MEHRAM ALI Alias YAWAR ALI vs FEDERATION OF PAKISTAN And Other

ORDER

KARAMAT NAZIR BHANDARI, J.- By this short order we intend to dispose of the following Constitutional petitions in all of which common questions fell for consideration.

(1) W.P. No. 25713 of 1997

(2) W.P. No. 25712 of 1997.

(3) W.P. No. 19006 of 1997.

(4) W.P. No. 989 of 1998 (Multan)

(5) W.P. No. 24690 of 1997.

(6) W.P. No. 20988 of 1997.

(7) W.P. No. 19964 of 1997.

(8) W.P. No. 19963 of 1997.

(9) W.P. No. 3929 of 1997.

2. On 20.8.1997, the President of Pakistan promulgated Anti-Terrorism Act (XXVII of 1997) whereby Special Courts for trial of terrorists were set up. The validity and vires of this enactment has been questioned in these petitions inter alia on the ground that as similar law already exists in the form of Suppression of Terrorist Activities (Special Courts) Act, 19.75, no second law was necessary nor could it have been framed, that the promulgation of the Act was beyond the Federal legislative competence and that the Act militates against the independence of judiciary guaranteed by Article 175 of the Constitution. Apart from the Act as a whole, certain provisions of the Act have also specifically been challenged on the touchstone of fundamental rights.

3. Writ Petitions Nos. 20998/97, 19984/97, 19963/97 and 19006/97 have been filed probone publico by the respective petitioners who have no personal interest in the matter. However, in W.P. No. 25713/97, Mehram Ali petitioner has challenged his conviction by the Appellate Tribunal and the trial Court. In W.P. Nos. 989/98 (Multan) and 24690/97, Falak Sher and Bassm Laeeq petitioners are presently being tried by different Special Courts, for different offences and they have assailed their trial by filing these petitions.

4. After hearing the learned counsel for the parties, learned Attorney- General for Pakistan and the learned Advocate-General, Punjab, we have reached the following conclusions for which detailed reasons shall be furnished later on:

(i) That the challenge of the petitioners to the legislative competence of the Parliament to enact Anti-Terrorism Act, 1997 is wholly without basis. The subject clearly falls in the concurrent legislative list given in the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973, particularly items Nos. 1, 2, 4, 46 and 47. From the material placed on record and the facts 'and circumstances obtaining on the record, we are of the view that terrorism had reached such a stage that it has become threat to the State itself. Consequently, the Parliament could legislate on this subject under item No. 1 of the legislative list also.

It is a settled principle of law that the entries in the legislative list are to be construed liberally and widely and not in a narrow pendentic sense. (See M/s. Elahi Cotton Mills Ltd. v. Federation of Pakistan (P.L.D. 1997 S.C. 582), Sohail Jute Mills Ltd. And others v. Federation of Pakistan (P.L.D. 1991 S.C. 329) and M/s. Haider Automobile Ltd. v. Pakistan (P.L.D. 1969 S.C. 623).

(ii) There was ample justification both under the Constitution and the law for creation of Special Courts for trying terrorists. While so holding, we cannot lose sight of the fact that since the recent past there have been subversive and terrorist activities on & large-scale which have shaken the country as a whole and has created a sense of fear and despondency in the citizens. The figure supplied by the learned Advocate-General, Punjab in this behalf has shaken our conscience and we can only lament that had effective measures been taken earlier, the precious lives might not have been lost.

(iii) While it is true that to be treated in accordance with law and law alone is the right of every citizen, but it is equally true that there is no right in absolute terms without a corresponding obligation. Every person who claims to have a fundamental right must also show that he has performed his obligation towards the State as required by Article 5 of the Constitution of Islamic Republic of Pakistan, 1973. While interpreting a law like Anti-Terrorism Act, 1997, this aspect and the purpose for which the Act has been enforced must be kept in mind. To protect the life and liberty of every citizen is the fundamental duty pf the State and efforts made by it in discharge of this obligation for curbing terrorism should not be hampered with by the judiciary, whose role is only over step its Constitutional limits. In view of the circumstances prevailing on the country no legitimate exception can be taken to the creation of Special Courts with a view to provide speedy justice in cases of terrorism.

