ISLAMIC REPUBLIC OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR AND KASHMIR AFFAIRS, ISLAMABAD_Referring Authority vs ABDUL WALI KHAN, M. N. A., FORMER PRESIDENT OF DEFUNCT NATIONAL AWAMI PARTY

1. HAMOODUR RAHMAN, C. J.-[Introductory]-By a notification, No. SRO-176 (1)/75, issued on the 10th February, 1975, the Government of Pak. Declared that the National Awami Party was operating "in a manner pre--judicial to the sovereignty and integrity of Pakistan" and by another notifica--tion No. S R 0-178 (1)/75, issued on the same date, the Government of Pakistan also declared that as a result of the fist mentioned notification, the National Awami Party "stands dissolved, properties and funds are forfeited to the Federal Government". Thereafter, as required by subsection (l) of section 6 of the Political Parties Act, 1962, the Government made the present Reference to this Court (wrongly described in the cause title as a Reference under Article 186 of the Constitution) on the 24th February, 1975. Immediate action was taken on the Reference and notices were directed to be issued to all members of the Executive Committee of the dissolved party as well as the respondent named in the Reference application calling upon them to file their respective written statements.

2. Copies of the Reference application were also sent along with the said notices. The parties were also directed to file their respective lists of witnesses. The Referring Authority was also called upon to furnish the Court with the list of the members of the Executive Committee of the dissolved Party and to file more copies of the Reference for being served upon such members.

3. A list giving the names and addresses of such members was received on the 4th March, 1975, along with 39 copies of the Reference application, but without its annexures. Notices to all persons named in the said list were accordingly issued.

4. The Referring Authority then made an application praying for a hearing of the Reference for laying down the procedure to be followed by the Court.

5. Facilities for defence On the 12th March, 1975 and 13th March, 1975, a number of applications were received from the President of the dissolved Party and a number of other office-bearers, which were in the nature of preliminary statements, raising various objections and pointing out the difficulties in the filing of the written statements called for by the Court due to their detention and non-availability of the annexures to the Reference.

6. On the 15th March, 1975, a formal application was put in by one, Mr. Jamal Naqvi. Praying for extension of time to file the written statements called for by the Court in order to be able to call a meeting of the Executive Committee of the dissolved Party and then prepare a written statement as per instructions of the Executive Committee after examination has been allowed of the records seized by the Government.

7. On the 18th March, 1975, an order was, accordingly, passed directing the Referring Authority to supply more copies of the annexures to the Reference application. The office was also directed to supply to the Advocate-on-Record of the Referring Authority copies of written statements so far received. The dissolved Party and its ex-leaders were also called upon to appoint their Advocates- on-Record and Counsel.

8. In the meantime. Mr. Mahmud Ali Qasuri and one or two other learned Advocates appeared with the permission of the Court to represent some of the detained leaders of the dissolved Party, including Mr. Abdul Wali Khan on various dates and asked for permission to meet such of the detunes as were being detained at Sihala Special Jail in order to obtain necessary instructions for the filing of the written statements and the conduct of the defence. This permission was granted.

9. Mr. Mahmud Ali Qasuri was, thereafter, authorised by Mr. Abdul Wali Khan to appear on his behalf and intimation thereof was given to this Court on the 3rd April, 1975 through the jail authorities.

10. Copies of the annexures were then supplied to Mr. Mahmud Ali Qasuri on the 5th April, 1975, and on the same date, by the same order, he was also given general permission to meet Mr. Abdul Wali Khan at Sihala Special jail.

11. At the request of the Government the preliminary hearing of the Reference to determine the procedure to be adopted was fixed for the 12th April, 1975, and on that day, on the request of Mr. Mahmud Ali Qasuri, the Referring Authority was directed to bring all the detunes together at one place to enable their counsel to obtain instructions for contesting the Reference. Dates were fixed for the filing of the written statements and the affidavits of witnesses proposed to be examined by the Referring Authority. Mr. Mahmud Ali Qasuri was directed to put in a formal application for funds, if so advised. It was only on the 25th April, 1975, that a learned Advocate-on-Record filed a power of attorney and a memorandum of appearance on behalf of the respondents. On the same day, the said learned Advocate-on-Record also filed an application for a number of other directions.

12. Through its letter of the 28th April, 1975, the Referring Authority formally informed the Court that it was prepared to release the funds and the records of the Party which had been seized on the 10th February, 1975. Mr. Abdul Wali Khan, the President of the dissolved National Awami Party, was, accordingly, asked to nominate a person to receive back the record of the Party and its funds. It later transpired that there were no funds worth mentioning in the account of the Party.

13. A number of miscellaneous applications were thereafter filed on behalf of the detunes and Mr. Abdul Wali Khan asking for further facilities. All these applications were posted for hearing on the 14th May, 1975. They were heard on that day and the next day. Orders were passed for keeping the eleven leaders still under detention collected at Sihala initially for a period of one month. The dates of the filing of the written statements and of the affidavits of the witnesses were further extended and two learned Advocates, whose names were mentioned in the order, were permitted to meet the detunes at the Sihala Jail, as and when necessary, but on prior intimation to the Jail Superintendent at least 12 hours before the time of the proposed meeting. The detunes were also allowed to avail of the services of a stenographer for the preparation of their written statements.

14. The Referring Authority was also directed to supply at least 12 copies of complete paper books for being made over to the learned Advocates appearing for the respondents. Directions were also given to the Referring Authority to permit such of the members of the Executive Committee of the dissolved Party as were not under detention to meet at Islamabad on a date or dates to be specified by them without any hindrance or obstruction as the applicants had expressed an apprehension that if they attempted to hold such meetings, they might be arrested.

15. A meeting of the Executive Committee was, accordingly, held and a consolidated written statement on behalf of the Party was filed on the 24th May, 1975. Thereafter. On the 14th June, 1975, Messrs Abdul Wali Khan, Arbab Sikandar Khan Khalil, Sardar Khair Baksh Marri, Mir Ghaus Baksh Bizenjo and Sardar Ataullah Mengal also filed separate written statements. The affidavits of 14 witnesses were also filed by the learned counsel for the Referring Authority on the same date along with a rejoinder to the consolidated written statement of the dissolved Party.

16. On the 16th June, 1975, however, another application was filed by the President of the dissolved Party and the other five leaders named above, who were then collected under the orders of the Court at Sihala, for provision of funds for conducting the defence and for permission to be present in the Court in person during the hearing of the Reference. Mr. Mahmud Ali Qasuri and Mr. Zahurul Haq appeared on behalf of the detunes, instructed by Mr. J. G. Akbarji, Advocate-on-Record. In spite of the objections raised on behalf of the Referring Authority, this Court directed that a sum of Rs. 1,500 per day should be paid by way of fees far the employment of one senior counsel, one junior counsel and one Advocate-on---Record for appearance in Court and a lumpsum of Rs.

17. 10,000 for prepara--tion of the case. In addition to the above, the Referring Authority was also directed to bear the expenses of a stenographer and a typist not exceeding Rs. 1,000 per mensem.

18. As for the personal appearance of the detunes it was ordered that Mr. Abdul Wali Khan, who had been named as the sole respondent by the Referring Authority, should be produced before the Court every day, subject to the condition that such production will not cause any interference directly or indirectly in the conduct of the proceedings of the Court. Whatever Mr. Abdul Wali Khan may wish to say, will have to be said through his counsel, as he is represented by counsel, and that Mr. Abdul Wali Khan would preserve the decorum of the Court. Mr. Wali Khan was also not to grant any interview to any representative of the Press or any one else within the precincts of the Court. So far as the other datenus were concerned, their production in Court would be considered and specific orders of the Court will be made in that behalf whenever necessary. In addition to the above, various other modifications were also made in the previous orders, at the request of the learned counsel for the respondent, and the Referring Authority was directed to keep the detunes at the Sihala Jail for a further period of one month. The hearing of the Reference was then adjourned to the 19th June, 1975.

19. Personal appearance of N. A. P. President and walk-out On this date, Mr. Abdul Wali Khan was brought to the Court in person. He asked for permission to address the Court. It was pointed out to him that in the order granting him the facility of being present in the Court during the conduct of the proceedings, it had been clearly specified that he would not speak except through his counsel. He then stated that, he would, in the circumstances, discharge his counsel and Advocate-on---Record and claim the right to appear in person. His counsel, however, remained sitting in Court and he even consulted them from time to time during the course of his address to the Court.

20. He claimed that all the members of the dissolved Party, who were under detention, should be released forthwith; that Government should pay for their defence at the same rate and scale that it was spending for the conduct of the Reference and contended that unless this was done the contest would be an unequal one and he would not be in a position to present the case of the dissolved Party properly. The justification sought to be made out for the expenses of the defence from out of the State Exchequer was that since this was a case of a political nature, the State should bear the expenses of both sides. It was pointed out to Mr. Abdul Wali Khan that this Court had no jurisdiction to direct the release of the detunes in these proceedings and if they desired to challenge their detention, they should do so by other proceedings and in other forums. So far as expenses were concerned a considerable amount had already been sanctioned and no further increase appeared to be justified for the present.

21. At this stage Mr. Abdul Wali Khan took objection to the constitution of the Bench. He objected to the presence of Justices Mohammad Gul and Mohammad Afzal Cheema.

22. It may be mentioned here that at an earlier stage of the proceedings, Mr. Mahmud Ali Qasuri had also hinted that there may be some objection to the constitution of the Bench as some members may have had something to do with the case at an earlier stage and in other capacities. He did not, however, formally press this objection, as he admitted that up to that stage, it was only based on suspicion and nothing more, but if subsequently definite facts justifying such an objection were discovered, a formal application would be made in that behalf.

23. It was, therefore, pointed out to Mr. Abdul Wali Khan that the objection should have been made in a concrete form by a formal application. In any events, -since indication bad been given to the Court that such an objection would be raised, the Hon'ble Judges concerned had been consulted and they had both stated that they were, in no way, embarrassed in sitting on the Bench as constituted, for, they had had nothing to do with this matter from which any inference of any bias on their part could legitimately be made nor were they in fact, in any way, biased or prejudiced against the dissolved Party or any of its leaders. The objection was, therefore, overruled.

24. At this stage Mr. Abdul Wali Khan announced, that in the circum--stances, he would not be prepared to participate in the proceedings and walked out of the Court room along with his learned counsel, and a large number of supporters, who formed the bulk of the audience in the Court.

25. In view of this unfortunate and unbecoming attitude of the President of the dissolved Party, it was considered desirable that the Hon'ble Judges, whose presence was objected to, should record their points of view in writing. They have done so and their notes form part of the records of the Reference along with the detailed order then dictated by me with regard to the proceedings of the 19th June, 1975.

26. Objection to the constitution of the Bench.

27. Since this objection has been taken and a walk-out staged on that ground, it has become necessary for me to indicate again that the objection was wholly unjustified and improper, and that the walk-out was an affront to the Court.

28. No specific allegations had been made against Mr. Justice Mohammad Afzal Cheema. All that was said was that since he was, before being elevated to the Bench of this Court, a Secretary in the Ministry of Law and Parliamentary Affairs, Government of Pakistan, he might have, in that capacity, had occasion to deal with the question of the banning of the National Awami Party at some stage or the other, since one of the Ministers of the Government of Pakistan, who was also at one stage a Minister of Law and Parliamentary Affairs, had publicly stated that the question of the banning of the Party was under examination for over a period of 2/3 years, during which period Mr. Justice Mohammad Afzal Cheema was Secretary of the Ministry concerned. I must reiterate, what I have said in my earlier order passed on the 16th June, 1975, that no Judge's can possibly be disqualified on the basis of such a vague and nebulous suggestion. Mere suspicion of bias, even if it is not unreasonable, is not sufficient to disqualify a Judge. In the present case, however, even the suspicion is wholly unreasonable, because, it does not necessarily follow that it is the Ministry of Law which must have examined the question of banning of the Party or that the Secretary of the Ministry had of necessity to deal with this question. Most of the witnesses who have now come before us confirm that the examination of the question of the banning of the Party was done mainly by the Ministry of Interior, Government of Pakistan and not the Ministry of Law.

29. So far as Mr. Justice Mohammad Gul is concerned, it is said that since he has already dealt with the question of the continuance of the detention of Mr. Abdul Wali Khan and some other leaders of the National Awami Party as Chairman of the Advisory Board, constituted under clause (iv) of 8 Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973, he has already dealt with the bulk of the material which forms the basis for the banning of the Party as well and, therefore, he must be held to have made up his mind one way or the other and thus disqualified himself from sitting on the Bench. Even this, I must add, is a wholly untenable proposition and cannot be treated as a sufcient ground for disqualifying Mr. Justice Mohammad Gut. As pointed out by the learned editors of American jurisprudence even "at common law bias or prejudice on the part of a Judge, not the result of interest or relationship, is not supposed to exist, and generally it does not incapacitate or disqualify a Judge to try a case, unless the Constitution or statute so provides"-(vide American Jurisprudence, Vol. 30, page 774, paragraph 74).

30. The basis of the disqualification, therefore, is "personal bias or prejudice" of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any constitutional or statutory bar a Judge is not disqualified from sitting at a trial of a person merely because previously he had participated in other legal proceedings against the same person, whether in the capacity of a Judge or of an Administrative Tribunal or official, it makes no difference. There is abundant authority from the American Jurisdiction to support tire view that the mere fact that a Judge has dealt with another matter concerning the same person in another capacity does not necessarily disqualify him from sitting as a Judge at the trial of that person.

31. In the present case, however, even this analogy is not apt, because, before the Advisory Board, of which Mr. Justice Mohammad Gut is the Chairman, the question was as to whether the detention of Mr. Abdul Wali Khan and of some other members of the party should be continued or not. There was no question there at all of the banning of the Party. To say, therefore, that because the detention of some of the persons concerned has been extended a decision has already been taken with regard to the banning of the Party is neither factually nor legally correct. There is no allegation of any personal animosity or ill-will against Mr. Justice Mohammad Gut nor has it been shown that he has any personal interest in the matter of any kind at all, nor can it be said that the personal attitude of Mr. Justice Mohammed C Gut is likely to be affected in this case because of any opinion that he may have formed as the Chairman of the Advisory Board.

32. The decision of the questions now before us will have to be made on the basis of the evidence adduced in this Court and not on the basis of any material which might have been produced before the Advisory Board. Such an improper allegation of bias is, in my view, opposed to all cannons of decency and was least to be expected from a person who started his peroration before the Court by professing his constant endeavour to preserve the rule of law and the highest respect for law.

33. Cornelius, C. J. Held in the case of M. H. Khondkar v. The State (PLD 1966 SC 140) that "it is open to a litigant to raise in the face of a Court an allegation of bias in that Court", whether it be a superior or a subordinate Court, but even he felt the necessity of recording the caution that "mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt." I subscribed to the same view then and do so even now. This Court has reaffirmed this view in its order passed on the 19th June 1975, in this proceeding and I see no reason to depart therefrom as it appears to be based on the consensus of judicial opinion both in America and in Great Britain.

34. Mr. Wali Khan has, of course, cited no authority or law in support of his contention nor have I been able to discover any decision of any Court supporting such a wide proposition. The nearest case to the point is the decision of the Federal Court of Pakistan in the case of Ghulam Rasul v. Crown (PLD 1951 PC 62), where a Legal Remembrancer of the Government of the Punjab, who had after examination of the evidence on the record, advised the filing of an appeal against acquittal was held to be disqualified from sitting on the Bench, after elevation to the High Court, constituted to hear the same appeal.

35. This decision was based mainly on the interpretation of the provisions of section 556 of the Criminal Procedure Code which debarred a Judge or a Magistrate from trying any case "in which he is a party or is personally interested". This case is clearly distinguishable for the "personal interest" attributed to the learned Judge concerned was on the ground that he had formed an opinion as to the questions which also fell to be decided in the same appeal against the same accused persons. This is not the case here, for, the question of the banning of the Party could not possibly have come up for consideration before the Advisory Board.

36. In these circumstances we would reaffirm our order of the 19th June 1975, rejecting the objection to the constitution of the Bench as being wholly unwarranted and misconceived. To accede to such a plea of bias would lead to very fantastic results, for, then even a Judge who may have refused to grant ad interim bail or injunction in a pending cause or appeal would find himself disqualified from hearing the appeal. Similarly a judge who may have given a decision in one matter against a particular person in one d capacity would be disqualified from being a Judge in any other matter in which the same person is a party for ever. This is clearly not the law and it could never have been the intention of the law to impute such , universal bias to Judges.

37. Appointment of Amicii Curiae It might also be mentioned here that Mr. Abdul Wali Khan had also made a request that if funds, which he considered adequate, were not provid--ed by the State for the defence of the Party then the Court should appoint certain lawyers to be named by him as amicii curiae. The Court had offered to consider this request favourably if the names were supplied to it. Unfortunately, no names were supplied either in Court or even after the walk-out by Mr. Abdul Wali Khan. Hence, the Court itself felt it necessary to obtain the assistance of some lawyers as amicii curiae and invited Mr. Zafar Mahmud of Rawalpindi and Mr. Sardar Khan of Peshawar to assist the Court in examining the evidence and cross-examining the witnesses.

38. So far as arguments in respect of the legal points arising in this case were concerned, the Court requested Mr. Sharifuddin Pirzada, an ex-Attorney General and an eminent lawyer of the country, to assist the Court. We are grateful to him and to the other two learned gentlemen for the able assistance they have ungrudgingly rendered in spite of their own other professional engagements and in spite of the financial loss involved.

39. Applications by Mufti Mahmud and United Democratic Front It has also to be stated here that after the walk-out staged by Mr. Wali Khan, abortive attempts were made by the leaders of some of the other parties in the Opposition to intervene in these proceedings. The first application was filed on behalf of Maulana Mufti Mahmud for being impleaded as a party. This application was rejected on the 30th June 1975, by an elaborate order, which also forms an annexure to this record. The next attempt was made on behalf of the United Democratic Front of which the dissolved Party was also a constituent, to be impleaded as a party in these proceedings by an application filed on the 11th July 1915, after a number of witnesses had already been examined. This application too was heard and rejected on the 15th July 1975, for the reasons already given in the order of this Court, which has already been reported in the August 1975, issue of the Pakistan Legal Decisions. There is no need to make any further reference to those orders herein, as the Court has already dealt with the matter elaborately and at some considerable length in those orders.

40. Proceedings The hearing of the Reference continued throughout the long vacation of the Court with a short break from 26th July 1975 to 17th August 1975. The bearing of the Reference took 44 working days.

41. The evidence of the Referring Authority closed on the 2nd September 1975. The Referring Authority has examined 31 witnesses, filed as many as 951 documents and 1.2 tape recordings of speeches.

42. The oral evidence runs to some 644 typed foolscap sheets.

43. The hearing was again adjourned for a few days to the 8th September 1975, when the closing arguments of the learned Attorney-General appearing on behalf of the Referring Authority commenced. The arguments continued till the 17th September 1975, when the learned Attorney- General closed his case.

44. Mr. Sharifuddin Pirzada bad earlier addressed the Court on the legal aspects on the 14th and 15th July 1975, and the learned Attorney-General had replied to his arguments on the 16th July 19-5. The other two amicii curiae addressed the Court briefly, at the close of the arguments of the Referring Authority, mainly on the nature and quality of the evidence adduced by the Referring Authority, on the 17th September 1975.

45. Case of the Referring Authority Now the case of the Referring Authority, as made out in its application, is to the effect that although the National Awami Party had been banned in 1971, by the then military regime holding the reigns of Government in the country, the present Prime Minister, on taking over the office of the President of Pakistan, on the 20th December 1971, in good faith, removed the ban in order to give the Party a fair opportunity of proving its bona fides and of bringing about "national cohesion and solidarity in what was left of a dismembered and shattered Pakistan". The new President sought the help and co-operation of all political parties for the preparation of an Interim Constitution for the country with a view to restoring democracy and re-establishing democratic institutions.

46. He succeeded in getting the Interim Constitution unanimously approved by the National Assembly on the 17th April 1972, and, in pursuance of a Tripartite Accord (Exh. R. A. W. 20/5) entered into between the Pakistan Peoples Party, the National Awami Party and Jamiat Ulama-e-Islam on the 6th March 1972, all the parties to the Accord not only approved the Interim Constitution but even approved the continuation of Martial Law up to the 14th August 1972. It was also, inter alia, agreed in the Accord that until the permanent Constitution is framed by the National Assembly, the Federal Government should continue to have the right, as in the past, to appoint Governors in the Provinces ; but by way of compromise, the Federal Government would, during the interim period, appoint such Governors in consultation with the majority in the Provinces of N.-W. F. P. And Baluchistan.

47. The Accord also accepted that in the N: W. F. P. And the Province of Baluchistan, the N. A. P. And the J. U.

1. Members elected to the Provincial Assemblies together constituted the majority and they would, as such, be entitled to form the Governments in these two Provinces. In furtherance of the above-mentioned Tripartite Accord a further Tripartite agreement (Exh. R,A W. 20/6) was entered into on the 27th April 1972, between the same parties and Mr. Arbab Sikandar Khan Khalil and Mir Ghaus Baksh Bizenjo, being nominees of the National Awami Party, were appointed Governors of the Provinces of N.-W. F. P. And Baluchistan. Subject to certain conditions, recorded in writing, which were fully accepted by the Governors proposed to be appointed and the N. A. P.-J. U. I. Coalition Governments formed in these Provinces in pursuance to the Tripartite Accord.

48. In spite of these agreements however, the Provincial Governments set up in these Provinces not only adopted an attitude of non-cooperation towards the Federal Government, but openly started violating their legal and constitutional obligations. The top leaders of the National Awami Party demonstrated both by their actions and by their utterances that they still did not subscribe to the ideology of Pakistan or to the concept of a Pakistani Nation. They continued to propagate their own theory of for nations/nationalities based on linguistic, racial and ethnic distinctions and to assert their determination to achieve the right of self-determination for the Baluch and Pakhtoon nationalities in Baluchistan and N: W. F. P. This not only strained the relations between the Federal and the Provincial Governments in these Provinces but also ultimately led to a state of confrontation between them. The Provincial Government of Baluchistan even attempted to prevent by force the entry of Federal Law Enforcing Agencies within the Province even for the discharge of their legitimate function with regard to subjects allocated to the Federal Government by the Constitution.

49. The Referring Authority has also charged that the Provincial -Govern--ment and the Chief Minister of Baluchistan resorted to methods designed to systematically destroy the infra-structure of the law enforcing agencies in the Province, distributed arms from the Police Armouries to private lashkars and encouraged such lashkars to endanger the lives and properties of peaceful citizens of Baluchistan, who did not belong to the political party of the then Chief Minister. As a result, some 42 persons were killed and a serious threat was posed to the law and order situation particularly in the Province of Baluchistan. This necessitated the calling in of the Armed Forces in aid of the Civil Administration. The Provincial Government of Baluchistan reacted by preaching hatred and disaffection and calling upon the tribesmen to take up arms to oppose the Federal Government. It was in these circumstances that the Governors of the two Provinces had to be removed and the Provincial Ministry in Baluchistan dismissed.

50. The Chief Minister of the N.-W. F. P. Thereupon in protest resigned along with his Cabinet, the National Awami Party stepped up its campaign of vilification and vituperation against the Federal Government and plunged the areas under their tribal influence in Baluchistan into a state of insurgency. The top leaders of the Party maligned even the Father of the Nation and began preaching violence and inciting the people to bring about a change of the Government, then established by law, through violent and unconstitu--tional means.

51. Notwithstanding these, the Federal Government, firmly believing in working democracy and maintaining democratic institutions, exercised tolerance and continued its efforts for the framing of a permanent Constitu--tion for the Country with the support of all political parties in the hope that if such a Constitution can he adopted then all political parties would make an honest endeavour to work in accordance therewith. A Constitution was in fact adopted with the unanimous approval of all political parties in the National Assembly but the hope was not realised. The National Awami Party continued its policy of confrontation by launching, with the active help and support of a foreign Government which has consistently opposed the creation of Pakistan and consistently supported the so-called claim to the right of self-determination of the Pakhtoon and Baluchi people and encouraged the movement for the realisation of its demand for the right of self- determination to the Pakhtoon and Baluch.

52. After a coup de'etat, which took place in that foreign country in July 1973, the hostility was stepped up and active support was given by that Government to the National Awami Party in organising subversive and terrorist activities in Pakistan by training commandos and saboteurs in that Country.

53. The National Awami Party, it is alleged, launched a large scale terrorist movement through acts of sabotage and bomb blasts in both these Provinces resulting in the loss of many valuable innocent lives in the Country. The last of such serious incidents took place on the 8th February 1975, within the campus of the Peshawar University, where, as a result of a bomb blast, a Senior Minister of the Province, Mr. Hayat Mohammad Khan Sherpao, was killed and several other students and teachers were seriously injured. One of them expired in hospital a few days later.

54. The Referring Authority charges that those arrested and tried in respect of such acts of insurgency and bomb blasts, were persons who were either directly or indirectly associated with the National Awami Party and that some of them were even office-bearers of the Party.

55. It is for these reasons that the Federal Government being fully satisfied that the N. A. P. Was operating in a manner prejudicial to the sovereignty and intergrity of Pakistan, made the declaration of the 10th February 1975, which has given rise to the present Reference.

56. This Reference application is fully documented and the bulk of the documentary evidence on which the Referring authority proposes to rely is annexed to the application and 12 copies thereof have been supplied to the dissolved party and its important leaders.

57. Written statements of the N. A. P. And its Leaders In the consolidated written statement, filed on behalf of the National Awami Party, after a meeting of 28 members of its Working Committee held at Islamabad on the 23rd March 1975, the Referring Authority has been accused of having falsely, frivolously and maliciously fabricated the allegations made in the application against the leaders of the party to justify its action which was really planned to liquidate the National Awami Party and systematically eliminate the other political parties as well with the object of establishing "naked one man's rule" in this country. The party also takes up the position that even so since its banning is based mainly upon the acts of omission and commission alleged against the leaders now under detention, the party as such cannot be held responsible for them and the said leaders were the best persons to answer those allega--tions.

58. Nevertheless, it has repudiated the charges and claims that the Party and its leaders are more patriotic than the Party in power, more firmly wedded to the Ideology of Pakistan and more anxious to preserve rather than destroy the integrity of Pakistan. It has, first of all, given its own version of the history of the creation of the National Awami Party, then followed it up with a detailed narration of the actions taken by the leaders of the Party in opposing the various Martial Law regimes, main- -taining the principles of democracy, upholding the rule of law and opposing the actions of the leaders of the Pakistan People's Party during the fateful days of 1971 which ultimately led to the dismemberment of Pakistan. It has charged that the present Prime Minister having established close collaboration with the usurper General Yahya Khan and his military junta during this period cannot absolve himself, as the leader of the Pakistan People's Party, of the responsibility to a very large extent for the dismember--ment of Pakistan in 1971.

59. Then comes a narration of the role played, according to the authors of the written statement, by the National Awami Party and its leaders after the lifting of the ban in December 1971, with a view to demonstrate that the con--frontation, if any. Between the Central Government and the Governments of N.-W. F. P. And Baluchistan was the creation of the Central Government and those in power in the Centre by flagrant violations of the spirit of the Tripartite Accord and Agreement and the provisions of the Constitution unanimously adopted in spite of the sincere efforts made by the said Provincial Governments and the leaders of the National Awami Party to work the Constitution in a spirit of cordiality and cooperation.

60. Lastly an attempt has been made in the concluding 14 pages to reply to the allegations made in the Reference application para wise.

61. The Party, of course, emphatically denies that it has been operating in a manner which can be termed to be prejudicial to the sovereignty and integrity of Pakistan. It charges the Government in power with mala fides and alleges that the Federal Government had been systematically planning to create grounds for the banning of the N. A. P. And, in order to effectuate this purpose, had firstly amended Article 17 of the Constitution itself against the spirit of the Tripartite Accord and Agreement entered into in 1972 and then the Political Parties Act, unilaterally. The Reference was, therefore, liable to be thrown out on that ground alone.

62. In any event, the manner in which the Federal Government has itself acted since the Tripartite Accord can well be termed as a "step in severance of national cohesion and solidarity." The attitude of non-cooperation and confrontation alleged fn the application against the Provincial Governments of N.-W. F. P. And Baluchistan were entirely baseless. It is, in fact, the Federal Government which had violated its constitutional obligations while Provincial Governments, on their part, had tried their utmost to cooperate with the Federal Government. The relations became strained as a result of violence and disturbances preached and propagated by certain Federal Ministers and People's Party leaders and also as a result of unjustified interference by the Federal Government .In the day to day working and administration of the Provincial Governments.

63. The accusation that the N. A. P. Does not subscribe to the ideology of Pakistan has been described as being too vague, nebulous and lacking in material particulars to be answered, because, the term "Ideology of Pakistan" has not been defined in any Constitution. Nevertheless, it is asserted that the N. A. P. Is second to none in its loyalty to the country and Islam and it is absolutely incorrect to say that N. A. P. Leaders, at any time, propagated the theory of for nations. They merely, it is said, asked for "the protection, preservation and promotion of the linguistic and cultural rights of different peoples in different regions in Pakistan", as guaranteed by the Constitution itself.

64. The other allegations made in the Reference application are denied and it is alleged that "the mala fide nature of the action taken and the hollowness of the Government's attempt in seeking justification for banning the N. A. P." is amply demonstrated by the fact that the other political party, which had entered into a coalition with the N. A. P. In forming the Governments in these Provinces has not been made answerable for anyone of the activities alleged in the Reference application, even though they were partners in the coalition Governments of these two Provinces.

65. This written statement has, however, avoided dealing with the charges of insurgency and sabotage against various members of the N. A. P. On the ground that the facts about the developments in Baluchistan 'can best be stated in detail by those leaders themselves who are "presently detained in Jail".

66. It has, however, denied that it had the help or support of any foreign Government or that Mr. Ajmal Khattak had, since his departure from Pakistan, any connection whatsoever with the Party.

67. It claims that the N. A. P. Has never believed in terrorist activities nor has it been responsible for anyone of the incidents detailed in the Reference application. The banning was, therefore, in the view of the Party, wholly unjustified. In any event, the Party could not be made responsible for the acts of omission and commission of individual members of the Party. The N. A. P. As a party, it is maintained, "has never advocated any slogans of Azad Baluchistan or Pakhtoonistan".

68. It is significant, however, that although the Party claims that it has never advocated such slogans, it has nowhere disclaimed or disassociated itself with either the utterances of its office-bearers nor ever expressed its disapproval of any thing done or said by them. The Party has avoided replying to the allegations made against the leaders of the Party by saying that since most of the leaders are under detention and the other members of the Working Committee have had no opportunity of meeting them, they are not in a position to answer these allegations. The leaders, however, now under detention would make their own specific replies to the Referring Authority's allegations.

69. Apart from the consolidated statement of the dissolved Party, there are five individual written statements by some of its detained leaders. The most important of these is, of course, the written statement of Khan Abdul Wali Khan, running into some 139 pages, which follows generally the pattern set by the Party's consolidated statement. It is, however, supplemented by elaborate narrations of events subsequent to the lifting of the ban on the Party on the 21st of December 1971, and the re-imposition .,of the ban on the 10th of February 1975.

70. This narration has been added to make out the case that the banning .Of the Party is in accordance with a master plan prepared by Mr. Bhutto, the leader of the Pakistan People's Party, "to remove the only hurdle" in the way of Mr. Bhutto's ambition to "establish a one-man dictatorship" in what Mr. Bhutto has described as "a new Pakistan" after the dismember--ment of Quaid-i-Azam's Pakistan in 1971.

71. Mr. Abdul Wali Khan alleges that Mr. Bhutto was responsible for precipitating the events which in 1971 led to the secession of East Pakistan .And suggests that Mr. Bhutto is even now accusing "his political opponents .Of the very actions, which he intends to perform himself". On the other fiand, he claims that he and his Party have been trying throughout to save -the country from the imminent disaster towards which it is deliberately being pushed by Mr. Bhutto. He claims that it was because he and his Party did not join in the plan of Mr. Bhutto to push out the Province of East Pakistan from Quaid-i-Azam's Pakistan, the Party was banned in 1971 and again the Party has been banned in 1975 because it is the only .Obstacle in the way of Mr. Bhutto establishing his dictatorship over what is now left of Pakistan.

72. Thereafter, he asserts that the Government has no case whatsoever against his Party because "most of the material is totally irrelevant. Some evidence can be used against certain individuals but the Party cannot be legally held responsible for the utterances and speeches of certain members of the Party however highly placed they may be". The references in the annexures to the application of the referring Authority regarding the utterances of Khan Abdul Ghaffar Khan and the activities of Mr. Ajmai Khattack. a former General Secretary of the National Awami Party, are, it is said, of no relevance at all, because Khan Abdul Ghaffar Khan has had no connection whatsoever with the N. A. P. After 1964 and Mr. Ajmal Khattak is no longer the General Secretary of the Party. In fact, he has now formed another organisation of his own which has "basic and fundmental differences" with Mr. Abdul Wali Khan and his Party because, according to him, Mr. Abdul Wali Khan and his Party are "fighting for the rights of the Baluchs and Pakhtoons within Pakistan" and not for the establishment .Of an independent Pakhtoonistan.

73. The conduct of the party-in-power in the country in getting the Constitution and the Political Parties Act amended is, it is alleged, a part of ,the design to achieve its political aim of setting up "a one-man State".

74. The allegation by the Referring Authority, that the N. A. P. Was opposed to the creation of Pakistan and has still not reconciled itself to the ideology of Pakistan, has been characterised as being "ridiculous" because the history of the N. A. P., its policies, aims and objects would clearly demonstrate that the truth Is that the party is "national in character and Awami in complexion", This is followed by a narration of the history of the creation of the N. A. P. And the events that took place thereafter upto the time Mr. Bhutto became the President in December 1971.

75. Mr. Wali Khan, in his written statement, alleges that although, they were "certain" that Mr. Bhutto had "played a very significant and major role in destroying the State of Pakistan", yet they had hoped that having achieved his objective of getting rid of Sh. Mujibur Rahman's majority and becoming the ruler of what was left of Pakistan, he would, try to keep at least that portion together, but when they found that Mr. Bhutto and his Government even after the Tripartite Accord and Agreement and the adoption of the Interim Constitution were still in a. Subtle way trying to create rift between the ranks of the N. A. P. Between N.-W. F. P. And Baluchistan-between Baluch and Pashtoons and later between the National Awami Party and the Jamiat-al-Ulema-i-Islam ('J. U. L') and never missed any chance of creating misunderstandings, between them so as to undermine their unity, they had no alternative left but to oppose such moves. Hence, the wrath of Mr. Bhutto had of necessity to fall upon the N. A. P. Which now remained the only hurdles between him and the achievement of "his final objective of one-man rule."

76. Mr. Abdul Wali Khan further alleges that the efficient and democratic manner, in which the coalition Governments in the North-West Frontier Province and Baluchistan were functioning, annoyed Mr. Bhutto and his. Federal Government, because this defeated their plan to discredit them. Hence, the Federal Government, under the instructions of its head, had to start a process of confrontation by constantly interfering even in the-- day-to-day administration of the said Provinces and even refusing the genuine and legitimate demands of the said Governments and the people of these Provinces. It was as a result of these policies of the Federal, Government that the people of the Provinces of N: W. F. P. And Baluchistan, were forced to think in terms of their Provinces.

77. This is followed by a catalogue of the disparities existing between the Frontier Province and Baluchistan on the one hand, and the Provinces of Punjab and Sind on the other and the failure of the Federal Government', to remove these disparities by taking effective measures, to improve the economic and social conditions of the people of these Provinces.

78. Attempt has also been made in this written statement to explain some --of the allegations made against Mr. Abdul Wali Khan with which we shall, deal more specifically when dealing with the evidence adduced to prove those allegations. Suffice it, for the present, to say that the burden of this written statement is to lay the entire blame for whatever has happened in the Provinces of Baluchistan and N.-W. F. P. At the doors of the Federal Government and particularly the Party now in power which, according to, Mr. Abdul Wali, is blaming the N. A. P. For what it itself intends to do as it bad done in the case of East Pakistan.

79. The entire responsibility for the 'Bela' incident has been thrown on the, Federal Government and in particular on the Minister of Interior, who is, also the leader of a political party in the North-West Frontier Provinces. Having loan-standing differences with the N. A. P. And its leaders.

80. The tirade against Mr. Bhutto and his alleged political, aims and objectives, and the catalogue of the actions of his Federal Government in con--nection with the affairs of the Provinces of N: W. F. P.

81. And Baluchistan occupy a major portion of this written statement and forms its main refrain..

82. On the other hand, this document seeks to present the N. A. P. And its leader--ship as being original Muslim Leaguers, who becoming dissatisfied and disillusioned by the manner, in which the leadership of that party was functioning after the establishment of Pakistan, started a separate party and joined hands with six other political parties of the country to patriotically strive for the achievement of the ends for which Pakistan had been created and not to dismember the country or to destroy its integrity as is now being alleged by the Federal Government.

83. Mr. Abdul Wali Khan has also denied that his Party ever received any support, direct or indirect, from any neighbouring foreign country, although It is admitted that he did visit one such country on several occasions and was on the last occasion treated almost like a Head of a State. Even, according to Mr. Wali Khan, such a reception was out of the ordinary and rather on the "high side".

84. Mr. Abdul Wali Khan, however, does not, in his written statement, find any fault with the claim of one such country that its present territorial boundary with Pakistan needs to be altered, as it was forced to accept such a division by an alien imperialist Government of Britishers. He is not, however, in a position to deny that the news media of the said country does propagate the idea of an independent Pakhtoonistan and does display con--siderable hostility towards Pakistan. But for this, he contends, the National Awami Party cannot be blamed, as the Party cannot influence the foreign policy of a foreign country. It is, he says, for the Federal Government of Pakistan to take up the matter at the diplomatic level.

85. His visits to that country were firstly to induce his father, Khan Abdul Ghaffar Khan, who had taken asylum there during the first Martial Law regime, to return to Pakistan and secondly to consult foreign specialists at Kabul for the treatment of his eye trouble.

86. The extraordinary reception given to him is ascribed to his personal friendship with the present head of that foreign State.

87. Mr. Abdul Wali Khan also takes up the same line as his Party with regard to the charge against the Party of being against the ideology of Pakistan and the concept of Pakistani Nationhood. The N. A.

88. P's own case is given in the following words at page 124 of the statement of Mr. Abdul Wali Khan The N. A. P. Believe that there is one Nation in' this country and that is Pakistani Nation-And that this Pakistani Nation is composed of nationalities-who have their own distinct language and culture. -- There is no contradiction in the two, but these nationalities are like flowers who with their distinct colour, and fragrance blend into` a bouquet-manifesting their unity in diversity."

89. According to Mr. Abdul Wali Khan, there were actually for different conceptions of the Ideology of Pakistan in the initial stages but after the creation of Pakistan another concept of Pakistan appeared in 1953 when West Pakistan was turned into 'one-unit' and East Pakistan was deprived of Its numerical majority.

90. Then again, according to Mr. Abdul Wali Khan, as a result of the 1971 operations the concept of Pakistan underwent a further major change. The two-nation theory stood exploded. Hence, he too asks as his Party has done, what is the ideology of Pakistan ?

91. According to Mr. Abdul Wali Khan, "a State as such has no ideologist is given its ideology by the political forces that govern or rule that State". In this sense, the ideology of Pakistan, according to Mr. Abdul Wali Khan, in 1947 was the ideology of the Muslim League. It has undergone a change since the assumption of power by the People's Party. . The approach now is materialistic and not spiritual. As it was originally in the days of the Muslim League. Therefore, in this respect too it is really Mr. Bhutto's People's Party which has destroyed the Ideology of Pakistan and not the N. A. P.

