' CH. MUSHTAQ AHMAD KHAN, J.---This order shall be read as a part and in continuation of our short order dated 31-1-1995, whereby writ petition has been dismissed in limine.
2. Through this Constitutional Petition Mr. M.D. Tahir, Advocate, who is a citizen of Pakistan, has sought a direction in the nature of Prohibition restraining the respondents from alienating/parting with/leasing out of any territory of Coastal Region of Balochistan, particularly Gawadar port area or to provide a corridor cutting across Pakistan territory from the Gulf Region to Central Asian States.
3. Mr. Birjees Nagi, Advocate has appeared on behalf of the petitioner whereas Mr. Faqir Muhammad Khokhar, Deputy Attorney-General has appeared on Court's call at limine stage.
Learned counsel for the petitioner had contended that the Coastal Area of Balochistan including the Port of Gawadar has stratgical importance, is a part of the territory of Pakistan independence whereof was attained after great sacrifices, therefore, it is the bounden duty of the people of Pakistan including its governments, to safeguard the integrity of every inch of the country. It is contended that certain news items have appeared in the press which lead to the conclusion that respondent No,1 the Federal Government of Pakistan, is going to dispose of the said Coastal Area including the Gawadar Port in favour of Sultan Qabus of Oman did also intends to provide a road link from within the territory of Pakistan to Central Asian States, which deals/acts will amount to alienation of territorial sovereignty of Pakistan. It is hence prayed that the respondents may be restrained from so doing by an appropriate writ or order. Elaborating his arguments, learned counsel has drawn our attention to the press cuttings Annexures 'A' to A-11' appended with this petition at pages 10 to 24 thereof, which news items prima facie show that a controversy is going on amongst the people of Pakistan, particularly the politicians, in relation to the issue referred to above. Learned counsel contends that as there is a mist and it is not clear as to whether any areas have been or is going to be alienated/parted with by the respondents, they may be directed to produce in Court necessary documents relatable to the transaction/deals in question (if any) so that the whole nation could know as to what the real factual position is? Learned counsel, however, states that the petitioner will have no objection if some land has been gifted to Sultan of Oman for the purpose of building of residence and Offices etc. Which are necessary for the purpose of development of the said coastal areas and the port of Gawadar, provided the said alienated areas remain under the sovereign control of the Government of Pakistan and the deal is free from political strings and is not a result or does not become a Centre for International conspiracies. It is alleged that the areas in question being of great stratigical importance keeping in view the present "World Order", it is necessary that the respondent-Government should make all efforts to remain aloof and not to provide a part of its territory lo the super powers of the world particularly USA, for exercise/execution of their foreign policy. Learned counsel has taken us through the preamble to the Constitution which is now a part thereof as per provisions of Article 2-A, and has contended that sovereignty of the entire universe belongs to Almighty Allah alone, and the sovereign authority is to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him; that it is the Constitutional mandate that the integrity of the territories of the Federation, its independence and all its rights, including the sovereign rights on land, sea and air are safe-guarded so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity. He, hence, contends that as per information of the petitioner the aforementioned mandate is being violated by the Government by transferring Gawadar area to Sultan of Oman, and, therefore, this Court should interfere and direct the respondents to refrain from so doing as being the Custodian of the Constitution of Pakistan including integrity and solidarity of the territorial limits of the country. We have asked the learned counsel to explain as to why respondent No,2 Government of the Punjab has been added as a respondent in the case although said Government is not even a proper party and why Province of Balochistan has not been added as a party to the petition as the dispute relates to the land which vests in the said Government? Learned counsel is not in a position to give any satisfactory answer and insists that the petition is competent as it is. In support of his contentions learned counsel has cited the following cases:--
(1) Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others (1975 SCMR 359);
(2) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others. (PLD 1972 S.C. 279);
(3) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 S.C. 473);
(4) Miss Benazir Bhutto. v. Federation of Pakistan and another (PLD 1988 S.C. 416) and
(5) Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 S.C. 139).
' He has also referred to the provisions of Articles 4, 5 6 and 40 of the Constitution of Islamic Republic of Pakistan, 1973.
4. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who has appeared on behalf of Federation of Pakistan, has made a categorical statement on behalf of the respondents that the Government has no intention to alienate the sovereignty of even an inch of land of Pakistan including the sovereign control of the Coastal areas of Balochistan as well as the Gawadar Port. In support of his statement he has also placed on record certain press cuttings particularly relating to the statement made by Mohtarma Benazir Bhutto, Prime Minister of Pakistan as well as the statement made by Commerce Minister of Oman reported in daily' Nation' dated 30- 1-1995 and daily `Nawa-i-Waqt' dated 29-1-1995 respectively and statements of other political leaders as published in the press.
5. As regards the competency of this Constitutional Petition learned counsel his contended that the petition is not properly constituted as respondent No,2 who is an unnecessary party has been impleaded as party to the petition with mala fide intention to file the petition at Principal Seat of this Court and Province of Balochistan who is a necessary party has not been impleaded and the petitioner is not ready to implead the said, respondent as party to this petition even now, therefore, this petition is liable to be dismissed on this short ground. It has further been contended that the issues which have-been raised in this Constitutional petition being of political nature determination thereof falls within the exclusive jurisdiction of the Parliament as well as the Government of Pakistan, hence the said issues are not justiciable in exercise of the Constitutional jurisdiction of this Court, especially when the issues relate to the foreign policies of the Government.
It is contended that it is a seditious petition and has been filed malafidely just to malign the Government in power and to jeopardise relations with the friendly countries like Oman and USA.
6. Regarding legality and constitutionality of the questioned steps it is contended by the learned counsel that it is the bounden duty of the Government to develop all the areas of Pakistan generally and les:, developed areas particularly which is not possible without help and collaboration of other countries and World Organizations. Therefore, if Sultan of Oman has consented to invest in collaboration with Government of Pakistan and the Private Investors of Pakistan, to develop the coastal areas of Pakistan including Gawadar Port, the Government has rather performed its obligation which is not to be condemned or interfered with but is rather to be commended. It is for the Government to take decision in such like matters and the Courts have no jurisdiction to control such decisions and at any rate should not exercise jurisdiction in the interest of public good at the behest of a disgrunted individual, who has neither any education nor experience to judge the correctness or otherwise of the decisions taken or to be taken by the Government on such like issues, hence this petition is liable to be dismissed in limine. In support of his contentions learned counsel has placed reliance on the following cases:-
(1) Managanbhai Ishwarbhai Patel. v. Union of India and another (AIR 1969 Supreme Court 783);
(2) N. Masthan Sahib and S.S. Reddiar. v. Chief Commissioner, -Pondicaherry and another (AIR 1962 SC 797);
(3) The Superintendent Land Customs, Torkham (Khyber Agency). v. Zewar Khan and 2 others (PLD 1969 S.C. 485);
(4) R.C. Poundyal v. Union of India and others (AIR 1993 S.C. 1804);
(5) Nargis Shaheen v. Federation of Pakistan and 5 others (PLD 1993 Lahore 732);
(6) Chhetriya Pardushan Mukti Sangharahsh Samiti. v. State of UP and others (AIR 1990 S.C. 2060);
(7) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473);
(8) Inder Mohan Bhardawaj. v. Union of India and others (AIR 1980 Delhi 20) and
(9) Ram Kishore Sen and others v. Union of India and others (AIR 1966 SC 644).
7. Before embarking upon detailed discussion of the issues involved in this petition, it will be advantageous to keep in view amongst others, statements of the Government functionaries regarding the controversy in questions, to reproduce the relevant paragraphs of the preamble and Articles of the Constitution of Islamic Republic of Pakistan, 1973, as well as a brief resume of the relevant case-law on the subject.
