' CH. MUSHTAQ AHMAD KHAN, J.---This judgment shall be read as a part, in addition to and in continuation of the order dated 1-3-1995, whereby connected Writ Petitions No,6082/94 and 6188/94, have been dismissed.
2. As facts of the case as well as the arguments addressed by the parties have been reflected in the short order dated 1-3-1995, therefore, the same need not be reproduced in this detailed judgment, which shall form part thereof.
3. We have considered the arguments addressed at the Bar, have perused the record produced by the respondents and the views of Joint Secretary (Admn.) of Lahore Chamber of Commerce and Acting President of Lahore Stock Exchange, and have gone through the case-law as well as the relevant verses from Holy Qur'an, referred to during the course of arguments.
4. Before embarking upon the discussion/decision of the various contentions/issues raised in these petitions, it will be appropriate if a brief resume of the relevant case-law is taken note of as follows:-- ' In case of Chotey Lal v. The State of Uttar Pradesh and others (AIR 1951 Allahabad 228), it has been held that the writ of mandamus can be issued if an authority is under statutory and legal duty to do something or not to do something, whereas writ of prohibition can be issued against a body exercising public functions of a judicial or quasi-judicial character but not to restrain exercise of legislative powers by the legislature. Courts are not a supervisory body over the Legislature. Their approval or disapproval is not needed for an Act passed by the Legislature to have the force of law.
Their function is interpretative. In other words upon any particular case coming before them in which the right of any party is involved, they decide whether the Act or any part of it is to be disregarded on the ground of its incompatibility with the Constitution.
' In case of Government of Pakistan. v. M/s. Indo-Pakistan Corporation Ltd. Etc. (PLD 1979 SC 723), where the question was as to whether the delayed policy decision taken by the Government regarding declaration of the status of enquiry property is lawful or not, at page 739 of the report, it has been held as under:-- "Mr. Iftikhar then reminded us that the Company had been declared an enemy firm during 1965 emergency by a notification dated 21-9-1965, but as this notification had been withdrawn on 17-7- 1984, learned counsel's submission was that there was no justification for declaring the Company as enemy firm again during the 1971 emergency, and further as the impugned notification had been issued long after the cessation of the hostilities with India, the further submission was that this delay in declaring the Company as enemy firm was itself a strong piece of evidence in support of the Company's allegations of mala fides against the appellants. The argument assumed that the Government was justified during the 1965 emergency in withdrawing the notification declaring the company to be an enemy firm, and as Mr. Lone challenged this assumption, Mr. Iftikhar pointed out that the Notification of 17-1-1966 by which the Company had ceased to be an enemy 'firm had been issued in accordance with the policy decision of the Federal Government that Indian. Muslims should not be treated as enemies for the purpose of the Enemy Property Laws, and even Mr. Lone admitted that the Federal Government made a policy decision during the earlier emergency as submitted by Mr, Iftikhar. But his contention was that the Government was entitled to change its policies in the light of the changing political situation. Mr. Lone's submission is correct, and as the Courts do not interfere with policy decisions of the Government, the fact that first appellant had revised its policies during the 1971 emergency is neither any evidence of mala fides, nor does it furnish any g;rdund whatsoever to the Company for challenging the impugned notification."
' In case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98), where the question arose as to whether a decision taken by the Government is in the public interest or not, it has been held that it is the Government alone, which is the best Judge to determine. While dilating upon the issue, at page 130 of the report it has been held as under:-- "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best Judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the Officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage.
' Learned counsel for the respondents have in support of this view, relied a number of decisions from the Indian jurisdiction wherein the Supreme Court of India had taken the view that the compulsory retirement of an officer under Note (1) to Article 465-A of the Civil Service Regulations is based purely on the satisfaction of the authorities who have to take action.
' A somewhat similar view was also taken by Munir, C.J., in Chaudhry Muhammad Ismail v. Punjab Province PLD 1956 Lah. 125 Even where the compulsory retirement is as a measure of punishment, as under subclause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, this Court has in the case of Zafarul Ahsan v. Republic of Pakistan PLD 1960 SC 113 taken the view that the Government could even without the formality of an enquiry retire a Government servant 'if it were of the opinion' that he was guilty of corruption or misconduct or even had the reputation of being corrupt'.