(iv) The contention that as Courts constituted under the Suppression of Terrorist Activities Act, 1975 already exist, Special Courts could not be crested lose sight of the fact that the Courts constituted under the Anti-Terrorism Act, 1997 have limited jurisdiction and are meant for trial of persons charged with commission of terrorist acts and that to only in areas where declaration of intent has been issued by the Federal Government under section 3 of the Act. Be that as it may, there is no bar under the Constitution or the law for setting up more one Special Courts and if the competent Legislature has so enacted, we cannot question its wisdom as our jurisdiction is limited only to finding out as to whether any provision of the Constitution or the Islamic Injunction has been violated by enacting this law.

(v) There is nothing in the Anti-Terrorism Act, 1997 which goes against the Islamic principles of administration of justice which are not only sacred but are also very dear to us. While interpreting any law on the subject the same have to be given due consideration as ordained by the Constitution itself especially the principles of public policy.

(vi) Coming now to the question as to whether certain provisions of the Act militate against the Constitution or erode the independence of judiciary we must express our dismay that while enacting this law, the principles enunciated in the Full Bench judgments of this Court in the cases of Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (P.L.D. 1996 Lah. 542) and M/s. Chenab Cement Product (Pvt) Ltd. And 2 others v. Banking Tribunal, Lahore and others (P.L.D.

1996 Lah. 672) were not kept in view which provide not only that no person can be inducted into judiciary except in consultation with the Hon'ble Chief Justice but also that there should be security of service for the holder of the office in order to enable him to administer fair and free justice. There is nothing in this Act which guarantees any security of service to the Judges. We endorse and reaffirm the view taken by the Full Bench and hold that without providing security of service to the Judges, their appointment would not be legal and valid.

(vii) We have pondered over the question as to what should be the effect of the above declaration on the sentences rendered and orders passed by these Courts. In this respect, we are clear in our mind that these orders, judgments and sentences cannot be invalidated on two grounds; firstly, because of doctrine of de facto exercise of power which is now part of our corpus juris. (See It. Col. Farzand Ali and others v. Province of West Pakistan (P.L.D. 1970 S.C. 98), Malik Ghulam Gillani v.

Province of Punjab (P.L.D. 1979. Lah. 564), Abdul Salam Qureshi and another v. Judge Special Court of Banking for Sindh and another (P.L.D. 1984 Karachi 462) sad Malik Asad Ali v. Federation of Pakistan (P.L.D. 1998 S.C. 33)) and secondly because of the reason that these convictions and orders have gone through the process of appeal which have been heard and decided by a Tribunal comprising of to Judges of this Court nominated by the Hon'ble Chief Justice and about whom it cannot be said that they did not enjoy the security of service. It is well-established principle of law that once an order is subject-matter of the appeal the order of the trial Court merges into the appellate judgment and it is the judgment of the appellate Court or Tribunal which alone remains in field. (See F.A. Khan v. The Government of Pakistan (P.L.D. 1964 S.C. 520). While on this quest we may state that the composition of Appellate Tribunal has not been questioned before us nor any prejudice has shown to occur to the petitioners.

(viii) In the case of Mehram Ali, the convictions and sentences were appealed against but his appeal was dismissed by the Appellate Tribunal comprising of Hon'ble Chief Justice and our learned brother M. Javed Butter, J. Who on re-appraisal of evidence came to the conclusion that his conviction was justified on 3 counts. It cannot be said that Hon'ble Judges comprising the Tribunal did not have any security of service. Consequently, even if there be any defect in the appointment of Judges of Special Courts, it would not vitiate the conviction of the petitioners which has been rendered finally by the Appellate Tribunal.