7-A. In the statement Mr. Aftab Shahban Mirani, Federal Minister for Defence made on the floor of the National Assembly, reported in daily `Frontier Post' dated 23-1-1995 stated that Gawadar was an integral part of Pakistan and there was no question of selling or leasing out any part of Pakistan including Gawadar to any foreign State. We are the ones who restored to Pakistan land lost in 1971 in Sialkot and Rajistan Sectors and not those who lost the lana in Siachin. Tikka Muhammad Iqbal Khan, Provincial Minister for Food in his statement reported in the same daily, said that lease of land to Sultan Qabus of Oman is in context of massive investment and development of Gawadar Port in particular and Balochistan in general and there is no question of selling Gawadar to any foreign party and that every inch of Pakistan's territory is sacred and we would defend it at all costs". Mohtarma Benazir Bhutto, Prime Minister of Pakistan, in her statement which has appeared in daily 'Nation' dated 20-1-1995 ,has categorically stated that "Gawadar is a part of Pakistan and it will remain so and that Pakistani Flag will always flutter over there, which port shall be developed like other ports of Pasni and Ormara and that people of Balochistan had also every right to benefit from modern day development". Commerce Minister of Oman Mr. Maqbool Bin All Sultan while on his way to visit Pakistan, made a categorical statement that Gawadar shall be developed by a joint company Constitution whereof shall be decided by the shareholders of both the countries and that it is absolutely incorrect that the said port has been sold by Pakistan to Oman or has otherwise been given to said country and that there is a possibility that certain other joint ventures may also be undertaken in Lahore, Karachi or Islamabad. Deputy Commissioner of the relevant District made a categorical statement that no part of Balochistan territory has been given to Sultan of Oman.
Similar is the statement of Mr. Muhammad Ayub Balidi, Minister for Revenue of Balochistan who has further stated that 100 acres of land has been requested to be given to Sultan Qaboos of Oman by way of gift which request shall be considered and processed in accordance with law. Mr. Zulifqar Ali Magsi, Chief Minister of Balochistan has also made a similar statement.
6-B PREAMBLE TO THE CONSTITUTION
(1) Whereas sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
(2) And whereas it is the will of the people of Pakistan to establish and order;
(3) Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
(7) Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
11. Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
12. So, that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity;
17. Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
18. Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;"
CONSTITUTION OF PAKISTAN, 1973.
' Article 2-A The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
Article 14.---(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence. Article 15. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof. Article 19. Every Citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an Offence.
Article 24.---(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of-
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of--
(i) Providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those, who on account of unemployment, sickness, infirmity or old- age, are unable to maintain themselves; or any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court.
' Article 30.---(1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned.
(2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground.
' Article 34. Steps shall be taken to ensure full participation of women in all spheres of national life.
' Article 40. The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.
' Article 172. Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal. Government.
(2) All lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government.
' Article 173.---(1). The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
(2) All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government.
(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize.
(4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
(5) Transfer of land by the Federal Government or a Provincial Government shall be regulated by law.
' Article-248.---(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: ' Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of Office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.
7. In case of Maganbhai Ishwarbhai Patel. v. Union of India and another (AIR 1969 S.C. 783), there was a boundary dispute between Government of India and Pakistan, which was resolved in accord with the Western Boundary Case Tribunal Award, regarding Runn of Katch. Writ of Mandamus was prayed for by a citizen of India, which was not entertained on the ground that treaty of this type really concerns the political rather than judicial wing of the State and, therefore, the Municipal Courts cannot issue a writ of Prohibition in such like matters. In case of RC. Poundyal. v. Union of India and others (AIR 1993 S.C. 1804) in which case the issue was with regard to the admission of new State in the Union of India, Supreme Court took a majority view that such like issues are not justiciable in exercise of the writ jurisdiction of the Superior Courts. In case of Superintendent Land Customs, Torkham (Khyber Agency). v. Zewar Khan and 2 others (PLD 1969 Supreme Court 485) at page 489, it has been held as under:- "Both under the international law as well as the Municipal Law, the tribal territories became part and parcel of Fakistan and Were duly recognized as such by the United Kingdom and the member nations of the South East Asia Treaty Orginisation. The dominion of Pakistan through its Constitutional Assembly also formally accepted it as such. In the circumstances it was not for the Municipal Courts to hold otherwise. It is important to remember that in such matters of a political nature, namely, accession or cession of territory it is not for the Courts to take a different view. The executive authority of the State has in the exercise of its sovereign power the right to say as to which territory it has recognised as a part of its State and the Courts are bound to accept this position. Indeed this was the principle that was given statutory effect in section 4 of the Foreign Jurisdiction Act, 1890 and section 6 of the Governor-General's Order No,5 of 1949. If the Courts felt any doubt with regard to the status of such a territory then it was incumbent upon them to make a reference to the Government and to accept its opinion."
' In case of Chhetriya Pardushan Mukti Sangharsh Samiti. v. State of U.P. And others (AIR 1990 S.C.