' It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which 'public interest' can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over-punctilious or over-fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and, therefore, it must of necessity be left to the subjective satisfaction of the employing authorities."
' In case of Mr. Zulfikar Ali Bhutto. v. The State (PLD 1978 SC 40), it has been held that the Courts cannot sit in appeal over the executive or legislative authority of the Government nor to substitute its own discretion to that of competent Authority. Responsibility for relevant action, its methodology and procedural details must rest on the authority concerned. At page 58 of the report their Lordships have observed as under:-- "It is also necessary to state that as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313 under a Constitutional System which provides for a judicial review of an executive action, it is a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive, or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to sec that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied.' We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto.
' As to what is reasonable and what is not, the observations made by Hamoodur Rehman, J. (as he then was) in the case of Abdul A`la Maudoodi. v. The Government of West Pakistan PLD 1964 SC 673 provide a useful guide, namely:-- ' But what is the test that the Courts are to apply in determining what is or is not reasonable.
Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one Judge may well-regard that as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must of course be judged by the standards of an ordinary prudent and reasonable citizen... Reasonable is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances.'
' It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent Authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary prudent and reasonable citizen and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."
' In case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595), it has been held that all the three organs of the State namely judiciary, executive and the legislature have to perform their functions within the four corners of the area assigned to each organ by the Constitution.
' In case of A.G. Prayagi v. State of M.P. And others (AIR 1987 M.P.25), where a petitioner who was a tax-payer filed a Constitutional petition seeking a prayer for issuance of writ of mandamus for removal of Cabinet Minister and high officers of Government department for misuse of power and public funds and in this behalf to direct the Chief Minister to advise the Governor to do the needful, it was held that such a petition cannot be held to be bona fide and hence the petitioner has no locus standi to file a petition and further that decision of such questions is outside the purview of writ jurisdiction, hence the writ was held to be incompetent and it was held that proper forum to raise such issues was "Lok Ayukt and Up-lok Ayukt Adhiniyam". In paragraph 8 of the report it has been held as under:-- "Under Article 163 of the Constitution, there shall be a Council of Ministers with the Governor appoints a Minister on the advice of the Chief Minister and holds office during the pleasure of the Governor. A Minister can be dismissed by the Governor on the advice of the Chief Minister. The Cabinet is accountable to the State Legislature and can hold offices so long it enjoys the confidence of Lok Ayukt Evam Up-Lok Ayukt Adhiniyam, 1981 and under section 7 they are empowered to enquire into allegations of misuse of power favouritism, nepotsim and corruption against Ministers including Chief Minister and public servants. Action can be taken by the Government on the report under section 12. Article 226 is not the forum at the first instance to enquire into the allegations made by the petitioner against the Minister and the Head of the Department, more so when the allegations are controverted as being false and malicious. The writ jurisdiction cannot be used to wash dirty linen. This Court cannot issue a writ of Mandamus to the Chief Minister to advise the Governor to dismiss the respondent No,2 and to the Minister to dismiss the respondent No,3. The petitioner, if he has genuine grievances to make, should approach the Lok Ayukt and Up-Lok Ayukt. The petition is incompetent and the prayer made in the petition is outside the purview of this Court. The petitioner's two petitions M.P. Nos. 950 and will be considered on their own merits."
' In case of the Government of N.-W.F.P., Communications and Works Departments, Peshawar. v.
Muhammad Said Khan and another (PLD 1973 SC 314) at page 520 of the report, it has been held that:-- "The High Court cannot itself make any executive order, its functions being confined to issuing of directions on matter or law. Therefore, where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law, i,e, exercises a jurisdiction not vested in him by law."