92. The allegation that the N. A. P. Is opposed to the concept of Pakistani Nationhood and is propagating the theory of for Nations based on linguistic, racial and other distinctions, has been characterised as being totally false and malicious, yet his claim, in his own words is "I am a six thousand years old Pashtoon-A thousand years old Musalman, and 27 years old Pakistani."

93. This written statement concludes by saying that the Reference is a "mockery", because the maximum punishment has already been given to the N. A. P. And what is being done now is really in the nature of an appeal after the execution of the sentence.

94. In the other written statements filed by Mir Ghaus Baksh Bizenjo, Arbab Sikandar Khan Khalil. Sardar Ataullah Mengal and Nawab Khair Baksh Marri the written statement of Mir Ghaus Baksh Bizenjo follows more or less the same pattern and propounds the same theory that whatever has happened in the Provinces of N.-W. F. P. And Baluchistan has been the result of a situation created by the Federal Government itself and the political party now in power.

95. The others adopt the Party's written statement but they all deny that either they or the N. A. P. Were opposed to the Ideology of Pakistan or believed in the concept of for nations.

96. According to Mr. Bizenjo's written statement, Pakistan and the Pakistani nation itself came into being by the joint efforts and co-operation of the different nationalities inhabiting different regions of the country. The existence of these nationalities cannot be denied or ignored. Hence the denial of the rights of these different nationalities can only have the effect of propelling these nationalities to fight for the attainment of their rights, if necessary, even by violence or war. Therefore, any one who does any--thing which is detrimental to or amounts to a denial of the legitimate rights of any one of these nationalities is really instigating them against one another. This, it is alleged, is exactly what the Federal Government and the Federal Ministers have been doing by openly inciting the people of N.-W. F. P. And Baluchistan by riding rough shod over their rights. The N. A. P., although it has never preached the concept of for or five nations, either by deed or word, it does believe and has always believed that the different nationalities living in Pakistan must be treated as equal partners and their rights must be equal. This is the basis of the programme of the N. A. P.

97. The allegation against the N. A. P. That it does not believe in the Ideology of Pakistan or Pakistani nationhood is from top to bottom without any foundation. In any event, the drum of "Pakistan Ideology", which is now being beaten, is the drum of only an imaginary concept and a subsequent innovation. Ideology, it is said, is a thought concept and, therefore, since every individual or a group of individuals may have different points of view, their Ideology may also well be different. What is opposed to the Ideology of Pakistan according to the thinking of one individual or one group of individuals may well be something which is the foundation of the ideology according to another individual or another group of individuals. The Ideology which is now being propounded by the People's Party and its leader--ship is entirely different from the Ideology presented by the Quaid-i- Azam or the Muslim League.

98. Mir Ghaus Baksh Bizenjo also holds the Federal Government respon--sible for the Lesbela incident and maintains that it was due entirely to the atrocities committed by the Federal Forces in this area and it was merely this which was responsible for rousing the tribesmen to resist the Federal Forces by force. There never was any private lashkar or tribal lashkar fn Baluchistan, as falsely alleged by the Federal Government. They were only the people of Baluchistan who had responded to the appeal of the Govern--ment of Baluchistan to assist in restoring law and order. He admits, however, that arms were procured from the armouries, but not, as falsely and malici--ously alleged, for distribution amongst the private lashkars, but for utilization by the Law Enforcing Agencies of the Province in the case of need.

99. Similarly, the allegations regarding non-cooperation and confrontation are denied and counter- charges are levelled against the Federal Government and Federal Ministers for maliciously creating law and order situations within the Province and in some cases even directly interfering with the day to day administration of the Province.

100. Mir Ghaus Baksh Bizenjo denies that he did anything which was either unconstitutional or beyond the scope of his powers as Governor of Baluchistan which could have furnished a ground for his dismissal. Such dismissal was clearly contrary to the spirit of the Tripartite Accord and Agreement entered into in March 1972, as also clearly violative of the pro. Visions of the Constitution unanimously adopted by the National Assembly. The banning of the party again, according to Mr. Bizenjo, is a part of a design, to eliminate the Opposition and pave the way for the setting up of a "one-man rule" in Pakistan.

101. So far as the allegations against him regarding his attitude at the time of the creation of Pakistan, as mainfested by a speech delivered in the Kalat Legislative Assembly in 1947, is concerned, it is said that whatever he said in the Kalat Legislative Assembly, was said as a free citizen of an indepen--dent State which had not till then acceded to Pakistan and, therefore nothing said on that occasion could be taken into account for holding that he was even now opposed to the Ideology of Pakistan or the concept of a Pakistani Nation. These questions did not arise at the time the said speech was made nor can anything said or done at that time be relevant for the present purposes.

102. Mr. Bizenjo emphatically denies that either he or the N. A. P. Has any contact with any foreign Government or that they have received any help or assistance from any such Government for starting any kind of revolt or resorting to insurgency and terrorist activities within Pakistan, as falsely and maliciously alleged by the Referring Authority. The more fact that he and some of the other leaders of his party were invited to attend the National Day Celebrations of that country is not a circumstance which could necessarily lead to the inference that they were the agents of that country or were even associated with the foreign policies of that country.

103. Arbab Sikandar Khan Khalil, who was appointed the Governor of the N.-W. F. P. Under the Tripartite Agreement, after repeating the general counter-allegations against the Federal Government, Prime Minister and other Federal Ministers, maintains that so far as his dismissal is concerned, it was wholly unjustified, because, even now, in the application of the Referring Authority, no allegation of any unconstitutional or subversive act has been made against him or his Government. All the allegations made are against the Government of Baluchistan. He cannot be held responsible for any act of the people in authority in Baluchistan, if they did at all take place. On his part, he bad endeavoured, in every way, to cooperate as fully as possible with the then President and to make an honest endeavour to work the Constitution in its true letter and spirit. He claims that it was due to his efforts and that of Mr. Ghaus Baksh Bizenjo thaVthe Tripartite Accord and Agreement were entered into and the two Constitutions adopted unanimously and a vote of confidence given to the then President on the eve of his departure for Simla to strengthen his hands in the negotiations with India by manifesting the solidarity of all parties in Pakistan. He claims that he even accompanied Mr. Bhutto to Moscow and Simla for this purpose and to show to the foreigners that the people of Pakistan were united and that they were resolved to bring about "national coherence and solidarity in what was left of dismembered and shattered Pakistan after the fall of Dacca."

104. Mr. Arbab Sikandar Khan Khalil concludes his written statement with these words "In view of the above submission, coupled firstly with the fact that no direct and specific allegations and charges against the N. A. P. (Party itself) are mentioned in the Reference and secondly that the alleged charges and allegations contained in all the paras. Of the narrative part and the grounds of the Reference are absolutely vague, mala fide and irrelevant, it is, therefore, prayed that the order of the Federal Government dated 10th of February 1975. Based on the above-mentioned allegations and charges be declared as mala fide, void and inoperative."

105. This written statement has also emphatically repudiated that the N.A.P. Or any one of its members is responsible either for any one of the bomb blasts that have taken place in that Province or in the killing of Mr. Hayat Muhammad Khan Sherpao, the Senior Minister of the Province. He charges that all these cases are trumped up cases and that the confessions obtained in these cases have been obtained either by coercion or by induce--ments and, therefore, have no evidentiary value at all.

106. Nawab Khair Baksh Marri, in his written statement, adopts the con--solidated written statement of the party and confines himself to answering only the allegations levelled against him personally.

107. He claims that the allegations made against him are based on twisted versions of incidents. His positive case is that it is the Federal Government which had :- "Started a campaign of vilification and vituperation against the N. A. P. So as to provide material for banning it, as it was the only effective political force in the country which could stand in the way of People's :. , Party leadership and the latter considered it as its main political z opponent and a serious hurdle in their way for establishing f, dictatorial one man's fascist rule in their 'New Pakistan', and it was for this object in view that it started twisting our versions and then circulating it through the entire media of information."

108. In to of this, according to him, the allegations, even if taken at their face value, do not amount to committing, in any manner, any act prejudicial to the sovereignty and integrity of Pakistan.

109. Nawab Khair Baksh Marri, it may be stated, was the President of the N. A. P. In Baluchistan.

110. So far as Sardar Ataullah Mengal is concerned, he also confines himself to answering the allegations made against him personally. He denies that the Provincial Governments started any process of confronta--tion with the Federal Government after taking power in Baluchistan and -the N: W. F. P. It was the Federal Government itself which, by ignoring all cannons of constitutional propriety and violating all constitutional provisions, tried to discredit the Provincial Governments of these Provinces under a well thought out scheme. It was never sincere in honouring the Tripartite Accord or Agreement or in working the Constitution either in their letter or in their spirit.

111. He also denies that either he or his Government or his party has either by word or deed refused to accept the Ideology of Pakistan or the concept of Pakistani Nation.

112. He too catalogues in his written statement the activities of the Federal -Government which were designed to bring about a state of complete law--lessness in these provinces in order to discredit the Provincial Governments ,and to furnish grounds for their dismissal, but when by the wise and .Sagacious acts of the Provincial Governments these attempt were frustrated, the Federal Government has proclaimed its open hostility by firing its last shot for the banning of the party.

113. According to him, the Lasbela incident was engineered by the Federal Government as a part of its evil design to make it impossible for the :Provincial Government of Baluchistan to work. He denies that he employed any private lashkar or tribal lashkar in Lasbela or that any such lashkar existed at any time. According to him, he had only called upon the 'Dehi,' police and the local people to maintain law and order to prevent the depre--dations of the Central Forces in these areas. He denies that he, as Chief Minister of the Province, incited the local people to take up arms against - the Federal Government.

114. He also claims, like Arbab Sikandar Khan Khalil, that the N. A. P. Went out of its way to cooperate with Mr. Bhutto and his Federal Government in maintaining the solidarity and integrity of Pakistan, but it was Mr. Bhutto and his party who consistently conspired to discredit the Governments of these two Provinces as he was, whilst the said Governments continued in office, unable to exercise his dictatorial powers in these, Provinces.

115. As for the suggestion that his Government was being actively instigated and assisted in setting up a state of open revolt in the Province by a foreign Government, he categorically denies that he or his party or his Government ever had any connection whatsoever with the said Government or that it ever received any kind of help or assistance of the nature alleged by the Referring Authority or of any other kind from the said or any foreign country of Government.

116. Rejoinders by the Referring Authority The Referring Authority has filed elaborate rejoinders to the written -statements of both the Party and Mr. Wali Khan, repudiating each and every counter-allegation and suggestion made in the said written statements against either Mr. Bhutto or the People's Party or the Federal Government.

117. It is unnecessary, in our view, to reiterate the case of the Referring Authority or to deal with each and every one of the allegations and counter---allegations separately, because, neither Mr. Bhutto nor Mr. Wali Khan nor any other individual political leader or member of any political party is on trial before us. Nor are we concerned with the question as to whether the Pakistan People's Party or whether any political party other than the National Awami Party is commiting any prejudicial act affecting the sovereignty and integrity of Pakistan? The sole question which arises for consideration in this Reference is as to whether the N. A. P. As a political party "is operat--ing in a manner prejudicial to the sovereignty and integrity of Pakistan", as mentioned in subsection (1) of section 6 of the Political Parties Act, 1962?

118. Facts of prejudicial activities The Referring Authority seeks to establish that the N. A. P. Was co-operating at the time when the declaration was made by showing that the Party and its Leadership have consistently indulged in the following acts :-

(1) That some of the top leaders of the Party who were supporters of united India and Indian nationalism are still unreconciled to Pakistan's existence, integrity and sovereignty ;

(2) That it creates doubts about the people's belief in the Ideology of Pakistan with a view to destroying the very concept which forms the basis of this country ;

(3) That the N. A. P. And its leaders have been methodically working, towards the disintegration of Pakistan by -

(a) preaching the doctrine of for/five nationalities to prepare ground for the ultimate secession of N.-W. F. P. And Baluchistan on the basis, of the right of self-determination of the different nationalities inhabit--ing those Provinces ;

(b) advocating a policy of subversion of the Constitution, rule of law and the democratic institutions of the country ;

(c) creating hatred and disaffection amongst the various sections of the people of Pakistan to create civil strife and chaos ;

(d) maligning the Father of the Nation and other national leaders with a view to ridiculing and falsifying the concept of Pakistan and laying the ground for secession.

(4) That the N. A. P. And its leaders have been seeking and receiving encouragement and material help from foreign powers hostile to Pakistan for the achievement of this and it was with this end in view that large scale terrorist and subversive activities were organized in Pakistan to undermine its security and solidarity with the help of foreign hostile powers.

(5) That the N. A. P. And its leaders also organized a large scale tribal. Rebellion or insurgency in Baluchistan to order to blackmail the Federal Government and the people of Pakistan to submit to the will and wishes of the N. A. P. Sardars in Baluchistan.

119. Nature and scope of proceedings In due course we shall examine the evidence to see how far and to,. What extent the Referring Authority has succeeded in establishing its case but before we do that, it is necessary first of all to determine the nature and scope of these proceedings. What is it that we are exactly called upon to do ?

120. The learned Attorney-General has contended that the scope of the functions of this Court in a Reference under section 6 of the Political Parties Act is no more and no wider than the jurisdiction of this Court or the High Court under the writ procedure applicable in respect of matters dealt with under Article 199 of the Constitution. The function of the Court is confined in such a proceeding to the judicial review of an executive order. The initial decision, it is said, is of the Federal Government and, therefore, the decision of the Court in such a Reference is really a decision as to the propriety of the executive action. The executive authority in making such decisions is guided more by principles of public policy and not by the principles governing the performance of the normal duty of adminis--tration of justice, as pointed out in the case of Sammundar v. Crown (PLD1954FC228), hence the function of this Court is limited to interference only in cases when the authority "has acted in excess of jurisdiction or exercised its jurisdiction capriciously or in violation of the principles of natural justice", as held in the case of Mohammad Yusuf v. S. M. Ayub (PLD1973SC160), or if the authority concerned "has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to", as observed in the case of Mohammad Saeed v. Election Petitions Tribunal (PLD1973SC160).

121. On the other hand, Mr. Sharifuddin Pirzada has submitted that this Court has original jurisdiction in this matter. Its decision is the firs decision. It is not merely confined to judicial review as in the writ jurisdiction. 'Decision' here means judicial determination in accordance with evidence as in any other 'lis' before this Court. This Court ha undoubtedly power to lay down its own rules in that behalf under Article 191 of the Constitution but in the absence of any such rules it is the practice of the Court which will determine its procedure. The Legislature, it appears, has deliberately left the decision of such an important question, which strikes at the very root of democracy, to the highest judicial forum in the country, because, the decision of such a forum would determine the matter fin controversy, after hearing the parties concerned, upon the evidence adduced, finally. This in fact is what Article 17 of the Constitution also demands.

122. In the Reference in the case of the President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585), this is exactly what the Supreme Judicial Council did. "Although the Council was entitled to lay down its own procedure", it had "generally followed the procedure of a trial in a Court of law and the rules of evidence as laid down in the Evidence Act". It is significant that the word "decision" is not used in Article 199 which gives the power of judicial review to the High Court. It occurs, however, in Article 189 but again it has not been used in Article 186 which deals with the Advisory Jurisdiction of the Supreme Court nor has it been used in clause (6) of Article 209 which deals with the report of the Supreme Judicial Council In respect of any inquiry conducted by it. Clause (4) of Article 10 also only requires the Review Board to give its "opinion". The deliberate use of the word "decision" fn clause

(2) of Article 17 is not without a purpose. It vests the determina--tion in the Supreme Court and in no other body or authority.

123. In the Political Parties Act of 1962, a political party has been defined 6n section 2(c) as including "a group or combination of persons who are .Operating for the purpose of propagating any political opinion or indulging in any other political activity".

124. Section 6 of the said Act, under which this Reference has been made, read as follows :- "6.-(1) Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to tile sovereignty or integrity of Pakistan, it shall make such declaration and publish the same in the official Gazette, and upon such publica--tion, the political party concerned shall, subject to the provisions of subsection (2), stand dissolved, and all its properties and funds shall be forfeited to the Federal Government.

(2) Within 15 days of making a declaration under subsection (1), the Federal Government shall refer the matter to the Supreme Court whose decision on such reference shall be final."

125. In this connection it may also be relevant to refer to section 8 of the :said Act. Subsection (1) thereof is in these terms :- "8.-(1) A person who has been an office-bearer of the Central or a Provincial Committee of a political party dissolved under subsec--tion (2) of section 6 or who has been convicted under section 7 shall be disqualified from being elected as a member of the National Assembly or a Provincial Assembly for a period of five years from the date of such dissolution or conviction, as the case may be."

126. It will be noticed that section 8 of the Act talks of the dissolution of the political party under subsection (2) of section 6, although the word 'dissolution' finds no mention at all in subsection (2) of section 6. Doe this not indicate that the Legislature itself has interpreted section 6(2) in the sense that the actual dissolution takes place thereunder and not untie subsection (1)?-If, therefore, the Legislature itself intended that the dissolution of the Party was to take place under subsection (2) and not subsection (1) then the entire basis of the argument of the learned Attorney General that the dissolution is made by the Executive Government falls -to the ground.

127. As had been ultimately conceded by the learned Attorney-General, sub section (1) of section 6 does not at all give the power to the Government to dissolve the Party. The dissolution is automatic and by operation of law, on the publication of the declaration by the Federal Government that it is satisfied that the political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan. No decision, therefore, to dissolve the party by an order to that effect is contemplated by sub-section (1) of section 6 of the Political Parties Act.

128. Mr. Pirzada, has, in our view, also rightly pointed out that if section 6 is, as was at one stage suggested. By the learned Attorney-General, to mean that power has been given thereunder to the Federal Government to dissolve a political party then the provisions of section 6 would themselves be violative of the constitutional guarantee given by Article 17 of the Consti--tution, which originally read as follows :- "17(1) Every citizen shall have the right to form associations or unions. Subject to any reasonable restrictions imposed by law in the interest of morality or public order.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party. Every political party shall account for the source of its funds in accordance with law."

129. Clause (2) was, however, deleted by the Constitution (First Amendment) .Act, 1974, passed on the 8th May, 1974. This deleted the original clause (2) :and substituted in its place two new clauses to the following effect :- "(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within 15 days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance with law."

130. It will be observed that Article 17 is in Chapter I, Part 11 of the Constitution, which deals with Fundamental Rights. The Constitution, therefore. Guarantees to every citizen, who is not in the service of Pakistan, the right to form a political party or to be a member of a political party and this right is subject only to reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. Such a law' must, nevertheless, provide that whenever the Federal Government declares that any political party bas been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall, within 15 days of such a declaration, refer the matter to the Supreme -Court whose 'decision' shall be final.

131. It will be further noticed that in the original Article 17, the only power given to the State was to impose reasonable restrictions by law on the right of association in the interest of morality or publicorder and the right to farm a political party was only hedged in with the condition of accounting for the source of its funds, but now it has been further provided that reasonable restrictions may also be imposed by law in the interest override sovereignty and integrity of Pakistan. In such a case the law may also give to the executive the power to declare that a political party has been formed or is operating in a manner prejudicial 'to the sovereignty or integrity of Pakistan but after making the said declaration, it must refer the matter to the Supreme Court for its decision. This amended clause does not say that as a result of the executive's declaration the party shall stand ,dissolved.

132. Mr. Pirzada has, therefore, firstly contended that the power to impose reasonable restrictions did not extend to the dissolution of the party. If .1 therefore, the Legislature by the amendment of subsection (1) of section of the Political Parties Act sought to take away the power given by the a Constitution to the Supreme Court and vested it in the Executive, then that extent subsection (1) of section 6 of the Political Parties Act was ,ultra vires the Constitution. He has also raised the question as to whether a provision of a ,Constitution relating to a fundamental right could at all be made so as to abridge or take away that right. We are told that the Supreme Court of a neighbouring country by a majority of six to five actually took such a:. View in the case of Golak Nath v. State of Punjab (AIR 1967 SC 1943), but this view was modified subsequently by a larger Bench by a majority of seven to six in the case of Kesavanauda v. State of Kerala (AIR 1973 3 C 1461), to the extent that "while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest". The minority, of course, took the view that the power to amend is "wide and unlimited" and that the power to amend includes the power to repeal. The minority view in the last mentioned case is in line with the decisions of that Court prior to 1967 Vide : Shankarl Prasad v. Union of India (AIR 1951 SC 458) and Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), but it is unnecessary for us to enter into this. Controversy, as this Court is committed to the view that "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant" to that national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to the prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution", vide State v. Zia ur Rahman.( PLD 1973 SC 49). Even otherwise, as conceded by Mr. Pirzada himself, the amendment effected in Article 17 in 1974 was neither a total abrogation of the right to form a political party nor in any manner an unreasonable restriction of such a right ; its validity is not open to question. We entirely) agree. No such wide right can be conceded as would tend to destroy the very existence of the country. Indeed no country in the world gives such a right in an unlimited form as has been pointed out by Mr. Pirzada himself by reference to the Constitutions and laws of various countries including the U. S. A. And Great Britain.

133. Reverting now to the first contention that dissolution is not restriction. It is no doubt true that the power to impose reasonable restrictions cannot be interpreted so as to include even the power of total abolition or prohibition as pointed out by this Court in the case of East & West Steamship Co. v. Pakistan (PLD 1958 SC (Pak.) 41), but if it is possible to give to the provisions of subsection (1) of section 6 a meaning which will make it strictly consistent with the provisions of Article 17 of the Constitution then then objection will not hold good. It is a well accepted rule of interpretation that before a law is struck down as being unconstitutional every effort must be made to read it in such a manner as to bring it, if possible, into conformity with the Constitution. As pointed out by me in Province of East Pakistan v. Sirajul Haq Patwari(PLD 1966 SC 854), "the Courts should lean in favour of upholding the constitutionality of a legislation and it is, therefore, incumbent upon Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, for, injudicious exercise of this power might well result in grave and serious consequences". In this view of the matter if we read section 6 Ac: as giving no power to dissolve the party and the dissolution by operation of law as having been made specifically "subject to the provisions of sub--section (2)" it will follow that this dissolution by operation of law is only in the nature of an ad interim measure pending the decision of the Supreme Court. If the Supreme Court decides otherwise the statutory ad interim dissolution stands automatically vacated. No further order of the Court is necessary for that purpose.

134. The contention that the jurisdiction given to the Court by Sub. Section (2) of section 6 is similar to the jurisdiction given by Article 199 of the Constitution is, therefore, hardly tenable, because, then it would have been wholly unnecessary to incorporate subsection (2) in section 6 in 1974. Article 199 was already there. If the intention of the Legislature had merely been that a Party would have the right to challenge the executive action N in a Court of law, it could have left it to the party to take such a step, but in this case, it appears to us that something more was intended. It was intended to assure all political parties that the right so essential for the establishment of parliamentary democracy would not be interfered with except upon the. Decision of a Court of law and that too the highest Court of the country.

135. In the written statements filed on behalf of the N. A. P. And some of its other leaders, it has also been suggested that the amendment of Article 17 was ultra vices, as the Constitution having been adopted by the unanimous -vote of all political parties, could not have been altered except by their consent. Such an amendment was mala fides and made as part of the plan to ban the N. A. P.

136. There is, of course, nothing in the Constitution to support such a claim, but even otherwise, it has now been established by reference to the official minutes of the debates of the National Assembly of 23-4-1974 (Ezh. RAW 1/26) that during the consideration of the Bill for the amendment of Article 17, the Opposition was present and, in fact, suggested certain amendments which were ultimately accepted. MiaD Mahmud Ali Kasuri and Mr. Mahmood Azam Farooqi took part in the debate. The words "that the decision of the Court shall be final" were actually added at the instance of the Opposition. It cannot, therefore, be said that the amendment was made behind the back of the Opposition or in violation of any Accord or Agreement. No such objection was raised on the floor of the House.

137. A comparison of the amended provisions of section 6 of the Political Parties Act with the provisions of the said section, as they originally stood, also reveals that originally this section did not give any power ,to the Executive Government to dissolve the party. Right No. 7 guaranteed P under the Constitution of 1962, was subject to reasonable restrictions only in the interest of morality and public order. It is difficult, therefore, to spell out the intention to make any radical change in these provisions.

138. If the constitutional amendment, as we hold, was validly made, then ,the question does also arise as to whether the amendment of section 6 could go beyond the power given by the Constitution or must the provisions of subsection (1) of section 6 be so interpreted as being confined within the limits specified in Article 17. If the law does not give the Executive Government the power of dissolution, but merely the right to make a g declaration that a party is operating in a manner prejudicial to the sovere--ignty and integrity of Pakistan, than it must follow that the `decision' referred to in subsection (2) of section 6 is not merely confined to the judicial review and affirmation of an executive act. But to the judicial determination of the question as to whether the party is or is not acting in a manner prejudicial to the sovereignty and integrity of Pakistan.

139. Mr. Pirzada has rightly emphasised that this power of dissolving a political party should not be lightly conceded to the executive authority, for, it is inconceivable that the opposition would have accepted the amendment of Article 17, if the real intention had not been to submit the question of the dissolution of a political party to the judicial scrutiny of the highest Court in the land.

140. There is yet another reason which impels us to the conclusion that by the amendment of section 6 of the Political Parties Act in 1975 by Act 21 of 1975, no radical change was intended. The original section 6 was. In these terms :- 6.-(1) Where the Central Government is of the opinion that any political. Party has been formed or is operating in contravention of section 3, it shall refer the matter to the Supreme Court, and the decision of the Supreme Court on such question given after hearing the person or persons concerned, shall be final.

(2) Where the Supreme Court, upon a reference under subsection (1), has given a decision that a political party has been formed or is, operating in contravention of section 3, the decision shall be published in the official Gazette, and upon such publication, the political party concerned shall stand dissolved and all its properties and funds shall be forfeited to the Central Government.

141. It will be observed that under these provisions, the decision of the Supreme Court had to be given after the hearing of the person or persons concerned and that the dissolution came into effect upon the decision of the Supreme Court. Now what was done in the first instance in the present case was that the provision with regard to the decision of the Supreme Court was first in 1974, by the Constitution (First Amendment) Act XXXIII of 1974, raised from a sub-constitutional level to a constitutional level by incorporating it into Article 17 of the Constitution itself. Thus, assuring s' everyone that the dissolution of a political party is now being placed on such a firm footing that the Constitution itself guarantees that unless such decision is given by the highest judicial authority in the country, a political party shall not be dissolved. In this view of the matter, it is difficult to accept the contention of the learned Attorney-General that the amendment in fact cut down and abridged the right given by the Constitution as originally framed. The intention of the law-maker clearly appears to be otherwise by giving the safeguard a constitutional sanctity. It clearly intended to place the guarantee on a firmer and a higher level. In this view of the matter, it is hardly possible to interpret the amended sub--section (1) of section E as taking away the right which has been assured by the Constitution itself. The only possible interpretation, therefore, that can be given to the provisions of subsection (1) of section 6 of the Political Parties Act is that the dissolution there referred to, having been made specifically subject to the provisions of subsection (2) thereof was only in the nature of suspension of the political party in the interests o a State necessity, to prevent greater harm being done to the sovereignty and integrity of Pakistan if the party concerned was in fact so operating, pending) the decision of the Supreme Court. What was done, therefore, was in the nature of placing an ad interim bar on the operation of the party till such time as the Supreme Court could give its final decision.

142. The learned Attorney-General has further contended that the word "decision" used in subsection

(2) of section 6 is not by itself sufficient to indicate the nature and scope of the functions of the Court on such a Reference, because, even the conclusion arrived at in the writ jurisdiction is a decision and so Is the determination of a second appeal under the Code of Civil Procedure, but the nature of the decision differs with the nature of th ' jurisdiction given to the Court. In the writ jursidiction the Court is no concerned with the correctness of the view taken by the executive authority. All that it has to see is that the executive authority has acted bona fide wit jurisdiction and on sufficient material and in such a manner that in similar circumstances any other reasonable person would have come to a similar conclusion and has followed the norms of natural justice. In such cases the-- Court does not even "sit in appeal over the executive" nor does it r substitute its own discretion for that of the executive as held in the case o-f Abdul Baqi Baluch v.

143. Government of Pakistan (PLD 1968 SC 313).

144. When, however, we speak of a matter being left to the Court, we do not, mean that the Court is being given only such limited jurisdiction as it has under the writ jurisdiction, particularly where the question concerned is o such great importance to the functioning of a democratic system of Government. Read in this light, there will be no difficulty incoming to the conclusion that the restrictions imposed are not unreasonable, because, as I have pointed out in the case of Abul A'ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) "reasonableness itself is a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances". In order to test the reasonableness of such restric--tions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action propose; and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfac--tion which may or may not be capable of being proved in a Court of Law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed by the Constitution. The safeguard that such a declaration by the Executive will be subject to the decision of the Supreme Court is, however, a sufficient safeguard of the interests of the political party and adequately protects it from being dealt with either arbitrarily or whimsically or out of political vengeance. This can, in no sense be considered to be an unreasonable restriction.

145. In our view, therefore, having regard to the disasterous consequences or harm that may be caused if a political party, which is operating in a manner prejudicial to the sovereignty and integrity of the country, is allowed to continue to operate until the decision of the Court, which must inevitably take a little time, the interim suspension of the party can, in no way, be considered to be an unreasonable restriction.

146. The contention of Mr. Wali Khan and his Party in their respective written. Statements that after such dissolution there is nothing now-left to be decided is wholly incorrect. The dissolution under subsection (i) is merely in the nature of an ad interim order of a Court, which decides whether an injunction Y or a stay should be granted or not. That injunction is always subject to the final decision of the appeal. The decision at the interim stage is not the final decision. If the appeal fails, the stay or the injunction automatically stands withdrawn. In the same way, here, if for any reason, the decision of the Supreme Court is against the Executive Government, the dissolution will automatically lapse and the Party will be treated as having never stood dissolved. At all. It cannot, therefore, be maintained that the dissolution of the Party has already taken place finally upon the satisfaction of the Government.

147. Under the American Constitution, no specific right of association is guaranteed, but statutes have from time to time been made, declaring a :party to be unlawful. In India also, although clause (3) of Article 19 of the Indian Constitution which deals with the right to form associations and Unions given by clause (1) (c) was amended in 1963 by adding the words "sovereignty and integrity of India" before the words "public order or :morality" yet no law has so far been enacted there for making any specific or special provision for political parties. Action is taken there, when necessary, under the emergency powers of the Government or other existing laws which were protected by this clause.

148. It goes without saying that while the right of Assembly is a very ;important right for the preservation of a democratic political system yet it cannot be denied that no State can tolerate utterances or actions which threaten to overthrow the Government established by law in that State by unlawful or unconstitutional means. As observed by the American Supreme .Court in the case of American Communications v. Douds (1951 340 US 268), "Freedom of speech, press and Assembly are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and, under some circumstances, against 4ecitements to commit unlawful acts".

149. The power, however, must be subject, as held by this Court in the above cited case of Abul A'ala Maudoodi, to built in reasonable safeguards to prevent arbitrary action or abuse of power or the destruction of the .Democratic fabric itself. In the present case, the interpretation, which we have given to the provisions of subsection (1) of section 6, seems to comply with all these requirements- preservation of the State, the constitutional .Order as well as the preservation of the right of association within reasonable ;limits.

150. Finality of Court's decision Having decided that tile scope of our jurisdiction under subsection (2) .Of section 6 of the Political Parties Act, read with Article 17 of the Constitu--tion is not limited merely to the affirmation of the executive action, it has now to be considered as to what is the scope of our functions-in these proceedings and what is the procedure that should be followed.

151. Mr. Pirzada has drawn our attention to the words 'matter', 'decision' and 'final' occurring in subsection (2) of section 6 of the Political Parties Act and has contended that these are the key words which furnish the clue. Although the word 'decision' is not by itself, it is conceded, decisive in this[ context yet, when read in conjunction with the words 'matter' and' 'final', ill can only lead to the inference that the intention of the law-maker in using these words was to place the entire controversy relating to the question as to whether a Political Party "is operating in a manner prejudicial to the sovereignty and integrity of Pakistan" for the decision of this Court.

152. In the technical judicial terminology the word 'decision' may connote a determination of judicial nature as a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way o authoritative answer to the questions raised before it (vide Black's La Dictionary), yet it is a comprehensive term having no fixed legal meaning and may equally well be employed as referring even to ministerial acts, but when read in conjunction with the word 'matter', which Black's Law Dictionary defines "as the subject-matter of controversy "or-substantial facts forming the basis of a claim or defence, then it becomes the subject of litigation, that is to say, the 'lis' itself.

153. Therefore, a 'final decision' is a decision "which leaves nothing open to further dispute and which sets at rest the causes of action between the parties from which no appeal or writ of error can be taken".

154. It has been pointed out by the Privy Council, in the cave of Tara Steel & Cotton Co. Ltd. v. The Chief Revenue Authority of Bombay (AIR 1923 PC 148), that "where the case is referred for the 'decision' or 'determination' of a 'matter', there is a prima facie difficulty in holding that the order embodying this determi--nation or decision is only advisory". Where howerver, a question is referred for the (opinion of the Court that would serve prima facie to indicate that the order so made by the Court is of an advisory nature.

155. Even if we accept the contention that the word 'decision' has to be read in the context in which it is used and that by itself, it is not decisive one way or the other, we cannot, in the present case, by any stretch of imagination think that the legislature intended the decision of the Supreme Court-to be merely advisory or consultative. If we read these provisions in the light of the previous state of section 6 of the Political Parties Act and the constitu--tional amendment introduced in 1974 by the amendment of Article 17, we can find no escape from the conclusion that what was contemplated by the words 'final decision' of the Supreme Court in this case was nothing less than a final judicial determination after a hearing of the controversy or the 'lis' between the parties upon such evidence as is adduced before the Court. The jurisdiction conferred on the Court by the Political Parties Act, is, therefore, in the nature of a special original jurisdiction. It must be taken to be a conferment of an additional jurisdiction on an existing Court. In such a case, the rule is that the normal incidents of litigation in that Court attach to such a jurisdiction. The procedure, therefore, is the procedure which this Court normally follows in a matter within its original jurisdiction.

156. The only other original jurisdiction conferred on this Court is by Article 184 "in any dispute between any two or more Governments". Here, of course, it has been provided that the Court shall pronounce 'declaratory judgment'. In the present case also the jurisdiction is 'similar, because, here too it is this Court which has to declare that the Party concerned is acting in a manner prejudicial to the sovereignty and integrity of Pakistan. Under Article 184 of the Constitution, the practice of the Court has been to follow the procedure of a suit. The Rules of the Court also so provide. In this case Z too, therefore, the same procedure has to be followed in the absence of any rules framed under Article 191 of the Constitution. In the absence of any rule, it is the practice of the Court that has to be followed.

157. Application of judicial procedure and Evidence Act So far as the procedure to be followed is concerned, we have already indicated in our very first order passed on the 12th April 1975, in these proceedings, that "we are unanimously of the opinion that since this is a Court of law, this Court will adopt the ordinary accepted judicial norms of procedure and will follow as far as practicable, the Evidence Act preserving to itself the right to relax its provisions as and when reasonably necessary, in order to avoid unnecessary difficulties in the putting forward of the evidence or the material, as the case may be, which the parties may wish to place before the Court. If any legal objection can be raised to such relaxation on any cogent ground, such objection must be raised at the appropriate time and will be decided as and when raised". We see no reason to depart from the above and have endeavoured to follow that procedure, as far as practicable, throughout the course of the proceedings in this matter, which is the first of its kind.

158. Competency of the Reference Before we pass on to the consideration of the other points, there is yet another technical objection which has to be dealt with. This concerns the competency of this Reference itself. It has been contended, firstly, that since the only respondent in this case is Mr. Abdul Wali Khan, the Reference is not against a political Party at all but against an individual and, therefore, incompetent. The description of the respondent should have been "The National Awami Party through its President Mr. Abdul Wali Khan". It is contended that as pointed out by the Privy Council in the case of Kumaravelu Chettiar v. Bamaswa my Ayyar (V) this proceeding should have been in the nature of a representative suit under Order 1, rule 8 of the C. P. C., as a poli--tical party is not a corporate body but only a conglomeration of individuals having a common cause or a common political programme. We are, however, of the opinion that this objection cannot be sustained at this stage as under the directions of the Court, notices were in fact, issued to all the members of the Executive Committee of the National Awami Party and that the National Awami Party, after holding a meeting of its Working Committee, A actually entered appearance and filed a consolidated written statement in these proceedings on behalf of the Party. The defect, if any, is therefore, fully cured.

159. The procedure of Order I, rule 8, C. P. C., though not strictly applicable, has been substantially followed.

160. The other objection to the competency of the Reference is based on the ground that the amended provisions of section 6 of the Political Parties Act, under which the present Reference has been made, received the assent of the President on the 13th of February 1975, whereas the notification under subsection (1) of section 6 was actually made on the 10th of February 1975, three days before the amendment received the assent of the President ; the entire action of the Government is, therefore, without legal authority.

161. This objection also cannot be sustained, because, this amendment was actually introduced into the Political Parties Act of 1962 on the 26th of October 1974 by the Political Parties (Amendment)

162. Ordinance (XXI) of 1974. g The action that was taken, therefore, on the 10th of February 1975 was B under the provisions of the Ordinance. This Ordinance became transformed into an Act after the National Assembly met and affirmed it as the Political Parties (Amendment) Act (XXI) of 1975. The action taken was, therefore, duly authorised by law.

163. This amendment has also been challenged as being males fide and as having been made in violation of the Tripartite Accord behind the backs of the Opposition. Such an objection is an objection of a political nature which cannot be entertained in a Court of Law. The Legislature, as such, is c not a party to the Accord nor can we impute any such general malice to every member of the National Assembly and Senate. There is also no evidence that notices of the Bill for bringing in these amendments were withheld from the members of the Opposition. If the latter boycotted the Assembly proceedings and deliberately stayed away from the House ft did so voluntarily and at its own risk. This objection, is therefore, wholly misconceived.

164. Relevance of past Conduct of N. A. P. And its Leaders The next question which arises for consideration is as to what is the subject-- matter in dispute in this case which has to be decided. Our attention has in this connection been drawn to the words "is operating" in subsection (1) of section 6 of the Political Parties Act and it has been urged that since the words used are in the present sense, they can only refer to something done within a reasonably proximate period of time from the relevant date, i. e. The date of the issuance of the notification and not something which was done in the distant past or beyond a reasonable distance of time.

165. Our attention has been drawn in this connection to a decision from the Indian jurisdiction in the case of Sushanta v. The State of West Bengal (AIR 1969 SC 1004) where the Indian Supreme Court held that the ground for a persons's detention must show that he had been indulging in prejudicial acts at a period which is "reasonably proximate in time" to the order of detention itself. Similarly, while Interpreting the words "is acting in section 2 of the Bombay Public Security Measures Act, the Bombay High Court in Hirji Shivram Vyas v. The Commissioner of Police (AIR 1948 BOM. 417), held that the word 'is' is capable of only one meaning, namely, that within a reasonable distance of time as compared to the date of the making of the order by the Commissioner of Police, the detenu has acted or was acting in a manner prejudicial to public safety. It is not within the scope, nor could it have been the intention of the Act, that for acts done by the detenu in what may be considered as the remote past having regard to the distance of time which separates the alleged acts from the date of the making of the order, that the detenu shall be kept in custody.