2060), where a writ petition was filed against owners of mills and plants alleging therein that they are causing environmental pollution, therefore, their working should be stopped, their Lordships of the Supreme Court of India have held that where the owners had complied with the statutory provisions, the petition was mala fide and it was the duty of the Court to protect the society from so-called protectors. After a detailed discussion in paragraph-7, 8 and 9 of the report, it has been held that Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only by done by any person interested genuinely in the protection of the society on behalf of the society or community.
This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to "feed fact ancient grudge" and enmity, this should not only be refused but strongly discouraged. While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights, and hence is abuse of the process of Court. In case of Nargis Shaheen. v.
Federation of Pakistan and 5 others (PLD 1993 Lahore 732), it has been held that all the three organs of State i,e, the legislature, the executive and the judiciary have to act in accord with the provisions of the Constitution keeping in view the injunctions and teaching of Islam as set out in the Holy Qur'an and Sunnah, and further that various provisions of the Constitution have to be acted upon and interpreted conjunctively and harmoniously in accordance with the scheme provided in the Constitution itself. While dispensing justice various provisions of the Constitution, the laws, the orders passed and actions taken thereunder have to be interpreted in accord with the principles of Islamic common law in the vacant areas. It has further been held that while examining the legality and vires of the "act" in relation to treaty between the two foreign governments, besides fundamental rights guaranteed by the Constitution, Injunctions of Islam and principles of international law for living as a civilized modern nation, in the "modern world order" which contains some of the principles of the universal world order revealed by Almighty Allah which were preached and practised by Holy Prophet "Muhammad" (peace be upon him), shall also have to be kept in view. Observations made in Paragraphs 18 to 20 of the said judgment which are relevant to the controversy in question in this Constitutional Petition are reproduced as under:-- "Extradition Act, 1972 and the treaty in question can also be upheld on the ground that the same is not only a step towards the achievement of social justice but is quite in accord with the public morality and goes a long way to the achievement of the ultimate object of the creation of Pakistan to the effect that the people of Pakistan may prosper and attain their rightful and honoured place amongst nations of the world and make their full contribution towards international peace and progress and happiness as mentioned in last paragraph of the Objective Resolution which is now a part of the Constitution as per Article 2-A. The treaty in question very well fits in the scheme of the modern world order and as well as ideology of Pakistan which is a Civilized Muslim State and is member of UNO, and is also in accord with the spirit of international treaties entered by a Muslim State. For reference in this behalf intrinsic object of international treaties in Islam, as described in the Book (Islamic System of Government) written by Maulana Hamidual Ansari Ghazi, as described at page 357 is reproduced in Urdu alongwith its English versions as under:-- {{URDU TEXT}} (ENGLISH VERSION)
TREATIES OF ISLAMIC PERIOD.
INTRINISC OBJECT OF TREATIES.---"In the world so many treaties have been entered into and lot many shall be entered into in furture. According to the Islamic law, the object and purpose of Islamic treaties, is the same as that of the Islamic State. According to the concept of `Tauheed' universality of relationship between the whole world, betterment of all the mankind on the earth, creation of peace throughout the world, finishing `Zulm' and equality of all the human beings in relation to economic, political and collective fundamental rights, are the salient goals achievement whereof is to be kept in view by an Islamic State while entering to the treaties. Ultimate goal of an Islamic State is achievement of universality and hence it frames its foreign policy for regulation of international relations in the same perspective. However, due to the treaties, the State does not withdraw from the real object of the Islamic State."
19. In the present 'world order' when all the nations are ultimately to live like family members, a person who is alleged to have committed a crime which affects the society of one country, is a criminal of the other society as well, irrespective of religion, colour or creed and hence facilitation of his trial by a country where offence has been committed, is bounden duty of all States. A criminal has no vested right to refuse trial for commission of an offence for which he is to be tried by a competent Court. A treaty which is necessary for international peace and prosperity even with a "non Muslim" State, is also supported by the 1st International Treaty entered into between Prophet Muhammad (may peace be upon him) and the other non- Muslim tribes and nations in 1st Year of Hijra in Madina, which also constitutes a first written Constitution given by a Head of a State.
Extracts from this hitorical treaty/charter, from the Book `Muhammad Resullallah (may peace be upon him), written by Dr. Muhammad Hamidullah at page 144 are reproduced as under:-- "With the name of God the Most Merciful, the All Merciful.