(ix) As regards and objection to section 26 of the Act which makes a confession before the police admissible in evidence suffice it to say that generally speaking, evidence is a matter of procedure and the question of admissibility is quite different from its credibility. Every confession made by an accused before a Police Officer would have to stand the test of strict scrutiny by the trial Court as also the Appellate Tribunal. Although proviso to section 26 provides some guarantee but we are of the view that in order to ensure that the provision in question is not misused certain additional safeguards should be provided, which should be that ordinarily the confession should be recorded in the presence of a Magistrate but if the is not available for some reasons which shall have to be stated by the Police Officer, the confession shall be recorded in the presence of a Superintendent of Police, who shall not be from the same Division in which the investigation is being carried out. The same view was taken in Kartar Singh v. State on Punjab ((1994) 3 Supreme Court Cases 569). We may also at this state re-iterate that the confession to be recorded by the Police Officer under the new law has been made merely admissible but is not conclusive. This confession shall be scrutinised by the Courts and in any case, it does not carry more value than extra-judicial confession.

(x) As regards the objection that the High Court and the Supreme Court have been deprived of their jurisdiction, there is nothing either in the Islamic Law or in the Constitution which says that the appellate forum must be either the High Court or the Supreme Court. Be that as it may, even if the judgment of the Appellate Tribunal is considered to be final in terms of section 31 of the Act, the power of judicial review vesting under Article 199 of the Constitution is not whittled down and remains available against the judgment and orders of the Appellate Tribunal, provided, a case for interference within the scope thereof is made out. We may, however, add that the learned Attorney-General for Pakistan has stated before us that in cases where the judgment of the trial Court is reversed by the Appellate Tribunal, a further right of appeal would be made available both to the State as also to the convict by making suitable amendment in the law.

(xi) Similarly, the contention raised on behalf of the petitioners that the Act is being retrospectively applied in violation of Article 12 of the Constitution is baseless. The acts of which the petitioners are found or alleged to have committed were offences at the time of commission of those offences and carried the same punishment which has been awarded to them by (he Special Court/Appellate Tribunal and as such there is no violation of Article 12 of the Constitution. It is a trite law that forum is a matter of procedure and no one can claim any vested right in it. Consequently, the mere fact that the petitioners were liable to be tried by the Special Court constituted under the Suppression of Terrorist Activities Act, 1975 and after the promulgation of the present Act, by the Special Courts under the provisions stated therein, does not militate or offend against the Constitutional provisions especially when no prejudice has been shown to have been caused to the accused. All this discussion appears to be academic inasmuch as section 38 itself provides that the punishment for the offences committed before the promulgation of the Act would be the same as authorised by law at the time when the offence was committed.

(xii)Mr. Muhammad Asghar Bokari, the learned counsel appearing for Mehram Ali has contended that though he was charged with Qisas but he has been punished under Diyat. The learned counsel himself conceded that it is permissible for a Court to punish a person for lesser offence though he has been charged with higher offence.

(xiii) Some of the learned counsel have challenged the validity of section 4 of the Act which allows the Federal Government to call armed forces and civil armed forces in aid of civil powers. No possible exception can be taken to this provision as a similar provision exists in Article 243 of the Constitution as also Cr.P.C.

(xiv) A strong exception has been taken by some of the learned counsel to section 5 of the Act which, according to them, violates Islamic right of privacy and also vests unbridled power in the Police to shoot down any person. Under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, the right to privacy is to be guaranteed as a fundamental right and it is indeed one of the cherished rights vesting in any individual. As is evident from Article 14, the right is subject to law and must yield to the ground realities. In order to curb the terrorist activities effectively, such powers have to be vested in the Police. Even Cr.P.C, contemplates use of such powers and there is nothing new in section 5. However, while upholding section 5, let a note of warning go to all concerned that in case section 5 is misused for ulterior purpose or Seven otherwise is abused, the person responsible for the same would have to face the consequences. Furthermore, if in a given case it is demonstrated the power has been exceeded those responsible for the same can be taken to task but as a general principle we cannot strike down the Act on the mere apprehension that it may be misused especially when in none of the cases before us nothing has been placed on record to show the misuse of power.