166. The learned Attorney-General concedes that the banning of the political party concerned in the present case must be grounded upon acts committed within a reasonably proximate period of time but he maintains that he is entitled to show the previous conduct of the party concerned as the back--ground or as the consistent course of action adopted by the party in order that its real intention may be inferred. He also claims that past acts can be proved in rebuttal of the party's assertion that it had never acted in a prejudicial manner either as complained or at all or that it had never intended to so act.

167. Having regard to the present tense used we also feel no difficulty in coming; to the conclusion that the past acts cannot be relevant in determining the present conduct of the Party, particularly since a similar ban on the Party, which had been imposed by a previous regime, was deliberately lifted by the present Government soon after taking power in December 1971. The banning on the 10th of February 1975 can only be justified if it is based on acts, coming within the mischief of the 'statute, committed within a reason--ably proximate period of time of the banning. It will certainly not extend to acts before December 1971 when the previous ban was lifted. At that time the then President had himself announced as stated in the white paper on "Baluchistan (Exh. R. A. W. 6/44, page 6) ; "I will start with a clean slate. I am assuming that we are all patriots and that we all want to servo Pakistan.

168. So I am withdrawing the ban on the National Awami Party and I am going to request the leaders of the N. A. P. To meet me soon". The Party in its written statement, therefore, with some justification claims that this was not "some kind of probationary reprieve." The Martial Law Order No. 26 lifting the ban is also an unconditional order (vide Gazette Notification dated 23rd December 1971).

169. Before lifting the ban, it must be presumed, therefore, that the Govern--ment satisfied itself that the Party was not indulging in any prejudicial activities and that its banning was no longer necessary. This does not, however, mean E that the evidence of previous acts will be wholly inadmissible. It will be E relevant only to show as to what the real intentions of the Party were if any consistent course of action can thereby be established and it will be admitted only for that limited purpose.

170. Quantum of evidence required Lastly another important question which has to be decided in this case is as to what is the quantum of the evidence which will be required to establish that a political Party, as such, is guilty of the prejudicial acts complained of. Now, a party consist of individuals. It is a collection of persons and has been defined in the Political Parties Act itself as a group or combination of persons. It is not a corporate body having a separate corporate existence of its own, apart from its members, and, therefore, while it is true that the acts of one or two individual members of the Party, F however important they may be, will not necessarily be the acts of the Party F itself but where a fairly substantial segment of the members of the Party or its leaders is shown to be acting or behaving in a particular manner without any= objection from any of the other members of the Party or its controlling body it may well be presumed that the individuals concerned are speaking or acting on behalf of the Party itself and to that extent, therefore, their acts will also be treated as the acts of the Party itself.

171. The learned Attorney-General has of course, contended that normally the life and working of a political Party is shrouded in mystery, and, there--fore, the political Party's existence or actions are really the actions or utterances of its leaders who constitute the alter ego of the Party itself. In this connection, he has also referred us to Maurice Duverger's preface to his treaties on "Political Parties" where the learned author states "Constitution and rules never given more than a partial idea of what happens, if indeed they describe reality at all, for they are rarely strictly applied. Moreover, Party life is deliberately shrouded in mystery. It is not easy to obtain precise information about parties even on elementary points. We find ourselves in a primitive juridical system, where the law and rites are secret and the initiated keeping them closely hidden from the sight of the uninitiated, it is only the old guard of the Party that knows much about the ins and outs of its organisation and the subtle intrigues that take place.

172. These people, however, rarely possess a scientific mind which allows them to retain the necessary objectivity and they do not talk willingly."

173. Mr. Pirzada has, on the other hand, referred us to a decision of the United States Supreme Court in the case of John Francis Noto v. United States (6 Lawyers, Edn. 2nd U S SCR 836) to show that to justify the inference that a call to violence "may fairly be imputed to the Party as a whole" one must have evidence to show that "not merely a narrow segment of the Party" is involved in the prejudi-- cial activities complained of. There are, however, observations in the judg--ment to show that the actions of the "leadership" of the Party would also have been relevant but since the American Supreme Court did not find any evidence to show that the acts of sabotage there complained of were being "presently advocated or that there was any conspiracy to advocate the same in the future", there was no case for holding that the Party was liable to be outlawed.

174. In countries, however, where the political system is not so well developed as in America or in the United Kingdom, one cannot ignore the importance of the leadership of a political Party. They, to a great extent, represent the Party and control its decisions. Hence, we cannot altogether ignore the contention of the learned Attorney-General that in so far as the Party has G consistently failed to repudiate the utterances or actions of its leadership or failed to dissociate itself from such actions or utterances it must be held that the Party itself subscribes to the same view.

175. In the present case, we have ourselves been conscious of this difficulty throughout but find it difficult to exclude altogether the evidence with regard to individual leaders of the Party. We have, however, decided not to depend entirely upon such evidence, for, in this case some direct evidence is also available of the fact that the Party itself not only did not repudiate the utterances or actions of its leadership but in fact eulogised them, treated their leaders as heroes and characterised those engaging in such prejudicial activities as "valiant fighters". We shall examine this aspect in greater detail when we come to deal with the specific allegations regarding the pre--judicial acts themselves. For the present it is sufficient to say that we shall keep this aspect in mind whilst considering the evidence against the political Party concerned. We will also keep in mind the fact that mere silence does not necessarily amount to an admission of complicity. The principles of criminal jurisprudence, to which Mr. Zafar Mahmood, one of the amicii curiae, has adverted, though not strictly applicable, as no accused person is on trial here, are nevertheless, salutary principles to be adopted in drawing inferences from mere silence. We do not propose to depart from them and will draw upon them only to that extent and will give to them only such weight as they deserve.

176. Nature of evidence produced and Its admissibility Now the evidence which has been adduced in this case consists partly of oral testimony adduced through the mouths of some 31 witnesses and a vast number of documents, some tape-records of speeches delivered from time to time by the leaders of the dissolved party and monitored reports of some foreign official broadcasting stations. The oral evidence, which is based purely on hearsay, cannot, of course, be admissible unless the informant or the source, from whom the evidence was obtained, is himself produced to give evidence. In most cases, those sources are either spies or informers and, therefore, the authenticity of the source of such information cannot be placed on any higher level than the evidence of the spy or the informer. The K usual tendency of Courts is to look upon such evidence with some "degree of disfavour", but where the spy or the informer himself is not being called try support the version given by him, the reliability of the report, even if it comes through the agency of a very highly placed responsible officer, cannot be enhanced.

177. Mr. Zafar Mahmud has contended that the oral evidence given on the basis of source reports is of no greater evidentiary value than the files of the Intelligence Department, because, facts therein asserted do not constitute substantive or even corroborative evidence. They are in no better position than police diaries under subsection (2) of section 172 of the Criminal Procedure Code, which provides that "any Criminal Court may send for the police diaries of the case under enquiry or trial in such Court and may use such diaries not as evidence in the case but to aid in such enquiry or trial". The result of this, according to the learned counsel, is that the facts and statements written therein are not materials which can be relied upon to come to any finding in the case. It has, however, been stated that what the Court can do into discover out of the diary any matter that is important and then by calling for the necessary witnesses or documents have that matter properly proved in evidence. We are conscious of this fact and will, there--fore, confine ourselves in using these intelligence Reports or the files relating to such reports, only where substantive evidence has been called of the inci--dents referred to in the report to test the direct evidence with regard to the incident itself.

178. Some difficulty, however, will arise with regard to the Intelligence or source reports of matters which have taken place in foreign countries ; but even in such cases, we cannot possibly base our opinion solely upon such reports or accept the facts stated in the reports as true, unless there is evidence aliunde to prove the said fact. As observed by the Indian Supreme Court in the case of Habib Mohammad v. State of Hyderabad (AIR 1954 SC 51) we agree that a Court can get assistance from police diaries for "suggesting means of further elucidating points which require clearing up and which might be material for the purpose of doing justice", but entries therein cannot "by themselves be taken to be evidence of any date, fact or statement therein contained".

179. The material contained in such source or Intelligence Reports may well be of great value so far as executive decisions are concerned, but for the pur--poses of a judicial enquiry, they cannot be of any assistance at all unless the authorities concerned are prepared to produce the sources themselves for giving evidence before the Court. This the authorities have not done in the present case on the ground that to do so would expose the source to grave personal dangers and destroy the entire intelligence collecting system of the Government. The learned Attorney-General has, therefore, suggested that so far as information collected from foreign countries is concerned, the source material may be accepted by relaxing, if necessary, the rules of evidence, as indicated in our order of the 12th April, 1975, for otherwise, it j would amount to asking him to discharge an almost impossible onus. We are not unconscious of his difficulties and, therefore, will allow him to draw upon the source report only to the extent that it has received corroboration from the happening of the events mentioned in the report, if those events have been established alliunde by reliable evidence. Thus, if the source report discloses that a certain line of action is planned or proposed to be taken by certain persons and such actions do in fact take place, then to the extent that the actions take place, the source report may be relied upon as confirma--tion of the fact that t tie action was taken in pursuance of a plan as ascribed in the report.

180. The documentary evidence in this case consist, inter alia, of such intelli--gence reports furnished either by the Intelligence branch of the Government or by the Army's Inter-Services Intelligence Directorate. They stand on the same footing as source reports and we need say nothing further about them. The other documents consist of official Government records, notings and summaries, extracts from books/pamphlets, judgments and newspaper reports both foreign and domestic. So far as official records are concerned, they are, no doubt, useful compilations of information received from various sources but we regret that we cannot accept that the facts stated therein are automatically proved merely by reason of the fact that they are incorporated in an official record. The learned Attorney-General has contended that the presumption of regularity under illustration (e) of section 114 of the Evidence Act attatches to official acts. This presumption is limited, however, only to the regularity of the act done, that is to say, that (a) the person who is proved to have acted in an official capacity possessed the necessary and proper authority for so acting and (b) that the .Officers concerned acted as the law and their duty required them to act.

181. Thus, if a notification is issued under certain powers given by law, there is a presumption that it was regularly published and promulgated in the manner in which it was required by law to be done but there is no presumption that what has been done has been rightly done nor is there any presumption that whatever is stated in the official record is correct except in certain kinds of official records to which a presumption of correctness is attached by a special law. Such presumption. Of correctness is not by reason of anything contained in the Evidence Act f but the special law which empowers or requires a particular authority to maintain a particular record or make an entry in a particular manner. There also the only presumption is that the entry so made represents the correct state of affairs on the date it was made. This presumption does not, how--ever, attach to every official act or every entry in an official document, particularly where the entry is not made as a result of an investigation or inquiry made by the officer himself as in the case of land or revenue records or entries in registers required to be maintained under a statute. None of the official records, filed in this case, are documents of this nature. They are mainly minutes made by officials concerned consolidating materials collected from source reports and other Intelligence Reports for the use of either the President, the Prime Minister or the Minister of Government of an appropriate department, or for conveying certain directions to relevant authorities for taking a certain course of action.

182. So far as newspaper reports are concerned, the learned Attorney-General has sought to rely upon them on the ground that they being contemporaneous reports of events and/or speeches which if not controverted or denied more or less at the same time must be treated as correct. He has, in this connec--tion, referred us to Volume 29 of the American Jurisprudence (2nd Edn.), page 939, where the learned commentators have stated that where "proof is made that one usually reads a newspaper and that it has probably been brought to his attention, the newspaper may be offered in evidence for the purpose of showing that such person had notice of its contents, especially when better proof cannot be produced. Also, when it is shown that a person is author of, or otherwise responsible for, statements or articles in newspapers, they may of course be used against him".

183. The authority cited in support of this view is Dunlop v. United States (165 U S 486 41 Led 799) where official acts of a Governor required to be made public were published in a newspaper. The publication was admitted in proof of the existence of facts stated in the Governor's proclamation.

184. The same learned commentator, however, concedes that "newspapers or newspaper articles are not ordinarily admissible as evidence of the fate stated therein". Nevertheless, it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible. Particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary 'r newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are `business records' or 'ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony.

185. The Courts in this country have also accepted newspaper reports In certain circumstances. Thus, in the case of Sher Mohammad v. The Crown (PLD 1949 Lah 511) Munir, J. (as he then was) accepted articles published in a daily newspaper the contents of which were not denied by the Crown. The learned Judge took the view that "where there is no affidavit by the Crown the facts stated in the newspaper report must be accepted as correct". Thus, if a person does not avail of the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in newspapers he cannot `' complain if that publication is used against him. Such an user would not be hit by the rule of hearsay.

186. Even the rule of hearsay is not absolute, for, it is subject to certain exceptions. One of these is that statements accompanying and explaining facts are not bit by the hearsay rule. Thus, even in the case of hearsay as observed in Halsbury's Laws of England (3rd Edn., Vol 15, at page 320) in estimating the weight to be attached to a statement "regard must be had to M all circumstances from which any inference as to the accuracy or otherwise of the statement can reasonably be drawn, and in particular to the questions whether the statement was contemporaneous with the facts stated and whether the maker had any incentive to conceal or misrepresent the facts".

187. The learned Attorney-General has also relied on another passage from the same Volume 29 of the American Jurisprudence to support his contention that the hearsay rule is relaxable. The learned commentator states at page 554 :- "As with most rules, the hearsay rule is not absolute ; it is replete with exceptions. Indeed, it has been conceded that exceptions to the hearsay rule have virtually swallowed the rule.

188. The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence-that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered. The word 'necessity' as thus used is not to be interpreted as uniformly demanding a showing of total inaccessibility of first- band evidence as a condition precedent to the acceptance of a particular piece of hearsay, but necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof. An exception to the hearsay rule may be made where the hearsay evidence is the only possible proof as well as nowhere a sole witness to a transaction is dead or beyond the reach of a subpoena."

189. On the basis of these observations, learned Attorney-General urges ,that in the present case too so far as incidents which took place in a foreign .Country or speeches which were made there by any of the leaders of the National Awami Party are concerned, this rule should apply and the exclusionary rule on the ground of hearsay should be relaxed as has invariably been done by the Courts in the United States of America, because, witnesses required to prove such facts would ordinarily be inaccessible and certainly beyond the reach of this Court's subpoena.

190. We do not dispute the force of these contentions of the learned Attorney-- General. We were ourselves conscious of these difficulties and it is for this reason that we have, as already indicated, decided to relax this rule in the cases of reports of incidents or events which took place in foreign countries or of reports of speeches or statements made there if they have not been contradicted.

191. Similarly, articles published in foreign newspapers .Will also on similar grounds of necessity be admissible in these proceedings.

192. So far as transcripts of speeches made personally by officers of their Special Branch or Intelligence Branch are concerned, they will be admissible in every sense of the term, because the person hearing the speech and making N notes of it contemporaneously has been examined and be has proved the transcripts prepared by himself.

193. So far as monitoring reports of foreign broadcasts are concerned, they too stand on the same footing. They prove that the foreign broadcasting stations did broadcast the matter incorporated in the monitored reports. The officers engaged in this task have been examined. They have described in detail the care with which these broadcasts are monitored and we can sec v no reason to doubt the authenticity of these reports. They also, however, only prove that such broadcasts were made. The correctness of the contents of such reports is a different matter. The reports do not establish the truth of the contents.

194. So far as tape records of speeches of some of the N. A. P. Leaders are concerned, they stand on firmer ground. They are actual record of the speech as and when it was made. The officer recording the speech has been produced. He has produced the necessary tape and the tapes have been played in the Court. The officer concerned has identified the voice P of the person speaking. Therefore, we see no reason not to accept these reports. They stand on the same footing as the transcripts of speech personally recorded by officers attending the meetings at which the speeches ,complained of were delivered. The learned amicii curiae have also conceded that such tape records are admissible in evidence and that they have been so admitted by the Courts in this Country.

195. So far as Press Notes and the White Paper issued regarding the incidents in Baluchistan by the Government or published under .The authority of Government, are concerned, we regret we are unable to accept that they constitute official records which prove themselves or that ,the contents thereof are factually true. They stand on no better footing than the statement of the case of the Government in the present Reference, 10 They contain the version of the Government with regard to a particular incident or incidents and nothing more. They may be binding on the Government itself as admissions but they cannot be used against any other third person. They are binding on the Government, because they are -statements of the Government itself.

196. Learned Attorney-General has also sought to rely on judgments delivered by various Courts in bomb blast cases. Now, it is a well accepted principle that judgments which are inter alias are admissible only for the limited purpose of proving as to who were the parties in that case and what was decided in that case and nothing more. The other facts stated in the judgments or the findings recorded therein will not be admissible in evidence unless of course it is a judgment against a particular leader of the N. A. P., whose conduct is in issue fn this Reference. Then it may be admissible as showing the conduct of that leader of the N. A. P., R but apart from this, it will only prove the above three facts as stated earlier.

197. The learned amicus curiae, Mr. Sardar Khan, has also raised another objection to the admissibility of these judgments on the ground that they are still sub judice, as appeals have been preferred against them and such appeals are still pending. This will not, in our opinion, affect the admissibility of such judgments for the limited purposes mentioned above., The judgment stands until it is reversed or set aside.

198. The confessions of accused persons in some of these cases cannot, how--ever. Be accepted in evidence unless the persons making such confessions are produced before the Court and are subjected to cross-examination. However, ft is unnecessary to pursue this question, as the learned Attorney General has himself conceded that this is the correct legal position.

199. Examination of Evidence Such being the nature of the evidence, we have endeavoured to indicate at the very outset the manner in which we propose to deal with . It and now we proceed to examine the evidence adduced in this case in the light of then principles propounded by us on each point in, as far as possible, the same order as the learned Attorney-General has proposed in his closing address.

200. Historical background of N. A. P.

201. As stated by the National Awami Party in its own written statement for the proper appraisal of the evidence brought on the record, it is necessary that the history of the formation of the Party, its policies, aims and objects should be first ascertained. According to the written statements, both of the Party and of Mr. Abdul Wali Khan, which are on this point more or less identical, it was in the year 1956 that the Khudal Khidmalgars, led by Khan Abdul Ghaffar Khan, joined with five other parties, in opposition to the then ruling party, the Muslim League, to form, what was in the first instance called the National Party of Pakistan.

202. The six political parties, who thus joined hands and formed this new,, political party, consisted of the following :-

(1) Khudai Khidmatgars from the N: W. F. P., led by Khan Abdul. Ghaffar Khan.

(2) Azad Pakistan Party from Punjab, led by Mian Iftikhar Uddln. Khan and Mr. Mahmud Ali Qasuri.

(3) Sind Mohaz, led by Mr. G. M. Syed and Sh. Abdul Majid Sindhi.

(4) Sind Hari Committee, led by late Mr. Hyder Baksh Jatoi.

(5) Wrore (Brothers), Pakhtoon of Baluchistan, led by late Khan Abdus Samad Khan Achakzai and Mr. Hashim Khan Ghilzai; and,

(6) Usthman Gul (Awam Jama'at) of Baluchistan, led by Shahzada, Abdul Karim Khan of Kalat and Mir Ghaus Baksh Bizenjo.

203. The main common object which brought these heterogeneous elements together, it appears. Was their opposition to the creation of One Unit of West Pakistan, because, according to them, this made the smaller Provinces of West Pakistan feel that "they were being denied their constitutional, political and economic rights".

204. Further details of the programme have, of course, not been given in the said written statements nor has any evidence been furnished by the Referring Authority of the detailed programme of the National Party of Pakistan. It is, therefore, not clear whether full political autonomy was also claimed by this new party for the Provinces.

205. Be that as it may, after having formed this party, the organizers got in touch with political leaders in East Pakistan who held similar political views. As a result of this, a faction of the Awami League led by Maulana Abdul Hamid Khan Bhashani and Mr. Mahmudul Haq Usmani, who had broken away from the Awami League itself and formed what they called a Progressive Group within the Awami League having leftist tendencies, and the Gana Tantri D.I, again a leftist group, led by Mr. Mahmud Ali Sylheti, joined hands with the National Party of Pakistan and formed the National Awami Party at Dacca in 1957.

206. The Awami League itself was a dissident group which had broken away from the Muslim League and the late Mujibur Rahman was one of the members of this group. Its original nomenclature was Awami Muslim League but later when Hindus were admitted to its membership the word 'Muslim' was dropped. Still later the leftist group within this party led by Maulana Bhashani broke away and joined the N. A. P. Which elected Bhashani as its first President.

207. It is no doubt true that some of the political leaders, who became the founder members of the National Awami Party, were ex-Muslim Leaguers who had broken away from the Muslim League to form the opposition and it is also true that until they so broke away from the Muslim League, they also believed in the Ideology of Pakistan. Some of them like Mr. G. M. Syed and Sh. Abdul Majid Sindhi had also participated in the session of the All-India Muslim League held at Lahore in 1940, in which the famous Pakistan Resolution was passed, but it is equally true, and we can take judicial notice of this fact that they all formed the spearhead of the Opposition. The Jugto Front in East Pakistan, which defeated the Muslim League in 1954 elections, spearheaded by Maulana Abdul Hamid Bhashani, was also a similar combination demanding complete autonomy for the Provinces.

208. This party was later joined also by the late Pir Sahib of Manki Sharif. Mr. Sameen Jan Khan, at one time a President of the Sarhad Muslim League and Arbab Abdul Ghafoor Khan and Arbab Sikandar Khan Khalil also ex--Muslim Leaguers from the N.-W. F. P. The claim, however, of Mr. Abdul Wali Khan that the leadership of the National Awami Party consisted of Muslim Leaguers is not tenable.

209. Mr. Abdul Wali Khan seems to contradict himself when he claims this, because, according to him, they were also persons who being "disillusioned" with the policies of the League's high-ups and those in authority" broke away from the party, "said good-be to the Muslim League and formed the National Awami Party".

210. The N. A. P. Was, therefore, even on the basis of the admissions of the Party and Mr. Abdul Wali Khan himself formed to oppose the policies of the Muslim League, the party which had created Pakistan and then formed the Government in power.

211. The learned Attorney-General has contended "that the political complexion of the personalities who composed the Party forebode an anti---Pakistan stance . . . . . After the partition, they became champions of narrow parochial claims . . . . . . In fact, this combination, as subsequent events showed, was a camouflage to continue the subversive activities of Khudai Khidmatgars (Red Shirts) and other Congressities who had opposed the creation of Pakistan . . . . . The ultimate aim was to disintegrate Pakistan in accordance with the cherished desire of their foreign masters". He has even quoted Maulana Moududi, who had on the 5th November 1957. Almost immediately after the formation of the Party, stated that "the National Awami Party had been grossly misnamed, for, in fact, it was an anti-national organization aiming at disrupting the unity of the country." (vide Exh.

212. R. A. W. 28/2 (186).

213. The written statement of Mr. Wali Khan itself reveals that even up to 1964, Khan Abdul Ghaffar Khan was the President of the West Pakistan National Awami Party. This does not, therefore, lend any support to his U later contention, in his written statement, that Khan Abdul Ghaffar Khan was his father and not "N. A. P.'s father".

214. It is also interesting to note that in an interview granted by Khan Abdul Ghaffar Khan to Mr. John Siceloff at Kabul, a correspondent of the 'Washington Post', which was published in the issue of that newspaper on the 30th March 1972, the Khan had himself claimed, while talking of Khudai Khidmatgars that:- "we started it again in 1957, with my son, Abdul Wali Khan, as President. The new name was the National Awami Party."

215. Mr. Siceloff adds to this his own appreciation of this Party's goal in the following words :- "The Party's goal has been political representation for Pakhtoons with eventual independence."

216. This interview was reproduced by the Pakistan Times, Rawalpindi, in its issue of the 14th April 1972 (Exh. R A W-28/2(77). Neither Mr. Wali Khan nor Khan Abdul Ghaffar Khan have so far contradicted the same. y Even the written statement does not deny this although the press report was annexed to the Reference as Annex. EE.- 12.

217. It seems from the intrinsic evidence of the written statement itself that Khan Abdul Ghaffar Khan had considerable influence over the Party up to 19164 : possibly even up to 1968, when Mr. Abdul Wali Khan took over the presidentship of the N. A. P.

218. It is also not without significance, as stated by the party in its written statement, that in 1964, the N.

219. A. P. At the instance of its then President in West Pakistan, Khan Abdul Ghaffar Khan, at a meeting held in the house of Khan Abdul Wali Khan, resolved to join the Combined Opposition Parties (C. O.

220. P ) and again in 1968, formed another joint front under the banner of the Democratic Action Committee (D. A. C.) By this time, Khan Abdul Wali Khan had of course, become the President of the National Awami Party and had launched a campaign for the undoing of the One Unit which ultimately led to his arrest along with a number of his Party workers in November 1968.

221. If it be correct, as claimed by Khan Abdul Ghaffar Khan, that the N. A. P. Was just a new name for the Khudai Khidmatgars then it becomes relevant to know also as to how the Khudai Kaidmatgars movement itself came into being and what were its aims and objects. According to the autobiography of Badshah Khan (Khan Abdul Ghaffar Khan) as narrates to K. B. Narang and published under the title "My Life and Struggle", Khan Abdul Ghaffar Khan states that after Nadir Khan had reconquered W Kabul in 1929, a celebration of the victory was held in the N.-W. F. P. W and the victory processions were addressed by him, one of the young men came to see him and told him that he wanted to found an organization "devoted to the service of Pakhtoon People and that is how the Khudai Khidmatgar Movement was formed". Originally this Movement was not to have any thing to do with politics, but, as admitted by the Khan himself, "later on the cruel operation the British subjected us to, made it impossible for the movement to keep away from politics".

222. Mr. Abdul Wali Khan himself in his written statement, treats the Khudai Khidmatgars as a political party. On page 80, he actually states :- "As a political party, and one that had fought the British Imperialists, they had every right to put forth their own proposal in this regard. They felt that the partition of India meant the partitioning of the Muslims of India and the Muslims who belonged to the minority provinces and who were facing problems even on the creation of Pakistan. Because Pakistan was to be created in the Muslim majority provinces where, being in a majority, they did not face those difficulties . . . . . . . And it was for precisely the same reason that the Kbudai Khidmatgars opposed the holding of a referendum.

223. Because, if both the parties are unanimous that in the case of parti--tion, the N.-W. F. P. Shall join Pakistan, what was the sense in having a referendum . . . But when the Muslim League insisted that a referendum should be held, in spite of Khudai Khidmatgar's declaration, then the Khudai Khidmatgars demanded that if the Muslim League insists on a referendum still then a third option should also be put to the voters-the right of vote for an Independent State of Pashtoons so as to make this referendum a complete expression of the right of self-determination."

224. At another place at page 83, he states that :- "It was the Khudai Khidmatgars who were in the vanguard of the freedom movement and who by forming United Front with Indian National Congress, bad ultimately succeeded in throwing the British yoke over and thus clear the way for independence and also Pakistan, because, Pakistan could only come into being on the departure of the British."

225. The leader of the Khudai Khidmatgars, Khan Abdul Ghaffar Khan, in his speech made in the Constituent Assembly of Pakistan on the 5th March 1948 (Exh. No. R A W 1/32) also admitted that he was "of the opinion and creed that India should not be divided." He also declared then that it was his "honest opinion that India should not be divided, India should not be partitioned".

226. It is thus abundantly clear that the Khudai Khidmatgars were in the fore-front of politics throughout in the N.-W. F. Province under the leadership of Khan Abdul Ghaffar Khan and both Khan Abdul Ghaffar Khan and the Khudai Khidmatgars did not believe in the partition of India. If, therefore, as Khan Abdul Ghaffar Khan has claimed in his interview given to Mr. Siceloff, the new name of the Khudai Khidmatgars was National Awami Party, then the learned Attorney-General suggests, not without justification, that the N. A. P. Is also the same party only in a 'new garb' or under a 'new assumed name' and that its creed is that the partition of India was unjustified-the two-nation theory of the Quaid-i-Azam was wrong.

227. N. A. P.s concept of nationalities Even now the N. A. P. Maintains, that Pakistan consisted of five different 'nationalities'-the Bengalis, the Pathans. The Baluchis, the Sindhis and the Punjabis. It tries to draw a distinction between 'Nations' and "Nationalities" and suggests that the latter are like the flowers of a banquet symbolizing the 'Nation'. Nations and nationalities are, on the other hand, according to the Attorney-General synonymuos. He cites in support J. W. Garner, who in his book on 'Political Science and Government', at page 106, has expressed the same opinion and further asserted that :- "Those who have distinguished between them have, by no means, been in agreement as to the difference."

228. The learned author has tried also to show that even the distinction drawn by Lord Bryce between a nation and a nationality is not at all con--vincing for, according to Lord Bryce, "a nation is a nationality which has organized itself into a political body either independent or desiring to be independent". The mere fact that a 'political organization' converts a `nationality' into a 'nation' does not, according to Garner, make the two things different. The concept of nationality, according to the learned author, is a psychological product which aims on the basis either of com--munity, race, religion, language or geographical surroundings, to emphasise the difference between one particular community and another with the object of achieving a political organization which would transform it into a nation. The learned Attorney-General adopts this reasoning and main-- tains that the preaching of the concept of separate nationalities within the State is nothing but the showing of the seed of secession as we have had misfortune of experiencing from the course of events that took place in East Pakistan in the recent past. To talk of the right of self-determination for each 'nationality' is to seek to develop it politically, in the words of Garner, into a 'Nation' and this can only be done by the disintegration of the existing State.

229. This contention of the learned Attorney-General is not without force, T particularly if we keep in mind that the raisond'etre for the creation of Pakistan was that the Muslims of this sub-continent were a separate nation and they desired to have a separate homeland of their own, where they could live and prosper according to their own code of life as laid down in the Holy Quar'an and Sunnah. To say, therefore, that Pakistan does not consist of one 'nation' but several 'nationalities', each having ethnic, cultural, social and political differences, is to deny the very basis of Pakistan and if along with this is also demanded the right of self-determination for each nationality then it is a demand for the breaking up of Pakistan, destroy--ing its integrity and setting up of several independent States within Pakistan itself.

230. The concept of nationalities is opposed also to the fundamentals o Islam which preaches that the entire Muslim Millat is one nation under on Khalifa.

231. The concept of 'nationalities' is also opposed to the thinking of the Father of the Pakistani nation, the Quaid-i-Azam. In a speech broadcast From Radio Pakistan on 28th March 1948, he said :- "If we begin to think of ourselves as Punjabis, Sindhis, etc. First and Muslims and Pakistani incidentally, then Pakistan is bound to dis--integrate. Do not think that this is some abtruse proposition ; our enemies are fully alive to its possibilities which I must warn you that they are already busy exploiting."

232. Again speaking to the students of the Islamia College, Peshawar, on 42th April 1948 the Quaid said :- "Of late, the attack on your province has taken a subtle form. Our enemies, among who)n I regret to say, there are still some Muslims, have set about actively encouraging provincialism in the hope of weakening Pakistan and thereby facilitating the re-absorption of this province into the Indian Dominion . . . . . . . . Having failed to prevent the establishment of Pakistan, thwarted and frustrated by their failure, the enemies of Pakistan have now turned their attention to disrupt the State by creating a split amongst the Muslims of Pakistan. These attempts have taken the shape principally of encouraging provincialism."

233. Present position and posture of N. A. P.

234. In this historical background let us now see if the Party has now changed its Constitution or that its aims and objects have undergone any change. Some of the original components or groups which formed the National Party of Pakistan are no longer in existence. The Province of East Pakistan, which has now separated, is not represented in the National Awami Party any longer. The N. A. P's activities are now confined to the Provinces of West Pakistan and particularly to the two Provinces of N.-W. F. P. And Baluchistan. Its membership also consists largely of the Inhabitants of these two Provinces. As a result of the elections of 1970 it also claims to represent politically these Provinces even though it is not in majority in N.-W. F. P. And has a bare majority of one only in Baluchistan. It could only form coalition Governments in these Provinces.

235. As for the programme of the Party the documents which have been filed by the Referring Authority are the copies of the programmes and Constitu--tions of the Party and its provincial organisations.

236. (Exhs. RAW-1/4 and RAW-1/5). The first programme is of the Sarhad N. A. P. It was issued on the 26th of April 1970. The main theme of this programme is that all the Provinces of Pakistan must have full autonomy and the type of autonomy contemplated is that only defence, foreign affairs and currency shall be the subjects under the Centre. All other subjects must be transferred to the Provinces and the people of the Tribal agencies and Special areas should be given the right to decide their own future.

237. In the Constitution of the Party (Exh. RAW-1/5) published on the 1st of March 1970, however, the re- constitution of Provinces was also con--templated on geographical, linguistic and cultural basis and again complete autonomy was demanded for the Provinces so re-constituted. This programme further contemplated that West Pakistan itself was to be con--stituted into a Zonal Federation after the breaking up of One Unit and each Province or unit of the federation was to have equality in the National Assembly. No Province was to have any superiority over the other by, reason of its population. This also contemplated that Special Areas, States and Tribal Areas, leased areas of Baluchistan and Agencies, etc. Would be merged in the re-constituted Provinces within the geographical limits of which they came to be situated. The sections of the people who were, leading a nomadic or a semi-nomadic life or tribal life would be settled in large tracts within the Province where they could be better looked after and, that the language of each Province would be given the status of a National language. Urdu would only be a means of inter-communication between the various Provinces. This also contemplated that the Centre would have only three subjects, namely, defence, foreign affairs and currency.

238. The programme of the National Awami Party, Baluchistan (Exh. RAW--1/6) is more or less to the same effect except that in this greater emphasis is placed on autonomy by adding the word "complete" before "autonomy".

239. The programme, published in the Punjab (Exh. RWP-1/7) also con--templates the re-constitution of the units of the federation on geographical, cultural and linguistic basis but makes a fundamental departure. It demands that the Central Assembly should be bicameral and whilst the Lower Chamber should be constituted on the basis of population, the Upper Chamber alone should have equal representation of the Provinces and it. Contemplates the setting up of a socialist State.

240. It is interesting to note that the Constitution of the N. A. P., published in the Punjab does not concede the right of the other Provinces to equal representation in the Federal Legislature in total disregard of numerical: strength of the population. It, nevertheless, supports the demand that the language of a Province so re-constituted shall have the same status as a. National language.

241. In a pamphlet, issued earlier by Mr. Mahmud Ali Qasuri. In his capacity of President of the West Pakistan National Awami Party, entitled "The: National Demands" (Eah. RAW-1/8) emphasis has again been laid on com--plete provincial 'autonomy' and the setting up of a 'zonal federation' in West Pakistan after the breaking up of the One Unit. This was issued in 1966.

242. The same idea is repeated in the Party policy prepared by Sh. Rafiq Ahmed, a member of the Central Majlis-e-Aamla of the Party, who is now a member of the Pakistan People's Party and the Speaker of the --Provincial Assembly of the Punjab.

243. So far as the printed programmes of the Party go, therefore, the main features are breaking up of One Unit, re-constitution of the provinces on linguistic, racial and cultural basis, complete autonomy for the provinces, setting up of a Zonal Federation in West Pakistan with only three subjects with the Centre, equal representation to the provinces in the Central Legislature and the giving of national status to regional languages. If we look, however, at the utterances of the leaders of the Party the position that emerges is somewhat different. It is pointed out on behalf of the Referring Authority that Khan Abdul Ghaffar Khan himself had made the following categorical statement, which has been published in his auto-biography-- dictated to K. B. Marang at page 209, in 1969 :- "I am afraid I do not entertain any friendly feeling for Pakistan. A' Pakistan was founded on hatred.

244. She was born not on love but on hatred and she grew up on hatred, on malice, on spite and hostility."

245. In another book called "Thrown To The Wolves" published by Piare Lal in 1966, the author at page 111 quotes the Khan as having said that :- ---He wished to have nothing whatever to do with Pakistan. He would do or die-either achieve Pakhtoonistan or die fighting for it."

246. Even after his return to Pakistan from his exile in Kabul he is reported by the Nawa-i-Waqt of Rawalpindi (Exh. RAW-28/2 (65), published on the 9th of January 1973, to have told his associates including Mr. Abdul Wali, Khan, Arbab Sikander Khan Khalil, Ghaus Baksh Bizenjo, Jennifer Moosa, Ajmal Khattak, and Saadullah Khan, that "they should prepare themselves to launch a struggle similar to the one which was successfully launched by the people of Bangladesh for achieving all their objectives and freedom" and to have threatened that "if the people did not fulfil the object of achiev--ing Pakhtoonistan he would return to Afghanistan".

247. Then again on the 1st of February 1973, at Rustam Mardan, the Khan threatened to return to Afghanistan "if Pakhtoons did not unite and get disciplined" (vide Exh RAW-28/2 (170) 1n this speech he also hinted that "rights were never offered in plates but they are snatched" and called upon the youth to girdle their belts and be prepared to offer sacrifices.

248. Even as late as the 5th of April 1975, at Bannu he declared that he had come to serve the Pakhtoons and to enable them to achieve their rights but since he was not being allowed to go to Baluchistan he would be performing Hijrat after Juma prayers (vide Exh. RAW-28/2 (192). According to a report of a speech published by the Pakistan Times, Rawalpindi, on the 21st of February 1975 (Exb. RWP-28- 2 (103), the Khan is said to have declared that although he believed in non-violence, "he had never stopped the Pakhtoon from achieving their rights even through violence".

249. So far as Mr. Abdul Wali Khan is concerned, the learned Attorney General has referred us to the transcript of the speech delivered by him o the 21st of September 1973 (Exh. RAW-19/16) to show that Mr. Abdu Wali Khan when asked to contradict the statements of certain Afghan Ministers which were directed against Pakistan, avoided doing so. In fact, it is said, at various places to his own written statement he has even supported the allegations made by the Afghan Government with regard t the Durand Line and their claim that the areas of N: W. F. P. And eve portions of Punjab formed integral parts of Afghanistan' itself.

250. Reference has, in this connection, also been made to the written state--ment filed by Mr. Jam Saqi, the Joint Secretary of the N. A. P., wherein he claims that 'the N. A. P., has its own ideology' and that the people of Pakistan gave their verdict in the 1970 general elections when they refused to return the parties committed to the slogan of Pakistani Ideology --Pakistan being a one-nation State.

251. According to him, "Pakistan is a State but not one nation, it is a multi-national State. The N. A. P. Is firmly com--mitted on this issue".

252. Similarly. Mr. Khair Baksh Marri in a speech delivered at Quetta on the 20th of July 1973 (Exh. RAW- 16/1) speaks of Baluchistan as a separate country. He subsequently tried to make a clarification of this speech, which was issued in the Frontier Guardian of the 5th of August 1973, under the caption "The controversial speech" (Exh. RAW-28/2 (2)) but the clarification made the matter, if anything, worse. He still maintained that he had "told some bitter truths" by pointing out "that the role played by Teactionary Punjab is causing the country a lot of harm".

253. So far as Mr. Wali Khan is concerned, he has, in his written statement .Openly justified the opposition of the Khudai Khidmutgars to Pakistan and ,categorically asserted at page 80 that :- "The demand for Pakistan was, according to our judgment, one of the political solutions to the very complicated problem that India was facing, there could have been other solution."

254. The 'other solution' obviously refers to the Khudai Khitmatgars -demand for Pakhtoonistan.

255. Again at a press conference held at the Islamabad MNA's Hostel, on she 17th July 1974, and reported in the DAWN of the next day (Exh. RAW--_28/2(190) Mr. Wali Khan is quoted as saying :- "What is left of Pakistan now cannot be given the name of Pakistan. There now are for Provinces and not Pakistan as originally con--ceived . . . . . . . . . . . At this stage of his life with grey hair he was asked to launch secessionist movement. He would do it as a Muslim Leaguer."