' It has further been held in the above-referred case that while determining as to whether the allegation against the Bank Officer amounted to misconduct or not, it could only be determined after a satisfactory inquiry and the High Court cannot substitute its own judgment for that of the Inquiry Officer. This Court has also held in Writ Petitions No,680 of 1995, 1177 of 1995 and Writ Petition No,6282 of 1994 that in exercise of power of judicial review, it is not appropriate for this Court to interfere with policy/political issues.
4. In his renowned Book by William B Lockhart "The American Constitution, "Seventh Edition at page 27 of the Book, while discussing the power of judicial review against the actions of the Government, it has been observed as under:-- "Do the provisions of section 4, Article IV bring about these strange, far-reaching and injurious result? That is to say, do the provisions of that Article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as. To a matter purely political for the judgment of Congress on a subject committed to it and thus overthrow the Constitution upon the ground that thereby the guarantee to the States of a Government republican in form may be secured, a conception which after all rests upon the assumption that the States are to be guaranteed a Government republican in' form by destroying the very existence of a Government republican in form in the Nation?
' We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it, since the repugnancy of those contentions to the letter and spirit of that test is so conclusively established by prior decisions of this Court as to cause the matter to be absolutely foreclosed."
' Ronals D. Rotunda John E. Nowak in the renowned Treatise on Constitutional Law, Vol. I at pages 275-276 for determination of a functional test for political questions as laid down by the Author at pages 295 to 297 of the Book, are reproduced as under:-- "In addition to the Baker test of political question, and some recent cases finding or not finding political questions in limited areas several commentators have proposed various tests for the application of the doctrine. Professor Bickel has argued: ' Such is the foundation, in both the intellect and instinct, of the political question doctrine the Court's sense of lack of capacity, compounded in unequal parts of (a) the strangeness of the issue and its interactability principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally (in a mature democracy) the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from. Professor Henkin has proposed another analysis: ' The 'political question' doctrine I conclude, is an unnecessary, deceptive packaging of several established doctrines.... I see its proper content as consisting of the following propositions:
(1) The Courts are bound to accept decisions by the political branches within their Constitutional authority.
(2) The Courts will not find limitations or prohibitions on the power of the political branches where the Constitution does not prescribe any.
(3) Not all constitutional limitations or prohibitions imply rights and standing to object in favour of private parties.
(4) The Courts may refuse some (or all) remedies for want of equity.
(5) In principle, finally, there might be Constitutional provisions which can properly be interpreted as wholly or in part 'self-monitoring' and not the subject of judicial review. (But the only one the Courts have found is the 'guarantee clause' as applied to challenges to state action, and even that interpretation was not inevitable).
' Among the many articles in the field it is important to consider the formulation of Professor Scharpf. He considers the doctrine best explained in functional terms rather than an unprincipled retrent from difficult cases or the absence of applicable legal standards.
' Sometimes, he argues, the doctrine is justified when the Court cannot be assured of full clarification of the relevant questions because of difficulties of access to information. This function 'is most obvious in the cases touching upon foreign relations where the Court has generally been hesitant to trust its own understanding of the broader situation'. In the case of purely domestic issues, this rationale appears weaker but even here its justification is understandable for the decisions concerning the ratification of Constitutional amendments, legislative enactments and the duration of the Civil War."
' Secondly, the political question doctrine is explained in part as 'the Courts deference to the prior decisions of another department within the latter's sphere of specific responsibility'. This justification supports the practical need for a uniformity of decision on those matters where the political departments have already committed the United States.
' Thirdly, the Court will defer to the wider responsibilities of the political departments. Thus, the Court has accepted, in United States v. Pink the Policy of recognition "implied in the Litvinov Assignment as controlling for the question of the validity of Soviet Expropriations in order to avoid any interference with the President's attempt to deal with the problem of Russian debts as a political prerequisite for recognition.'
' But in all these areas the Court limits the thrust of the functional rationales for the political question by a normative qualification where important individual rights are at stake, the doctrine will not be applied.' Thus, it is unusual to apply the doctrine to the Bill of Rights."