' This is the prescript of Muhammad the Prophet, to operate among the faithful and the Submissive to God, from among the Quresh and the people of Yathrib and those who may come under them and join them and take part in wars in their company.
' Verily they constitute a political unit (Umma), as distinct from the other peoples.
' The Emigrants from the Quresh shall be responsible for their ward, and shall pay the blood money by mutual collaboration, and shall secure the release of their prisoners by paying their ransom, so that the mutual dealing between the Belivers be in accordance with the principles of recognized goodness and justice. So also the Banu `Auf...The Banu 'I-H arith...The Banu Saida... The Banu Jusham...And Banu's Najjar...The Banu' Amr ibn 'Auf...The Banu'n Nabit...And the Banu 'I Aus... And the Believers shall not leave anyone hardpressed with debts, without helping him in recognized goodness with regard to ransom or blood money.
' And no Believer shall oppose the client of another Believer against the latter.
' And the hands of pious believers shall rise against every such person as stands in rebellion, or is guilty of any violation of pledge, or excess, or attempts to spread mischief among the Believers; and their hands shall rise together against such a person even if he be a son of anyone of them.
' And no Believer shall kill another Believer in relation for an unbeliever, nor shall be he help an unbeliever against a Believer.
' The protection of God is indivisibly one, and the humblest of the Believers can, by extending this to anyone, put the obligation on all..
' Those who obey us from the Jews will help and equality; neither shall they be oppressed nor shall any help be given against them.
' The peace of the Believers shall be one; and if there be a war in the path of God, no Believer shall make any peace with the enemy separately from other Believers...
' Every detachment that will fight on our side will be relieved by turns.
' The Believers as a body shall take vengeance for each other, of the bloodshed in the path of God...
' No pagan (subject) shall give any protection to property or life of any Quraishite, nor shall he obstruct any Muslim in this matter.
' If anyone intentionally murders a Believer and it is proved, he shall be killed in retaliation, unless the heirs of the murdered person agreed to blood money...It shall not be lawful for any Believer, who has accepted the contents of this document and has faith in God and the Last Day, to give help or protection to any murderer...
' And whenever ye differ about anything, its reference shall be to God and to Muhammad.
' The Jews shall bear their expenditure alongwith the Belivers so long as they fight in conjunction.
' The Jews of the Banu `Auf shall be considered as a community alongwith the Believers, for jews their religion and for Muslims their religion, be one a clan or original member of the tribe; but whoever shall be guilty of oppression or violation, shall put to trouble none but his own person and the members of his house. The Jews of BanussNajjar...Of Banu' I-Harith...Of Banu Sadia..Of Banu Jusham.. Of Banu'I Aus... Of Banu' I. The 'Wm (together with the branch Jafna).. And of Banu'sh...Shutaiba shall have same rights as the sub-branches of the Jews shall have the same rights as the principal members.
' None of them shall go out on military expedition except with the permission of Muhammad....
' The valley of Yathrib shall constitute an inviolable territory for the parties of this document.
' The protected alien shall be considered just like the original member; neither shall he be harmed, nor shall he himself violate the pledge. Protection cannot be given (by a protected alien) without the permission of the original member.
' If any murder or quarrel of inter-tribal nature takes place between the parties of this document, from which any trouble may be feared, it shall be referred to God and to Muhammad messenger of God...
' The Quraish shall be given no protection, nor those who help them.
' There shall be mutual aid between all inhabitants against those who invade Yathrib.
' If the Jews are invited to participate in and adhere to a peace they shall do that; and if they invite likewise, the same shall be incumbent upon the believers in their favour. The fight for the cause of religion shall be excepted.
' Every group shall be responsible for the part (of the city) which faces.
' The Jews of Al-Aus, clans as well as original members, shall have same right as the parties of this document...
' This prescript shall protect any opressor or violater of pledge. Whoever goes out (in a military expedition) shall have security, and whoever stays in Madina shall have security, except one who commits oppression and violates pledge. God is the protector of those who fulfil and observed the pledge scrupulously, even as Muhammad messenger of God.