256. It is significant that in this interview he also accused the Quaid-e-Azam ..Of having launched the first 'secessionist movement' in India in the form of the Pakistan Movement and suggested that there would be nothing wrong .In starting another secessionist movement in Pakistan. If the Quaid could do that what is the harm in others wanting to do the same thing, he asked.

257. On the 28th October 1973, addressing an Eid Congregation at Charsadda, according to the transcript (Exh. RAW-10/1) prepared by the Referring Authority's witness No. 10, Jalilur Rehman, the Khan i3 reported to have said "that a new country comprising Frontier Province, Baluchistan .And Afghanistan would come into existence and its border line would be shifted from Torkham not to the Attock Bridge but to somewhere in the Marghala Hills near Rawalpindi". He further advised the Pakhtoon Zalme, -the militant organization attached to the N. A. P., in this speech not to present themselves any more for arrest and added :- "We will no longer offer arguments and proof of our being patriotic. . We have done that for 25 long years."

258. Even earlier on the 4th October 1973, speaking at Nowshera (vide transcript Exh. RAW-19/2, he had said that :- "If Pakistan is destroyed, we will not be destroyed. We would remove 'the chain from Cbaman to the borders of Sind and from Torkham to Marghala."

259. He also told his audience at this place that :- "Now politics is over", and exhorted the people to "take up arms for settlement of the political issues". He repeated the same threat of removing -the chain from Torkham to Marghala and from Chaman to Jacobabad in another speech delivered by him at Tank on the 17th December 1973 (vide transcript Exh. RAW-19/15).

260. Other leaders of the N. A. P. Too, according to the Attorney-General, have been propagating the same doctrine of for nationalities and secession, on the basis of the right of self-determination.

261. Thus, even as early as the 12th February 1971, Prof. Muzaffar Ahmad, President of the N. A. P.

262. (Wali Khan Group in East Pakistan) stated, according to a report carried ,in the Pakistan Observer of Dacca, dated 12-12-1971 (Exh. RAW 15/9) and RAW 28/2 (160) :- "I would like to make humble suggestion to the Party commanding majority In the National Assembly to propose a Bill at the very outset of the Session guaranteeing every nationality the right of self--determination with power to seceds. Then and then only I believe and do sincerely believe, negotiations amongst various Parties and nationalities can start with a clean slate without any fear and mistrust and thus the task of Constitution-making can run smoothly."

263. Sardar Khair Baksh Mard, President, Baluchistan N. A. P. At a public meeting in Sibbi, on the 14th January 1973, as reported by the Pakistan Times, Rawalpindi, in its issue of 16-1-1973 [Exh. RAW 20/2 (29)] demanded the formation of provinces on the basis of nationalities and not on economic or administrative basis, because as he put it, "we do not believe in one nation. We have our own culture, civilization, traditions and language. The smaller nationality had not been merged with the bigger nationality nor was it subservient to it." He too used the words 'nation' and 'nationality' as synonymous when he said :--"Every nation and nationality should have the right to take separate decisions". The reference was clearly to Pakistan and. Therefore, 'nation' and 'nationality', according to him, meant the same thing.

264. This meeting was presided over by the Speaker of the Baluchistan Assembly and was also addressed by the Provincial Governor, Mir Ghaus Baksh Bizenjo.

265. Even earlier, according to a report carried in the New Times, Rawalpindi, dated the 24th January 1972 [vide Exh. RAW 28/2 (16)] Sardar Khair Baksh Marri had asserted that :- "Pakistan was inhabited by for nations with distinct languages and culture and the multi-national character of our country must be recognised without delay."

266. On the 20th July 1973, speaking at Quetta, Sardar Khair Baksh Marri maintained that :- "Baluchistan is a separate State and not a part of Pakistan."

267. (vide transcript of the speech prepared by Mr. Niaz Muhammad Exb. RAW 26/1).

268. Similarly, Mir Ghaus Baksh Bizenjo. In a speech at a meeting of the N. A. P. Workers, held at Karachi on the 3lst March 1972, as reported in the daily '.Fang' of 2nd April 1972 [Exh. RAW 28/2 (25)] also maintains that .- "The Pakistan of 1947 has been disintegrated and time has reached when we should decide what future relations should be maintained inter se between the nationalities inhabiting the provinces of Punjab, Sind, Baluchistan and N.-W. F. P."

269. He also advised the workers that the rights of the nationalities in Pakistan -should be recognised and not usurped under the pretext of strengthening the Centre, for, this would produce the same results that came about on account of the suppression of the rightful aspirations of the people of East 'Pakistan. Again, in a statement made to newsmen at the Lahore Airport on the 7th October 1972, as reported in the New Times. Rawalpindi of that date [Exh. RAW 28/2/(27)], he maintained that :- "The N. A. P. Believe in for nationalities", and asserted that :- "This concept in no way negated the Pakistan Ideology."

270. When it was pointed out to him that Pakistan was formed on the basis of the two-nation theory, he said "You have seen the two-nation theory did not work."

271. Similarly, Sardar Ataullah Mengal, the then Chief Minister of Balu--chistan had, in the report of a speech published in the Nawa-e-Waqt, dated 27th July 1972 (Exh. RAW-6/30) also maintained that :- "N. A. P. Is committed to the concept of for nations in what remain& of Pakistan and nobody can deny that the language and culture of each of these for nations is distinguished and separate."

272. On the 18th July 1973, Sardar Attaullah Mengal, while addressing a. Press conference, a report of which has been Exhibited as RAW 6/35, stated "We will settle the problems in the mountains. Our struggle shall not be in the Assembly. People do not accept the Constitution."

273. This statement was made after the dismissal of the N. A. P. Ministry and the N. A. P. Governor in Baluchistan and we shall revert to it later, but for the present, we would only like to point out that the creed of the N. A. P. Has consistently been that the Pathans and the Baluchis inhabiting N.-W. F.

274. P. And parts of Baluchistan formed one nation, Le., the Pakhtoon or Pashtoon nation and that this nation must be given its right-the right of self-determination. If this is not conceded voluntarily, the Party will not hesitate to seek its rights, if necessary, even by resorting to violence.

275. The extracts we have quoted above from the speeches of the various leaders of the N. A. P. Fully bear this out. Mr. Wali Khan and the N. A. P. Have in their written statements also stated that this concept of Pakistan consisting of 4/5 nationalities is not opposed to the Ideology of Pakistan, nor i9 it in any way is conflict with the provisions of the Constitution adopted with their concurrence, because, all the various Constitutions of Pakistan, hithertofore framed, guaranteed that every section or class of people living in Pakistan would be assured their fundamental rights. The fallacy in this argument, however, lies in this that no Constitution has so far guaranteed that the provinces should be constituted on ethnic, linguistic or cultural basis nor has any Constitution guaranteed that each ethnic, linguistic, or cultural group living in Pakistan shall have the right of self- determination. If it did so it would be recognising what is practically the right to secede and perhaps the N. A. P. And its leadership could then have had some justification for claiming that these are fundamental rights guaranteed by the Constitution.

276. Provincial autonomy and secession If by providing autonomy is meant the right of self-determination with the right to secede, then the phrase `provincial autonomy' is either meaningless term or deliberately intended to be misleading and deceptive". Autonomy and secession are mutually self-contradictory concepts. Autonomy means the power or right of partial self-government while secession means complete withdrawal from the Federation, or the State.

277. The right of autonomy cannot, therefore, include the right to secession. It is, therefore, not possible to accept the contention that the right of even full autonomy includes the right to secede.

278. If, as Mr. Wali Khan and his Party have in their respective written statements tried now to explain that the demand for the right of self-deter--mination is limited only to complete provincial autonomy in the sense of the right of self-government within a province of Pakistan, then it is difficult to appreciate how the Party having accepted the interim and the permanent Constitutions of Pakistan, wherein the extent of provincial autonomy has been clearly defined, can now resile from that position. To permit them to do so would amount to permitting them to subvert the Constitution itself and this would, under Article 6 of the permanent .Constitution, be an act of high treason.

279. N. A. P.'s counter-allegations The contention of the Party and Mr. Wali Khan that they are no longer bound by the Constitution, as the ruling Party had itself violated the Tripartite Accord (Exh. RAW 20/5) and the Constitution both in its letter and spirit, can hardly furnish them with any justification for doing the same thing and subverting the Constitution. It can be no defence for a Party charged with subversion of the Constitution to say that some one 9 else is also subverting the Constitution. If another Party is doing that then the remedy lies in bringing that Party to book by challenging its unlawful and unconstitutional actions in a Court of law and not in taking the law into one's own hand or acting on the basis that the law ha ceased to exist. Two wrongs cannot make a right and such a philosophy can only lead to anarchy and destroy the very fabric of the State.

280. Mr. Wali Khan has attempted further to contend that the Constitution is no longer binding upon the N. A. P., because of instances cited by him of violations of the Constitution by the ruling Party itself.

281. According to him, such acts can lead to only one inference, namely ; that the party in power is itself not complying with the provisions of the Constitution, because it does not consider itself bound by it. Apart from the question as to whether any such justification can be founded in law, there is another ground upon which the Party, in our opinion, must fail in this contention.

282. It is well-established principle of law that if a counter-case is set up or counter charges or counter allegations are made in the pleadings, then the onus of proof of these counter charges and/or allegations is upon the party making them. The plaintiff is never called upon to disprove the counter-case of the defendant or the defendant's counter allegations nor is the Court under any duty to enquire into such counter allegations if no evidence has been produced in support thereof by the party making them. If a party sets up a positive counter-case, it undertakes the onus of proving it and along with it the risk that the case of the opposite-party might succeed if the defence case is not established by due proof, as was pointed out by this Court in the case of Badarul Haq Khan v. The Election Tribunal, Dacca.

283. In the present Reference, the Party setting up the counter case and making the counter allegations has thought ft fit to stage a walk out from E the Court after making these counter charges and has thereafter deliberately g refrained from participating in its proceedings. It has failed and neglected, therefore, to discharge the onus of adducing evidence in support of its allegations and this can lead only to the conclusion that the Party making these allegations must be deemed to have abandoned them, as held by a Karachi Bench of the West Pakistan High Court in the case of Muhammad Ishag v. Abdul Ghani (PLD 1960 Kar. 155). We fully approve of this principle and hold that the N. A. P. And its leaders have failed to support the counter charges made in their respective written statements and the Court is not, therefore, called upon to deal with them.

284. The learned Attorney-General has, nevertheless, attempted through the evidence of the first witness Brig. (Rtd.) Muzaffar Khan Malik (RAW-I) Secretary, Ministry of Interior. Government of Pakistan, and Mr. Abdul Rauf Sheikh (RAW-30) Secretary to the Government of Pakistan, Ministry of Finance, to rebut even these counter allegations with regard to the denial of the just and legitimate rights of the Provinces of Baluchistan and N: W. F. P. Both these witnesses have given full and convincing explanations of these counter allegations and supported the same with facts and figures in such detail that we cannot bat accept that the counter allegations of injustice and unfair treatment of these Provinces are wholly unjustified. We have no reason to disbelieve the unrebutted evidence of such highly responsible officers of the Government, particularly since their evidence is so copiously supported by a wealth of detail, the authenticity of which can hardly be doubted.

285. However, even if there was any truth in these counter allegations that would not, in our opinion, justify a political party which has accepted a Constitution to repudiate it and to say that it is not bound by it. A Constitution would indeed be a meaningless thing if it could be so violated unilaterally at the will of a political Party.

286. Genesis of the Pakhtoonistan Movement It will be observed that the utterances of the various leaders of the National Awami Party, to which reference has already been made, seem to indicate that the claim of the Party throughout has been that the people of N: W. F. P. And Baluchistan form a definite ethnic group, namely, the Pakh-- toons or Pashtoons and they inhabit a more or less compact geographic area comprising of the whole of the North-West Frontier Province and a large part of Baluchistan and, therefore, they should be conceded the right to form themselves into a separate political entity to be called Pakhtoonistan and that this political entity should have the right of self-determination. Nothing short of this would, it seems, satisfy the leaders of the Party who claim that the Party is committed to this and will, if necessary, seek its achievement even by violence. This has been characterised by the learned Attorney-General to be the basis of the Pakhtoonistan Movement which would, according to him, inevitably lead to the breaking of Pakistan, and is thus prejudicial both to the sovereignty as well as the integrity of the State of Pakistan.

287. What exactly is meant by the demand of Pakhtoonistan and how did it come into being? According to the learned Attorney-General this was conceived as a design to defeat the establishment of Pakistan by Khan Abdul Ghaffar Khan under the inspiration of the late Mr. M. X. Gandhi when Khan Abdul Ghaffar Khan found that the Congress had by accepting the Partition of India "thrown hint' to the wolves."

288. The learned Attorney-General maintains that the demand for Pakhtoonistan is nothing short of a demand for a separate independent State either with Afghanistan or without Afghanistan. On the other hand. Khan Abdul Ghaffar Khan, in his first speech in the Gonstituent Assembly of Pakistan on the _nth of March 1948, had explained this demand, according to the version given in D. G.

289. Tondulkar's book on Abdul Ghaffar Khan; at page 456; in the following terms :- "What does our Pathanistan mean, I will tell you just now. The people inhabitating this province are called Sindhis and the name of their country is Sind. Similarly, the Bengalis. In the same way, there is the North-West Frontier Province. We are one people and ours is a land within Pakistan ; we also want that the mere mentioning of the name of the country should convey to the people that it is the land of the Pakhtuns. Is it a sin under the tenets of Islam? . . . . Pathan is the name of the community and we will name the country as Pakhtoonistan. I may explain that the people of India used to call us Pathans, and we are called the Afghans by the Persians. Our real name is Pakhtuns.

290. We want Pukhtunistan, and we want to see all the Pathans, on this side of the Durand Line joined and united together in Pakhtunistan. You help us in this. If' you argue that Pakistan would be weakened by it, then I would say that Pakistan can never become weak by the creation of a separate political unit. It would become stronger."

291. It will be noticed that even though he says that Pakhtoonistan is e--land within Pakistan yet he wants it to be created into a "separate political unit". What is the real purpose behind this?--Is it simply giving a new name to an existing Province? Then how does Baluchistan come into this?' The Attorney-General suggests that the real purpose is quite different and, it will emerge only if its genesis is also taken into consideration.

292. He has referred us in this connection to Maulana Abul Kalam Azad's autobiographical memoirs entitled `India Wins Freedom' wherein it is stated that after Lord Mountbatten had informed Dr. Khan Sahib that his plan was. To hold a plebiscite in the North-West Frontier Province, for ascertaining the wishes of the people in the matter of joining Pakistan or India, Dr. Khan Sahib said that if there was to be a plebiscite the Pathans of the Frontier should have also the right to opt for Pakhtoonistan, a state of their own. Maulana Azad opines that "Dr. Khan Sahib saw that his only chance of retaining the leadership of the Frontier was to raise the demand for Pakhtoonistan". Lord Mountbatten, was not however, prepared to listen to any new demand and the question of Pakhtoonistan was not even, discussed in detail in the Congress Working Committee.

293. Maulana Azad then goes on to say that this was the last occasion on which the Khan brothers took part in the discussions of the Congress but when they found that the Congress had "thrown them to the wolves", "they returned to Peshawar and after consulting their friends they raised the slogan of independence for the Frontier". After partition actually took place, according to Maulana Azad. "the Khan brothers modified their attitude in conformity with the demands of the situation. They declared that their demand for free Pakhtoonistan did not mean the creation of a . Separate State but the recognition of full autonomy for the Frontier as a unit. Of Pakistan". Did it really do so?

294. The learned Attorney-General contends that at heart they never changed, for immediately after the first meeting of the Constituent Assembly ,of Pakistan Khan Abdul Ghaffar Khan returned to Peshawar and launched a campaign for the achievement of Pakhtoonistan and started a movement for non-cooperation with the Centre. Dr. Khan Sahib's Ministry had to be dissmissed and some of the leaders had to be placed under detention. Khan Abdul Ghaffar Khan was actually tried and convicted by a High Court Judge under sections 123-A, 124-A and 153-A, P. P. C., vide State v.

295. Abdul Ghafar (PLD 1957 Lah. 142).

296. The learned Attorney-General has relied strongly on the closing .Observations in this judgment which are to the following effect :- "If prompt action is not taken by the Provincial Government because of red-tape, tolerance, indulgence or indifference against persons who by words, spoken or written or by means of communication advocate the abolition of the sovereignty of Pakistan on a part of its territories, or indulge in utterances which depict Pakistan as a country having ill-will against a section of its population, Pakistan runs a risk of finding at no distant date that it is more Pathanless than it would have been if, instead of being in its favour, the referendum held in the now defunct North-West Frontier Province under the British Government's plan dated the 3rd June, 1947, had gone against it."

297. It is contended that these words correctly sum up the real nature of the demand for Pakhtoonistan and apply with equal force even today. This is exactly what Mr. Abdul Wali Khan and his Party-the National Awami Party are seeking to do as they have never been able to reconcile themselves to the creation of Pakistan or its ideology.

298. The learned Attorney-General has also tried to show that this movement :had the support of both Mr. Gandhi as well as the All-India Congress Working Committee itself. He refers us in this connection to what Maulana .Abul Kalam Azad has said at page 193 of his book "India Wins Freedom". The Maulana reveals that when Khan Abdul Ghaffar Khan found that .Even Mr. Gandhi supported the Mountbatten plan for the division of India and spoke in its favour in the Working Committee, the Khan "was .Completely stunned and for several minutes, he could not utter a word".

299. Then he made a moving appeal to the Congress Working Committee repeatedly saying that "the Frontier would regard it as an act of treachery if the Congress now threw the Khudai Khidmatgars to the wolves". Upon .This the Maulana observes :- "Gandhiji was moved by the appeal and said that he would raise the matter with Lord Mountbatten.

300. He did so when he met the Viceroy and told him that he would not be able to support the plan for Partition till he was satisfied that the Muslim League would deal fairly with the Khudai Khidmatgars.

301. How would he desert those who had always stood by the Congress in the days of difficulty and stress ?"

302. The Viceroy agreed to discuss this matter with the Quaid-e-Azam. He Aid so and the Quaid agreed to meet Khan Abdul Ghaffar Khan. They met at Delhi but nothing came out of this meeting.

303. Subsequently, when the Khan brothers, after making their exit from -the Congress, returned to Peshawar they raised, what the Maulana calls "the slogan of Independence for the Frontier" and the question of its inclusion in the Referendum proposed under the Mountbatten plan to be held in the N.-W. F. P. The Congress Working Committee itself later endorsed their decision and authorised Khan Abdul Ghaffar Khan to take whatever action he thought necessary to deal with the situation in the province and it was in this way that the Frontier Congress, led by Khan Abdul Ghaffar Khan, demanded the creation of a free Pathan State and wanted that the plebiscite proposed to be held in the N.-W. F. Province "should not be on the basis of a choice between Pakistan and India, but that there should be a third alternative of an independent Pakhtoonistan".

304. This decision was taken at a joint meeting of the Khudai Khidmatgars, the Pakhtoon Zalme (the Youth Organization of the Khudai Khidmatgars), the Frontier Province Congress Committee and the Congress Parliamentary Party, held at Bannu on the 2 ! St June, 1947. This meeting was presided over by Amir Mohammad Khan, the President of Frontier Province Congress Committee and it adopted the following resolution unanimously :- "That a free Pathanistan of all Pakhtoons be established. The Consti--tution of the State will be framed on the basis of Islamic conceptions, democracy, equality and social justice. This meeting appeals to all Pathans to unite for the attainment of this cherished goal and not to submit to any non-Pakhtoon domination". (Exh. RAW 19/9).

305. The learned Attorney-General suggests that there was behind this move something more than a mere verbal blessing to the Frontier Congress plan by the All-India Working Committee, Mr. Gandhi and the Congress must have secretly, it is suggested, also agreed to support the movement in a more concrete form.

306. Pyarelal in his book "Thrown to the Wolves", at page 48, states that on the 3rd June, 1947, when the Congress had accepted the principle of the Partition plan. Khan Abdul Ghaffar Khan stated to Mr. Gandhi that "a terrible fate awaits us in the N: W. F. Province. We do not know what to do ?". On this Mr. Gandhi declared :- "Khan Sahib, non-violence knows no despair. It is the hour of your trial . . . . . .. You can declare that Pakistan is altogether unacceptable to you and brave the worst. What fear can there be for those who are pledged to do or die."

307. Even after Mr. Gandhi and Khan Abdul Ghaffar Khan parted on the 30th July, 1947, never to meet again, the affairs of the N: W. F. Province continued to agitate the Mahatma's mind and on the 26th September, 1947, in the course of a post-prayer address, Mr. Gandhi, according to Pyarelal remarked that although "he had been an opponent of all warfare, but if there was no other way of securing justice from Pakistan, if Pakistan persistently refused to see its proved error and continued to minimize it, the Indian Union Government would have to go to war against it".

308. Again, according to Pyarelal, on the 17th November, 1947, the Mahatma wrote to Khan Abdul Ghaffar Khan "to leave the Frontier Province and develop the non-violent technique from India" and concluded with the advice that "this you can do here with me or otherwise. What the otherwise can be, I do not know".

309. These, according to the learned Attorney-General, clearly indicate that the inspiration came from across the border and that it was not confined merely to verbal encouragement and support but extended, if necessary, to something more. This seems to find support also from what Pyarelal has stated at page 108 of his book that Khan Sahib (Khan Abdul Ghaffar Khan) had disclosed to him that :- "At the time of Partition Gandhiji had told him that independent India would not fail to come to their help if they were oppressed. That promise had not been kept. Gandhiji would never have let this happen if he had lived. India owed it to them and to Gandhiji to make kafara (expiation) for it."

310. At this meeting, according to Pyarelal, Khan Sahib (Khan Abdul Ghaffar Khan) had also recalled that in the Working Committee meeting of the Con--gress, when the Partition decision was taken, Gandhiji had told him that "if they were not given a fair deal or were victimized, India would fight and it might become the duty of the Indian Government to treat it as causus bedi if Pakistan did not mend its ways". Gandhiji is reported to have repeated that to a near kinsman of Khan Saheb Khan Abdul Ghaffar Khan, who saw him in Delhi after Independence. When Khan Saheb (Khan Abdul Ghaffar Khan) was asked by Pyarelal as to what were his immediate plans, Khan Saheb (Khan Abdul Ghaffar Khan) told him that "he was planning to restart Khudai Khidmatgar Movement with the consent and cooperation of the Afghan Government".

311. According to Pyarelal, Khan Abdul Ghaffar Khan also told him during his interview with him at Kabul in 1966, that :- "In virtue of the solemn pledge that Gandhiji had given them at the time of Partition, India was morally bound to do for them all that she would do in an issue of vital concern to herself." (Vide page 111)

312. Khan Abdul Ghaffar Khan also reiterated this in his address before a joint session of the Parliament of India on the 24th November, 1969, when he was on a visit to India on the occasion of the Gandhi Birth Centenary. The Khan, according to the official record of the speech published by the Secretary, Ghaffar Khan (Sarhadi Gandhi), Salgirah Samiti, New Delhi (Exh. RA W 19/10), stated that :- "In the Working Committee, Gandhiji and I opposed Partition to the last, But nobody listened to us.

313. After the decision in favour of Partition was taken I said to Gandhiji 'you have thrown us to the wolves'. It was then that Gandhiji told me 'if you are unjustly treated or oppressed, India will fight for you'. I do not wish to describe here in detail what followed, you know it as well as we. But may I ask whether, it was not your moral duty to help us ?''

314. To conclude this Chapter, the learned Attorney-General points out that the speeches to which reference has been made earlier spell out as to what the real concept and aim of the Pakhtoonistan Movement is-the establishment of a completely independent State or at least such a State as would be in a position to enter into an agreement with other States to form G a larger union for the purposes of defence, foreign affairs and currency. If this was the real intention of the founders of the PakhtoonistanMovement, whether with or without the help of foreign countries, then such a movement was clearly aimed at the fragmentation of Pakistan and this could only be achieved by destroying the sovereignty and integrity of who is now left of Pakistan, In a pamphelt entitled "Bullet for Bullet" (Exh., RAW 6/9), published by the Overseas Office of the Revolutionary Democratic Front, London, an organ of the N. A. P., by Mr. Ajmal Khattak, who describes himself at page 1 of this pamphlet as the 'General Secretary of Pakistan Awami Party', it is stated as follows :- "Pakhtoons and Baluchs have no choice except to launch their struggle for self-determination- without waiting for the final decision of their Sindhi brothers and regardless of the designs and machinations of self-seeking and exploiter clique of Punjab . . . . . . . . . . This struggle of the Baluchis and Pakhtoons is a struggle for national self---determination. It is a struggle against the agents of Imperialism and representatives of reaction ; it is a struggle against a strong, blood-sucking and suffocating Centre and for the political and economic liberation of the different nations inhabiting Pakistan . . . . .. We neither desired nor desire conflict and confrontation. It were the military rulers of Pakistan who compelled us to resort to active revolutionary struggle. We want to declare that if any eminent personality, nation or organization is prepared to intercede and use their good offices with the rulers of Pakistan and persuade the latter through talks to accept our national rights, we are always and anytime prepared for resolving all our problems through nego--tiations."

315. In a resolution passed by the Provincial Council of the Sarhad National Awami Party at a meeting held at Peshawar sometime in December, 1974, according to RAW-5, Mustafa Kamal, who was the printer of the said pamphlet (Exh. RAW 5/2), the Sarhad National Awami Party, after charging that those who had created Pakistan were the 'Gomashtas' of the British and were working in the interest of the British, alleges that the smaller Provinces have been kept enslaved by the rulers of Pakistan and then goes on to demand that such a political order should be established in the country which would give every individual the freedom to set up the political and sccial order he wants, that the results of the 1970 elections should be accepted and on their basis the Governments of the Provinces of Baluchistan and N.-W. F. P. Should be restored. It finally concludes with an assurance to the Baluchis that the Provincial Council of the Sarhad National Awami Party will render full support to the Baluchis in their struggle and in the achievement of their goal.

316. According to the learned Attorney-General all this also- discloses that there has been no change in the concept of Pakhtoonistan even now. It remains what it was-the demand far an independent State. The contention of the Party and Mr. Abdul Wali Khan in their respective written statements that the demand of Pakhtoonistan is in no way inconsistent with or prejudicial to the integrity of Pakistan does not appear, therefore, to find support from the public utterances of the N. A. P.

317. Leaders. Even the resolutions of the Provincial Council of the Sarhad National Awami Party, if carefully read, conveys the same sense, although more -cleverly worded to conceal the real object.

318. A careful examination of this claim of the Party that the Pakhtoonistan Movement merely seeks the renaming of N.-W. F. P. Will reveal that this is a wholly untenable claim. As earlier pointed out, this Pakhtoonistan Movement contemplates firstly the carving out of a new Province from H put of the territories which now constitute N.-W. F. P. And Baluchistan wherein, according to the protagonists of the Movement, live Pakhtoons and then to give it the right of complete self Government with only three subjects left to the Centre. This is not a mere renaming of a Province.

319. The contention advanced by the learned Attorney-General that if this claim was confined merely to the renaming of the Province, then such a proposal could easily have been initiated when the N.

320. A. P. And J. U.1. Coalition Governments were in power in these two Provinces is not without substance. The fact that this was not done, clearly shows that something more than mere renaming was intended.

321. Be that as it may, even the carving out of a new province out of the two Provinces and giving it a new name will not be possible unless clause (2) of Article 1 of the Constitution is amended. Nor can the Legislature of any single Province force such a decision, which would affect the territories of another Province. Therefore, we are unable to accept the contention of the N. A. P. And of Mr. Abdul Wali Khan that this was nothing more than the renaming of a Province. It has, in our view, more sinister implications, as rightly contended by the learned Attorney-General. The real intention appears to be to carve out anew State from out of the territories of Pakistan. The proposal of leaving only three subjects to the Centre conjures up a picture of the consequences which flowed in the recent past as a result of a similar demand of the six points programme of the Awami League of East Pakistan. Anything, therefore, which has the tendency of disrupting the Federal structure set up under the unanimously adopted Constitution would be a matter affecting not only the Constitution but also the integrity of Pakistan and much more so if the result contemplated is a dismemberment of the country which flows directly from the freedom to opt out as claimed by the founders of the Pakhtoonistan Movement. The Movement was conceived as an alternative to the merger of N: W. F. P. In Pakistan and we have no doubt in our minds that its supporters now aim to reverse the verdict given by the people of this area in favour of Pakistan by taking the area again out of Pakistan.

322. Sovereignty also covers the external sovereignty and, therefore, to talk of shifting the International boundary line like the Durand Line from one place to another would be a question vitally affecting the sovereigntyof Pakistan.

323. We are of the further opinion that on the evidence to which reference has been made above, the Referring Authority has been able to establish beyond any reasonable doubt the first and the second points in issue or topics, as the learned Attorney-General has called them. We are of the view that there is enough evidence to show that the National Awami Party and its leaders have consistently sought to create doubts about the people's belief in the ideology of Pakistan and thereby to destroy the concept which farmed the very basis for the creation of this country by ridiculing and falsifying the concept and even suggesting that after the secession of East Pakistan the concept had disappeared or been drowned in the Bay of Bengal. We are also of the opinion that the evidence to which reference has already been made sufficiently discloses that the top leaders of the N. A. P. Are still not fully reconciled to Pakistan's existence and still think, as Maulana Azad said in his autobiographical notes, 'India Wins Freedom', that their "only chance of retaining their leadership in the N.-W. F. P." Is by the propagation of this concept.

324. The 1974 Resolution (Exh. RAW 5/2) of the Provincial Council of the Sarhad National Awami Party giving assurances of full support to the Baluchis then engaged in a violent conflict with the Government established by law further indicates that not only the leaders but also the Party as such was similarly operating and for a similar purpose.

325. Subverting the Constitution The charge regarding the subversion of the Constitutions more or less admitted by the Party and its leaders in their respective written statements. Mr. Abdul Wali Khan and his co-leaders after taking the oath of loyalty under the new Constitution, which contains a solemn pledge to maintain the territorial integrity of Pakistan, could not, in our view, claim the right to repudiate the Constitution merely on the ground that some one else was also doing so. We have already adverted to the counter allegations ragarding the unjust treatment of the Provinces of N.-W. F. P.

326. And Baluchistan. It now remains only to say that his other justifications for repudiating the, Constitution are equally baseless. He claims that Mr. Bhutto and his Party have not been acting according to the Tripartite Accord and Agreement (Exhs. R. A. W. 20/5 and 6), because, Mr. Bhutto and his Cabinet Ministers have been trying to divide the N. A. P. Itself and to divide -the N. A. P. And the J. U.

1. And to divide the Frontier Province from Baluchistan by their intrigues and politicking. This is not a defence in law and it is hardly a ground on which any responsible political leader can claim the right to repudiate a Constitution. If Mr. Bhutto and his Cabinet Ministers are politicking it is for Mr. Abdul Wali Khan and his co-leaders of the N. A. P. To counter such politics by more astute moves. If they cannot do that and prevent the breaking up of their own Party then they must admit that there are inherent weaknesses in their own Party and its programme. If a Party is not united together by any strong motivating force or is not composed of loyal adherents then it is not the fault of the other Party. It is the fault of Mr. Abdul Wali Khan and his Party itself that they cannot hold together and prevent their rank and file from becoming preys to such intrigues. We cannot help observing that the demand for Pakhtoonistan is not such a motivating factor that it can keep the people of these Provinces cemented together. The Party also seems to lack devoted workers as was demonstrated even in this Court when Mr. Abdul Wali Khan had actually to ask for funds to get proper legal aid. It was a matter of no little surprise to us that the Party could not muster together a few of its lawyer members-to our own knowledge there are a number of lawyers in the Party-to assist in the defence of the Party. Be that as it may, we do not think that Mr. Abdul Wali Khan can complain before a Court of Law that because politically be has failed to keep his Party together he has a right to repudiate the Constitution. Everything, as has often been said, is fair in war and politics and if Mr. Wali Khan seeks to play politics he should learn the art of meeting Intrigue by counter moves of a more effective nature.

327. Before we proceed to take up for consideration the third topic enumerated by the learned Attorney-General, it may be appropriate at this stage to mention that another justification put forward by the Leader of the N. A. P. For repudiating the Constitution is the dismissal of the Baluchistan Government and the Governors of the two provinces of Baluchistan and K-W. F. P. By the Central Government. Under Article 100 of the Interim Constitution and Article 101 of the Permanent Constitution, the Governor is to be appointed by the President and he holds office "during the pleasure of the President" and under Articles 146 of the Interim Constitution and 145 of the Permanent Constitution, it appears that in respect of "certain areas in the Federation which are not included in any province, the Governor also acts as the "agent" of the President. Similarly under Article 148 of .The Interim Constitution, and Articles 148 and 149 of the Permanent Constitution, a province is required to exercise its executive authority in such a manner as to secure compliance with Federal Laws which apply in that province and not to hinder or prejudice the exercise of the executive authority of the Federation. The Federation has also the right to issue such directions to a Province as may appear to the Federal Government to be necessary for that purpose as also for the purpose or carrying into execution any federal law which relates to a matter specified in the concurrent legislative list.

328. Again, under Articles 136 and 149 of the Interim Constitution, the Federation has, after a proclamation of emergency has been declared, the power to issue directions to a Province as to the manner in which the executive power thereof is to be exercised and even to make laws for the province within the provincial field, and under Article 136 of the Interim Constitution, the President on being satisfied from information received from any source that a situation had arisen in which the Government of a province cannot be carried on in accordance with the provisions of the Constitution, has the power to assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and to make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to such assumption of power.

329. Under Article 234 of the Permanent Constitution, the President has also been given similar power if lie is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution or if a resolution in this behalf is passed at a joint sitting of the Parliament to assume to himself or dirt ct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable, by anybody or authority in the province, other than the Provincial Assembly.

330. The question as to whether under these provisions the dismissal of the Provincial Government was jusdhea or not came up for consideration in a writ petition for que warranto to proceedings filed in the High Court of Sind & Baluchistan by one, Mir Abdul Baqi sa:such, to challenge the validity of the appointmont of Jam Mir Ghulazn Qad:r Khan of Lasbela as the Chief Minister of Baluchistan after the removal of the N. A. P. Government in that Province and of two other persons, who were appointed Ministers for Education and Information and for Communications & Works respectively by the President.

331. A Full Bench of the High Court of Sind & Baluchistan, consisting of five lea*i,ea Judges, has dismissed the petition and an appeal from the said judgment of the High Court is actually pending in this Court (being Civil Appeal No. K-5 of 1974). In the circumstances, it would not be proper for us in these proceedings to deal with the same question. We would accordingly express no opinion as to either the constitutionality or unconstitutionality ct the action of the Federal Government which g was purported to have been taken under Article 136 of the Interim Constitution. We would, however, like to point out that even If there be substance in the allegation that the action of the Federal Government was unconstitutional that by itself would not give any right to the dismissed Government or to the Party to which the dismissed Government belonged, to start a movement of insurrection and open hostility against the agencies of the Federal Government or the new Government appointed under the directions of the Federal Government after such taking over of power for the reasons which we have already pointed out earlier.

332. In our view the dismissed N. A. P. Government and its supporters should have awaited the result of the appeal pending in this Court and not resorted to direct action on their own. If they have done so notwith--standing the pendency of the appeal in this Court, they have deliberately taken the risk of counter-measures being adopted by the Federal Government to check the insurrection, for, no civllised Government can allow any political party, for any cause whatsoever, to resort to violence and endanger not only the property of the Government and the lives of its officials but also the lives and properties of innocent citizens who are more often than not the victims of the acts of violence committed by the alleged insurrectionists. It is the duty of every civilised Government,,] as long as it does not abrogate its power, to take timely and necessary action to stop such acts of sabotage and insurrection and prevent a state of rebellion spreading in the country, no matter the reason for this may be. Even the people who gather to demenstrate or protest against any illegal or unfair action of the Government run the risk of being dispersed by the use of force, if they. In addition, commit acts of violence or sabotage and cause loss of life and property, then even upon the principles propounded by Sir Maurice Gwyer, C. J., in the case of Niharendu Dath "'"'i Majumdar (AIR 1942 FC 22) the Government of the day is duty bound to take measures to suppress the insurrection.

333. The Government established by law has full right, in such circumstances, to meet force by force. Its failure to do so might result in graver consequences as we have had the misfortune of experiencing in East Pakistan in March. 1971. We cannot help feeling that even in that part of the country, if timely and appropriate measures had been taken before the 25th March, 1971, the situation which developed later might have been avoided.

334. Preparing ground for secession of N.-W. F. P. And Baluchistan We now proceed to take up for consideration the third topic formulated by the learned Attorney- General, namely, that the N. A. P. And its leaders have been preaching the doctrine of for/five nations in the country with a view to preparing ground for secession of N.-W. F. P. And Baluchistan from Pakistan on the basis of the right of self-determination of the Pakhtoons and Baluchis.

335. While discussing the first two topics we have had occasion to quote from various speeches of Mr, Wali Khan and some of the other leaders of the Party, such as, Sardar Khair Baksh Mari,Mr. Ghaus Paksh Bizenjo and Sardar Ataullah Mengal to show that they have in fact been propagating, that Pakistan is a multi-national State consisting of 415 nationalities/nations. It is unnecessary to requote them. We have already come to the conclusion that the intention of the N. A. P. Appears, from the material referred to earlier, to be to carve out a new province from cut of the present provinces of N.-W. F. P. And Baluchistan on the basis of racial affinity and that the demand for the right of self-determination was really a camouflage for the original demand of an independent State. The repeated threats of removing the chain from Torkham to Marghala Hills and from Chaman to Sibbi or Jacobabad give an indication of the real thinking of the leaders. It is not without significance that, according to a report carried by the 'Guardian' London, on the 6th November, 1973 (Exh. R. A. W. 27/22) Mr. Wali Khan, while describing his concept of Pakhtoonistan, said that it was "an autonomous area within a loose Pakistani federation". Then added: "Real independence for Pakhtoonistan would be a last resort". This is not much different from the statement attributed to the late Sh. Mujibur Rahman, as reported in the Pakistan Times of the 27th November, 1970 when asked by some foreign correspondents to clarify whether hem wanted autonomy or secession, he first said, "autonomy" then after am pause added "Independence?-no, not yet".

336. Khan Abdul Wali Khan's rebuke to his father in the course of a speech at a public meeting at Chowk Yadgar, Peshawar, on the 19th October 1973, asking him to stop talking of non-violence, as the Government was "after your blood and my blood" and then adding that "politics of non--violence- merely preaching is no longer valid", also confirms that the aim was "Independence" (vide transcript of the speech Exh. RAW-3/M-2).

337. Apart from the inferences which we think can be legitimately drawn from the speeches of the leaders of the N. A. P. To which we have adverted earlier, let us examine as to how this question of the right of "self-determina--tion of Pakhtoons" can now arise.

338. The idea of Pakhtoonistan came into the minds of the Khan brothers (Khan Abdul Ghaffar Khan and Doctor Khan Saheb), as we have indicated earlier, in 1947, when the Indian National Congress decided to accept Lord Mountbatten's Partition Plan of India and "threw the Khudai Khidmatgars to the wolves". This partition plan contemplated a referendum in the N.-W. F. P. To enable the people of that province to decide as to whether they would opt for Pakistan or for India. The Khan brothers then wanted a third option, namely, as to whether they would like to form a separate independent State. This was not acceptable either to the British or to the Muslim League. The Khudai Khidmatgars then decided to boycott the referendum. Notwithstanding the boycott, the referendum was held and the people of the settled areas bf N.-W. F. P. Opted for Pakistan. The right of self-determination was, therefore, exercised by them. After that no further question of the right of self-determination could, in our opinion, arise.

