual 'budgets provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment above. Necessary instructions to enable compliance with this direction shall be issued by the Federal Government and the Provincial Governments to all concerned by 1-12-1993.
36. On the conclusion of the hearing of these appeals on 31-3-1993 this Court made a short order to the effect that for "reasons to be recorded separately these appeals shall, subject to the clarifications, elaborations, additions and modifications set forth in the judgment, stand dismissed".
37. The above are the clarifications, elaborations, additions and modifications while dismissing the appeals preferred by the Government of Sindh and the Federation of Pakistan, in the impugned judgment of the Sindh High Court.
38. Parties are left to bear their own costs.
39. MUHAMMAD A_FZAL ZULLAH, CJ: -The note by . Hon. Wall Muhammad Khan, J., besides correcting an assumption about the pendency of cases at Quetta and Peshawar, is thus consequently an essential supplement to the judgment. Hence I have also signed the same.
40. (Sd.)
41. Muhammad Afzal Zullah, CJ., (Sd.)
42. Nasim Hasan Shah, J (Sd.)
43. Abdul Qadeer Chaudhry, J (Sd)
44. Muhammad Afzal Lone, J.
45. I have appended a separate note.
46. (Sd.)
47. Wali Muhammad Khan, J WAI,I MUHAMMAD KHAN, J: --I have gone through the judgment written by my Lord Mr. Justice Dr. Nasim Hasan Shah, the Chief Justice of Pakistan in Civil Appeals Nos. 105-K to 107-K of 1989 and concur with it. Except paragraphs 2 of page 15 and, 2 and 3 on page 15 concerning N.-W.F.P. And Balochistan. Instead the following paragraphs are substituted therefor.
48. I have made inquiries from the Chief Justice of the Peshawar High Court and also the concerned staff as to whether any writ petition similar to the two Constitutional petitions instituted in the High Court of Sindh, to enforce the command of Constitution contained in Article 175(3) are pending disposal, but I was told that no such petition is at the moment pending. Consequently, the Peshawar High Court will not be in a position to issue any direction to the concerned authorities of the Provincial Government for the enforcement of fundamental rights of the citizens of this area under Article 175(3) of the Constitution of Islamic Republic of Pakistan.
49. No doubt, the instant appeals are 'directed against the judgments of the High Court of Sindh wherein necessary directions were issued to the Provincial Government of Sindh for the enforcement of separation of Judiciary from the Executive in that province and in the normal course the decision in the instant appeals had to be restricted to the matter in issue in the original petitions, but since violation of Article 175 had been the basis of the impugned judgment of the High Court of Sindh all the Provincial Governments and the Federal Government were made parties for the purpose of uniformity in the enforcement of .The command contained in Article 175(3) of the Constitution and a chance of hearing was given to them. Besides the oral submissions, the Law Officers of the respective Provinces and the Federal Government submitted their written notes as well which are part of the appeals files. Almost all of them have not questioned the enforcement of Article 175 but wanted time for the implementation thereof and a committee was constituted for the purpose which after due deliberations recommended the separation of judiciary from the executive. The appeals have been filed in 1989 and by now about for years have elapsed allowing sufficient tune to the concerned Governments to make preparations for giving effect to the command of the Constitution. If they did not care to obey the Constitution the fault squarely lies on them.
50. A Bench of this Court comprising of the then Chief Justice Mr. Justice Muhammad Afzal Zullah, Mr. Justice Saleem Akhtar and myself, in its judgment dated 10-4-1993 in Civil Appeals Nos. 1412 to 1428 of 1990 (Government of Balochistan v. Azizullah Memon PLD 1993 SC 341), while declaring the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance 11 of 1968) as violative of Article 175 of the Constitution made the following observations:--- "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 an important organ of the State within the Constitutional sphere.
51. 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.
52. 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. Tfie lower judiciary is more dependent and prone to financial dependence and harassment 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.
53. 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 superintendent of the Executive may be challenged, which will create embarrassing situation for the Government and the administration of justice shall be seriously jeopardized. 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."
54. In view of the above observations of this Court the judiciary stands separated from the Executive in the year 1987 according to the mandatory provision of Article 175 of the Constitution irrespective of the fact whether necessary steps for the implementation thereof have been taken or not, and that any further laxity on the part of the Executive will not only amount to the violation of the Constitution but the orders passed by the Magistrates in judicial matters might be struck down by the High Courts as coram non judice resulting in a state of chaos in the judicial field.
55. As regards financial independence of the Judiciary from the. Executive, the Governments of N: W.F.P. And Balochistan have been brought t par with the Provinces of Sindh and Punjab in sub-para.
(ii) of the operative part of the judgment but they have been excluded from sub-para. (i) thereof and without the grant of judicial independence, the financial independence might prove of no substantial benefit to these two provinces.
56. The representatives of the Government of N: W.F.P. Have in their written notes agreed to place the services of lawyer Magistrates at the disposal of the High Court to act as Judicial Magistrates and had promised to provide additional Judicial Magistrates as well. There appears to be no difficulty in the way of the Provincial Government to comply with the direction of this Court for the separation of Judiciary from the Executive and if the bigger Province of Punjab can be directed to obey the command of Article 175(3) of the Constitution, there appears to be no reason why the Government of N: W.F.P. Should be made an exception.
57. For the reasons stated above, I add the Governments of N.-W.F.P. And Balochistan along with the Governments of Sindh and Punjab in sub--para.(i) of the concluding paragraph with a direction to issue the requisite notifications as per the direction given to the Governments of Sindh and Punjab, in the said para. (Sd.)
58. Muhammad Afzal Zullah, CJ (Sd.)
59. Wali Muhammad Khan, J