20. Consequently, we hold that the provisions of the Extradition Act 1972, the extradition treaty and the impugned order if otherwise is held by us as valid on merits, is not illegal, ultra vires of the Constitution of Islamic Republic of Pakistan and is rather quite in accord with the Constitution, the Injunctions of Islam as set out in 'Holy Qur'an' and Sunnah, intrinsic object of international treaties entered into by a Muslim State, the provisions of prevalent international law, the principles of administration of social justice, fits in the new 'world order' and is an important step in aid of the creation of a universal peace and brotherhood.
' Hence, the arguments of the learned counsel for the petitioner regarding legality and vires of the act, the treaty and the impugned order are without any force and hence are repelled."
' In case of Haji Hashmat Ullah and others. v. Karachi Municipal Corporation and others (1975 SCMR 359), it has been held that the High Court does not sit in appeal in writ jurisdiction, hence, cannot substitute its opinion for what was or was not against public interest. In case of Hakim Khan and 3 others. v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595)at page 619 of the report, it has been held that all the three limbs of the State namely Executive, Legislature and Judiciary in an Islamic polity can exercise the delegated functions of the divine sovereignty within their respective spheres and reference in the Holy Qur'an to the obedience of (,I) is equally applicable to the members of the judiciary and further that the Constitution is to be read as a whole and the Court is bound to have recourse to whole instrument in order to ascertain the true intended and meaning of any particular provision, it is the duty of the Court to adopt harmonious interpretation. In case of N. Masthan Sahib and S.S. Reddiar. v. Chief Commissioner Poundicherry and others (AIR 1962 S.C. 797), when the question arose as to whether Pondicherry is a part of territory of India and a reference was made to the Union Government by Supreme Court. Answer given by the 'Government who was possessed of plans and first hand information was held to be binding upon the Court. In case of Mian Muhammad Nawaz Shard. v. President of Pakistan and others (PLD 1993 S.C. 473), it has been held that fundamental rights of the citizens are to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future. In case of Inder Mohan Bhardwaj. v. Union of India and others (AIR 1980 Dehli 20) where a writ of quo warranto was filed by a citizen against the Minister of Central Cabinet, it has been held that allegations of disqualification by a competent authority as provided under the law and questions of political interest may be of some interest for public-at- large, but the same are to be determined on political forum and not by the Courts. As the writ jurisdiction as per Constitution of India does not provide a judicial remedy for every political mischief and in this situation as in others of like natures, appeals for relief does not belong to her as it has to be made to the informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In case of Ram Kishore Sen and others v. Union of India and others (AIR 1966 SC 644) wherein objection was raised against transfer of village C to Pakistan by India, it has been held that in case of divergent stands of political in issue in the nature, maps produced by Government shall be accepted as correct as the matter shall be deemed to be within the special knowledge of the said Government. In case of Nasrullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotices Control, Islamabad and 3 others PLD 1994 Supreme Court 23, where the order of extradition passed by the Federal Government upheld in Writ Petition by the High Court was challenged before the Honourable Supreme Court on the ground that the same is violative of Article 15 of the Constitution of Islamic Republic of Pakistan 1973 which confers upon a citizen of Pakistan is a fundamental right to remain in Pakistan or of extradition passed by the Government as well as the order passed in Writ Petition by this Court was upheld as being violative of the fundamental right with the following observations recorded at pages 26 to 28 of the report:-
9. A consolidated reading of the aforementioned paragraphs of the Preamble Articles of the Constitution of Pakistan 1973, and the law declared in the judgments referred to above, gives to the following legal propositions:-
(i) That sovereignty on earth belongs to Almighty Allah and authority to govern a State by the people of Pakistan vests in them as being a sacred trust to be discharged through their chosen representatives;
(ii) integrity of territories of Pakistan is the inviolable obligation of every person may be an ordinary man or may be a functionary of the State, safeguard whereof is the bounden duty of every Pakistani;
(iii) All the three organs of the State namely judiciary, legislature and executive are to perform their function within their own areas and the Constitution is to be harmoniously interpreted in such manner that functions of each organ are not unnecessarily interfered with by each other. Policy decision regarding political issues shall be taken by the Government in power in accord with the Constitution, law and principles of Policy including Article 40 of the Constitution;
(iv) Government of the time is duty bound to act in the manner that without alienating territorial sovereignty of Pakistan it adopt policies which are for the betterment of the people of Pakistan in accordance with a view to achieve agalitarian society having a respectful place both externally and internally and for the purpose of achievement of peace and prosperity for humanity;
(v) That international agreements which are a part of foreign policies of the Government shall not be called into question in exercise of power of judicial review and commitment made thereunder are necessarily to be honoured as per mandate of the Constitution itself, and injunctions of Islam.