339. Soon after the partition when the Quaid-e-Azam visited the Frontier Province the tribal Sardars came and pledged their loyalty to the Quaid-e-Azam and the whole of the province of N.-W. F. P.- the settled areas as N well as the tribal areas all opted for Pakistan and became part and parcel.

340. Of Pakistan, as has already been held by this Court in the case of Superin--tendent, Land Customs v. Zewar Khan (PLD 1969 SC 485).

341. In this background what does the right of self-determination now mean?-Does it still mean the right to form an independent State, because, that was the original demand or does it mean, as Mr. Wali Khan now seeks to maintain, the right to full autonomy within a loose federation. It is patent that if such a loose federation were to come into existence, the sovereignty and integrity of the State of Pakistan, as now prevailing, would no longer be there. In either view of the matter, therefore, we are of the opinion that what the demand really amounts to is a breaking-up of the existing structure of Pakistan and its remodelling, even according to the concept now being propounded by Mr. Wali Khan. A more or less independent unit cannot come into being unless the sovereignty and integrity of Pakistan. As it now exists, is radically changed. If this is the real object and if it is found that this is sought to be achieved, if necessary, by force. Then we cannot find any escape from the conclusion that the leaders of the party, at any rate, are operating in a manner which is prejudicial to the sovereignty and integrity of Pakistan.

342. The learned Attorney-General has also relied on certain Intelligence reports submitted by Col. Aslam (RAW 7) regarding Mr. Wali Khan's activities and speeches in Afghanistan in 1974 to support his contention that the real intention of the leaders of the N. A. P. Behind this demand, is to create a new State of Pakhtoonistan and merge it with Afghanistan. Hence the Afghan support. Since the sources have neither been disclosed nor called to give evidence, these reports are mere hearsay and, therefore, not admissible in evidence. Col. Aslam was himself located at Peshawar. He was not in Afghanistan at the relevant time, therefore, he had no personal knowledge of what happened in Afghanistan. However, certain copies of the 'Kabul Times' containing news items regarding Mr. Wali Khan's activities have also been produced by Mr. Sethi (RAW 21). These newspaper reports can, in our view, be referred to, particularly, since the newspaper is a foreign newspaper and it gives an account of the activities of Mr. Wali Khan. Unfortunately neither extracts of his speeches nor the gist thereof has been reproduced in these newspapers. We have, therefore, no material before us from which we can ascertain as to what Mr. Wali Khan said at the various meetings he addressed in Afghanistan or as to what reply he gave to the addresses of welcome presented to him at various places there.

343. The learned Attorney- General has also relied on the evidence of Mr. Bashir Riall (RAW 9) and Rasib (RAW 12) to bring on the record facts, which according to him show that in 1971, when Khan Abdul Wali Khan was on a visit to London, he was preaching secession and supporting Sh. Mujibur Rahman and the Awami League in what they were doing in East Pakistan at that time. It has also been suggested by Rasib (RAW 12) that Mr. Wali Khan was even trying to instigate the Azad Kashmiris resident in U. K. To achieve their independence firstly by breaking away from Pakistan and then from India, if necessary, by force.

344. The evidence of Bashir Riaz is again mostly hearsay and is not of much value. In any event, this witness has not created a favourable impression upon us. He has implicated a large number of other persons living in London at that time in some kind of a conspiracy to assist Mr. Wali Khan in disintegrating Pakistan. Most of these persons, so Implicated, either filed affidavits or statements denying the allegations of Bashir Riaz and asking to be examined as witnesses in this Reference.

345. We have not considered it necessary to do so, as none of them is on trial before us nor do we propose to make any comments, adverse or otherwise, against them: Their affidavits and statements have, however, been placed on the record.

346. In-these circumstances we have found it difficult to place any reliance whatsoever on the evidence of this witness even with regard to the matters regarding which he spoke from his personal knowledge.

347. So Arr as Rasib (RAW 12) is concerned, if there is any truth in his story, then he must be treated as an accomplice, as rightly pointed out by Mr. Sardar Khan, amicus curiae. It is inconceivable that a seasoned politician like Mr. Wait Khan would have taken such a person, who was not known to him from before, in confidence and actually proposed to him to set up an organization for launching a violent movement for an independent Kashmir and even offered to supply arms at any place in or outside Azad Kashmir for the purposes of achieving this goal. He could only have done so if fully satisfied with the credentials of Rasib himself. Rasib must have, therefore, by his words or deeds, won the confidence of Mr. Wali Khan and those who introduced him to Mr. Wali Khan as one who held the same views with regard to Azad Kashmir.

348. We have also before us documentary evidence (Exhs. RAW 13/4 and 5) to show that Rasib was being employed as an agent for obtaining secret information for the Pakistan High Commission in London and, therefore, Rasib's evidence is also to be treated with great caution. This much, however, must be said that the above-mentioned exhibits do disclose that Rasib did give similar reports to the agency employing him even at that time. To that extent his evidence does receive some corroboration.

349. Apart from this, there is yet another reason for which we cannot place much reliance on this evidence regarding what Mr. Wali Khan said or did in 1971 in London, because, whatever was said or done then is not relevant for our present purposes. A state of rebellion was then prevailing in East Pakistan, assisted by some foreign powers and it is not unlikely that people like Mr. Wali Khan, who were never firmly wedded to the Ideology of Pakistan, may have been wishfully thinking about the ultimate results in East Pakistan. It is also quite possible that they may have been in possession of information through their friends in Kabul which provided them with justification for thinking that Pakistan may disintegrate and if it did disintegrate then it was just another step forward to hope that the split would, as prophesied by Mr. Wali Khan in his article, published in the "Round Table" of January 1972 (Exh. RAW 15/4), under the pseudonym of "an-Analyst", be a "Three Way Split". Whether it behoved a loyal Pakistani to act as such a "prophet of doom" is, of course, another matter?

350. The author of this article, as it has now been established beyond doubt through the oral testimony of Mr. Nasim Ahmad, Secretary, Ministry of Information and Broadcasting, Government of Pakistan (RAW 15), supported by a written acknowledgment (Exh. RAW 15/3) from the Editor of the journal, was Mr. Wah Khan. In this article he propounded the theory that the British had committed a mistake in partitioning India, because, thereby they had undone all the good work that they had done as o empire builders for over two centuries. Mr. Wali Khan then opined that o "undoing (the partition) would point to a reunification of the Pathans (Pakhtoon or Pashtoons) and a greater Afghan State coming into being" (the underlining' is ours). The importance of this quotation lies in the emphasis placed on the 'undoing of partition' and the emergence of a `greater Afghan State' as a result thereof. Is this not what 'Pakhtoonistan' stands for?

351. The learned Attorney-General maintains, and we think rightly, that even of this is not strictly relevant for the decision of the question before us it can be referred to at least for ascertainment of the state of mind of the author of the article. We might have done so, but we have considered it unnecessary, because, apart from this, there is abundant material in the shape of more recent utterances of the leaders of the Party which furnish us with enough reliable data for coming to the conclusion, to which we have already arrived, namely, that the real intention of those who wanted the right of self-determination for Pakhtoons and Baluchis was to set up a separate independent State called Pakhtoonistan, which might or might not form a larger State with Afghanistan. In either event, it would, in our opinion, be against the sovereignty and integrity of Pakistan.

352. Advocacy of violence This brings us to the consideration of the next topic. The 4th topic, enumerated by the learned Attorney-General, is that the N. A. P. And its leaders have been openly advocating violence to subvert the Constitution, rule of law and democratic institutions with a view to undermining the integrity of Pakistan.

353. The learned Attorney-General has endeavoured to establish this again from the utterances of the leaders of the N. A. P. He has referred us to a speech of Mr. Wali Khan at Chowk Yadgar, reproduced in the Pakistan Times of the 16th February 1973 [txh. RAW 28/2(175)), in which Mr. Wali Khan declared that there was no dearth of arms in the N.-W. F. Province and if Pakistan was destroyed, it would not be their (N. A. P's) responsibility.

354. Again, according to another speech reported in the 'Jang' Quetta, dated 29-6-1973 [Exh. RAW 28/2(182)], Mr. Wali Khan boasted that "we turned out the Britishers, what worth can the others have"?-and went on to say that the Army was being used in Baluchistan for political purposes. He, accordingly, warned that "if the situation is not improved soon, fate like that of Bangla Desh will be repeated".

355. In another speech (Exh. RAW 11/1) made at Shahi Bagh, Peshawar on the 3rd October 1973, which has been proved by Mr. Ghulam Mustafa (RAW 11) of the Special Branch, who attended the meeting, took notes and prepared the transcript, Mr. Wali Khan is reported to have advised his audience:- "Spread from house to house and hold meetings and tell the people that the political battle was over, and now the battle of personal vendetta had started; wherever the Muslim League flags were flying, remove those flags and put up the flags of Pakhtoonistan, and join the National Awami Party so that we may attain the rights of Pakhtoons. "

356. Again on 4-10-1973 (Exh. RAW 19/2) at another public meeting at Nowshera, Mr. Wali Khan exhorting his audience, old and young, said as per transcript (Exh. RAW 19/2) that "they should form themselves in small groups and meet the people and tell them: "Brothers, Mr. Bhutto has put an end to politics and now it is the question of personal vendetta. If Bhutto's men assault you, they are compelling you that you should assault Bhutto. The whole thing is clear. Now politics is over. Bullet will settle the issue."

357. He further went on to say that: "Today the politics of the country reached a stage where either we will exist or they will exist and we will quit."

358. In this speech, the transcript of which exhibited as RAW 19/2, was produced by Mohammad Isa (RAW 19/2), from a tape-recording (Exh. RAW 3/M-1) made of this speech at that time, he also told the audience that he had warned the then Governors of Baluchistan and N.-W. F. P. That they too would meet the same fate as Dr. Malik, because, "persons who play traitor to/the nation will not be forgiven by N. A. P. Because, N. A. P. Has now changed its politics-those who were to be forgiven have been forgiven and now none will be forgiven.

359. Subsequently, on 10th October 1973, at a public meeting at Mansehra, which was also attended by one of the sources of the Deputy Director Intelligence, Peshawar Bureau who tape-recorded the speech and subsequently transcribed the same (Transcript is Exh. RAW 19; 3 and tape is Exh. RAW 19/M-1), Mr. Wali Khan stated in vernacular - LY`_'-- ci~f' 211 Z L- - V.~Y ::,j41 L c)y 1' and then exhorted his audience to come out in the open for achieving their rights. In this speech, he also warned the public servants as follows:- "You cannot run away, you and your children have to live in this country. I would ask you if you are personal servants of Bhutto or you are servants of this country. If you receive your salary from Larkana out of the personal property of this Wadera, you may well obey his orders, but if you are drawing your salary from the national exchequer, you are under another obligation. You are protectors of the country and the nation. Third thing is that you must try to understand the object for which we are struggling today, you should also join in that."

360. Similarly in his speeches at public meetings at Abbottabad on 11-10-1973. (Transcript, Exh. RAW 19/4 and Tape Record Exh. 19/M-1), then at Chowk Yadgar on 19-10-1973 (transcript Exh. RAW 19/5 and Tape Exh. RAW 3/M-2) and at Masjid Ghazi Gul Baba in Charsadda on 28th October 1973 (Exh. RAW 2ts/2 (53), Mr. Wall Khan is reported to have said that "if people of Baluchistan and N.-W. F. P. Are not given their rights, then he will not be responsible for disintegration of Pakistan."

361. This speech which has also been reported in the Nawa-i-Waqt of the lot November 1973, ascribes to Mr. Wali Khan the following statement:- "Now Pakhtoons and Baluchis will secure their rights by use of force."

362. Even in 1974, Mr. With Khan continued in the same vein when address--ing his political workers and public servants. According to a speech reported fn the Nawa-i-Waqt of the 28th July 1974 [Exh.

363. RAW 28/2 (189)], he called upon the public servants "not to cooperate with those who are usurpers of the nation, otherwise they should bear it in mind that the nation will take account from them".

364. In this connection reference has also been made to a report published in an Afghanistan daily newspaper called 'Nangrahar' from Jalalabad on the 20th November 1974 (Exb. RAW 21/ t2) wherein the Khan is reported to have told his audience at Chowk Yadgar. Peshawar that "The Pakhtoons should forsake the talk of being oppressed and suppressed, they should choose the path of sacrifice and bravery for the attainment of their rights and show to the World that how they can get their rights from usurpers and the state of Pakhtoons and Baluch being oppressed has reached its climax."

365. In the report of another interview published in the 'Dawn' of the 28th December, 1974 [Exh. RAW 28/2(44)], Mr. Wali Khan is alleged to have said : "If they (Pakhtoons) want their democratic rights back, the ballot will not come to their rescue and, therefore, the alternative is that the bullet will have to settle the issue".

366. In the same meeting, according to another report carried in the Morning News of the 28th December 1974 [Exh. RAW 28/2(45)], Mr. Wali Khan declared "We will not cringe, because we have been fighting the British for the liberation of our motherland, and we have not cringed nor bowed our heads to any dictator; after the British left, we stood, and we will fight back and we will fight for our rights."

367. The learned Attorney-General has also placed on the record a number of other speeches in which Mr. Wali Khan held out direct threats to the late Mr. Hayat Muhammad Khan Sherpao. He has also referred to a speech of Sardar Ataullah Mengal delivered at a public meeting at Mastung on the 22nd April, 1973 [Exb. RAW 28/2 (208)]. In this he characterised the Government then in power as unconstitutional and warned those Government servants who acted upon the orders of the said Government of the consequen--ces. He said : "If our companions, friends and students are not released then the officers incharge of the Jails will have to face the wrath of the people".

368. Then again at a press conference held on the 18th July 1973, reported in the 'Jang', Quetta of the said date (Exh. RAW 6/35), Sardar Ataullah Mengal declared that :- "The Government has violated the Constitution and denied the democratic rights of the people, we shall settle matter in the mountains (underlining is ours). Now our struggle will not be in the Assembly."

369. After this, it is said, the insurgency in Baluchistan started.

370. On the 21st July 1973, Sardar Khair Baksh Marri, according to the Jang, Quetta [Exh. RAW 28/2 (Ih3)] warned the Government in the course of his speech at the Ayub Stadium, Quetta, that the people will be compelled to take up arms against the Government. The full text of the speech and the tape recording thereof have also been exhibited as RAW 26/1 and RAW 26/M-1.

371. In a press statement published in the 'fang' Quetta, dated l1th February, 1973 [Exh. RAW 28/2 (180)], Sardar Khair Bakah Marri is reported to have deceared :- "I want to make it clear to Nawab Akbar Bugti and his corterie that the enemy would be buried in the mountains of Baluchistan. All attempts to deny to the people of Baluchistan their democratic rights shall be com--bated strongly. We shall fight for every inch of Baluchistan till final victory (Underlining* is ours). By deploying the armed forces in Balu--chistan, Bugti and Qayum, despite the support of Bhutto coterie, cannot escape dire consequence".

372. We have already referred to the report in the Nawa-i-Waqt of the 9th January 1973 [Exh. RAW 28/2(65)] to show that Khan Abdul Ghaffar Khan had also advised the leaders of the N.A.P. That they should "prepare themselves to launch the struggle for the establishment of Pakhtoonistan, the boundaries of which will be "up to river Jhelum and this was the need of the hour".

373. We have also referred to his address to the public at Chowk Yadgar reported in the Nawa-i-Waqt of 21st February 1.973 [Exh. RAW 28/2(176)] to the effect that "the Pakhtoons would be doomed if they did not unite and strive for independence like the Bengalis".

374. He made a speech of a similar nature at Charsadda on the 8th January 1973 and on this, the Pakistan Times wrote an Editorial on the 3rd February 1973 vide [Exh. RAW 28/2(177)].

375. Reliance has also been placed in this connection on a closed door meeting, said to have been held at the Chief Minister's House at Quetta for days after the dismissal of the Government of Sardar Ataullah Mengal. At this meeting, it is alleged, the N. A. P. Leaders met to discuss their intention of creating widespread disturbances in the Province. This meeting was attended by Sardar Khair Baksh Marri, who was then the President of the Baluchistan, N. A. P., Mr. Hashim Ghilzai and Mr. Abdul Wahid Khurd, who were members of the Senate of Pakistan and also members of the Working Committee of the N. A. P.

376. According to an intelligence report, the persons named on a list prepared by the leaders (Exh. RAW 19/52) at this meeting, were to be eliminated by the Pakbtoon Students Federation and the Pakhtoon Zalme. The first name on this list was of Abdus Samad Achakzai, who was, in fact, killed in his own house subsequently.

377. Learned Attorney-General has also relied on the pamphlet issued by Mr. Ajmal Khattak in England under the title "Bullet for Bullet", wherein Mr. Ajmal Khattak has claimed credit for as many as 113 incidents of sabotage and bomb explosions which had taken place in Pakistan. The learned Attorney-General stated that out of these, the Referring Authority confirms 48 and a list of the bomb-blasts and other acts of sabotage, which have been confirmed, has been filed as (Exh. RAW 1/3).

378. This list, which is for the period January 1974 to 10th February 1975, catalogues 590 Incidents as follows ;-

(1) Explosions in N; W. F. P and tribal areas ... 180

(2) Firing and other acts of sabotage/terrorism in Baluchistan, Mengal and Marri areas ... 136

(3) Incidents in other areas of Baluchistan ... 34+19

(4) Explosions in Punjab ... 21

(5) Explosions in Baluchistan ... 17

(6) Explosions in Sind ... 1

(7) Disruption of means of communications in Baluchistan ... 59

(8) Firing and other acts of sabotage/terrorism in N.-W. F. P. And tribal areas ... 122 Another consolidated list (Exh. RAW 19/103) has also been filed giving details of 43 incidents of bomb blasts and acts of sabotage from the 6th February 1975 to the 21st March 1975.

379. In some of theme cases, as already stated, persons involved have been tried and convicted, but since appeals from such convictions are pending in various Courts, we do not wish to make any further comment about them. Judgments in such cases, as already pointed out, are relevant only for a limited purpose and they do, even in that limited respect, establish that such incidents did take place and some persons were convicted for being involved in them.

380. As regards the involvement of the Party itself reliance is placed on a pamphlet (Exh. RAW 5/2) containing a resolution of the Working Committee of the Sarhad N. A. P., in which the late Mr. Sherpao has been threatened with dire consequences for a speech of his in which he said that the police would search the house of any political worker if he is suspected of a crime. According to the learned Attorney-General this shows that the N. A. P. As a party was also approving of the acts of violence which were taking place in that province and, therefore, pit is not a case merely of some individual members supporting such acts of terrorism.

381. Some monitored reports of the Kabul Radio, particularly, a report of 13th January 1975, has also been relied upon to show that the Kabul Radio also claimed that the bomb explosions in the region were taking place in retaliation of the oppression launched by the party in power and Mr. Sherpao.

382. Mr. Sherpao was also warned in a Kabul broadcast [Exh. RAW 21/15 (2)] that "his life en the soil of Pakhtoons will be impossible because of the enmity of the nation which has now started giving flames." Mr. Sherpao was also warned that "he should stop eating flesh of the nation for the sake of Mahajir Punjabi group or he should shift to Islamabad to live in the streets of his masters".

383. It is contended that it is not a mere coincidence that the Kabul Radio had also been broadcasting such threats against Mr. Sherpao on behalf of the Pakhtoon "nation". It is an agreed pattern, which, according to the learned Attorney-General, establishes the link and shows that the N. A. P. Is receiving consistent support and encouragement from the said country.

384. The extracts of the speeches referred to above do, in our opinion, establish without any doubt that the N. A. P. And its leaders were in fact openly advocating resort to violence particularly since the dismissal of the Governors of N: W. F. P., and Baluchistan and this could not but be prejudicial to the sovereignty and integrity of Pakistan.

385. Aid and encouragement from foreign Power The Referring Authority has, of course, claimed that the said leaders of the party and the party did not confine themselves merely to advocating violence but also started a large scale guerilla campaign and insurrection with the aid of a neighbouring country which did not confine itself merely to verbal encouragement, but actually gave much material help and support to the guerilla terrorists. It may be appropriate at this stage, therefore, to deal with the evidence relating to the support coming from the said country, which has been introduced as 5th topic by the learned Attorney-General.

386. The 5th topic as -propounded by the learned Attorney-General is that the ~1. A. P.. And its leaders had been seeking and receiving encouragement and material assistance from a foreign power host to Pakistan t0 achieve their objective of disintegration of Pakistan.

387. Under this topic the learned Attorney-General has endeavoured to show that after the stunt of Pakhtoonistan was started by the Khan brothers on the eve of partition of the sub-continent under the inspiration and blessing of Mr. M. K. Gandhi, they had also succeeded in getting Afghanistan interested in their nefarious design.

388. Reference has in this connection already been made, earlier in this judgment, to several books written by prominent persons, who had first-hand knowledge of contemporary events and had themselves taken part in such events, to trace the origin of the Pakhtoonistan Movement. In his autobiography, dictated by Khan Abdul Ghaffar Khan himself to Mr. K. B. Narang, a speech of the Khan delivered on Pakhtoonistan Day from Radio Kabul on 31st August 1967, has been reproduced at page 237 of the book "My life and struggle" wherein the Khan is reported to have said that .- "It is my belief and conviction that all the people who live in the country that stretches from river Jhelum to the river Amu (Oxus), as far as Herat are Afghans. They are all Pakhtoons and this country belongs to them all."

389. Reference has also been made to a number of other documents and addresses of Khan Abdul Ghaffar Khan to show that he was and still is hostile to Pakistan which he wanted to prevent coming into being with the help of India. He consistently maintains that Mr..Ghandhi had given him a solemn pledge that India would assist him even with "armed aid" in his endeavour to liberate the Pakhtoons from Pakistan and, in fact, in the address he delivered at the joint session of the Indian Parliament on the 24th November 1969, he reminded the Indians of this pledge and asked them as to whether it was not their "moral duty to help" him in establishing Pakhtoonistan.

390. Loonard Mosley in his book "The Last Days of the British Raj" even suggests that the real intention was to join India at a subsequent stage (vide page 132). He quotes the then Viceroy as having reported to Whitehall that "Nehru spoke about Khan Sahib wishing to join the Union of India at a subsequent stage".

391. Afghanistan herself, it is pointed out, has never been reconciled to the creation of Pakistan. Indeed it is a fact of history that she was the only country which opposed the entry of Pakistan into the United Nations.

392. It is unnecessary to recount the earlier phases of this history of Afghanistan's hostil to towards Pakistan except to point out that the Afghanistan Government has missed no occasion in the international forums to raise this issue. The present President of Afghanistan in particular has shed all pretentions and has openly declared his support of the Pakhtoonistan Movement. In an interview granted as late as the 3rd February 1974, to a representative of a French newspaper "Le Monde" (Exh. RAW 21/14(4), he Q categorically stated that :- "Kabul dots not recognise this boundary (Durand Line), which the country now shares with Pakistan."

393. He also reiterated that Pakistan is the only country with which Afghanistan has a quarrel and categorically declared :- "We support in all areas the rights of our Pathan brothers to self---determination."

394. When asked if this support included military support as well, his reply was :- "I cannot answer precisely, but I can tell you that when bombs fell on our brothers, assassinating them, if they ask our aid, we will not remain indifferent."

395. To the same effect were the observations of Mr. Abdur Rahman Pazwak, the Chief Delegate of Afghanistan, to the Non-aligned Summit Meeting in Algeirs, which has been reproduced in an official publication of the Afghan Government entitled "Afghan Republic Annual 1974" (Exh. RAW 21/16) at page 58 :- "We regret, however, that there is only one country, namely, Pakistan, with which we have not been able to solve our political difference The question of Pakhtoonistan, which has emanated from a refusal by Pakistan to recognize the legitimate rights and demands of our seven million people separated by a colonial power from their fatherland. Afghanistan, still remains unsolved. We shall spare no effort in seeking and realising a solution to this question, on the basis of the will of the people and international justice."

396. In the same issues of the Afghanistan Republic Annual, the text of the speech of the Mayor of Kabul on Pakhtoonistan Day is also reproduced and in this he said : "Pakhtoonistan is the area that in the past colonial oppression bad separated it from our country, and the people of Pakhtoonistan are the people who are our brothers in blood, language, national culture and traditions." '

397. Mr. Abdur Rahman Pazwak, later Ambassador of Afghanistan in India on the 26th July 1974, broadcasting from the All-India Radio, declared that the "territories of Pakhtoons and Baluchis are not integral parts of Pakistan and that the support to the cause of Pakhtoons and Baluchis was, in no way, an interference into the domestic affairs of Pakistan". In con--clusion, Mr. Pazwak rearmed that "Afghanistan would maintain the policy of fully supporting the legitimate demand of the Pakhtoons and the Baluchis". [Vide monitored report Exh. RAW 22/2 (17)].

398. The tempo of Afghanistan's support to the cause of Pakhtoonistan has continued unabated.

399. Indeed the Kabul Radio on the 11th February 1975 according to a Monitored report [Exh. RAW 22/5 (23)], expressed "deep interest" over the actions taken by the Government of Pakistan in dissolv-- ing the N. A. P. On the previous day, I.e. 10-2-1975, and arresting its leaders and declared that :- "The Government of Afghanistan believes that a solution to the pro--blem can only be possible through the fulfillment of and respect to the national aspirations of the Peshtoon and Baluch people and negotiations with their national leaders."

400. On the 13th February 1975, another Radio Broadcast, monitored in Pakistan (Exh. RAW 22/5 (25), disclosed that the Government of Afghanistan had issued an official statement over the radio to the following effect :- "The Republican Government of Afghanistan has been condemning violence in all shapes. It also strongly condemns the oppressive, unjust and undemocratic activities of Pakistan Government towards the Pakhtooas and Baluchis and its harsh and short-sighted policies in Pakhtoonistan . . . .

401. This will increase people's hatred against them (Pakistan Authorities) day by -day and they (Pakhtoons and Baluchis) would continue to intensify their national resistance and struggle. As repeatedly stated earlier, it is now again announced that Afghanistan has been supporting and would continue to support the rights of its Pakhtoon and Baluchi brethren and she cannot remain unconcerned over these happenings."

402. This announcement not unnaturally caused considerable concern in Pakistan and it was carried by almost all newspapers and some even wrote editorials on this. The `Dawn' in its editorial of the 12th February 1975 [Exh. RAW 28/2 (71)], actually called this Kabul Government's blatant inter--ference in the affairs of Pakistan and opined that the "Kabul outcry exposes its links with N. A. P. ".

403. On the 11th March 1975, 'London Times' (Exh. RAW 27/27), carried a report that President Daud of Afghanistan had a two-hours' talk with Mrs. Gandhi, the Indian Prime Minister, at the start of his visit to India and that he was expected during his stay in India to "press strongly for more unequivocal support in his country's quarrel with his neighbour (Pakistan)".

404. President Daud even went so far as to call for the "restoration of the legitimate rights of our Pakhtoon and Baluch brothers in Pakistan at a Banquet speech delivered in India. This speech again became the subject of wide criticism in almost all newpapers in Pakistan (vide Exhs. RAW 28/2 217-227, 233, 234 and 240). Editorial comments were also written by a number of newspapers on the 13th, 14th and 15th March 1975, in this connection [vide Exhs. RAW 28/2 (228-242)].

405. Even in May 1975, another Monitored report [Exh. RAW 23/2 (45)] of Radio Kabul reiterated the stand of the Afghan Government in the following words :- "Baluch and Pakhtoons have risen for the restoration of their rights. The Baluch are calling their people to join the struggle and Pashtoons are also making similar demand. Get together and be prepared and launch struggle for your liberation. Our path is the path of bravery and courage.

406. Masses are with us. We do not care for the bullets and bombs. We will not bow before cruelty and injustice. Our youth are determined to get 'independence' destroying the seed of cruelty and injustice. Avenge your enemy and liberate your homeland."

407. It may be interesting also to note that even in an official textbook prepared by the Ministry of Education, Government of Afghanistan, such as a Geography book for the 4th Standard (Primary), published in 1958-59, which has been produced before the Court by Mr. Yunus Sethi (RAW 21) and is marked as (Exh. RAW 21/23) at page 20, the Persian text states to the following effect (translation) :- "Pakhtoonistan is a mountainous territory between Pakistan and Afghanistan."

408. Again in the Afghan Republic Annual of 1975 (Exh. RAW 21/24), it 1a stated, at page 361, that :-- "Afghanistan is bound on the North by the Union of Soviet Socialist Republic. Turkamanistan.

409. Uzbekistan and Tazkistan ; on the West by )ran ; on the South and East by Pashtoonistan."

410. The Afghan Radio also broadcast every week in the evening from Radio Kabul at the end of a special Pakhtoonistan Programme, a national anthem of Pakhtoonistan, which is reproduced in an offcial publication called "V. S 1j_,~3" (Bonds of Independence and self-determination). A copy of the same has been produced by Mr. Sethi (RAW 21) and is marked as Exh. RAW 6/13.

411. Lt: Gen. Ghulam Jilani has also produced before the Court a map of Pakhtoonistan issued by the Afghan Government (Exh. RAW 6/14), which shows the areas of Marghala Hills in Rawalpindi District, and Jacobabad in Sind, as being included in the area of Pakhtoonistan. He has also pro--duced a stamp which was issued in 1973 (Exh. RAW 6/11), by the Afghan Government carrying a picture of the Pakhtoonistan flags.

412. The Afghan Government had also demonstrated its active support to the N. A. P.'s Pakhtooistan Movement and the insurgency in Baluchistan by cancelling the visit of Mr. Agha Shahi, the Secretary, Ministry of Foreign Affairs, Government of Pakistan, who was due to go to Kabul on the 15th February 1975, for preparatory talks for the holding of a Summit Meeting between President Daud and the Prime Minister of Pakistan.

413. The 'Khyber Mail' of Peshawar, in its issue of the 12th March 1975, Exh. RAW 28/2 (216), carried a report that the Afghan Government had said :- "If Pakistan Government was prepared to restore the status quo as it was before the N. A. P. Was banned last month, then Afghanistan was ready for talks."

414. Not content with this, the Afghan Government actually made efforts to internationalise the situation, by writing a letter (Exh. RAW 31/1) to Dr. Kuri Waldhiem, Secretary-General of the United Nations, asking him to take steps to move the international community to take "immediate and urgent steps in order to convince the Government of Pakistan to desist from further implementation of its policy in Baluchistan, observe its obligation and responsibility regarding the maintenance of peace and security in the region and halt the violation of human rights".

415. This letter (Exh. RAW 31/1) ended with a note that similar messages have been addressed to all the heads of Islamic States and to the Secretary---General of the Conference of Islamic Countries.

416. The charges levelled in this letter were, of course, denied by the Prime Minister of Pakistan by his letter in reply dated 1-10-1974, addressed to the Secretary-General, United Nations (vide Exh. RAW 31/2) and the Afghan Government was charged with "actively encouraging and assisting certain disgruntled elements in Pakistan to perform acts of murder, looting, sabotage and terrorism". It further maintained that the situation in this area "arises from the continued Afghan interference in our internal affairs and its viola--tion of the principles concerning respect for the territorial .Integrity and sovereignty of States and non-interference in their internal affairs".

417. Other letters, in this connection, which passed between Sardar Daud and the Secretary-General, United Nations, on the one hand and the Prime Minister of Pakistan and the Secretary-General, United Nations on the other, have also been exhibited as RAW 31/3-6. Another letter written by Mr. Aziz Ahmed, Minister of State, Ministry of Foreign Affairs (Exh. RAW 31/7) also draws the attention of the Secretary-General of the United Nations to "Afghanistan's aggressive attitude towards Pakistan and in their effort to seek U. N. Cover for the totally unwarranted interference in Pakistan's internal affairs".

418. Sardar Daud actually tried to create a false impression that the situation on the borders of Baluchistan was similar to the situation prevailing in East Pakistan in 1971 when a large number of refugees had crossed over into India. Without going into the correctness of the reports about the number of refugees who crossed into India from East Pakistan, it is necessary only to point out that there was no parallel between the two, because the number of Afghan people who had actually entered Pakistan due to the reign of terror prevailing in Afghanistan after the assumption of power by President Daud was much larger than those who had crossed over to Afghanistan. According to letter of Mr. Aziz Ahmad to Mr. Kurt Waldhiem (Exh. RAW 31/7) "well over 170,000" Afghans had crossed the border into Pakistan as against the 344 Baluchis claimed by Afghanistan to have taken shelter there (vide Exh. RAW 31 /3). The latter consisted mainly of relations and Kinsmen of the rebel Sardars of Baluchistan, who had done so in order to provide the Afghan Government with an excuse to move the International organizations.

419. It will be apparent from what has been said above that the Pakhtoonis. Tan Movement always enjoyed, according to the declarations of the Afghan Government themselves, their full support and encouragement.

420. The question, however, is whether this support was extended only to Khan Abdul Ghaffar Khan. Mr. Wali Khan and Mr. Ajmal Khattak or even to the N. A. P. As a political Party? Mr. Wali Khan has, in his written statement, of course, repudiated that either Mr. Ajmal Khattak or his father had any connection with the N. A. P. After they left Pakistan, but we have already seen that Khan Abdul Ghaffar Khan had himself asserted that the N. A. P. Became the new name of the Khudai Khidmatgars in 1957 and it was placed under the leadership of Khan Abdul Wali Khan. We have also not referred to the earlier statements of the Afghan authorities, which have been brought on the record, but have confined ourselves to the recent state--ments of Sardar Daud and Mr. Abdur Rahman Paawak, the Ambassador of Afghanistan in India, issued during the years 1974-75, to show that the N. A. P. And even the present leaders of the N. A. P. Enjoy this support. In fact. As we shall presently see, Mr. Wali Khan claims to be a personal friend of President Daud and recently during one of his visits to Afghanistan in 1974, was treated almost as a Head of State. He was put up in the State Guest House. President Daud himself called on him and his family there. He toured the country and visited various places. He reached Kabul on 27-5-74 at 5-30 p.m. After a reception at the Maidan, on the way, by various Ministers of the Afghan Government. He then went to Kandahar where a banquet was hosted in his honour by the Governor. This was attendo by the Commander of the Kandahar forces, the Mayor, heads of departments and resident Pashtoonistanis. On his way back to Kabul from Kandahar Mr. Wali Khan was welcomed at Kalat by the Governor of Zabel and other local officials. Thereafter he visited Ghazni. Helmand, Sharab, Nahre Siraj, Herat, Nangrahar, Laqmen and Jalalabad. At each place he was welcomed by the local Governors, Military Commanders and other high dignitaries. Banquets were hosted in his honour, meetings were held and cultural shows arranged. (vide news items published by the Kabul Times, (Exhs. RAW 21/19-22 and RAW 21/25(5). In fact, when he returned to Pakistan from Torkham, he was accompanied by a procession of some 3,000 to 5,000 people, who were raising slogans of "Pakhtoonistan Zindabad" and "Wali Khan Zindabad." Some of them were even carrying Pakhtoonistan flags. They removed the chain at Torkham border and entered into Pakistan territory carrying these flags. On this side of the Pakistan border, a recep--tion committee headed by the leaders of the N. A. P. And some 2,000 odd supporters were waiting to receive Wali Khan who was given a hero's welcome. , An eye-witness account of this reception at Torkham has been furnished by Tehsildar Nasir Khan (RAW 16), who was present at that time at the Torkham border. He also corroborated the evidence of Lt: Col. Muhammad Aslam (RAW 7) in this connection. The latter had, of course, given evidence on the basis of information received from intelligence sources, whose names he was not prepared to disclose but since direct evidence has now been produced, the portions of Lt: Col. Aslam's report, which are corroborated, may, in our opinion, be also admitted and in particular the photographs filed by him [Exh. RAW 7/3 (A to J)]. These photographs clearly show that military officers accompanied the procession bringing Khan Abdul Wali Khan to Pakistan from Jalalabad and that seven to eight Pakhtoonistan flags were also being carried by the processionists.

421. Reports of the activities of Khan Abdul Wali Khan have also been published in the Kabul Times of 26-5-1974, 28-5-1974, 8-6-1974, 15-6-74 and 16-6-1974 [Exhs. RAW 2i/19-22 and 25 (1 to 54)]. Similar reports were also broadcast from Radio Kabul and monitored in Paki!,tan on 25th May 1974, 26th May 1974, 27th May 1974, 6th June 1974, 14th June 1974 and 15th June 1974 [Exh. RAW 22/4 (1-7)]. The last monitored radio report reads as follows :- "The Chief of the Pakistan National Awami Party, Wali Khan, left Jalalabad for Peshawar iia Torkham.

422. He was accompanied by the Governor of Nangrahar Province, Mr. Azizullah Wasfi, Military Commandar of Nangrahar, Muhammad Yunus, the General Secretary, National Awami Party Mr. Ajmal Khattak and the Pakhtoonistanis living in Jalalabad."

423. On his arrival at Torkham, Mr. Wali Khan was welcomed by a number of tribesmen and Iwargai, who were raising slogans. Another report states that when Mr. Wali Khan reached Jalalabad at 3-4:) p.m., he was received by the Governor of Nangrahar, the Governor of Laghman Province, the military Commanders, Mr. Ajmal Khattak and the Pakhtoonistanis living in Jalalabad raising slogans of 'Long live Pakhtoonistan' and 'long live Afghanistan Republic'.

424. Mr. Wali Khan has, of course, in his written statement, admitted his visit to Afghanistan, that his reception there was somewhat "on the high side" and that he had not received such a reception on any earlier visit to Afghanistan, but he has ascribed all these to the fact that President Daud was personal friend of his. He also admits that President Daud even embarrassed him by putting him up at the State Guest House and personally calling upon him there. Mr. Wali Khan also explains that as he went to London for his medical treatment via Afghanistan, therefore, he also returned to Pakistan via Afghanistan.

425. If his visit, as he says, was a purely private visit for the purposes of medical treatment then why did he undertake tours of the various provinces of Afghanistan and why was he given such official receptions at every place and send-off which is perhaps not given to any one else, but a Head of State 7 Such receptions, when considered in conjunction with the official announcements issued in Afghan newspapers and the Kabul Radio and the repeatedly proclaimed attitude of the Afghan Government itself to the Pakhtoonistan Movement, clearly indicate that Walil Khan was being given this unprecedented reception not only because of -his personal friendship with President Daud but because of the fact that he was carrying out his Pakhtoonistan programme as the Afghan Government wished it to be played. This was not merely a reception to a personal friend but it was a reception to the leader of what the Afghan Government considered to be the Pakhtoonistan Nation in Pakistan who might, on the establishment of Pakhtoonistan, become the Head of that State.

426. We find it difficult to draw any other inference from the facts which have now emerged not only from Intelligence reports but also from the un--controverted direct evidence of eye-witnesses and documents. On this evidence, therefore, we are of the opinion that the Referring Authority has succeeded in establishing by over-whelming evidence the link between the N. A. P. And its leader, Mr. Wali Khan, and the Afghan Government.

427. If the N. A. P., as a Party, was not approving of what Mr. Wali Khan was doing, it should have dissociated itself with the reception given to him at Torkham border, particularly when they saw that the Pakhtoonistan flags were being carried by the processionists coming from Afghanistan.