(xv) As regards the appellate provisions, though appellate forum has been mentioned as a Tribunal, it has all the trappings of a Court and judicial power can be vested in it.' (See Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. Etc. (PLD 1984 Lahore 69), which was affirmed in M/s Chenab Cement Product Pvt. Ltd. v. Banking Tribunal etc. (PLD 1996 Lahore 672). Neither under the Constitution nor under any principles of Islamic Law there is any compulsion when an appeal lies to a higher forum it must lie to the High Court. There are many instances where the appeal is provided to an appellate forum. The apprehension that the jurisdiction of the High Court has been ousted by making this law is again based-on misconception as notwithstanding finality given to the judgments and orders passed under the Act, the same can be judicially reviewed by the High Court under Article 199 of the Constitution. Furthermore, so far as the trial Courts are concerned, the High Court has the power to supervise and control their working as provided by Article 203 of the Constitution.

(xvi) We are also not impressed by the contention that the executive has been given unbridled power to choose- as to whether a particular accused would be tried by the Special Court constituted under this Act or Special Court under the Suppression of Terrorist Activities Act, 1975 or the ordinary Court. This contention fails to take notice of section 32 of the Act which over-rides any provision of the law for the time being in force and if a person is accused of having committed terrorist act under section 6, that case can only be tried by the Special Court constituted under the present Act and not any other Court.

(xvii) The other argument raised by the learned counsel to which notice may be taken is that under the Anti-Terrorism Act, 1997, the Government has been given unbridled power to amend the Schedule so as to exclude or include any offence in it. According to them, this amounts to application of legislative power by the Legislature in favour of the executive which could not be done.

(xviii) This contention is without any force. In law there is no bar on the Legislature to delegate some of its functions to some outside agency like carrying out amendments in the Schedule.

However, what is prohibited is, the unbridled and naked or excessive delegation of these powers.

There is nothing new in the Act as regards the delegation of power to amend the Schedule as similar power exists in many other laws like Custom Act, 1969 which has been upheld by superior Courts in many pases including that of Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 S.C. 358). Furthermore it is mis-conception on the part of the petitioners to assume that the power to amend the Schedule is naked or unbridled or unguided. In this respect while amending the Schedule the Legislature has confined itself within the limits laid down in section 6 of the Act. If any offence is included in the Schedule which has no concern directly or indirectly with the terrorist acts, obviously the amendment would be ultra vires.

(xix) As regards trial in absentia, the learned Attorney-General has conceded before us that no trial in absentia can be held. Appropriate measures shall be taken within a period of to months to amend or repeal section 19 of the Anti-Terrorism Act, 1997.

(xx) So far as the oath for non-muslim Judges is concerned, it requires modification inasmuch as, they cannot be asked to decide the cases according, to their on religious belief which may come in conflict with the Injunctions of Islam or the Constitution. Section 16 should be suitably amended so as to provide that in case of non-muslim Judges, they shall take oath to decide the cases in accordance with the Constitution, Law and their conscience.

We by majority four to one (Karamat Nazir Bhandari, J. Dissenting) hold that the convictions and sentences awarded by the Appellate Tribunal and the Special Courts are legal and valid and these petitions are, therefore, dismissed to that extent and the pending trials shall continue. If the remedial measures as suggested are not taken when the period fixed by us, the Act shall cease to operate. There shall be no order as to costs.

Malik Muhammad Qayyum, J Faqir Muhammad Khokhar, J Amir Alam Khan, J Raja Muhammad Sabir, J I have appended separate note regretting my inability to agree with my learned brothers for the reasons stated therein.