10. We have considered the arguments addressed by the learned counsel for the parties in the light of facts and circumstances of this case as well as the above referred case law. On the one hand, the petitioner is not definite about the correctness of allegations, which he had levelled in this Constitutional Petition. His learned counsel has admitted at the Bar that the petitioner is not aware as to whether any portion of the land of Balochistan has been permanently alienate to Sultan of Oman or not? His plea is that there is mist over the whole issue. On the other hand, there is a categorical stand taken and statements made that territorial sovereignty over any area of Balochistan or. Pakistan has neither been alienated nor is intended to be so done. Therefore, the stand taken by the Federal Government is definite, clear and transparent. Even otherwise deals/agreements of the nature in dispute do not constitute alienation of territorial sovereignty of the country and are rather permissible under Article 40 and preamble to the Constitution of Pakistan 1973. In the modern times it is not possible for the countries to remain aloof to and to deliver goods both at the home and at the international forums, when the world has almost attained the characteristic of one family and era of iron curtain is a matter of the past. Even those countries which believed and practiced the concept of Iron curtain" have thrown their territories open to foreign investment. Interaction of relations and population and the media has made the whole world interdependent. Therefore, a small chunk of land which may be transferred by gift by the Provincial Government of Balochistan in favour of Sultan Qabus of Oman for the purpose of constructions of His Magesty's residence and offices, etc, does not in any manner amount to alienation of territorial sovereignty of Pakistan over the said area.
' During the modern times, concept of a territorial sovereignty does not prohibit transfer/alienation of the user of certain rights in the F territory/property of a sovereign State in a given situation which is in question in this petition. In his book "Introduction of International Law", Ninth Edition, written by Professor J.G Starke Q.C. Published by London Butterworths 1984, at page 152 of the Book, the Author has described the concept of "territorial sovereignty" of the State and the "lesser rights" of other States as follows:-- "As we have seen, one of the essential elements of statehood is the occupation of a territorial area within which State law operates. Over this area, supreme authority is vested in the State.
' Hence there arises the concept of 'territorial sovereignty' which signifies that within this territorial domain jurisdiction is exercised by the state over persons and property to the exclusion of other states. This concept bears some resemblance to the patrimonial notions of ownership under private law, and in fact the early writers on international law adopted many of the civil law principles of property in their treatment of state territorial sovereignty. To this day, their influence has persisted so that in particular the rules as to acquisition and loss of territorial sovereignty plainly reflect the influences of the civil law, but it is manifest that there are certain dangers in having recourse to Roman law and civil law analogies. However, it may be that in certain areas of the subject there is room for a wider application of the uti possideties principle (as you possess, you shall continue to possess').
' Territorial sovereignty was described by the learned Max Huber, Arbitrator in the Island of Palmas Arbitration, in these terms:- ' Sovereignty in the relation between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.'
' As the Advisory Opinion of the International Court of Justice on the Western Sahara (1975) shows legal ties of territorial sovereignty over people or land must be distinguished from ties of alleginance, in the case of persons, and mere customary rights in relations to land. On the other hand, state activity on an adequate scale, showing conclusively the exercise of authority, is one mark of the existence of territorial sovereignty. This corresponds to Max Huber's concept of the exercise of the functions of a State.
' It is sometimes said that territorial sovereignty is indivisible, but there have been numerous instances in international practice both of division of sovereignty, and of distribution of the components of sovereignty.
' For instance, sovereignty is often shared jointly by two or more Powers as in the case of a condominium, while states may by treaty restrict their right to transfer territory. Moreover, leases or pledges of a territory are frequently made by one state to another, as for example the leases of Chinese territory to Russia, France, Germany, and Great Britain at the end of the last century during the so-called 'Battle of the Concessions between these Great Powers, and the leases of British bases in the West Atlantic to the United States in 1940 in exchange for 50 American destroyers which were urgently needed in the war against Germany. In the case of a lease, temporary sovereignty is exercised by the lessee state, while the lessor state possesses a sovereignty in reversion. Again, some time sovereignty over a territory is held by one or more Powers interest for the population of the territory concern, as for example in the pre-War case after League of Nations controlled over the Saar before its return to Germany in 1935. Thus, international law does not appear to restrict the manner in which the sovereignty as to particular territory can be bestowed on, or withdrawn from any state."