428. They should have at least protested and stopped those persons from bringing the Pakhtoonistan flags into Pakistan. This was indeed the practical demonstra--tion of the repeated threats that Mr. Wali Khan had been holding out of removing the chain at the boundary of Torkham and placing it in a glass box at Chowk Yadgar or putting it up at Jhelum or the Marghala Hills.

429. It is also not without significance that Mr. Wali Khan himself has never condemned the propaganda carried out by the Afghan Authorities and the speeches made by them at the international forums interfering in the inter--nal affairs of Pakistan and affirming their consistent hostility against Pakistan. Indeed, when asked at the Lahore Airport, on the 18th Septem--ber 1973, to comment on the statement of Mr. Abdur Rahman Pazwak, at the Non-aligned Conference at Algiers, he not only avoided the question but even stated that he would not condemn the Afghanistan Foreign Minister for his speech (vide : Exh. RAW 28/2 (174); report of interview given in the Pakistan Times dated 18- 9-1973.

430. Even earlier, according to a report of a special interview given by Mr. Wali Khan to the 'Haywad' of Kabul and reproduced in the Nawa-i--Waqt of the 2:st June, 1972 (Exh. RAW 28/2 (163), Mr. Wali Khan is reported to have stated, while referring to the existing friendship between Pakhtoonistan and Afghanistan that "Afghanistan is my ancestral home". In this interview he also referred to Pakhtoonistan as "occupied Pakhtoonistan."

431. According to another report carried in the Nawa-i-Waqt as far back as the 3rd November. 1968 [Exh. R A W 28/2 (156)] Mr. Wali Khan had claimed that if the Government of Pakistan recognized Pakhtoonistan then Afghanistan would support this and give up the demand for the "Kabul Brand of Pakhtoonistan". But until such demand is accepted by the Government of Pakistan, he declared, the Kabul Government would continue propagating the "Kabul Brand of Pakhtoonistan" at all levels. In this press conference, Mr. Wali Khan also claimed that Ghaffar Khan had managed to make Afghanistan agree to accept the "Uthmanzai Brand of Pakhtoonis--tan", but if Ghaffar Khan died then the only brand of Pakhtoonistan will be the "Kabul Brand of Pakhtoonistan".

432. In his own written statement at page 118, Mr. Wali Khan has almost insinuated that the unusual reception he received in Afghanistan in 1974 was because of the strength with which his Party emerged in the elections of 1970. He claims that he was considered by the Afghans to be the "Official Representative" of N: W. F. P. And Baluchistan.

433. The referring Authority claims that this evidence fully establishes the link between N.-A. P. And the Afghan Government and that Mr. Wali Khan himself has been acting as an agent of the Afghan Government for realising their claim over parts of Pakistani territories. This is the reason why he was given such a "royal reception". The inference does not appear to us to be wholly unjustified.

434. Insurgency In Baluchistan The Referring Authority has also led evidence to show that the insur--gents in Baluchistan were being supplied arms and ammunitions by the Afghan Government.

435. Before taking, up the question of insurgency and subversion the learned Attorney-General has sought to first indicate the exact connotation of these terms by reference to various books. He has, referred us to Frank Kitson's book on Law Intensity Operations (1972 Edition), where the learned author has defined "subversion" as meaning "all illegal measures short of the use of armed force taken by one section of the people of a country to overthrow those governing the country at the time, or to force them to do things which they do not want to do".

436. The same learned author has defined "insurgency" as covering "the use of armed force by a section of the people against the Government for the purposes mentioned above (under subversion)". According to this definition "insurgency" and "subversion" can both take place in the same country at R the same time and either or both can be supported by a foreign country which R may well provide the impetus.

437. These definitions are vide enough, to cover "virtually every form of dis--turbance up to the threshold of conventional war". In fact, the illustrations given by the same author of such subversion and insurgency which combine actions political, economic, psychological and military all seem to aim at the overthrow of establised authority in a country. The example of Chairman Mao Tse Tung of China is cited as a classic example. His scheme, of course, envisaged the overthrow of the Government by a regular revolutionary army which operated with guerrilla troops over a Frotracted period of campaign during which the population of the country was also "methodically indoct--rinated and organised to support the cause."

438. Another example cited is of General Grivas of Cyprus. In his plan of insurrectional action, his aim was to win "moral victory through a process of attrition, by harassing, confusing and finally exasperating the Government forces". He had realised that he may not be able to defeat the regular troops by guerillas but he expected that his campaign would ultimately draw the attention of the International community to the question of Cyprus.

439. In Algeria also the original aim to defeat the French army in the field by full scale guerrilla operation was rapidly abandoned because of the heavy casualties incurred by the National Liberation Front which then changed over to the plan of General Grivas to cause as much harassment as it possibly could to the established Government Be that as it may, the demarcation line between subversion and insur--gency is very thin "Subversion merges imperceptibly into insurrection, which at the one end of the scale covers the activities of small sabotage or terrorist groups by which spreads across the operational spectrum to include the activities of large groups of armed men". If these groups become numerous and so well armed as to take on the forces of the government then "insurgency merges into orthodox civil war."

440. Another learned author, Edward Hyams, in his book called 'Terrorists and Terrorism' defines terrorism as "the use of terror by political militants as a means of overthrowing a Government in power, or of forcing that Government to change its policies". This learned author divides terrorism into two categories-direct and indirect. Indirect terrorism, according to him, consists in discrediting a Government by demonstrating that it cannot protect its own people or their property, cannot maintain law and order ; in short, is not fit to be in office at all. The terrorists create chaos by bombing buildings or setting fire to them, by robbing banks, by sabotaging industrial plant, by kidnapping foreign diplomats or other prominent people."

441. Dr. Henry A. Kissinger in the introduction to his book on Problems of National Strategy, opines that national strategy "involves a policy for deal--ing with what the West calls insurgency and the Communists define as wars of national liberation."

442. The learned Attorney-General adopts these definitions and maintains that the N. A. P. Leaders too, according to their own public declarations, are engaged in a war of national liberation. Hence, they too are guilty of in--surgency and no country in the world can afford to allow such acts of insurgency to continue without taking timely steps for their prevention.

443. In the light of the above definition the learned Attorney-General has also taken pains to point out that although as a result of the Tripartite Accord and agreement the then Government in power went out of its way to appoint Governors in Baluchistan and N.-W. F. P. On the recommendation of a Party which was not by any means the majority Party either in the Federal Legisla--ture or the Provincial in these Provinces, yet the Governors so appointed began to follow a policy of non- cooperation with the Federal Government which later developed into a state of confrontation and open defiance.

444. The Governors, although they had, entered into a covenant with the Federal Government to comply with certain conditions flouted these condi--tions. One of these conditions was that "every effort should be made to preserve national integrity. Fissiparous tendencies are not only harmful to the nation, but also affect our international relations. Therefore, movements like the Azad Baluchistan Movement, however nebulous, should be firmly put down, and not be permitted to affect our relations with foreign powers, parti--cularly friendly neighbouring countries." vide letter from the President of Pakistan to Mir Ghaus Baksh Bizenjo dated 26-4-1972 (Exh. RAW 20/2).

445. This letter was acknowledged by Mr. Bizenjo on the next day and the condition was accepted. A Similar letter was written to the Governor of N.-W, F. P, and ho too accept the said condition. Sardar Ataullah Mengal, on becoming Chief Minister, had also thanked the then President for his action and promised full cooperation to the Federal Government.

446. After the first meeting of the Provincial Governors and Chief Ministers a joint communique was issued on the 11th dune, 1972, whereby the Governors promised political peace in their Provinces and listed their major aims as "inter-Provincial harmony, segregation of national issues from Party dialectic and a joint policy of action to usher in an era of national prosperity and stability".

447. Nevertheless only 9 days later i. e. On 20-6-1972, Mr. Wali Khan said "my Party and I are not bound by the Governors Agreement" and two months later on the 31st August, 1972, in a letter addressed by the Deputy Commissioner of Las Bela to the Director-General, Coastal Guards, [Exh. RAW 25/3 (1)] it was stated: "The Chief Minister of Baluchistan has directed me to inform you that s in future your force will enter Baluchistan only when an officer from S Lesbela District is informed and his permission is obtained who will accompany himself or send his representative with them, violating it action will be taken against them . . . . . . . . . . ."

448. This letter was endorsed to the Assistant Commissioner. Hub, with a direc--tion that if the Coastal Guards enter the Baluchistan area without informa--tion, he may arrest the Party with the help of Police, B. R. P. And Levies.

449. According to another report dated 2-7-1972 (Exh. RAW 6/20) some pro-N. A. P. Officials of Baluchistan removed the Ticker Circuit from the local Civil Exchange with a view to avoid the sag in speech when the opera--tor is listening into trunk calls. The suggestion is that this was done by the N. A. P. Leaders to keep them informed of the activities of the Central Government agencies in Baluchistan.

450. The Pat Feeder Incident On 27-11-1972, it is alleged by the Referring Authority, about a thousand Marri tribesmen along with some Kacchis and Lehris, armed with automatic weapons. Attacked the Punjabi settlers in the Goth Mohammad Hussain, Badar and some other villages of the Pat Feeder Canal area of Kacchi District.

451. Several persons including children were killed, a number of women and children were kidnapped, the rest were ejected from their houses, crops were destroyed, forcible possession was taken of the settlers' land and their movable property was looted. Notwithstanding the fact that the settlers had lodged a complaint with the Provincial Government about the attacks of the tribesmen and had also met the Chief Minister in that connection, no steps were taken. To quell this state of terrorism the Federal Government at the request of the Provincial Government ordered the Frontier Corps to check the raiding tribes and on 2-12-1972 an ultimatum was given to the Marri tribesmen to surrender by the morning of 4-12-1972; those responsible for the lawless acts and to return the abducted persons and looted property. The tribesmen ignored the ultimatum and replied that they would obey only the directive of their Chief namely, Sardar,Khair'Bakhah Marri.

452. Again on 28-11-1972 the members of the Baluchistan Students Organisation, an organization affiliated to the N. A. P., launched an attack on the non-Baluch personnel of the Pakistan Western Railway sad kidnapped a railway guard. On the next day the Zonal President of the Baluchistan students Organization in Quetta, along with a number of other persons, entered the Divisional Superintendent's Office, manhandled the Head Clerk and attacked the Otfice Superintendent. Two Assistant Station Masters and a pointsman of Sariab Railway Station were also kidnapped by the members of the N. A. P.

453. It is further alleged that the N. A. P. Provincial Government in Baluchistan started arresting their political opponents without any rhyme or reason and a situation of lawlessness was brought about throughout the Province. The Jam Saheb of Lasbela and his son called a Press Conference highlighting the acts of high-handedness of the N. A. P. Provincial Government. Thereupon warrants of arrest were issued against the son of the Jam Sabab of Lasbela on 30---12-1972 and on 3-1-1973 a warrant was also issued for the arrest of the Jam Saheb himself. The son of Jam Saheb along with his companions was arrested on 21-1-1973 by the S. H. O. Hub Police Post and all of them were sent to Jail. A case was also registered against the said Shahzada Yousaf under sections 186 and 353, P. P. C. For obstructing public servants in the performance of their official duties. The local Jamoots took out a procession to protest against these illegal arrests of their leaders on 22-1-1973.

454. But this procession was dispersed by the local police and levies by firing in the air. A tribunal for the trial of the arrested persons was then constituted. It met at the Bela Jail and forwarded its verdict to the Assistant Commissioner, who immediately, on 24-1-1973, convicted Sbabzada Yousaf under section 17 of the Criminal Law (Special Provisions) Ordinance, 1968 and ordered him to furnish security in the sum of Rs. One lac with two sureties of the like amount. Four other persons who were arrested along with him, were also convicted and sentenced to two years' R. I. Each and to a fine of Rs. 1,000 each or in default to suffer R. I. For another six months.

455. The Bela incident and dismissal of N. A. P. Government On 23rd January, 1973, incidents of cutting the telephone wires allegedly by the Jamoots were reported. The Chief Minister of Baluchistan Sardar Ataullah Mengal himself ordered that arms from the Government armoury should be supplied to private persons, presumably his supporters, and with these persons, the local levies and a newly raised Dehi Mubafiz force, the then Chief Minister personally supervised an operation against the Jamoots. The levies and these armed persons were concentrated in the area on 26th and 17th January, 1973. It is alleged that 1400 to 1500 persons armed with 7 MM or *303 rifles, besides the Debi Muhafiz force and special levies were present along with the Chief Minister at this stage. The private persons were from the tribes of the Mengal's, Zarakzai's, Bizenjo's Chuttas and Bangalzai's. The Referring Authority alleges that these persons constituted the private 'lashkar' of the Chief Minister. Sardar Ataullah Mengal was in command as Supreme Commander and he had appointed 18 other persons as sub-Commanders from different tribes and assigned to each different duties. These then opened an attack after blocking all exits from the area. In this way some E000 Jamoots who had fled to the mountains were surrounded, 42 persons were killed and the "Lashkass" under the Chief Minister indulged in looting. The Chief Minister also personally ordered that food supplies were not to be allowed to the Jamoots until they had surrendered. In this state of affairs, on the 31st January, 1973, the Chief Minister was requested to call off his operations and hand over the law and order situation in the district to the Civil Armed Force. The Chief Minister prevaricated and kept the operation going till 3rd February, 1973. The Federal Government had, thereforeX9 90ar 4itoragtive but t9 order the Pakistan army to assunig control over the district of Lasbela under subsection (4) of section 3 of the Defence of Pakistan Rules, 1970. The command of the Federal forces was given to Col. Mohammad Khan Malik, the D. I.

456. G., Frontier Corps.

457. He later inspected the Uthal Armoury on 5-2-1973 but found no weapons there and on the checking of the records of the local Police Armoury, it was discovered that 260 rifles and 34,000 rounds of ammunition had been supplied to private persons without any legal sanction.

458. The Debi Muhafiz who had been recruited and trained under the command of Lt.-Col. Sultan Mohammad Khan, real brother of Mir Gul Khan Nasir, the N. A. P. Education Minister of Baluchistan, it transpired, had also disappeared along with their weapons into the hills.

459. It was, in these circumstances that on 10-2-1973 the Provincial Government had to be dismissed. A detailed report of this incident has been placed on the record by Brig. Muaaffar (RAW 1) and it had been marked as Exh. RAW 1/28.

460. This gives the version of the local officials but it does disclose that as from this date an open revolt of the tribes of Sardar Khair Baksh Marri and Sardar Ataullah Mengal had started and a number of incidents of sabotage then began to take place in the Province in quick succession. A catalogue of these incidents has already been referred to earlier vide Exh. RAW 1/3 and it is not necessary to repeat the details here (vide page 127/ante).

461. These Incidents do certainly disclose that the acts of subversion and insurgency were widespread and were assuming alarming proportions.

462. Phases of Baluchistan insurgency.

463. The learned Attorney-General has divided the insurgency in Baluchistan into three periods:

(1) from 26-4-1972 to 15-2-1973. This was the period during which the N. A. P. Coalition Government was in power in the Province;

(2) from 15-2-1973 till the middle of June, 1974, when Mr. Wali Khan returned to Pakistan after his extensive tour of Afghanistan and, according to the Attorney-General, the acts of insurgency and subversion suddenly shot up ; and

(3) from middle of June till the banning of the N. A. P.

464. As regards the first period the evidence led is confined to showing that the leaders of the N. A. P.

465. Were inciting people to violence and subversion. This is the period also during which, according to the Referring Authority, the workers and members of the N. A. P. Were being mobilised and .Rained into a militant force and were being supplied with arms and ammunition.

466. One Sher Muhammad Marri alias Sheru Marri, was appointed the Commander of this force. He was an outlaw and a staunch N. A. P. Leader, enjoying the patronage of Sardar Khair Baksh Marri and Sardar Ataullah Mengal, so far so, that even when the Central Government sent a cypber messege to arrest him, he was given protection by both the said Sardars and sent away from Quetta to Kolhu with a camel load of arms and 8mmunition to his old camp at Mawand in Sibi. Tae arms were prooored at Quetta through Sardar Khair Baksh Marri. They were taken to Kolhu in a jeep and from there by camel to Thadri (vide Exh. RAW 19/59).

467. Even the Governor Mr. Bizenjo had declared when the Federal Government Armed Forces moved into Lesbela District, that they would resist the induction of the Army units into Baluchistan by the use of force.

468. After the dismissal of the Governor and the Government of Baluchistan the tribal lashkars, as already pointed out, decamped to the hills and started sniping at the posts of Pakistan Armed Forces. Initially most of the incidents were confined to the Jhalawan area but subsequently, the activities of the insurgents extended to other areas as well and reached alarming proportions. The details of these activities have been furnished by Mr. Mohammad Isa, RAW 19. Most of his evidence, however, is based on information collected, by the employment of overt and covert means including electronic devices. The witness being the Senior Deputy Director of the Central Intelligence Bureau at Islamabad, had of course, no personal knowledge of the incidents taking place in Baluchistan except from the information conveyed to him by the Sub-Bureaus. He has also produced a large number of documents, which consist, inter alia, of notes prepared for various Ministries and other authorities by the Central Intelligence Bureau after studying and collecting the reports received from the Serb-Bureaus located at various places, original newspaper reports, monitored radio reports, books and papers received from foreign countries. We have referred to the newspaper reports and matters collected from foreign countries by relaxing the rules of evidence, as those are contemporaneous reports of events which would be difficult to prove at this stage. Notice had also been given to the respondent-Party and its leaders that these would be used against them by annexing them to the application. Neither the respondent nor its leaders have questioned their correctness in their written statements.

469. Another witness, Mr. Muhammad Ashraf Asghar, Tehsildar on Special Duty, Board of Revenue, Quetta (R A W 14) has, however, given us direct evidence of what he himself saw. He was posted in May 1973, as Naib-Tehsildar in Mangocbar in Tehsil Kalat. One of his duties was investigation of criminal cases in this area. While investigating the case of the looting of a bus coming from Quetta to Kalat near Sooro mountain range, on 30-6-1973, he was kidnapped by outlaws who had surrounded him. He was, according to his version, taken before the leader of the outlaws, whom he recognised as Suleman Jan son of Prince Abdul Karim of Kalat. At the camp he also recognised Khair Jan Baluch, the former President of Baluchistan '.Students' Federation: Nawab Jan Mangalzai, a resident of Kalat and about 200 other persons. These persons were, according to him, from the Mengal Tribe and they were also connected with the N. A. P. Of Baluchistan. He was released the next morning. He reported the matter to the Tehsildar as well as to the Military Authorities stationed at Kalat. (Exh. R A W 14/3).

470. In August 1973, he was transferred to Khuzdar as Naib Tebsildar and then soon after posted as Tehsildar Incharge Wadh Tehsil. Wadh is the home town of Sardar Ataullah Mengal. He was made responsible at this place for seeing that no food is supplied to the raiding outlaws in those areas.

471. Owing to the effective steps taken by him, he had made many enemies and was transferred from Wadh to Mangochar in November, 1973.

472. On 4-12-1973 he was called by the Deputy Commissioner, Kalat to Khuzdar. He left Mangochar by the evening bus for Khuzdar. The Deputy Commissioner there assigned to him a secret mission and directed him to again proceed to Wadh. He proceeded to Wadh on 6-12-1973 but when he was returning from Wadh to Khuzdar on 6-12-1973 on a truck owned by one Muhammad Pariah, the truck was intercepted by the outlaws near mile 19 or 20 in the area of Wabir. He was again kidnapped and after travelling on. Foot and camel for three days and three nights, be was brought to a place called Dhrogi in Soorgarh area, Tehsil Orenach of District Kalat. There he was produced before the commander of the outlaws named Sardar Mehrullah Mengal, brother of Sardar Ataullah Mengal. He was on this occasion kept in custody by the outlaws for about a year. During custody he came to see many formations and recognised Sardar Ziaullah Mengal, another brother of Sardar Ataullah Mengal, Munir Ahmad son of Sardar Alaullah Mengal, Muhammad Amin and Muhammad Gichki, Sardar Ataullah Mengal's wife's brother and many others. He has stated that he saw that men were being given training and then from March-April 1974, parties of 15 men used to be sent out to different places of Baluchistan and Sind for committing acts of sabotage and subversion. On return from their missions they reported to Sardar Mehrullah Mengal. He was present when the reports were given. He also came to know that a lot of money was being received In the camp in currency notes of the denominations of Rs. 50 and Rs. 100 and this money was being liberally spent for the provision of rations and supplies to the camp. Money was also paid to those who brought informations to the camp. He saw that one Khuda Baksh Mengal used usually to bring money, rations, arms and ammunition from Wadh and from Karachi. He also heard speeches being delivered at the camp praising the services of Sardar Ataullah Mengal in getting rid of Punjabis from Baluchistan and creaking up One Unit. He learnt that the mission of these persons was now to liberate Baluchistan from Pakistan. He managed to learn all this, as he was being made to work as a cook at the camp. He consequently had considerable freedom of movement within the camp.

473. In November 1974, however, when military action was started by the Central Government in the area, Sardar Mehrullah Mengal left the camp with a small party and proceeded towards Sind leaving instructions to the others to/ stay behind but with the increase of danger due to the military action the outlaws started moving from place to place and towards the last week of November they reached a place called Jaggi. At this time only 15-16 persons were left behind in the camp. The rest had deserted. At this stage the witness managed to escape from the camp during the night of 23/24-11-1974, as the number of persons guarding him had diminished. The witness reached a Pakistan Army Camp. Where a unit commanded by Col. Yaqoob of the First Batallion, SSG, was located, on 25-11-1974. He gave a full report of his kidnapping, detention and escape before the Commander of the Batallion.

474. This witness has also stated that when amnesty was declared by the Government over the radio on 14-4-1974 Sardar Mebrullah Mengal had told him that he had sent some men with a poster to be displayed in Wadh containing their demands. This poster was written in hand and the main demands were that their leaders should be released and the Pakistan Army should be withdrawn from the area.

475. This witness has been cross-examined at some length by the amicii curiae and by the Court having regard to the importance of the disclosures made by him, but he stood the test well. We see no reason, therefore, to disbelieve his evidence, which has an impress of truth about it.

476. This, along with the formal evidence produced by the Attorney---General through witness Mr. Muhammad Isa. R. A. W. 19, we think is sufficient to establish that what was happening in Baluchistan was insurgency if not open revolt and the Government, bad therefore, every reason to say that such revolt was gravely prejudicial to the sovereignty and integrity of Pakistan.

477. Responsibility of the Federal Government "The first and most fundamental duty of every Government, as observed by Sir Maurice Gwyer, C. J., in the case of Niharendu Dutt Majumdar v. Emperor (AIR 1942FC22), "is the preservation of order, since order is the condition precedent to ail civilization and the advance of human happiness. This duty has, no doubt, been sometimes performed in such a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill . . . . . . . It is the answer of the State to those who, for the purpose of attacking or subverting it, seek to disturb its tran--quillity, to create public disturbance and to promote disorder, or who incite others to do so."

478. If this be the correct position with regard to the duty devolving on a Government established by law in a country for preventing insurgency and subversion, the arguments advanced in the written statements of Mr. Bizenjo and Sardar Ataullah Mengal that they were being forced to resort to lawlessness by reason of the unconstitutional actions of the Central Government itself can hardly furnish a justification.

479. We are in agreement with the learned Attorney-General that the Provincial Government had no right to say that the forces of the Federal Government could not enter a Province in the pursuit of their ordinary duties unless permitted by the Province to do so. Such a claim is clearly unconstitutional and wholly unwarranted. Once the extent of provincial autonomy has been defined and the subjects have been distributed between the Provinces and the Centre, a Provincial Government has no right to order that the Federal Government agencies cannot enter or move within a Province in the performance of their own duties with respect to the subjects belonging properly to the Centre. To attempt to do so, would be clearly an attempt to subvert the Constitution itself or to claim total independence for the Province. We are, therefore, unable to accept the contention that the Provincial Government of Baluchistan was acting lawfully within the field of its own activities in resisting the force used by the Federal Government to quell insurgency, if not almost an armed rebellion in that province.

480. Involvement of N. A. P. In Baluchistan Insurgency it has to be also mentioned here that the incidents of Lasbella and Pat Feeder are not denied in the written statements. In fact it is even admitted that arm, from the Police armoury were distributed to the local people but it is said that this was done to control a law and order situation created in these areas. 'The learned Attorney-General naturally asks law and order situation created by whom? If they mean by the entry of the Federal forces to preserve law and order, then what has been admitted in the written statement clearly amounts to an admission of insurgency and, therefore, establishes the case of the Referring Authority.

481. There is, in our opinion, a great deal of force in this argument and from what has been stated above if acts of the kind alleged by the Referring Authority did, in fact, occur in Baluchistan then whatever was done there was done to subvert the Constitution and to prejudice the integrity of the country. The evidence of Mr. Muhammad Ashraf (R A W 14) has clearly established that the camp set up in the mountains, as earlier threatened by Sardar Ataullah Mengal, was really a camp of rebels who were carrying out the insurgency plan of the N. A. P. Leaders in order to achieve the establishment of an independent Baluchistan. We have no hesitation, upon the evidence placed on the record in coming to the conclusion that insurgency and subversion was taking place on a large scale in Baluchistan and this was organised and guided by the N. A. P. Leaders. The suggestion that only a few of the leaders of the N. A. P. Might have been mixed up in this and not the N. A. P. As a Party, is also unaccept--able to us, because of the evidence of Asghar, who identified most of the persons in the camp as being members of the N. A. P. And belonging to the Mengal tribe. We have also before us the resolutions of the party itself giving support to the rebels and describing them as "valiant freedom fighters".

482. The first is a resolution of the N. A. P., Central Working Committee, which was passed at a meeting held at Quetta on the 3rd and 4th May 1973 (Exh. R A W 19/107). In this meeting, the Working Committee made a bitter attack against the Central Government for the dismissal of the N. A. P.

483. Governments in N.-W. F. P. And Baluchistan, even though the N. A. P. Government in N.-W. F. P. Was not dismissed but resigned in sympathy with the dismissal of the Government in Baluchistan. It also condemned the actions taken by the Central Government In Baluchistan and characterised the Constitution as a "device to protect the rule of one man and to safeguard the imperialist and indigenous vested interests" and then, on the one hand, called upon the people "to continue to wage a struggle for the democratization of the Constitution" and on the other, called upon the Central Government to halt "the process and choas" and end the "reign of terror", which has been rampant for the past 2J months In Baluchistan. It admits, however, that whatever might be the reason, Baluchistan is in a state of "complete choas and confusion" and "a state of pandemonium" is prevailing there.

484. The next is a resolution of the Central Working Committee of the N. A. P. Held at Lahore on the 15th and 16th May 1973 (Exh. R A W 19/ 108). In this meeting, the Central Working Committee reiterated its view that the dismissal of the N. A. P. Government in Baluchistan was unconstitutional, condemned the Central Government and called for the Immediate withdrawal of the armed forces from Baluchistan. The Central Working Committee also authorised its president (Mr. Abdul Wali Khan) to announce a date for the observance of a 'Baluchistan Day' throughout the country in order to mobilise public opinion in support of their demands.

485. Then comes the resolution of the Central Working Committee passed in a meeting held in Islamabad on the 4th of August 1973 (Exh. RAW 19/106), This concerns mainly the situation in Baluchistan after the dismissal of the pro-N. A. P. Government there. The resolution characterises the action of the Central Government in Baluchistan as "a confrontation between the army and the people of Baluchistan" and appeals to the people "to unite still more firmly and crush the 'mailed fist' of the Bhutto Govern--ment and U. S. Imperialism that is trying to deprive the people of their lives and liberties", and hopes that "the Baluchi people and the Pakistani people will emerge victorious from this great threat to their security and their enemies will once again have to kiss the ground".

486. Finally there is another resolution of the Central Working Committee passed at a meeting held at Quetta on 6th, 7th and 8th July 1974, (Exh. RAW 19/!05). This meeting places on the record its deep feelings of grief on "the cold-blooded measures adopted against the people of Baluchistan", even after the 15th May 1974, when the amnesty was declared and yet "it felicitates our valiant brethern for having raised the banner of democracy aloft and defied with contempt the brutal onslaught of a blood thirsty autocratic clique". The resolution then goes on to state as follows : , "The precious blood that they are shedding will not flow in vain ; it will shaken the foundations of this dictatorial regime.. The people of Baluchistan are fighting for the cause of democracy, fundamental rights, sovereignty of people and provincial autonomy. They are thus fighting for the very existence of Pakistan and the entire people of Pakistan are behind them in this struggle. This meeting, therefore, asks them that their victory is not only certain but is now within reach. It also exhorts the people of Frontier, Punjab and Sind to follow the path of the brave Baluch people and joie: the struggle spear. Headed by them in order to achieve their common goal of democracy, provincial autonomy, rule of law and sovereignty of the people."

487. In another resolution passed at this meeting, the Central Working Committee also called upon the Government to remove the ban on the books of the following :-

(1) Habib Jalib.

(2) Ajmal Khattak.

(3) G. M. Syed.

(4) Sh. Ayaz.

(5) Hyder Baksh Jatoi.

(6) Mir Gul Khan Naseer and

(7) Yusaf Lodhi.

488. It will be noticed that Mr. Ajmal Khattak was and he still claims that he is the General Secretary of the N. A. P. And Mir Gul Khan Nasir is a member of the Central Working Committee of N. A. P.

489. There is also a resolution of the Central Working Committee passed at a meeting held at Islamabad from 13th to 15th April 1 474 (Exh. RAW 10/104). This meeting also noted with grave concern tee continuance of the "army action" against the people of Baluchistan and called upon "all units of the N. A. P. To build up a formidable campaign in defence of the Baluchi people demanding that the military and other armed forces be withdrawn and all Baluchi leaders and workers be released unconditionally to establish alt atmosphere conducive for normalization of the situation,"

490. The N. A. P. Also at this meeting firmly declared that :- "It has not shifted from its consistently proclaimed policy of giving the Centre only Defence, Foreign Affairs, Currency and Communications and the N. A. P. Will not remain one sidedly committed to an agree--ment which the other party has already violated. The N. A. P. Once again warns the Government that the masses of the country and the N. A. P. Will not allow any encroachment on the rights of the different Provinces of Pakistan."

491. This meeting also called upon the Government to immediately withdraw all restrictions on the movements of Khan Abdul Ghaffar Khan.

492. This meeting also declared that the : - "Democratic struggle of the people of Baluchistan will continue and accelerate and the Committee calls upon the entire democratic masses to line up with the fighters of Baluchistan in close solidarity with them, for their struggle is aimed against fascism etc."

493. Ultimately the Committee gave a call to the "valiant fighters of Baluchistan to continue and accelerate their democratic struggle, because, truth and justice is on their side and their battle is assured to be crowned with victory."

494. These reasolutions were also translated into Urdu and distributed to all members of the N. A. P.

495. (vide : One of such translated copies filed by Muhammad Issa Khan R. W. 19, and marked as Exh.

496. RAW 19/104.

497. These resolutions, in our view, leave no room for doubt that whatever was happening in Baluchistan bad the Full support of the N. A. P. As a party. The Party itself saluted the "valiant fighters" of Baluchistan, assured them of all help and called upon them to carry on the struggle.

498. Can it, therefore, be said that only a few misguided leaders of the party were indulging in these subversive activities without the knowledge or approval of the Central Working Committee and the Party? We think not.

499. Mr. Sardar Khan., one of the amicii curiae, has suggested that the authenticity of these cyclostyled copies of the resolutions has not been proved. We have no hesitation in rejecting this contention. It is true that these are coming from the custody of the Intelligence Branch, but we see no reason to doubt that they are genuine copies of resolutions passed at meetings of the Working Committee.

500. They were circulated to members whose list is annexed along with a circular letter issued by the General Secretary of the Party, Mr. Kaswar Gardezi. They were also printed at the instance of the Central Office situated at 15-Temple Road, Lahore. We see no reason, therefore, to reject this evidence. These are correct copies of the resolutions of the Central Working Committee which had been obtained by the Intelligence Branch of Police in the usual course of their duties.

501. The claims of the party that since it is a democratic organization and; therefore, it cannot be bound by the individual acts of its leaders has also been falsified by what happened in this Court. Whilst the resolution of the party clearly directs that the Reference should be defended and does not give any p authority to the President of the Party to withdraw from the proceedings, yet, when Mr. Wali Khan walked out and withdrew from the proceedings of F the Court, the Party followed suit without any demur and without any fresh resolution approving the conduct of the President. It is futile for the Party, therefore, to say that it is not bound by the acts and utterances of its President and other leaders unless it can show that it has passed resolutions disapproving of the same or clarifying that they do not represent the views of the Party.

502. According to the learned Attorney-General, the acts of sabotage, terrorism, disruption of means of communications and bomb explosions in the Provinces of N: W. F. P., Baluchistan, Punjab, Sind and Tribal Areas U during 1974-75, which have been detailed in Exh. RAW 1/3, were not U isolated acts, but represented a well-planned scheme of terrorism, master- U minded by Mr. Ajmal Khattak sitting at Kabul with the assistance of the Afghan Government which had openly declared that :- "Afghanistan cannot remain indifferent to Pakistan Government's use of force and arms against Pathans and Baluchis."

503. According to this plan, Mr. Ajmal Khattak concentrated first on mobiliz--ing the tribal students who were receiving education either at the Khushal Khan College or other colleges in Afghanistan against Pakistan by indoctrinat--ing them with the Pakhtoonistan concept.

504. They were then, with the assistance of the Afghan Government given training in the technique of demolishing bridges, destruction of communica--tion systems, anti-aircraft measures and pro- Pakhtoonistan propaganda in Pakistan. This scheme followed more or less the pattern of the strategy adopted in 1971 for the creation of Bangla Desh.

505. The Referring Authority has also endeavoured to establish the connec--tion of the N. A. P. With these activities by pointing out that the tempo of the activities increased soon after the return of Mr. Abdul Wali Khan to Pakistan through Afghanistan on the 15th June 1974. From the middle of June 1974 till the banning of the N. A. P., according to the consolidated catalogue (Exh. RAW 1 /3), as many as 44 incidents took place in the Marri Area of Baluchistan along ; 11 incidents in the Mengal Area and 15 incidents in other areas of Baluchistan. There were 47 incidents of disruption of means of communications in Baluchistan between the 20th June 1974, and the 26th January 1975, and within three days, i.e. Between 27-7-74 and 31-7-74, five bomb explosions took place in Baluchistan.

506. The total number of incidents of sabotage and terrorism, including bomb explosions and disruption of means of communications from the middle of June 1974 to the 9th January 1975, worked out to 122 incidents in Baluchistan. According to the Referring Authority, in these incidents, up to October 1974, when the White Paper (Exh. RAW 6/44) was issued, the following casualties had taken place on the Government side :- killed wounded

(1) Regular Force personnel. 87 93

(2) Civil Armed Forces. 34 79

(3) Baluchistan Reserve Police. 21 16

(4) Attached Civilians. 2 3 Large coaches of arms and ammunition were also recovered at the instance of the insurgents captured during this period from the Mastung and Zehrighat areas (vide : Exhs. RAW 6/3 and RAW 29/1). These recoveries cannot be doubted, because, the Referring Authority has actually filed photographs of these recoveries (vide - Exh. RAW 29/1).

507. Unfortunately, the allegations of the Referring Authority regarding the part played by Mr. Ajmal Khattak in organizing and carrying out this large scale insurgency in Pakistan is based largely on source reports which we have found ourselves unable to accept on the ground that they are hearsay evidence. Some of the evidence also consists of Intelligence reports and minutes prepared by the Intelligence Department for the Prime Minister and other authorities. These being again based on information received from subordinate Intelligence Bureau, which in their turn, collected them from undisclosed sources stand on the same footing and are open to the same objection on the ground of hearsay.

508. The catalogue of incidents, however, namely Exh. RAW 113, is a factual report of the number of the incidents which have taken place in Baluchistan. These can be safely relied upon, because, they have been prepared by officials of the Government and have been proved by a very responsible officer.

509. The documents Exhibited as RAW 19 series, relating to insurgency in Baluchistan, to which we have adverted earlier, also stand on the same footing and can be safely relied upon.

510. In addition to these reliance has also been placed on the pamphlet (Exh. RAW 6/9) issued by Mr. Ajmal Khattak in England under the title "Bullet for Bullet". In this Mr. Ajmal Kattak has himself claimed the credit for 113 incidents but the Government confirm only 58.

511. These, in our opinion, adequately establish the contention of the learned Attorney-General that the insurgency was of such a large scale that no Government established by law could sit by and allow the insurgents to continue their acts of sabotage and depredation. It was the incumbent duty of the Government to check these acts even by use of force.

512. The question, however, still remains as to whether and to what extent the N. A. P. As a Political Party was responsible or involved or implicated in these large scale acts of insurgency. We have already referred to the resolutions of the Central Working Committee of the N. A. P. To show that instead of condemning these acts, they justified them and exhorted their "valiant fighters" to continue their struggle.

513. Apart from these, the learned Attorney-General has also relied on the judgments in the cases [Exhs. RAW 1/18 (1-19)] tried before the Special Courts in the Provinces of Baluchistan and N.-W. F. P.

514. To show that some of the accused convicted in these cases were either members of the N. A. P. Or the Pakhtoon Zalme or the Pashtoonistan Students Federation or the Baluchistan Students Federation. One of the accused who was convicted, in a recent case, namely, Case No. 17 of 1975 (State v. Nasir Muhammad Khan and others), is Asfand Yar Wali, a son of Khan Wali Khan of Shahi Bagh, Tehsil Charsadda. There are others who have been identified by some of the witnesses as being leaders of the Baluchistan Students Organiza--tion forming a Youth Wing of the N. A. P. In that Province.

515. If we could use the recitals of facts given in these judgments, then, no doubt, much of what has been said by the learned Attorney-General would have been established beyond any measure of doubt, but since we are only entitled to use these judgments, as earlier stated, for a limited purpose, namely, to ascertain who the accused were and what was the final result we cannot make use of the other material contained in these judgments.

516. Be that as it may, we think that even after excluding these, judgments, there is enough material on the record to show that insurgency on a very large scale was launched in these Provinces, as threatened by the leaders of the N. A. P. After the dismissal of the N. A. P. Government in Baluchistan and the N. A. P. Governors of Baluchistan and N.-W. F. P. These acts of insurgency did also gather momentum from the middle of June 1974, onwards after the return of Khan Abdul Wali Khan from Afghanistan. It cannot also be doubted that large caches of arms were also recovered from various places as a result of information received from persons arrested in connection with the acts of sabotage and terrorism. We have also on record that Mr. Ajmal Khattak has, in his pamphlet "Bullet for Bullet" claimed credit for these acts of sabotage and terrorism. The Central Work--ing Committee of the N. A. P., we have also now seen, instead of condemning these acts, exhorted their workers to continue the struggle and eulogised the deeds of the insurgents whom they called "valiant fighters". The insurgency, it has also been established was on such a large scale that it almost amounted to open revolt as threatened by the leaders. On this evidence, we are satisfied that the N. A. P. As a Party was conniving at and encouraging these acts of lawlessness and, therefore, was an accessory to these acts. It cannot now be hard to say that these were merely acts of some of their misguided leaders. If this was so then the Working Committee should halve, at least, condemned them and dissociated itself from such acts of insurgency and subversion.

517. We are not concerned in these proceedings with the attitude of the Afghan Government or with the question. As to whether they were or were not encouraging insurrection in Pakistan, but the discovery of large quantities of arms and ammunition from caches hidden by the insurgents in the hills is sufficient to lead to the inference that these were coming from some foreign country. They were not manufactured in Pakistan. The claim of Mr. Wali Khan that since arms and ammunitions are manufactured in the Frontier Province itself, there was no necessity for them to procure arms from outside, cannot be accepted, because, the' arms recovered were not all locally manufactured arms.