Karamat Nazir Bhandari .J KARAMAT NAZIR BHANDARI, J.-- For detailed reasons to be recorded later on, I hold inter alia and dispose of Writ Petitions No. 19963/97, 19984/97, 20998/97, 24690/97, 25712/97, 25713/97 and 989/98, as follows:-

(i) The objection to the enactment of Anti-Terrorism Act, 1997 (hereinafter called the Act), on the ground of absence of competence of the Parliament is over-ruled as it has not been shown that the Parliament/Majlis-e-Shoora is not competent in any manner to enact the law. On the contrary, I find that the subject of the Act is covered under and is related to Items N6s. 1, 2, 4, 16, 46 and 47 of Concurrent Legislative List, Part-II of the Fourth Schedule to the Constitution.

(ii) The power contained in section 5(2)(iii) to enter and search without warrant, any premises is absolute, unqualified and unguided and, therefore, violative of Article 14 of the Constitution. The Legislature has to lay down necessary, conditions such as contained in Criminal Procedure Code, 1898, to place check on the powers of the Police Officer. The power in the present form is liable to be misused.

(iii) Similarly power under section 10 of the Act to enter and search the premises merely on subjective satisfaction of the officer of the police etc. As to existence of reasonable grounds for suspicion is unbridled, arbitrary and unguided and, therefore, in violation of Article 14 of the Constitution. This power to enter and search the premises for recovery of material or recording has to be checked and made dependent upon conditions such as laid down in section 98 of the Criminal Procedure Code, 1898.

(iv) Keeping in view the principle of trichotomy of State/Sovereign power and independence of judicial organ and particularly provisions of Articles 2-A, 175 and 203 of the Constitution read with the judgments of the Superior Courts like Sharaf Faridi and others v. The Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404), Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and others (PLD 1996 Lah. 542), Government of Sindh v. Sharaf Faridi and others (PLD 1994 S.C. 105), Government of Balochistan v. Azizullah Memon and others (PLD 1993 S.C. 341) and Khalil- uz-Zaman v. Supreme Appellate Court, Lahore and others. (PLD 1994 S.C. 885), the conclusion is unavoidable that no Court, authority or Tribunal meant to exercise judicial power, can be established under the executive control. For a Court or Tribunal to be a "a Court" and to be, able to exercise judicial power, it must be independent of all executive influence. The composition of Special Courts and appointment of Presiding Officers to such Courts, as laid down in sections 13 and 14 of the Act, does not satisfy the Constitutional requirements and, therefore, I would hold that the Special Courts are illegally constituted. Appointment after consultation with the Chief Justice of the High Court is merely one requirement ensuring the proper composition of the Courts. Since the Other criteria like security of service and supervision of the Court by the High Court etc. Is not fulfilled, the composition of the Special Courts is bad. The Legislature had to provide for security of service, terms and conditions, supervision by High Court etc in the Act. And not by executive fiat.

(v) Provision for oath by Judge of a Special Court under section 16 of the Act, to my mind is cosmetic and redundant. In any case, if such a provision has to be made, a Judge has to be bound to decide the case according to Constitution and law and not "according to his conscience and belief" as has been provided in section 16 of the Act, for a non- muslim Judge.

(vi) The provisions of sub-sections (10), (11) and (12) of section 19 of the Act relating to trial in absentia have to be struck down as the same are in violation of the law declared by this Court in Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lah. 554) as upheld by the Supreme Court. Both learned Attorney General and Advocate General conceded this proposition.

(vii) Constitution and establishment of Appellate Tribunal under section 24 of the Act and provision of appeal to this Tribunal under section 25, instead of to the High Court, in my humble opinion, is unconstitutional. For over a century now the High Courts under various legal dispensations have been acting as highest criminal appellate Court in the Province. It has enjoyed this status and power under Criminal Procedure Code, 1898, Letters Patent, 1919, Government of India Act, 1935, Constitutions of 1956, 1962, Interim Constitution, 1972 and Constitution of 1973. No valid reason has been disclosed justifying departure from this age old legal position.

(viii) The establishment of Appellate Tribunal has no sanction under Article 175 read with Article 212.