5. Following are legal propositions laid down in the aforementioned judgments and the treatises:--
(1) that the policy matters and the political issues are primarily to decided on a political platform and as such have to be resolved by t executive and the legislature and not by the judiciary;
(ii) that in case a person is aggrieved of a policy matter or seeks resoluti of a political issue, proper course for him is to approach t Government through public so that the matter/issue could be taken up and resolved through public representatives in or outside t Parliament Assemblies;
(iii) that there is a presumption that a decision taken/policy adopted the Government is in public interest, unless otherwise proved strong and cogent evidence led to the contrary;
(iv) that the superior Courts in exercise of power of judicial revie although are entitled to strike down excesses committed by executive authorities, yet may not interfere into the area of the legislature.
6. Main contentions raised to challenge the legality and vires of the impugned notification/decision issued taken by the Government, in these two petitions are:--
(i) that the notification/decision is against Injunctions of Islam as contained in Holy Qur'an and Sunnah;
(ii) that keeping in view the prevailing economic conditions in the country decision to observe two weekly holidays, is not in the public interest; and
(iii) that observance of two weekly holidays during a week has resulted in causing of a great loss to the economy particularly the Banking business of the country, as due to the holidays in question said business remains closed, virtually for three days in a week as Sunday is a close day in majority of the foreign countries.
7. As regards the first contention raised by the petitioner in support of his case, in order to appreciate the same it will be appropriate to reproduce the relevant verses from Holy Qur'an:- {{URDU TEXT}} ' TRANSLATION BY MARMADUK PICKTHAL.
9. 0 ye, who believe! When the call is heard for the prayer of the day of congregation, haste unto remembrance of Allah and leave your trading. That is better for you if ye did but know.
10. And when the prayer is ended, then disperse in the land and seek of Allah's bounty, and remember Allah much, that ye may be successful.
' As per understanding of the petitioner, the above said two verses are mandatory in nature as a whole, and, therefore, Muslims have a mandate to work on Friday, hence, said day could not have been declared as a Holiday. As regards Saturday, the petitioner's case is that the said day is observed as a closed Holiday by the Jews, therefore, Muslims should not observe the said day as a Holiday. In support of his arguments regarding Saturday, the petitioner as made a reference to a Book "Urdu Encyclopaedia of Islam" published under the auspices of the University of the Punjab, Lahore by Dr. Saruri, the relevant portion wherefrom is reproduced as under: {{URDU TEXT}}
8. A close reading of verses Nos.9 and 10 from surh Al-Jumah, clearly shows that direction of stoppage of business on hearing of call for Jumah prayer, is mandatory in nature, whereas rest portion thereof is just directory and grants permission to work after Jumah prayers and also to go on doing "Zikr" of Almighty Allah. Therefore, the verse while read as a whole cannot be interpreted as a prohibition to observe Friday as a holiday. In Holy Qur'an there are other composite verses consisting of mandatory and directory provisions. For instance as per verses Nos.1 and 2 of Surah Al-Maida reproduced as under:--' {{URDU TEXT}} ' TRANSLATION BY MARMADUK PICKTHAL:
1. 0 ye who believe! Fulfil your undertakings. The beast of cattle is made lawful unto you (for food) except that which is announced unto you (herein), game being' unlawful when ye are on pilgrimage. Lo! Allah ordaineth that which pleaseth Him.
2. 0 ye who believe! Profane not Allah's monuments nor the Sacred Month nor the offerings nor the garlands, nor those repairing to the Sacred House, seeking the grace and pleasure of Allah. But when ye have left the sacred territory, then go hunting (if ye will). And let not your hatred of a folk who (once) stopped your going to the Inviolable Place of worship seduce you to transgress; but help ye one another unto righteousness and pious duty. Help not one another unto sin and transgression, but keep your duty to Allah. Lo: Allah is severed in punishment.