' Previous grants as in Rahimyar Khan, in Lahore and in various other parts of the country to the rulers of foreign countries are the precedents demonstrating the falsehood and hollowness of the apprehensions of the petitioner. Sending of peace keeping troops in the new "world order", inflow of foreign investment, completion of huge projects in collaboration with each other, is the need of the day and perhaps provides a clear evidence of the gospel truth that a time will come when the world will cease to have geographical limits whereafter the whole world will be one unit to be guided and ruled by Muslim. Ummah. Therefore, if the Government has started process of attracting foreign investors to invest in Pakistan, to develop those areas which are still under developed, people of which areas are deprived of even the basic necessities of life, the action is rather to be commended than to be condemned and H restrained and therefore this Court in exercise of its discretionary jurisdiction, will not interfere in the stoppage of actions of the, Government which are contributory to the welfare of the people of this Country and achievement of ultimate goal to rule the whole world as revealed 1400 years earlier by Holy Prophet (p.b.u.h.).
11. The proposed deals/treaties legality whereof has been questioned in this Constitutional petition can So defend as valid in the light of Injunctions of Islam, which have also to be kept in view as per provisions of Article 2A of the Constitution while taking a decision as to whether an international agreement of the nature in question is in accord therewith or not, as is established from the following two incidents: (a) The first international agreement executed between the Prophet Muhammad (p.b.u.h.) in 1st Hijra which is called as "Meesaq-e-Madina", the details whereof have been reflected in the earlier part of this order where a portion of the judgment rendered in case of "Nargis Shaheen" (supra) has been reproduced and which judgment was upheld by the Supreme Court of Pakistan, also clearly proves that certain rights can be surrendered by a sovereign Muslim State even in favour of Non-Muslims and such a treaty cannot be said to be illegal, I (b) In Rajab 9th Hijrah treaty of Tabuk was entered into between the Muslim State of Madina and Syria and Yaman, details whereof are reproduced as under:- {{URDU TEXT}} ' A perusal of the above said treaty clearly shows that the Prophet (Peace Be Upon Him) had transferred the rights of passage to the people of other countries from air and sea and had also permitted them to have their tents on the springs which were situate in the territory of the Muslim State.
12. All the issues which have been raised in this petition are of political in nature and relate to the policy prerogative of making whereof vests in the sitting Government. Consequently has held in cases referred to in the earlier part of the judgment, the question raised in this petition in fact are not justiciable in exercise of the power of judicial review of this Court. The writ petition has not been filed bonafidely. The Government of the Punjab has been impleaded as party to the petition although the said Government is neither a necessary party nor a proper party and similarly the Province of Balochistan in whom the land in dispute vests has intentionally not been impleaded as party to this petition, hence, the same is not even properly constituted. The petition has been filed on the basis of conjectures and surmises and is patently ill-founded. During the course of arguments contradictory stands have been taken by the learned counsel for the petitioner. It is quite clear, therefore, that the petitioner has not come to the Court with clean hands and it is a politically motivated petition which is intended to malign a patriotic Government, to hamper inflow of foreign investment in the country and development of under-developed areas of Pakistan to create misgivings in the relationship between Pakistan, Oman, USA, Central Asian States and other friendly countries. We, therefore, hold that the stand/decision taken/made by the Federation of Pakistan as well as the Provincial Government on the issue of Gawadar is quite definite and transparent; that the territorial sovereignty on any part of Pakistan including the Coastal areas of Balochistan and Gawadar is not proved to have been alienated by the Federal Government of Pakistan or Provincial Government of Balochistan; that the deal/treaty/arrangement between Government of Pakistan as well as the Sultan of Oman regarding development of Coastal Area of Balochistan as well as Gawadar Coast and construction of link road through the territory of Pakistan to connect the Central Asian States is for the welfare and benefit of the people of Pakistan, is in accord with the Constitutional mandate as well as the Injunctions of Islam, and, that the petitioner is politically motivated, is, hence, has no force and is dismissed in limine.
13. Before parting with this judgment, we must appreciate the valuable assistance rendered to us by Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who was called upon to assist the Court, on a very short notice.