518. The existence of Khushhal Khan College in Afghanistan was well-known to the Government of Pakistan and it was equally well-known that young men from the Tribal areas were being sent to this College in Afghanistan to receive education. We cannot, however, accept the source report which discloses that the students of this College were being mobilised by Mr. Ajmal Khattak to fight for Pakhtoonistan, being provided with training at various centres in Afghanistan for committing acts of sabotage and the use of weapons and were being supplied with arms by a foreign Government. If Government had this information then it should have taken steps to prevent students from going to this College from Pakistan.

519. In this connection, however, we cannot help referring to what a foreign observer, James W. Spain, has said about this College in his book published under the title "I'he Pathan Borderland". This illuminating passage reads as follows :- "In this regard, one of "Pukhtunistan's" most dangerous instruments is the Khushal Khan School in Kabul. The school is located near the tomb of the Mogul Emperor, Babur, on a hillside in the outskirts of the city. It had in 1954 about 500 students from age six to age eighteen. Another hundred older boys lived at the Khushal Khan hostel but attended the various Afghan Colleges in Kabul.

520. Almost all of these boys receive their education, food and lodging through scholarships provided by the Afghan Government. Most of them are from Tribal Territory in Pakistan. The Khushal Khan School, unlike other Afghan educational institutions, which are under the control 'bf the Ministry of Education, is directly under the Kabaile. The facilities and the standard of teaching are probably the best in Afghanistan. The language of instruction is Pushtu and emphasis is on Pathan history, literature and tradition. The ordinary secondary subjects, as well as English and Islamiyat, are also given.

521. All the students live together in an atmosphere steeped in Pathan culture. Boys from all the important tribes sit down together on a basis of friendly equality unknown and unthinkable to their fathers. Traditional concepts of pukhtunwali, which at home are used and understood primarily in terms of intertribal feuds, are here taught in terms of a Pathan nation.

522. In the Khushal Khan School, at least, a real Pathan nationalism has been developed. It is being carefully nurtured, and a sense of an important and demanding mission is instilled in the boys at their most impressionable age. Some Pakistani Maliks opposed to "Pukhtunistan" admit to sending their sons to the school for s free education in their heritage better than anything they could receive on the Pakistani side of the line. These men discredit the idea that their sons can acquire any political idea opposed to their own.

523. This belief is of doubtful validity. The boys will necessarily emerge as leaders in their home communities. As group after group leaves the school, they will constitute a force of continuing importance in their own right-far more so than the maliks who now head the "Pukhtunistan" movement and whose keenly developed sense of political expediency makes it possible for them at any time to accept a solution of the border problem satisfactorily, to either Rawalpindi or Kabul.

524. However artificial may have been the beginnings of the Khushal Khan School, the results may well be beyond the control of anyone outside the tribes themselves."

525. Conclusions It is not necessary, however, for us to go into these questions, for it is sufficient for our present purposes to see whether acts of terrorism did, in fact, take place in Pakistan on a very large scale in pursuance to the threats held out by the leaders of the Party and that these acts were neither con- -demned by the Party nor did the Party dissociate itself from these acts of sabotage. We find on the material produced before us no difficulty in holding that the N. A. P. And its leaders are not reconciled to Pakistan's existence, integrity and sovereignty, that they have consistently been attempt--ing to create doubts about people's belief in the Ideology of Pakistan with a y view to destroying the very concept which formed the basis of the creation v of this country, that they have always been preaching the doctrine of for/ v five nationalities/nations' to prepare the ground for the a ultimate secession of N: W. F. P. And Baluchistan on the pretext of demanding the right of self- determination for the different nationalities/nations inhabiting those Provinces and advocating a policy of subversion of the Constitution, rule of law and democratic institutions in the country, that they have for this purpose resorted to large scale acts of terrorism, sabotage and subversion within Pakistan to undermine the security, solidarity and sovereignty of the State in the areas of N: W. F. P.

526. And Baluchistan and that the N. A. P. And its leaders had actually organized a large scale rebellion or insurgency in Baluchistan in order to coerce the Central Government and the people of Pakistan to submit to the wishes of the N. A. P. Leaders in Baluchistan and N.-W. F. P.

527. The learned Attorney-General has also pressed before us the 6th and last topic, namely, that the N.

528. A. P. And its leaders have been causing hatred and disaffection amongst the various sections of the people in Pakistan to create strife and chaos in the country with a view to undermine the integrity of the country.

529. We do not consider it necessary to go into this question, because, as we have already indicated earlier, the very concept of Pakistan being a multi--national State and that each of the nationalities/nations living in Pakistan must have the right of self-determination is founded on the basic assumption that the Punjab, being the most populous area in what is now Pakistan is seeking to submerge the other smaller Provinces and thereby to deprive them of their legitimate right to be treated as equal partners in the Federation. The demand for Pakhtoonistan is grounded on this assumption of pre--dominance of the Punjabis in all fields-political and economic. This is the proposition which Khan Abdul Ghaffar Khan propounded in 1947 as is now revealed by his own apprehensions disclosed to Pyarelal and reproduced in the latter's book, "Thrown to the Wolves".

530. The author states that Khan Abdul Ghaffar Khan being a highlander "has strong antipathy to being dominated by plainsmen" and that this feeling "was further accentuated by the fear that a cession to Pakistan would mean domination by the Punjabi Muslim Capitalist interests, if Pathan, autonomy was not conceded". He also quotes Khan Ghaffar Khan as saying in one of his statements after the establishment of Pakistan that :- "Our Province has been swa mped by the Punjabis, who are trying their level best to make the Pathans fight amongst themselves. Having lost a good portion of the Punjab through a communal division, the Punjabi Nawabs and big capitalists are now after our Province in order to make good their loss."

531. This sentiment has been repeated even now by Mr. Wali Khan himself in his application which he filed in this Court on the 5th June 1975, for the grant of funds. In this, he expressed himself to the following effect :- "The real contest is between two units of the Federation which are by reason of their population superiority trying to submerge and swamp the other two provinces in the Federation."

532. In his written statement also from pages 35 to 44 Mr. Wali Khan has listed the alleged grievances of the people of the Provinces of N.-W. F. P. And Baluchistan in order to give an impression that these two Provinces are being discriminated against both in economic and financial matters by the Central Government.

533. These allegations have been refuted effectively by Sh. Abdur Rauf, the Finance Secretary, Government of Pakistan (RAE 3t1), who has cited facts and figures to expose the fallacy in these contentions.

534. Other leaders like Mir Khair Baksh Marri and Sardar Ataullah Mengal have also expressed similar sentiments in various speeches. Mr. Ajmal Khattak in his pamphelt "Bullet for Bullet" at page 27 also maintains that because Punjab has more than half of Pakistan's population, it controls the ,destiny of the country and that is why "they preach a nationalization based merely on Ideology and try to prove that Pakistan is one nation" and it is for this reason that the "question of Punjabis joining with the Baluchis, Pakhtoons and Sindhis" does not arise. The Punjab, he claims, "supplies all the money, the bullet and the conspiracies to crush the self-determination movements in the rest of the country".

535. The whole concept of Pakhtoonistan is built upon this propaganda of hatred against the Punjab and this is sought to be highlighted, as was done by the Awami League in East Pakistan, by alleging that the smaller provinces are being `bled white' economically and are being denied their legitimate political rights by the majority provinces.

536. It Is unnecessary, however, to pursue this point any further, because, as has been earlier indicated, in view of the overwhelming evidence that has now come on the record the true intentions behind the Pakhtoonistan Movement and the efforts being made by the N. A. P. To achieve this objective by large W scale acts of sabotage, terrorism and insurgency, is to carve out an independent State of Pakhtoonistan. We are satisfied, therefore, that the banning W of the Party was, in every way, justified because such a State can only be established if the sovereignty and integrity of the present State is destroyed.

537. Before concluding, however, we wish to mention that at one stage of the proceedings, after the N.

538. A. P. Had walked out, Khan Abdul Ghaffar Khan had made an application to this Court to be called as a witness, as according to him, many allegations were being made against him by the Referring Authority. We decided, however, that it was not necessary to do so, as Khan Ghaffar Khan was not on trial before us and we did not propose to use the allegations, if any, against him for the purposes of our decision in this case. Apart from this if he wished to appear as a witness on behalf of the N. A. P., it was for the Party to call him. We have referred only to some extracts of his statements which he himself dictated to K. K. Narang, his autobiographer, who has published the autobiograplyy under the title of "My Life and Struggle" and to some other authentic statements attributed to him by his earlier biographers, Mr. Pyarelal, Mr. D. G. Teadulkar and to some of the opinions of Maulana Abul Kalam Azad from his book "India Wins Freedom".

539. These references have been made only to ascertain as to what was his concept of Pakhtoonistan and how the Pakhtoonistan concept came into being and for no other purpose. We have on these basic concepts tested the evidence to ascertain whether that concept had undergone any radical change by the process of time as now claimed by Mr. Wali Khan and the Party. These comparisons have not been made for the purpose of recording any finding against Khan Abdul Ghaffar Khan, but only to consider whether the N. A. P. As a Political Party, as it now exists, has modified its concept of Pakhtoonistan. We have, of course, come to the conclusion that the concept has not undergone any radical change for the reasons which we have given earlier.

540. We feel it necessary also before we conclude to place on record our appreciation of the assistance rendered by the learned Attorney-General and his learned juniors in the presentation of the Government's case and the amicus curiae for the valuable assistance they have rendered in spite of handicaps to put before us the other point of view and to help us evaluating the oral evidence by cross-examining the witnesses, even though they had no such instructions as are usually necessary for such cross-examination.

541. They did all that could possibly be done on the basis of the written statement filed in the case.

542. The Reference was one of the most difficult cases that has come before this Court and it is a pity that the Political Party sought to be barred, in I spite of its Working Committee's resolutions to defend that matter, decided F` to follow its leader and walked out of the Court. This made our task still more difficult. We had, therefore, of necessity ourselves also, on many occasions, to intervene in the cross-examination of the witnesses.

543. In the light of our findings, which we have recorded earlier, we see no escape from the conclusion that the National Awami Party was, within the meaning of subsection (1) of section 6 of the Political Parties Act (III of 1962), operating in a manner prejudicial to the sovereignty or integrity of Pakistan, and therefore it made itself liable to be dissolved under the said Act. We answer the Reference accordingly.

544. MUHAMM AD GUL, J.-I agree subject to my note.

545. MUHAMMAD GUL, J.-The precise questions that fall for decision in this Constitutional Reference are

(i) whether the National Awami Party (hereinafter referred to as N. A. P.), has, vide Notification S. R.

546. O., 176(1)/75 dated the 10th February 1975, issued under subsection (1) of section 6 of the Political Parties Act, 1962 (Act III of 1962), been rightly declared as "operating in a manner prejudicial to the sovereignty and integrity of Pakistan";

(ii) and if so,' whether N. A. P. Has been rightly dissolved by Notifica--tion S. R. O., 17(1)/75 of even date, besides suffering forfeiture of its properties and funds to the Federal Government ?

547. I had the advantage of reading the elaborate opinion recorded by my Lord the Chief Justice in answering the Reference by the Federal Govern--ment and I entirely agree that on the evidence produced, by the Referring Authority, N. A. P. Is proved to be "operating in a manner prejudicial to the sovereignty and integrity of Pakistan'". Prominent N. A. P. Leaders have been openly preaching for virtual secession of N.-W. F. P. And Baluchistan under the attractive phrases, "full autonomy" and "right of self---determination". The article published in the quarterly journal "The Round Table", in its issue of February 1972 under the caption "Pakistan from Within a Three-way Split" is particularly revealing. It is written under the pen name "Analyst", but its authorship is traced to Mr. Abdul Wala Khan. This, he did not deny in his written statement though a copy of the x article was annexed with the Reference. A sense of sombre satisfaction over the cataclastic events then taking place in East Pakistan, is clearly discernible in the article. It unequivocally condemns the creation of Pakistan. It also condemns the British for undoing the good work done by their earlier generations during the two centuries British rule over the sub-continent, for having agreed to the Partition of the sub- continent. This is a clear pointer to the author's Innate hostility to Pakistan. In some of his recent utterances, Pakistan as a Political entity is aberrated, as if the for provinces exist in isolation and if there is any unison, it is between N: W. F. P. And Baluchistan against the other two. Direct evidence has also been produced to show that some N. A. P: leaders have of late been openly preaching resort to violence to secure what has been euphemistically described as "democratization of the Constitution" and just rights for Pakhtoons and Baluchis.

548. I also agree, that though the evidence produced mainly concerned the prejudicial activities of certain top leaders of N. A. P. And not of rank and file of its membership, yet in the absence of any averment in the written statement filed on behalf of N. A. P., that the party as such or the rank and file of its membership had at any time repudiated such activities of its leaders, it will be only fair to infer that the party and the generality of its members had acquiesced in such activities.

549. There is no substance in the counter charges that the Federal Govern--ment has been guilty of violating the Constitution first, or that in actual practice the Provincial autonomy has been reduced into a farce, which has forced the N. A. P. To wage the struggle for real autonomy for the Provinces.

550. In this behalf particular reference is made in the written statements filed in the case to the dismissal of N.-W. F. P. And Baluchistan Governors and also of the Provincial Cabinet in the latter province.

551. At the relevant time, the Interim Constitution, 1972 held the field and the validity of the above allegations will have to be adjudged in the light of that Constitution. Under Article 100 ibid, the Governor held office at the pleasure of the President" and therefore in Law could be dismissed by him at any time without any cause being assigned. Similarly, upon certain conditions being satisfied, Article 136 ibid, empowered the President to assume to himself, or direct the Provincial Governor to assume on the President's behalf "all or any functions of the Government of the Province . . . . . . : ' The Referring Authority has produced ample evidence to show that the President was obliged to dismiss the Provincial Cabinet in Baluchistan because it was responsible for the creation of general state of lawlessness in the Province. This evidence has gone wholly unrebutted.

552. The threat conveyed to the D. G. Coast Guards vide letter dated 31-8-1972 (Exh. RAW 25/3) at the behest of the N. A. P. Chief Minister is a classical instance of the attempt to stultify the Federal authority in Baluchistan. Coast Guards are Federal organization set up under the Pakistan Coast Guards Act, 1973 "to effectively check smuggling of any kind across the frontiers of Pakistan . . . . . .

553. And to deal with persons in a manner projudicial to the defence and security of Pakistan" in coastal areas of Arabian Sea. This is plainly a Federal responsibility under the Constitution, and the Provincial Government was in serious breach of its Constitutional obligation under Article 148(1) of the Interim Constitution when it wrote the above-mentioned letter to D. G. Coast Guards. Article 148(1) of the Interim Constitution read :- "The executive authority of every Province shall be so exercised. As not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend Y to the giving of such directions to a Province as may appear to the YY Federal Government to be necessary for that purpose."

554. Therefore, on the evidence produced, which has gone absolutely unrebutted, the declaration made in Notification 176(1)/75 was wholly justified.

555. But the question whether N. A. P. Has been lawfully dissolved and its assets forfeited under the contemporaneous Notification 178(11/75 and if so as to from what point of time, remains. On this aspect of the case I regret and say so, with the greatest respect, my views are somewhat different.

556. What follow deal with that aspect of the matter and also the constitutionality of section 6(1) of the Political Parties Act, 1962 as amended by Act XXI of 1975, and also the "two-nation theory" and the related questions namely Pakistani nationhood raised in the written statements filed on behalf of N.

557. A. P. And by its leaders to explain the Political philosophy underlying the N. A. P.'s demand for what is described as "complete provincial autonomy". Incidentally one should have thought that this vexed question has been finally settled by the Constitution, which has the majesty of being passed by the unanimous vote of the National Assembly elected on the basis of adult franchise, to frame the Constitution.

558. It will be convenient to deal with the vires of constitutionality of section 6 of Act as amended at this stage. Mr. Sharifuddin Pirzada, learned Amicus curiae, who addressed the Court on the Law points only, stated at the outset that clause (2) of Article 17 of the Constitution as substituted by Act XIII of 1974 was perfectly constitutional. He thought it necessary to make that statement, because of the doubt created by the majority judgment in Golak Nath's case (AIR 1967 SC 1943) decided in Indian jurisdiction, though the majority view In that case was modified by the majority judgment of a larger Bench in the later case of Kasavnauda (AIR 1973 SC 1461). It is unnecessary to refer to the ratio decidendi of the conflicting views in these two cases, because so far as this country is concerned, the law is firmly laid down by this Court in Zia-ur-Rahman's case (PLD 1973 SC 49) that a constitutional amendment cannot be challenged on the ground of being "repugnant to what are stated as national aspirations", so long as the amendment is duly passed in accordance with the procedure laid down by the Constitution.

559. Mr. Sharifuddin Pirzada, however, submitted that the consequential replacement of original clause

(1) of section 6 of the Political Parties Act, 1962 (Act III of 1962) by the new clause inserted by Act XXI of 1975 in so far it provides for the dissolution of a Political Party and forfeiture of its properties and funds, goes beyond the mandate of the Article 17(2) of the Constitution and is therefore, ultra vires.

560. The argument was that clause (2) of Article 17 envisages the making of a declaration simpliciter upon the satisfaction of the Federal Government and goes no further. It was stressed that since clause (2) was designed to abridge a Fundamental Right conferred by the Constitution, it should be construed strictly to prevent an unwarranted erosion of that right.

561. Article 17(2) of the Constitution and section 6 of the Political Parties Act, respectively read :- "Article 17(2).-Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a Political Party, subject to any reasonable restrictions imposed by Law in the interest of the sover--eignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any Political Party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final".

562. Section 6 (1).-Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2), stand dissolved, and all its properties and funds shall be forfeited to the Federal Government. (2) Within fifteen days of making a declaration under subsection (i), the Federal Government shall refer the matter to the Supreme Court whose decision, on such reference shall be final."

563. The argument overlooks the fact that we are here concerned with the interpretation of a Constitutional provision, which as pointed out by the Privy Council in James v. Commonwealth of Australia (1936 A C 578 (614)) is not to be inter--preted in any "narrow and pedantic sense". Earlier in interpreting the Canadian Constitution, the Privy Council observed in British Coal Corporation v.

564. The King (AIR 1835 P C 158):- "In interpreting a Constituent or organic statute, that construction most beneficial to the widest amplitude of its power must be adopted."

565. Moreover, right conferred by Article 17(2) of the Constitution is itself subordinated to "the interest of sovereignty and integrity of Pakistan". Not only that : it also enjoins the enactment of a remedial provision in respect of a political party engaged in prejudicial activity of the relevant kind. 7here-- fore, looking at the substance of the Article 17(2), it is equally remedial and would therefore, bear an extended interpretation, so as to advance the remedy and suppress the mischief. It is plain that merely declaring a political party as being engaged in prejudicial activity of the relevant kind, without any further compulsive and prohibitory action will make the declara--tion simpliciter, otiose. Accordingly, I agree with the learned Attorney---General, that Article 17(2) should be read as comprehending within its ambit rt what may be necessary to suppress the mischief effectively. Therefore, section 6(1) of the 1962 Act as amended by the 1975 Act is perfectly constitutional : and a fortiori the notification declaring N. A. P. As "operat--ing in a manner prejudicial to the sovereignty and integrity of Pakistan", is unassailable on any legal or Constitutional ground.

566. But the vires of the second notification, namely S. R. O. 178(1)/75 which purports to dissolve N. A. P.

567. And orders forfeiture of its assets is open to serious question. Section 6 (1) of the Act provides, inter alia, that upon the publication of the declaration, the offending political party "shall, subject to the provisions of subsection (2) stand dissolved". Subsection (2) envisages the making of reference by the Federal Government within 15 days of the declaration, and the finality of decision by the Court on such reference. The question that arises for consideration is, whether, sec--tion 6(1) of the Act expressly or by necessary implication empowers the Federal Government to issue notification for the dissolution of the Party and forfeiture of its assets contemporaneously with the declaration as has been done in the instant case?

568. The learned Attorney-General at one stage of his arguments took the position that though subsection (1) of section 6 of the Act does not in terms empower. The Federal Government to order dissolution of an offending political party, that power is implicit in the section. Later, he however, conceded that the section empowers the Federal Government only to make the declaration and to publish it in the official Gazette. He, however, contended that upon the publication of the declaration in the official Gazette, N. A.. p. Stood automatically dissolved by operation of law. On that premise it was submitted that the second notification namely S. R. O. 178(1)%75 was a mere surplusage and therefore, it would be idle to determine its Ares. The reason given was that the dissolution of N. A. P. Had taken place quite apart from notification, by operation of sub--section (1) of section 6 subject however to the decision of this Court on this reference. In other words, the argument was that the publication of declaration in the official Gazette automatically brought about the dissolu--tion of the offending party ad interim, subject however to the decision of this Court.

569. It must be conceded readily that upon the plain language of section 6(1), the dissolution of an offending party takes place by operation of law, for which publication of a separate notification in the official Gazette is unnecessary. The efficacy of the second limb of the argument namely, whether the dissolution is contemporaneous with the publication of the declaration by the Federal Government, or is postponed until the decision by this Court under subsection (2) of section 6 of the Act, however requires careful consideration. An answer to this part of the argument, in my humble view, turns upon the legal meanings of the words "upon" and "subject to the provisions of subsection (2)" occurring in section 6(1) of the Act.

570. In R. v. Arkwright ((1948) 12 Q B 970) Benman, C. J. Relying on a number of earlier decisions observed that "the word 'on' or 'upon' may either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require, with reference to the context, and the subject-matter of the enactment".

571. In Folkard v. Metropolitan Railway Company ((1873) L R 8 C P 470) (referred to in Butterworth's "Words and Phrases" Legally Defined, Vol. V, at page 260), the Mayor's Court of London Procedure Act, 1857, S. 8 (repealed) which provided, inter alia, that leave (to move in any superior Court) must be given 'upon the trial' came in for interpretation: Bovill, C. J. Observed that this phrase "clearly does not mean during the trial, but . . . . . . It must mean within a reasonable time afterwards".

572. According to Corpus Juris Secundum 67 Volume (page 495) the words on" and "upon" are frequently employed as prepositions to denote or indicate time, and when so employed they have many meanings and several definitions. They are used to indicate a certain date or the time at which something occurs or happens, and may mean before, after, or simul--taneously with the fact to which they relate . . . . . . ". The terms "on" and "upon" are variously defined as meaning at or at the time of; during; in; coincident with; when; within; as soon as; contemporaneously with or shortly after; after; following".

573. From above it will, therefore, be clear that the preposition "upon" in the relevant context does not necessarily signify that the dissolution L of the offending party and forfeiture of its assets must be contemporaneous with the publication of the declaration in the official Gazette. It would be no violence to language to hold that these results could follow the publication of the declaration.

574. The other phrase "subject to the provisions of subsection (2)" is also a pointer in the same direction.

575. Subsection (1) of section 6 of the Act envisages the making of reference within 15 days of the declaration by the Federal Government and a decision thereon..

576. In Messey Harris Co. v. Strasburg ((1941) 4 DLR 620) (a Candian case referred to in Butterworth's "Words and Phrases Legally Defined" Vol. 5, p. 134), it was held that when a provision in a statute is "subject to" another provision requiring something to be done, "the first provision is conditional upon the performance of what is required by the provision referred to".

577. According to Corpus Juris Secundum. Volume 83 (page 555) "the expres--sion "subject to" is "a term of qualification, employed usually to qualify "something substantially already created, and embodying command that the act shall not be effective until the condition is complied with . . . . . "- -It has also been defined "conditional upon or dependent upon" or exposed to (some contingent action) being under the contingency.

578. On the above construction of the words "upon such publication" and "subject to the provisions of subsection (2)", in my humble opinion, the dissolution of a political party and, forfeiture of its assets is postponed until after the reference by the Federal Government and the decision of the Supreme Court. This pie-eminently accords with "reason and good sense with reference to the context" as will be seen presently.

579. On the other hand, if we were. To hold that the amended statute intends that upon the publication of declaration in official Gazette, interim dissolution and forfeiture, shall take place contemporaneously albeit subject to the final decision by the Supreme Court, then at times certain incon--venient results are likely to occur, which in the absence of compellable reason, the Court must, according to well-established principles of interpretation, seek to avoid. The possibility cannot entirely be excluded that after the publication of declaration in the official Gazette, the Federal Government for any reason declines to make or delays reference under sub--section (2) or it may well be, that the Supreme Court negatives the allegation that the party is acting in a manner prejudicial to the sovereignty A or integrity of Pakistan. This would indeed create an awkward situation which is by no means an impossibility.

580. Under section 6 of the Act, prior to its amendment by Act XXI of 1975, dissolution of an offending party took place only after a decision by this Court followed by a notification in the official Gazette.

581. By the amended section, the only change brought about in the law is to enable the Federal Government to declare in the official Gazette in anticipation of making the reference that the party is engaged in prejudicial activities of the relevant kind and it is also laid down the outer limit of 15 days within which to make the reference to this Court. If the intention bad been to bring about interim dissolution of the party forthwith and to forfeit its assets pending the making of reference to this Court, then having regard to the original provision, one would have expected the Legislature to use forthright language to demonstrate beyond doubt, the intention to bring about an anticipatory dissolution pending reference to this Court. In effect that would amount to investing the Federal Government with power to dissolve a political party by an executive fiat, which apparently is not the intention.

582. Such a radical departure from the earlier dispensation could not have been allowed to rest on a possible implication in the language. This is all the more so because of the penalties provided in section 8 of the Act.

583. Another good reason, against dissolution would be that it is now conceded that the statute does not in terms empower the Federal Govern--ment to order dissolution of a party or forfeiture of its assets. What the Federal Government cannot do directly, can hardly procure to be done by indirect method viz. The publication of declaration in the Gazette.

584. I am perfectly conscious of the two variant interpretations of Article 17(2) of the Constitution and section 6(1) of the Act despite the apparent similarity of language in the two provisions. The reason for the two variant constructions is not far to seek. As pointed out already Article 17(2) is part of the Constitution itself and therefore, will admit of a beneficial interpretation of wide amplitude, more so. When it empowers the Legisla--ture to making a law on the given subject. Section 6(2) on the other hand is not Constitutional legislation but is a penal statute and therefore has to be construed strictly. In the words of the Privy Council in Edwards v. Attorney-General for Canada:- "There .Are statutes and statutes and their strict construction deemed proper in the case for example of a penal or taxing statute or passed to regulate the affairs of English, Parish would often be subversive to the Parliament's real intention if applied to an Act passed to ensure the peace, order and good Government of a British Colony."

585. Section 6(1) is a statute of the 1st kind while Article 17(2) is of the 2nd kind.

586. Incidentally, I have also considered the question, whether in the event of an imminent danger to the sovereignty or integrity of Pakistan, the Federal Government will be without a remedy to avert the danger by immediate preventive action pending a proceeding under section 6(2) of the Act, which, as in the instant case, is likely to be long drawn out. In my opinion the Federal Government have ample powers to take immediate remedial action under section 10(1) of the Security of "Pakistan Act, 1952. The section reads: "(1) Notwithstanding anything contained in the Political Parties Act, 1962, or in any other law for time being in force, where the Central Government is satisfied with respect to any association that there is danger that the association may act in a manner or be used for purposes prejudicial to the defence or external affairs --f the security of Pakistan, or of any part thereof, it may, by written or notified order, direct the association to suspend its activities for such period not exceeding three months as may be specified in the order . . . . . . "

587. It overrides the provisions of the Political Parties Act and specifically empowers the Federal Government to take immediate steps of interim nature. The word "association" has been used in a generic sense and in the absence of any qualifying words will in my view, cover a political party.

588. The Legislature must be presumed to be fully aware of this provision when enacting Act XXI of 1975.

589. It is highly improbable that in the face of this express provision directly bearing on the situation, the Legislature had intended to invest the Executive with the like power and that too by implication.

590. Besides, Article 187(1) of the Constitution gives plenary power to this Court to meet a particular situation once it is seized of the reference.

591. For all foregoing reasons, in my humble opinion, the decision of this Court under section 6 (2) of the 1962 Act is a condition precedent for the dissolution of an offending political party and for the forfeiture of its assets and therefore, there cannot be any 4nticipatory dissolution or forfeiture of property. The result is that during the pendency of these proceedings, the constitution of N.A. P. As a political party remained unaffected, though under a mistaken belief it was treated as having been automatically B dissolved. It will stand dissolved by operation of law immediately on B a decision by this Court when its property will also be forfeited to the Federal Government. "Two-Nation Theory"

592. In the written statements filed on behalf of N. A. P., and by Messrs Abdul Wali Khan, Ghaus Bakhsh Bazenjo, and Khair Bakhsh Marti, an attempt has been made to scotch the "two-nation theory" as the basis for the creation of Pakistan as an ideological State. The two-nation theory was characterized as a spurious slogan raised a few years before Partition of India to enthuse the Musalmans inhabiting the sub-continent to seek partition of British India. But once that objective was attained in the establishment of Pakistan, the "two-nation theory" ceased to be of any validity.

593. Mr. Abdul Wall Khan, has at pp. 129-30 of his written statement also quoted from the speech made by the Quaid-e-Azam on the 12th August 1947 as the Ist President of the Pakistan Constituent Assembly by which he gave certain assurances to non-Muslim minorities in the new State of Pakistan. From the excerpt an inference was sought to be drawn that once the struggle for'

594. Pakistan had fructified, the Quaid-e-Azam recanted his views about the polity in Pakistan and desired it to be a secular State.

595. Thus, according to Mr. Abdul Wali Khan, it is a misnomer now to call Pakistan an ideological State. If I may, say so, it is a complete distortion, of the speech to suggest that the Quaid-e-Azam had retracted from the "two-- nation theory" or bad otherwise intended Pakistan to be a secular State.

596. The crux of the speech was to allay lurking fears in the minds of minorities, that Pakistan will be a theocratic State wherein the non-Muslim minorities, will be persecuted and decimated. By that speech the minorities were assured on a solemn occasion, of freedom of conscience, and equality of C opportunity in all spheres of life, in unambiguous terms. It is wholly C wrong as also unfair to suggest that the Quaid-e-Azam fabricated the "two-1 nation theory" to procure partition of pre- Independence India, and once that was achieved he repudiated it or otherwise allowed it to lapse or to become obsolete. On the other hand the judgment of my Lord the Chief Justice refers to a number of later speeches underlining the "two-nation theory" as the raison d'etre for the creation of Pakistan which is also a sine qua non for its preservation.

597. To suggest that that Hindu and Muslim inhabitants of pre-Independence India were at any time united as one nation is to turn a blind eye to the stark facts of Indian history. Centuries ago Ashoka, the tolerant Maurvian Emperor tried to unite Hindus and Buddhists to form an empire based on justice and tolerance. The attempt failed. Later the great Moghal Emperor Akbar similarly tried to unite Hindus and Muslims. Again the attempt failed. Still later after the British Crown took over the administration of British India from British Indian Company in 1858, until Independence, made sedulous efforts to unite Hindus and Muslims. These efforts again failed: indeed the story of British failure is the story of Pakistan's emergence. Richard V. Weeks in hp book "Pakistan" printed in 1964 in the opening paragraphs of Chapter 2 writes :- "No single element in the lives of Pakistanis plays a more pervasive role than religion. It affects the way they work, their adjustment to hardship, the course of their Government. Religion helps determine what they eat, whom they marry, what they learn in school and how they develop their society. For millions, religion is the very reason they are Pakistanis at all, rather than Indians.

598. Religion was responsible for the creation of Pakistan and contributed greatly to its success in remaining independent and united. Economics played a part as did the personal ambitions of some politicians. But religion lay at the heart of the Pakistan movement in the years before 1947, creating the drive and longing necessary to tear apart the popular dreams of a united Indian sub- continent."

599. Similar observations by contemporary writers and historians can be multiplied ad infinitem.

600. The preambles to the for Constitutions we have had since Independence, are also eloquent testimony of the affirmation of Pakistan ideology. Part IX of the Constitution enjoins the State to bring all existing laws into conformity with the Divine Laws and forbids the State from enacting any E law repugnant to injunctions of Islam. This establishes the supremacy of E the Divine Laws and to that extent the legislative powers of Legislatures in Pakistan are abridged. This is in accord with the express Quranic injunctions "5 : 44 And whoever judges not by what Allah has revealed, those are the disbelievers."

601. "5 : 48 And we have revealed to the the Book with the truth, verifying that which is before it of the Book and a guardian over it, so judge between them by what Allah has revealed, and follow not their low desires (turning Away) from the truth that has come to the."

602. This clearly negatives the supremacy of the Legislature in Pakistan. In a secular State, the Legislature is supreme and laws are made in accordance with the will of the majority, free from any outside curbs. Recently legislation was reported to have been introduced in one of the Scandinavian countries to legalise marriage between a brother and his sister. This would be an impossibility in Pakistan, even if the measure is passed P by a unanimous vote, because of the Quranic injunctions. This brings into F bold relief the distinction between a secular State and an ideological State. F According to this concept the supreme authority vests with the Holy Qur'an.

603. The suggestion that the two-nation theory was given a go-by after the creation of Pakistan also proceeds on ignorance of the Islamic precepts as ordained by the Qur'an, concerning the broad division of the society. The following verses of the Holy Qur'an bear on the point "64 : 3 He it is who created you, but one of you is a disbeliever and one of you is a believer. And Allah is Seer of what you do."

604. "9 : 23 O you who believe, take not your father and your brothers for friends if they love disbelief above faith. And whoever of you takes them for friends, such are the wrongdoers."

605. "3 : 27 Let not the believers take the disbelievers for friends rather than believers. And whoever does this has no connection with Allah."

606. Perhaps even more decisive is the Divine admonition to Prophet Noah when he invoked the Divine mercy to enable his drowning son -a non. Believer-to embark on the Ark earlier built by Noah under the Divine Command "11 : 45 and Noah cried to his Lord and said : My Lord, surely my son is of my family, and Thy promise is true, and Thou art the Justest of the Judges."

607. "11 : 46 He said : O Noah, he is not of thy family ; he is (an embodiment of) unrighteous conduct. So ask not of Me that of which thou hast no knowledge. I admonish the lest thou be of the ignorant."

608. The above verses directly bear on the genesis of the "two-nation theory". This then is the raison d' etre for the creation of Pakistan. These verses have the force of eternal truths. It is a fact of history that in the early period of Islam, this remained the basis for the broad division of the society, so far believers were concerned any differences of caste, colour or race, notwithstanding. Acceptance of Islam spelled a complete rupture of closest blood relationship in a society which was then wholly tribal, and the entire gamut of human relations was organized on that basis. Any division of a Muslim society on the basis of race, language, colour or other ethnic considerations will thus be an anti-thesis of Islamic percepts as enjoined by the Holy Quran.

609. "Nationalities in Pakistan"

610. Another common point stressed in the various written statements was that Pakistan though a nation was inhabited by for nationalities cor--responding to for Provinces each with a distinct culture, language and a way of life. Mr. Abdul Wali Khan and Mr. Ghaus Baksh Bazenjo also ridiculed the concept of Pakistan' ideology as the basis of common nationhood as vague, unreal and fictitious, which according to them had a different meaning at different times during pre- Independence days. Mr. Abdul Wali Khan enunciated his own thesis in the following words :- "Tlp N. A. P. Believes that there is one Nation in this country and that is Pakistani Nation-And, that this Pakistani Nation is composed of nationalities-who have their own distinct language and culture--. There is no contradiction in the two, but these nationalities are like flowers who with their distinct colour, and fragrance blend into a bouquet-manifesting their unity in diversity."

611. This is an exercise in terminology. The words "nation" and "nationality" are synonymous and have been used interchangeably, though the concept of those two words has sometimes been subject to two interpretations to which I will presently refer.

612. Etymologically 'nation' and its derivative 'nationality' are derived from the Latin word nation which means a people descended from a common stock. It indicates a body of people united by common descent. But race and nation are entirely two distinct terms. In the modern times, however, it is fantastic to claim purity of blood for any modern nation. The population of U. S. A.

613. Consists of many races of different origin and is of mixed blood, yet U. S. A. Is a nation, by any definition of the term. The example of Swiss people is more in point. They do not speak the same language nor do they profess the same religion and are of French, German or Italian origin.

614. Nevertheless, they are a nation and according to the political concept of nationality there is a definite Swiss nationality based on membership of Swiss State. According to this concept, nationality implies the formal adherence of an individual to the State. Thus we speak of German nationality, French nationality, Swiss nationality and so also of Pakistani nationality. This is what is known as "political concept of nation and nationality". Pursuant to this concept the laws of most modern C States provide for acquisition of nationality by naturalization by aliens who G have no blood relationship with the individuals comprising the main body 3 of national community. Cultural or linguistic affinity is not a condition for acquisition of nationality by naturalization.

615. In contrast to the political concept of nationality, there is the view of the nation as a more ethnic or cultural phenomenon. Differences in language and culture etc. Result in the formation of social groups which, independent of political boundaries, constitute fundamental national units.

616. "Nationality" according to this concept signifies adherence to a people rather than to a State. This is "nationality" in the concrete sense. Thu, according to the political concept of nationality, there is a definite Swiss nationality based entirely on the membership of the Swiss State. According to the other view, every Swiss citizen is of German, French or Italian nationality. (Macmillan : Encyclopedia of Social Sciences, Vols. XI-XII, pp. 231-232).

617. But these are views of political theorists. To what extent they are relevant to Pakistan remains to be seen. It was pointed out by this Court in Asma Jillani's case (PLD 1972 SC 139) that Courts do not decide cases on the basis of Political theories. Cases are decided in accordance with law or accepted principles of law as enforced by superior Courts. Secondly, nationality is determined under the Municipal law, and in our case by the Pakistan Citizenship Act, 1951.

618. Barker's definition is more realistic. According to him, a nation is body of persons inhabiting a definite territory and thus united together by the primary fact of living together on a, common land.

619. They are drawn from a number of races and they come from different breeds .... But there is the common will to live together for the future, freely and independently . . . . (cf. Principles of Social and Political Theory referred to in Principles of Political Science by A. C. Kapoor, pp. 41-42).

620. Historically what makes a group of people a nation is not necessarily a community of race, language or even of religion. It is a sentiment of common consciousness or like-mindedness. The outstanding fact of con--temporary history for the relevant purpose is that the Muslims of pre--- Independence India, by an overwhelming majority expressed a feeling of oneness, irrespective of any social or ethnic variations or the administrative units (Province) where they lived. This led to the creation of Pakistan by a democratic process, par excellence, which was given effect to by means of a legal Instrument, called the Indian Independence Act, 1947. It speaks of "two successor States" to what was then British India, in which any mention of provinces as symbolic of any particular nationality is conspicuous by its absence.

621. As a result, a new body politic which lay geographically in two regions called Pakistan, was established. The concept of the provincial adminis--tration was retained despite the common feeling of oneness, not became of ethnic differences but because the provinces bad already existed since the British Crown took over the administration from British East India Company in 1858. It would be a travesty of fact to suggest that the provinces continued to remain because they were inhabited by separate "nationalities". The fact that until 1901 what is now N: W. F. P. Remained part of the then province of the Punjab, and until the commencement of the Government of India Act, 1935, Sind remained part of Bombay Presidency, militates against any claim of separate nationalities on the basis of residence in these provinces or for that matter any other province in Pakistan. Needless to point out that N.-W. F. P. Was separated from the Punjab entirely because of the strategic and political importance of the area now forming N: W. F. P. Because of its nearness to U. S. S. R. And certainly not because the inhabitants of this area formed a separate ethnic group.