' During the period of pilgrimage hunting is prohibited but after the "Ahram" period is over hunting is permitted. The first part of the verse is mandatory, whereas the second portion is directory. Similar is the position with regard to the following verse No,3 from Surah "Al-Nisa" which is reproduced as under:-- {{URDU TEXT}} ' TRANSLATION BY MARMADUK PICKTHAL:
3. And if ye fear that ye will not deal fairly by the orphans, marry of the women, who seem good to you, two or three or four; and if ye fear that ye cannot do justice (to so many) then one (only) or (the captives) that your right hands possess. Thus, it is more likely that ye will not do injustice," according to which a person is admitted to enter into more than one marriages at a time, but it does not mean that he must do so. Verse No,10 of Surah alJumali itself supports the aforementioned view as in the last portion of the verse, even while working there is a direction that the people should remain busy in "Zikr" but it does not mean that they must do so even after Jumah prayers. Refer Tafheemul Qur'an, Vol. V by Maulana Abul Ala Maudoodi, Item No,16 at page 497.
Above taken view is also supported by the fact that Islam is a dynamic and ultimate religion, to be followed by whole mankind till eternity. Grant of permission to the Muslims to work even after Jumah prayers on Friday, which is a day of their worship, is distinguishing feature of superiority of Islam over the religion followed by Jews, who are prohibited to work on Saturday. Reference in this behalf can be made to the relevant portion from Tafseer "Tarjumanul Qur'an" by Shah Abdul Qadir (R. A.), adopted by Maulana Shabbir Ahmad Usmani, which is reproduced as under:-- {{URDU TEXT}}
9. Therefore, we hold that in absence of an injunctive prohibition, in Holy Qur'an or Sunnah to observe holiday on Friday, it cannot be said that the impugned Notification/decision is violative of the Injunctions of Islam.
10. As regards the Saturday, although it is a fact that the said day I observed as a close Holiday by the Jews, but this fact alone is not sufficient t hold that Saturday cannot be observed as a Holiday, in absence of there bein no injunctive prohibition in Injunctions of Islam. As per religion of Islam al the days being sacred, it cannot be said that Saturday cannot be declared as Holiday in a Muslim country.
11. As regards the argument that observance of two Holidays in Pakistan is against public interest, it is undoubtedly a social necessity, keeping in view the human nature and also health considerations. It is a must that a human being should observe Holiday on which day he can attend to his other duties than the official work for which purpose he cannot otherwise find time. On perusal of the record produced by the respondents and taking of judicial notice of certain hard facts, we find that the necessity to observe two days holidays had arisen due to energy crisis in the country and also due to the fact that Friday being a day of worship people were facing a great difficulty to attend to their household commitments like arrangement of marriage functions and at certain times people were constrained to violate even the mandate to go for Jumah prayers due to the holding of social functions and gathering on'Fridays. Therefore, without decreasing the total working hours, decision has been taken to observe two weekly Holidays. It is for the people now to honestly work to the maximum. Even otherwise nobody will stop if a person wishses to work on Holidays. This socio-economic decision of political nature was taken by the Government not only after considering the overall economic conditions in the country and the other relevant circumstances and is also in line with not less than 40 other countries of the world including Saudi Arabia, who observe two weekly Holidays.
12. The issue of loss to the economy and Banking business raised by the petitioner is in fact a question of fact, therefore, merely on the basis of the opinion of the petitioner who is one individual out of twelve crores of people, two office holders of the Lahore Chamber of Commerce and Industry and Lahore Stock Exchange alone, keeping in view the presumption that acts of the Government are presumed to be correct and in the public interest, it is not possible for us to positively hold that the questioned decision has not been taken or otherwise is not in public interest. The issue being more of socioeconomic and political nature, can more appropriately be resolved by the Government itself who is in a better position to assess the exact situation which has resulted due to the observance of two holidays, but can also withdraw the Notification, if it comes to the conclusion that the impugned Notification decision is not in the public interest or is otherwise resulting in causing of loss to economy, hence, it not justiciable in writ jurisdiction of this Court as per law declared in the cases referred to in paragraph No,4 of the judgment.
13. Resultantly, we hold that the impugned Notification/decision is neither against the Injunctions of Islam/the Constitution/the law, nor is I established to be against the public interest or a cause of loss to economy and banking business, which could be held to be illegal and without a lawful Authority to attract the exercise of writ jurisdiction of this Court. Hence, this petition is dismissed with no order as to costs.