622. Similarly, Sind was separated from the Bombay Presidency not because the inhabitants of Sind had a different nationality from those inhabiting Bombay Presidency In the concrete sense but because , the population of this area was predominantly Muslim.

623. According to Ballentine's Law Dictionary (Third Edition, p. 830) "nation" signifies a body politic or society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength, occupying a definite territory and politically organized under one Government . . . . .". In the same compilation the expression"nationality has been interpreted to mean "belonging and owing allegiance to a nation through being a citizen thereof by birth or naturalization . . . . . . . (Page 831 ibid).

624. In Butterwortho' "Words and Phrases Legally Defined", Vol. 3, pp. 306-7 concept of nationality has been explained t "Nationality is the most frequent and sometimes the only link between an individual and a State, ensuring that effect be given to that individual's rights and obligations at international law. It maybe defined as the status of membership of the collectivity of individuals whose acts, decisions and policy are vouchsafed through the legal concept of the State representing those individuals.

625. One of the best passages descriptive of the status is that contained in the judgment of the British- Mexican Claims Commission in Re Lynch. "A man's nationality forms a continuing state of things and not a physical fact which occurs at a particular moment. A man's nationality is a continuing legal relationship between the sovereign State on the one hand and the citizen on the other. The fundamental basis of a man's nationality is his membership of an independent political community. This legal relationship involves rights and corresponding duties upon both-on the part of the citizen no less than on the part of the State. "Most of the rules as to the nationality are the sole concern of municipal law. It has long been conceded that it is the prerogative of each State to "determine for itself, and according to its own constitution and laws that classes of persons shall be entitled to its citizenship" (Starke's International Law (6th Edn.) 291).

626. Thus it will be seen that legal meaning of the words "nationality" and "citizenship" are synonymous.

627. Indeed under the Pakistan Citizenship Act, 1951 nationality is recognized or is conferred on all Pakistan basis and not Province-wise, where individuals concerned may be resident. Domicile in Province may be relevant, where citizenship is conferred by reason of naturalisation.

628. Again if we view in retrospect the Constitutional evolution of the sub--continent since 1858 when the British Crown took over the Government from the British East India Company, we will find that right from the take over till the commencement of the Constitution Act of 1935, the Govern--ment of India was unitary and highly centralized. True there were provinces but they had no constitutional status comparable to the provinces of today and the Provincial Governments were merely agents of the Imperial H Government at the Centre directly responsible to the Governor- General H who in turn was answerable to the Secretary of State for India and thus K to the British Parliament. Even when the principle of decentralisation was introduced later firstly in 1908-9 and again in the year 1919, the position remained more or less the same, notwithstanding the introduction of dyarchy in the Provinces under the Government of India Act, 1919. It was for the first time under the Government of India Act, 1935 that the Provinces in pre-Independent India, were conceded provincial autonomy in certain specified subjects. Throughout these Constitutional changes, the population inhabiting the Provinces had the status of British Indian subjects, common to all of them. Against the background of this Constitutional history, it is difficult to understand how a claim of separate nationality in relation to the population of each province which has the effect of placing the citizenery of Pakistan into for watertight compartments, as if they have nothing in common between them, which is of value in life, is tenable ?

629. I am perfectly aware that under the American. Constitution, an American is a citizen not only of the United States i.e. The Federation but also of the State in which he resides, and both the Federal and State Governments, each independent of the other, operate directly upon an American citizen who is thus subject to two Governments and owes allegiance to both. But this is provided by the Constitution of that country. It is also important to point out that the American Constitution makes a logical division of I everything essential to the sovereignty and creates a dual polity, with dual citizenship, a double set of officials and a double set of Courts to administer Federal and State laws respectively. There is no such logical division or bifurcation under our Constitution. The same set of officials and Courts administer both Federal and Provincial laws. Even the services to all intents and purposes are common. The reason for this sharp difference lies in the differences in the political history of the two countries.

630. When the American Colonies began their resistance to Britain, they drew up in 1777, the Articles of Confederation, as self-governing Colonies.

631. This was a Covenant between thirteen "co-equal sovereign wills" to form an association called Confederation. But under this arrangement "the general Government" was dependent upon the regional Governments for funds, even as respect matters, which were within the purview of the `general Government'. The result was an ineffective "general Government". The solution was ultimately found in the Federal Constitution of 1887, whereby the regional Governments "agreed" to surrender part of their sovereignty in favour of the Federation, including well-defined fiscal powers.

632. Thus the American Federation is the product of a Covenant between what were then self- governing colonies.

633. In our case the political history has moved in diametrically opposite direction. As pointed out already, under the Government of India Act, 1858, the Government was not only unitary, but highly centralized. By slow and halting process of decentralization only limited autonomy was conceded to the Provinces under the Constitution Act, 1935. The same pattern was retained under the Indian Independence Act in the relevant fields. This makes analogy of the American system wholly inapt to our case. In our case, the Provinces never had the status of self-governing colonies, nor did they enter into any Convent to instal a Central or Federal Government conceding specified subjects to that Government. On the above review of the Constitutional history of the country and the nature of Pakistan's polity, any claim for a separate nationality for citizens of Pakistan on the basis of their residence in different Provinces is as unreal historically as it is untenable under the Corpus Juris of Pakistan. And I entirely agree with my Lord the Chief Justice that the ultimate object underlying the sinister cry is further dismemberment of the country. Indeed it is impossible to avoid the impression that the N. A. P. Leaders are only trying to emulate the late Mujibur Rahman. In the discussion on the subject of Nationalism and Nationality, the learned compiler of Encyclopedia of the Social Sciences, Volumes XI-XII observed at pp. 234 and 235 "Indeed the restriction of national feeling to a local region may lead to eventual dissolution of the greater national unity . . . . . . . . . . . .--- The encouragement of dialect is somewhat analogous to the regionalist cult of the local homeland. Its exaggeration leads to a dissolution of the nation into smaller component parts, which may remain independent for a longer or shorter period and thus jeopardize the greater national idea."

634. What gave a fillip during the recent decades to this concept of "restricted nationality" is explained at p. 237 ibid thus "The principle has since gained such wide influence that Wilson's programme of "Self- determination of peoples" in Europe was interpreted and utilised as a licence for the most unrestrained kind of nationalism at the expense of the defeated nations."

635. This then explains why the cry of separate nationalities corresponding to Provincial boundaries has suddenly become so loud in the country since the tragic events in what is now Bangla Desh and it is no wonder that among its protagonists are those who opposed the creation of Pakistan.

636. For the foregoing reasons, I am in respectful agreement with the various conclusions reached by the learned Chief Justice save on the limited point as to the point of time from which N. A. P. Stands dissolved and its assets forfeited to the Federal Government. In my humble view upon a proper interpretation of section 6 of Political Parties Act, as amended, the critical point for the dissolution of an offending party and forfeiture of its assets is the "decision" by this Court and not the publication of the declaration by the Federal Government in the official Gazette. In other words, the Court's decision on the propriety or validity of the declaration by the Federal Government is in the nature of a condition precedent for the dissolution of a party and forfeiture of its assets. These shall take effect as from the decision herein.

637. ANNEXURES Let this be placed on the file.

638. In paragraph 1 (a) of the written statement filed on behalf of the former N. A. P. (hereinafter referred to N. A. P.), an objection has been taken to the sitting of two of us on the Bench because during three years past we have dealt on the executive or advisory side, with matters germane to the present enquiry as Law Secretary, on the Advisory Board. On a similar objection orally taken by learned counsel for the respondent earlier, my Lord the Chief Justice observed that he would leave matter to the Judges concerned to decide. Later I informed my Lord the Chief Justice, that I saw no reason to withdraw from the case and the proceedings in the case continued before the Full Court.

639. The objection has now been repeated formally, if I may say so, in disregard of the dignity and decorum` of the Court. However, that may be I deem it appropriate to clarify the position both in law and on facts.

640. Under the Supreme Court Rules which have their source in the Constitution itself, the Chief Justice of Pakistan has the exclusive right to constitute benches of the Court. No person or a party to a case can ques--tion the manner in which that right is exercised.

641. Having regard to the nature of the case, my Lord the Chief Justice, has in his wisdom decided that the Full Court shall hear it. Therefore, it became my duty, no less than that of any other Judge of the Court to hear and decide the case, unless for any personal reason I have a conscientious objection to hearing it, or it affects my personal interests or interests of any person whom I regard and treat as my relative or close friend. In the former case, it is entirely a matter between my conscience an sense of duty under the oath of office to which I have subscribed. But once I v; olds to sit, no person has the right to object to my so doing. In the latter case, a Judge of the superior Court is expressly forbidden by Article IV of the Code of Conduct to hear the case. But the objection is not on that count.

642. These are well established norms relating to the functioning of superior Courts in all recognised judicial systems, To concede to a party, whatever be its status in life, the right to object to or concur in the constitution of the Bench will reduce the Judges to the position of private arbitrators, a position which no judicial system can countenance.

643. On the factual side, the objection is as much based on misunderstanding at it is misconceive,.

644. During the period I acted as the Law Secretary, so far as I can remember and I trust my memory does not failure, no detention order was issued on my advice. This equally applies to the case of retired Major-General Gaulam Jilani specifically referred in the objection. In that case, I was consulted during the pendency of the writ petition by the detenu on a point which arose in the course of the proceedings in the High Court.

645. As regards proceedings before the Review Board of which I am the Chairman, cases of detunes are examined in the light of specific allegations against each detenu and the supporting material on which the detention order is based. Association with a political party per se has never been treated as sufficient ground for preventive detention. It would be instructive to point out that since September last, of the 95 detunes the majority of whom were members of N. A. P. And whose cases were examined by the Board, the detention of only ten persons was approved and of remain--ing 85 disapproved by the Board. Those whose detention was not approved included the Secretary- General of N. A. P., President of its Punjab Branch and number of other office-holders. It is important to point out that the cases of some of them were reviewed even after declaration dissolving the party and filing of the Reference. This would indicate that the nature of proceedings before the Board is wholly different from the present case.

646. Lastly, save in the cases covered by stare decisis, there is nothing to prevent a Judge to enter a reasoned dissent from his earlier opinion more so when opinion is expressed in administrative proceedings and such instances are not wanting. Judges by their experience and training have the ability to bring to the task of decision making an objective mind that can rise above considerations of personal conviction and private feeling or extraneous influences.

647. These considerations have weighed with me, not to withdraw from the case.

648. MUHAMMAD AFZAL CHEBMA, J.--Reference No. 1 of 1975 is rather unique and unprecedented, having been based on the Constitutional provision incorporated for the first time in clause (2) of Article 17 of the Permanent Constitution vide Act XXXIII of 1974. The new provision empowers the Government to frame a law enabling the Federal Government to declare that any political party has been formed with the object or is operating in a manner prejudicial to the sovereignty and integrity of Pakistan. The relevant law is available in the form of the Political Parties Act of 1962 as amended by Act XXI of 1975. In exercise of its powers vesting in the Federal Government, the latter on 10-2-1975 made a declaration that the National Awami Party stood dissolved for having operated, to the satisfaction of the Government. In a manner prejudicial to the sovereignty and integrity of Pakistan.

649. It is in compliance with the mandatory requirement of the Constitution that the Federal Government has made this Reference to the Supreme Court, which, as stated earlier, is the first of its kind.

650. In view of the extraordinary importance of the Reference My Lord the Chief Justice was pleased to constitute a Bench of the Full Court for hearing the same. When the case came up for hearing for the first time on 12-4-75 Mian Mahmood Ali Qasuri, learned counsel for the respondents, suggested to the Court in his opening address that Judges, who had served as Law Secretary to the Federal Government and might have advised on or dealt with the cases of the N. A. P leaders or matters otherwise germane to the Reference, should consider the propriety of withdrawing from the Bench.

651. The insinuation obviously referred to me and Justice Muhammad Gul as only the two of us had served as Law Secretary.

652. My Lord the Chief Justice left the matter to the good conscience of the Judges concerned and both of us having given our anxious consideration to all the relevant aspects and implications of this rather delicate matter, decided to stay on the Bench and informed the Chief Justice accordingly.

653. Since then both of us have continued to sit on the Bench and have been participating in the hearing of the Reference.

654. The same point has now again been raised by the respondents in their written statement and exception has been taken in writing to the participation of both of us as Members of the Bench. My reasons for deciding to sit on the Bench, notwithstanding the objection are as follows :- No doubt .In my capacity as Law Secretary I have been dealing with some cases of the leaders of the defunct N. A. Y. But these were confined to individual allegations of criminal nature against some of them in their personal capacity. The view expressed by me was confined to the limited question as to whether a particular allegation fell within the mischief of a criminal offence, whereas the question under reference is wholly different and distinguishable from matters on which I was called upon to give my opinion in a different capacity. The allegations levelled by the Federal Government against the defunct National Awami Party are in substance those of preaching secession, for nationalities, trying to demolish the concept of Pakistan, advocating violence and subversion, causing hatred and strife in the country, resorting to insurgency, terrorists, with the blessings of the Afghan Government, etc. In my opinion the principal question to be determined by the Court would be as to whether on the basis of the evidence placed before the Court, it could reasonably come to the conclusion that the N. A. P. As a political party had in fact been constituted with objects or operating in a manner prejudicial to the sovereignty and integrity of Pakistan, so as to justify the action taken by the Federal Government. This question had never been referred to or examined by me as Law Secretary in any form whatsoever. Even otherwise being under an oath of office and bound by the Code of Conduct I can state with confidence that I am capable of dealing with the case with an open mind and in a detached and objective manner, without any embarrassm ent.

655. As regards the invocation of the principle that "justice should not only be done but should manifestly be seen to be done", it may be observed with respect that surely "appearance of justice having been done" is relatively a very minor consideration as compared to the dispensation of justice itself which is really of the essence, and I doubt whether the withdrawal of two Judges of the Supreme Court in the midst of the case, on the basis of mere suspicion would be a step towards the advancement of Justice.

656. The matter is not however devoid of precedent and there have been cases where allegations of bias as a disqualification for a Judge to sit on a particular Bench have been unsuccessfully urged in this Court. In the well known judgment of this Court in Asma Jillanis case while overruling the contention that Chief Justice Muhammad Munir being personally associated with the drafting of the Laws (Continuance in Force) Order, 1958 was disqualified from sitting on the Bench in Dosso's case, My Lord the Chief Justice observed as follows :- "I am pot inclined to agree with this view, for, having regard to the long experience of the learned Chief Justice as a Member of the various Benches of superior Courts in this country and his vast judicial experience I am certain that he was, notwithstanding his association in the drafting of the Order, quite capable of keeping an open mind and expressing his independent judgment."

657. In M. H. Khondkar v. The State (PLD 1966 SC 140) it was observed by Cornelius, C. J. As follows : "(1) It is open to the litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be a superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts on which it is based come to the knowledge of the litigant, he may find himself barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision.

(2) The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vital to its proper functioning and even to the continuous existence of the Judiciary as at present constituted, and (b) essential therefore to the public interest. Consequently, such an action brings the agent within the range of contempt jurisdiction, unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him.

(3) Mere apprehension in the mind of a litigant that he may not get justice, such as is based on inferences drawn from substantial indica--tions will not justify the raising of the plea. The facts must be such that the conclusion of bias follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and subsequently should the proof fail to satisfy the requisite standard, he may be found in contempt."

658. Disagreeing with the first proposition formulated by Cornelius, C. J. S. A. Rahman, J. Observed as follows "That the only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes hire a Judge in his own cause. Even In such a case, the objection must be confined to a statement of facts on which the disqualification is based without imputing motives to the Judge concerned."

659. In the same context My Lord the Chief Justice who was also a Member of the Bench made the following observation :- "The propositions are too widely worded and need some further qualifica--tion. According to his Lordship even though a litigant or his counsel has a right to raise a plea of bias in the face of the Court, it has to be remembered that there is an equally important duty cast upon all persons, whether parties or not, to refrain from saying or doing anything which might have the effect of scandalising the Court or imputing to it motives or judicial dishonesty or holding up Its conduct to ridicule.

660. The omission to observe this salutary restraint would equally expose the persons responsible for doing any act calculated to bring about any of the aforesaid harmful tendencies to the liability for committal for contempt of Court."

661. In the cast of Mr. Akhlaque Hussain v. Pakistan (PLD 1969 SC 201) a similar objection was taken against Muhammad Munir, C. J. On whose report proceedings were initiated against Mr. Akhlaque Hussain but it was overruled. Again !n The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585) a similar disqualification was alleged against the Supreme Judicial Council on the ground that it was on the basis of a report of the Supreme Judicial Council itself that the cases had been referred to it by the President but the objection was overruled. It would not be out of place to mention in this context to the "Explanation" added to section 556, Cr. P. C. Wherein the personal interest of a Judge or a Magistrate in a case disqualifying him from trial or committal has been explained. According to this provision even an inquiry made by a Judge or a Magistrate in a different capacity does not disqualify him from dealing with the case. 7 here is ample authority for the proposition that it is only a direct interest or relationship of a Judge that would operate as a disqualifi--cation.

662. I would refrain from saying anything as to the scope of the privilege of a party or its counsel to bring allegation of bias against a Judge of a superior Court and the precise limit where it ends, which if transgressed would amount to contempt of Court.

663. HAMOODUR RAHMAN, C. J.-[19-6-1975]-Mr. Wali Khan is produced before the Court as per directions given by this Court on the 16th June, 1975. After consultation in the Court, with his learned counsel and Advocates, he states that he would like to withdraw the powers of his learned Advocates and counsel and address the Court himself.

664. It is explained to him that he must appreciate that he can do that but he should make up his mind as to what he is going to do because once the power is withdrawn, the learned counsel and Advocates would not be permitted to intervene.

665. He states that he fully appreciates the consequences and makes a statement, as he says, for the purpose of explaining his difficulties. Under orders of the Court, shorthand notes of his statement have been taken and a transcript thereof is placed on the record.

666. The burden of his statement is to impress upon the Court the difficulties with which he and his party, namely, the N. A. P. Are confronted as a result of the detention of some of the important leaders of the N. A. P. The banning of the party first and a reference being made thereafter to this Court.

667. He has pointed out that this situation has been created by the amendment of the Political Parties Act and Article 17 of the Constitution and has suggested that the Court should call upon the Government to withdraw these amendments and revert to the status quo ante as it prevailed prior to the amendments. Unless this is done, he feels that his Party will not be able to put up any effective defence as it would be fighting always from an unequal position. He has also suggested that the previous order of this Court should be reviewed and all the five leaders, who are now under detention and collected at Sihala Special Jail, should be allowed. To be present in the Court throughout the proceedings. Unless this is permitted, he thinks, the defence cannot be appropriately conducted.

668. Although be has not complained about the inadequacy of the expenses allowed by this Court by the aforesaid order he has implied that it is inadequate but he has categorically stated :- "We do not want any cash."

669. On the other hand, he has suggested that he would give the Court a list of counsel of his choice and the Court should ask them if they would undertake the defence of the N. A. P. In this Reference "as a contribution to the national struggle for democracy". According to him the defence of this case should be treated as a national cause by everyone, because, from his point of view, the defence of this Reference is a national cause. Namely; the maintenance of the rule of law, the enforcement of the Constitution and the preservation of a democratic system in the country. To quote his own words, he says :- "My position in this particular case is very clear. I am not fighting the case of N. A. P. I am fighting for the future of this country. It is a national service and, in the circumstance, what I am doing is in the national interest."

670. He further very strongly maintains that to discharge this function properly, he and his party should be placed on an equal footing with the Referring Authority and, therefore, they should either be set free or at least be enlarged on bail during the pendency of these proceedings so that the difficulties which they are now facing in holding consultations with their lawyers, in procuring books and otherwise preparing the defence are removed.

671. Lastly, he has, as he says, under the instructions of his Central Committee, felt it necessary to repeat the objection to the constitution of the Bench which was taken by Mr. Mahmud Ali Qasuri, his learned counsel, on the very first day and has been reiterated in the written statement filed on behalf of the N. A. P.

672. In view of the difficulties created by the detention of the top leaders of the N. A. P. This Court has, from the very beginning, tried to give them all reasonable facilities of meeting their counsel, holding consultations and preparing their case as would be apparent from the previous orders of this Court. The learned Attorney-General has also referred to them specifically in his reply to the two applications for directions that were moved on the 10th June, 1975, for the grant of further facilities. Nevertheless, the Court, after due consideration of all circumstances, felt that in view of the categori--cal statement made from the Bar by Mr. Mahmud Ali Kasuri regarding the financial difficulties of the party that some reasonable amount should be given to them to meet at least their essential expenses. An order was made accordingly directing the Government to pay a lump sum of Rs. 10,000 for preparation of the case and Rs. 1,500 per diem for each day's appearance to the learned Advocates appearing in the case. The Government was also directed to pay the expenses of a Stenographer and Typist not exceeding Rs. 1,000 per mensem. Now Mr. Wali Khan states that he does not want any cash but he wants that public spirited lawyers should under-- take the defence as a contribution towards, what he calls, a national cause. The Court has indicated to him that if he furnishes the names of the lawyers, the Court will, on his behalf, request them to undertake their defence.

673. It may be pointed out here that prior to this, almost all the facilities then asked for by the learned counsel for holding consultation with a view to the preparation of the case were granted. The detunes were collected at one place, namely, Sihala Jail and permission was given to the lawyers, two at a time, to meet them whenever they desired to do so. Permission was also granted to a stenographer to attend to the needs of the detunes at Sihala. Facilities for obtaining books were also granted. It was pointed out that if there was any difficulty, a list of books should be furnished and efforts will be made by the Court to make them available. No such list was, however, furnished.

674. Whenever any learned Advocate appearing in this case complained of any difficulty, every effort was made to remove the difficulties and in this behalf it must be stated that the learned Attorney- General fully cooperated. Mr. Wali Khan has not complained that the Court has not given them the facilities that were asked for.

675. As regards the presence of all the five detunes in the Court, it was pointed out to him that even in the order of 16th June, 1975, it has been stated that while Mr. Wali Khan himself will be present throughout the proceedings in the Court, the production of the others will be directed as and when found necessary. The Court has reconsidered the matter and does not think that any modification in this order is called for.

676. As regards the repeal of the amendments made in the Political Parties Act and Article 17 of the Constitution, it has been pointed out to Mr. Wali Khan that this Court cannot give any direction in that behalf. It is the function of the Legislature and, therefore, the Legislature should be moved dircetly in that behalf. The Court cannot presume to direct the Legislature to make or unmake a law. It can only strike down the law if it is found to be unconstitutional or ultra vires the powers of the Legislature.

677. So far as removing the ban on the N. A. P. And the release of the detunes is concerned, again it has to be pointed out to Mr. Wali Khan that this Court has no jurisdiction to do so in these proceedings.

678. It can only declare the ban to be illegal if it comes to that conclusion after hearing the Reference.

679. So far as the detention of the leaders of the N. A. P. Is concerned, we are informed that this is under the Defence of Pakistan Rules. The validity of the detention can, if so desired, be challenged by the detunes in the appropriate High Courts. We are also informed that specific cases are pending against the above-mentioned detenu. If so then it will be for the Courts having seizing of those cases to deal with the question of bail. In these proceedings, this Court can only decide as to whether the banning of the party is lawful or not.

680. As regards the objection taken to the constitution of the Bench, learned counsel were informed on the very first day that no party to a litigation can claim the right to be tried by a particular Judge or Judges of his choice. In the case of superior Courts, it is entirely a matter for the Judge or Judges concerned to decide a to whether they will or will not sit to that particular case. Mr. Wali khan has been informed that both the learned Judges, against whom the objection has been raised, on the record minutes m writing which have been raised, have now recorded of these proceedings to say that they do not feel embarrassed in sitting to hear this proceeding. The objection based purely on conjectures is, therefore, In our view, unwarranted. Judges concerned are fully conscious of their own responsibilities. There is nothing to show that they are is any way disqualified from sitting to hear this reference. The objection is, accordingly, overruled. In this connection it must . Also be pointed out that in the case of the President v. Shaukat Ali (PLD 1971 SC 585) a similar objection was taken before the Supreme Judicial Council on the ground that the Council was disqualified from hearing the reference by reason of having earlier scrutinized the declaration of assets of the respondent. The Supreme Judicial Council took the view that since there was no complaint of any personal bias in any individual member of the Council and there was no allegation that any member of the Council was, in any way, hostile or inimically disposed towards the respondent, the objection was untenable. To quote the actual words used by the Supreme Judicial Council r in its report published co nomine President v. Shaukat Ali (PLD 1971 SC 585) :- "The mere assertion of a bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceedings it is essential that a real likelihood or bias must be shown. The mere fact that the Council had scrutinised the declara--tion of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frames a charge in a trial, can ever hear that matter or conduct that trial."

681. If bias has to be alleged against a Judge of a superior Court it must be done with great care and caution, because, such a plea of bias necessarily involves criticism of a Judge of a superior Court and brings the person raising the plea "within the range of the contempt jurisdiction unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him", as observed by Cornelius, C. J., in his judgment in the case of M. H. Khondkar v. State (PLD 1966 SC 140): "Mere apprehension" said the learned Chief Justice, "in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias must follow necessarily therefrom. On no weaker ground cats any person be permitted to attack the impartiality of a superior Court and consequently should he fail to satisfy the requisite standard, he may be found in contempt".

682. In the same case, S. A. Rahman, J., observed that :- "The only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity op interest with a party as makes him a Judge in his own cause."

683. Kaikaus, J., emphasised that :- "It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack, for, otherwise it would be difficult for them to function at all."

684. Again in this case of Syed Akhlaque Hussain v. Pakistan (PLD 1969 SC 201) where the petitioner, a Judge of a High Court, sought to have the judgment and order of a Bench of this Court, conducting the enquiry against him, reviewed and set aside on the ground that the then Chief Justice, for the reasons given by him in his petition, became hostile to him and took personal interest in getting the special reference made to the Supreme Court. The learned Chief Justice was, therefore, disqualified to sit on the Bench which enquired into the charges against him. Strong reliance in the case was placed by the petitioner on the observatious of Lord Hewart, C. J., in the case of Rex v.

685. Sussex Justices Ex parte : McColly (PLD 1949 PC 108) to the effect that it "is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

686. This Court observed as follows :- "It is true that this proposition has been generally acknowledged and given effect to not only in England and U. S. A. But in this Sub--continent too. The question that remains, however, to be considered is what interest in a judicial or quasi-judicial proceedings does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias. According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision.

687. In the case of Reg v. Rand L R (1866) 1 Q B 230 Blackburn, J. Said that there must be 'a real likelihood' of bias. In the recent case of Regina v. Camborne Justices and another, Ex parte : Pearce (1955) I Q B 41 Slade, J., has said :- ---'In the judgment of this Court the right test is that prescribed by Blackburn, J., namely. That to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceedings, a real likelihood of bias must be shown'."

688. The Learned Judge then observed :.- 'Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord - Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."

689. Accepting this principle. This Court concluded :- "We are, therefore, of the view that mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established."

690. The present case is also a case of mere suspicion as no facts have been placed on the record to show any real likelihood of bias.

691. Before the learned Attorney-General could proceed to make his opening speech. Mr. Wali Khan wanted a decision on the points raised by him and when the decision, which has now been recorded, was announced to him orally, he and his lawyers withdrew from the Court.

692. It is regrettable that in spite of the facilities given to the respondent, this decision has been taken, but in the circumstances, this Court has no alternative but to proceed with the hearing of the reference without the assistance of the respondent. *[Here in italics)

693. Civil Miscellaneous Petition in Reference No. 1 of 1975 Yahya Bakhriar, Attorney-General for Pakistan instructed by Mushtaq Ahmad Khawaja,Advocate- on-Record for Applicant.

694. Nemo for Respondent.

695. Q. M. Saleem, Advocate Supreme Court instructed by Noor Ahmad Naorl, Advocate-on-Record for Maulvi Mufti Mahmood.

696. MUmMMAD GOL, J.-[30-6-1975]-This miscellaneous petition is by Maulvi Mufti Mahmood for being made a respondent in Reference No. 1 of 1975 moved by the Federal Government under section 6(2) of the Political Parties Act, 1962 (Act III of 1962) read with Article 17(2) of the Constitution, concerning the recent dissolution of the National Awami Party by that Government.

697. The petitioner is not a member of N. A. P. He is, however, Secretary. General of J. U. L, Senior Voice President of U. D. F., (a conglomerate of certain political parties in Opposition including J. U. L), a member of the National Assembly and acting leader of Opposition in that Assembly. The petitioner also beaded the coalition Government formed by N. A. P., and J. U.

1. In N.-W. F. P. In 1972-73.

698. Mr. Q. M. Saleem, learned counsel for the petitioner pointed out at the outset that the petitioner has not moved this application with a view to contesting the main Reference against N. A. P., but that he has been obliged to apply to be made a party because of certain defamatory remarks in the opening address of the learned Attorney-General reflecting on the conduct of the petitioner as the former Chief Minister of N-W. F. P. Charging him with nepotism, gross abuse of power and maladministration. According to learned counsel the petitioner apprehended that the Attorney- General is likely to adduce evidence to substantiate these allegations and therefore the necessity to apply to be made a party to enable him to rebut any such evidence and thereby to vindicate his position and conduct as the former Chief Minister in N: W. F. P.

699. The learned Attorney-General intervening explained that the remarks in his address to which the petitioner has taken exception, were a sequel to the highly complimentary references in the written statements filed on behalf of N. A. P. And by Mr. Abdul Wali Khan concerning the all round achieve-- ments of N. A. P., and J. U. I. Coalitions while in office in N .-W. F. P. And Baluchistan. This according to the learned Attorney-General was contrary to facts and therefore the relevant excerpts in the written statements had to be contradicted in the opening address. Learned Attorney-General, however, conceded that these observations were not germane to the main case under Reference.

700. He also stated that he does not propose to adduce any evidence in support of any observations to which exception has been taken by the petitioner.

701. It is indeed a pity that rules of pleadings have not been adhered to in the case and certain irrelevant material has fount its way on the record. How--ever, that may be, on no discoverable principle can the petitioner be a proper party to the Reference much less he is a necessary party. J.

702. U.

1. Of which the petitioner ii the Secretary-General or U. D. F. Of which he is the Senior Voice- President is not a party to the case and the Federal Government's notification of the 10th February 1975, dissolving the N. A. P. Does not directly or indirectly affect these two Organisations. The same held good in relation to the petitioner whether as private person, a member of J. U. I. Or U. D. F. Or the former Chief Minister. If the petitioner in any manner feels aggrieved by anything said in the course of oral address by the learned Attorney-General then, he, if so advised, can initiate separate proceedings for redress. Apart from that, he is certainly not a proper much less a necessary party to the proceedings in the Reference. To implead him will unduly enlarge the ambit of these proceedings.

703. The petition is accordingly dismissed.

704. Civil Miscellaneous No. 82-R of 1975 in Reference No. 1 of 1975 (In the matter of impleading U. D. F., a Party in the Reference).

705. Yahya Bakhtiar, Attorney-General for Pakistan instructed by Kh. Mushtaq Ahmad, Advocate-on- Record.

706. Nemo for Respondent.

707. Ijaz Hussain Eatalvi, Senior Advocate Supreme Court instructed by M. A. Rahman, Advocate-on- Record for the United Democratic Front.

708. HAMOODUR RAHMAN, C. J.-[15-6-19751-This application, which pur--ports to have been filed under Article 187 of the Constitution read with Order XLIX, rule 6 of the Rules of this Court, is by the United Democratic Front for being impleaded as a party in the Reference above-mentioned.

709. The United Democratic Front, it is said, was formed in March, 1973, by a number of Opposition parties, including the now defunct National Awami Party. And some independent Opposition members of the National Assembly, who, while retaining their individual entities, united "with the object of maintaining and strengthening the solidarity, integrity and ideology of Pakistan, and for developing the democratic institutions and for restoration of civilized norms of political conduct and behaviour in the country".

710. The Front claims that its objectives are set out in its declaration, which is described as the 'Islamabad Declaration', and a copy whereof is annexed to the petition. The Front also has a General Council consisting of six representatives, nominated by each constituent party. It has also a Central Action Committee, which includes Mr. Abdul Wali Khan, and eleven other office-bearers.

711. The applicants claim that the defunct National Awami Party had been closely and actively associated with the Front, which is, as such, in the know of the activities of the said defunct Party as one of its constituents and can depose thereto.

712. Learned counsel appearing in support of the application has also referred us to certain copies of extracts of speeches of Mr. Wali Khan, which have been filed along with the Reference itself and has claimed that these speeches of Mr. Wali Khan, complained of fn the reference, were actually delivered at meetings organised under the banner of the Front and, therefore, in a way, the Front itself was directly involved in these proceedings. ..

713. Similarly, a number of other documents, such a:, telegrams, etc., sent -to the President of the Country by the Members of the Front, including . Mr. Wali Khan, as also the incident reported in the 'Dhanak' Newspaper, make it necessary for the Front to explain its own attitude. Learned ,counsel apprehends that if these documents are left unexplained, the image of the United Democratic Front itself as a whole may thereby be tarnished and "ground may be paved to take action against them all under the Political Parties Act".. Hence, in the larger national interest. Particularly, since the decision in the Reference "is bound to affect the entire political life of the country in general", the Front "has resolved to approach this Zourt with the request that it should be impleaded as a party and be allowed to participate and depose about the defunct National Awami Party's joint activities as a constituent member of the United Democratic Front".

714. The National Awami Party, it will be recalled, was banned by a notification, issued by the Government on the 10th February, 1975. The Reference was filed within 15 days thereof, on 24-2-1975 and the hearing of the Reference, on the preliminary points, commenced on the 14th May. 1975. On that date some of the leaders of the United Democratic Front were also present in Court, presumably interested in the hearing of the .Contempt petition filed by Ch. Zahur Elahi for the committal of the Prime Minister for Contempt of Court. The matter again came up for hearing .,on the 16th June, 1975, and on the 19th June, 1975, Mr. Wali Khan himself, at his request, was permitted to be brought to the Court. After coming to the Court, he withdrew the powers of his counsel, sought leave to address the Court in person, and ultimately after making his address staged a dramatic walk-out from the Court.

715. On this occasion too, most of the leaders of the parties. Comprising the United Democratic Front, were present in Court and almost all of them followed Mr. Wali Khan out of the Court. One or two that might have stayed behind, also followed suit a few minutes later.

716. Thereafter, an application was made on the 30th June, 1975, on behalf, of Moulvi Mufti Mahmood, one of the components of the United Democratic .Front, which had, along with the defunct National Awami Party, formed coalition Governments in 1972 in the provinces of N: W. F. P. And Baluchistan. In that application too, a request was made for impleading ,the J.U.I. As a party to these proceedings on the ground that certain allegations had been made against the said party in the opening address of the learned Attorney-General and it was apprehended that evidence might be led which might adversely affect the J.U.I. The learned Attorney---General clearly stated that he had no intention of leading any evidence against the J.U.I. Or any of its leaders and whatever he had said was in reply to the written statement filed by Mr. Abdul Wali Khan himself. In view of this statement, the impleading of J.U.I. Was considered unnecessary and the application was rejected.

717. Nothing further happened till the 9th July, 1975, when the present petition was filed. In these circumstances, we cannot help observing if there was any foundation at all in the apprehension now expressed by the Front, then the realisation has dawned upon them rather late in the day.

718. They cannot plead ignorance of these proceedings, because, not only have the daily proceedings of this matter been given wide publicity in the Press, but, as earlier indicated, leaders of the United Democratic Front have actually been present in Court from time to time in the earlier stages of these proceedings. If the defunct National Awami Party is a constituent of The United Democratic Front, then we have no reason to think that the Front did not also come to know of the nature of the allegations contained in the Reference against the National Awami Party. Indeed, we find that the learned counsel appearing in support of this application is already possessed of the first volume of the documents filed by the Referring Authority. The learned Advocate-on-Record instructing him also instructed Mr. Mahmud Ali Kasuri, at the earlier stages, on behalf of the N. A. P.

719. Be that as it may, the question is as to whether the Front can claim to be impleaded in these proceedings as of right on the ground that it is a, necessary party, learned counsel has very frankly conceded that he cannot put his case as high as that. He concedes that since no relief is sought in these proceedings against the United Democratic Front and since the Front will not be affected by the decision of this Court, save and in so far that it might feel the impact of the decision like any other political party in the country. Nevertheless, the learned counsel does maintain that the United Democratic Front can claim to be a proper party in these proceedings, because the dissolution of one of its constituents is a matter of direct concern to the Front itself and the Front will be able to give valuable assistance to this Court in doing full and complete justice in the matter by reason of its knowledge of the activities of the defunct Party, which have taken place from the platform of the Front and in implementation of the policy of the Front.

720. Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings.

721. The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor an persons be added as parties so as to set up a new cause of action which does not concern the original parties.

722. In a generic sense, every decision of this Court on a point of law is likely to affect every one in this country in whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before the Court, merely because it is likely to affect him in some future proceedings.

723. All that the learned counsel has said in support of his case is that the decision taken in this Reference is likely to expose other political parties who are constituents of the United Democratic Front to similar action by the party in power. This, however, in our opinion, is no ground for adding them as party in these proceedings. If and when such an action is sought to be taken, they will be entitled to contest those proceedings and put up their defence, but they cannot, in our view, be considered to be proper parties in these proceedings, where no interest of theirs is being placed in immediate jeopardy.

724. Learned counsel has lastly contended that even if the applicants cannot come in as proper parties, they might be allowed to appear as amicus curiae as distinguished from an intervener. In support of this contention. He has referred to the definition of an amicus curiae given in Volume III of the American Corpus Juris Secundum, at page 1046. The same Volume, however, on the next page, states that "One whose attitude appears to be partisan, should not be permitted to appear as amicus curiae."

725. Under this rule, the petitioners would be disqualified even to appear as amicus curiae, because, on their own averment, they are very much interested in the cause of the National Awami Party. We are also unable to agree that in the absence of the applicants this Court will be handicapped in doing complete justice in the cause now pending before it. The offer of producing Mr. Wali Khan as a witness is no inducement at all. If the Court, at any stage. Feels the necessity, it can always make an order for the purpose of securing the attendance of any person or for securing the discovery or production of any document. Even if the evidence of any of the leaders of the constituent parties of the United Democratic Front becomes necessary, this Court will have no hesitation is summoning them as witnesses irrespective of whether the Front is a party to these proceedings or not. The learned Attorney-General has, of course, vehemently opposed this application and has contended that this is not a bona fide application at all. According to him, the intention behind this application is to frustrate the proceedings of this Court. If the applicants had been genuinely interested in these proceedings, they would have moved this Court long before this day and not allowed five months to elapse before taking a decision to make such an application. The contentions of the learned Attorney-General, are not without substance, but it is unnecessary for us to go into these questions, as we are satisfied that the applicants cannot quality for being impleaded as parties in these proceedings either on the ground of being either 'necessary parties' or on the ground of being 'proper parties'. We are also not inclined to give them permission to appear as amicus curiae, as they are, on their own showing, partisans and not disinterested. In course of the hearing of the petition we had observed that Mr. Ijaz Hussain Batalvi might sit in Court and watch the proceedings on behalf of the U. D. F., and, if considered necessary, might suggest questions to the amicus curiae for being put to the witnesses. Mr. Batalvi, however, did not appear disposed to accept the suggestion.

726. In these circumstances, this application is dismissed.

727. S.A. H.