It is also violative of Article 185 of the Constitution, as it denies recourse to a convict under the Act to approach the Supreme Court under the said Article while convicts by Courts of Session or even by Special Courts under Suppression of Terrorist Activities Act of 1975, have the right of recourse to the ultimate Court in the country. To my mind, this is also discriminatory and violative of Article 25 of the Constitution. (See Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and others (PLD 1993 S.C. 341); Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563) and Shrin Munir and others v. Government of Punjab and another (PLD 1990 S.C. 295).

(a) Even the State may face difficulty when it will find that against an order of acquittal recorded by Appellate Tribunal, it has no remedy as even the State cannot approach the Supreme Court under Article 185 of the Constitution against the judgment of Appellate Tribunal.

(b) Similarly the conviction recorded for the first time by the Appellate Tribunal, on appeal against acquittal by the Special Court under the Act, cannot be challenged in Supreme Court under the Act, although such a convict by High Court, can appeal to the Supreme Court as a matter of right.

How can, by any device, law giver deny what has been conferred by Article 185?

(c) It will be noticed that Article 185 of the Constitution although describes and lays down the appellate jurisdiction of the-Supreme Court, but at the same time is. Creating right of appeal and Petitions for Leave to Appeal from the Judgments and Order of the High Court. The intent of this Article cannot be negatived by establishing Appellate Tribunal under section 24 of the Act, even though it may be consisting of to Honourable Judges of the Court.

(d) In any case, making the nomination to the Appellate Tribunal by the Chief Justice conditional on notification by the Government is unconstitutional as it encroaches upon the independence of judiciary and of the Chief Justice enjoyed by him under the High Court Rules and Orders and the Constitution.

(e) Effort has been made to equate Appellate Tribunal with High Court for the purpose of confirmation of death sentence passed by Special Court, but no provision has been made to provide for difference of opinion between Honourable Members of Tribunal.

(f) It will also defeat the declared object of quick disposal, since a judgment of the Appellate Tribunal is liable to be challenged in Constitutional jurisdiction under Article 199, involving more Judges, over one and the same issue and more time.

(ix) Making confession before Deputy Superintendent of Police admissible under section 26 of the Act is departure from the age old provisions and accepted position as laid down in the Evidence Act, 1872, as well as Qanun-e-Shahadat Order, 1984. But I am inclined to agree with the submission of the Attorney General that the provision only makes the confession admissible and does not bind the Special Court to act upon it. However, the Legislature may consider the advisability of magisterial presence at the time of making of confession before the Deputy Superintendent of Police or some other measure so as to obviate the fear of extracting confessions by use of third degree methods or torture, a course prohibited by Articles 13 and 14(2) of the Constitution. Till then, it is hoped the Special Court will be extremely slow in relying upon such a confession.

(x) Power to amend the schedule given in section 34 of the Act, to me seems to be a case of conferment of legislative power on the Government, which cannot be done. The Legislature cannot efface itself. In any case, it seems to be a case of excessive delegation as the section does not lay down the guidelines for the Government.

(xi) Section 38 to the extent that it makes an offence covered by section 6 of the Act, committed prior to the enforcement of the Act, triable under the Act, is unconstitutional and violative of Article 12.

(xii) The provisions of this Act and that of. Suppression of Anti-Terrorist Activities Act, 1995, overlap and there is need for the Legislature. Jo clearly identify the boundaries for the harmonious operation of the to Acts.

(xvii) As laid down in Hakim Khan and others v. Government of Pakistan through Secretary Interior and others (PLD 1992 S.C. 595); Zaheeruddin and others v. The State and others (1993 SCMR 1718); Al-Jehad Trust and Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 S. C. 324), and Mahmood Khan Achakzai and others v. Federation of Pakistan and , others (PLD 1997 S.C. 426), the provisions of the Act cannot be invalidated by this Court on the ground of repugnance to the Injunctions of Quran and Sunnah. If at all, that can only be done by the Federal Shariat Court.

2. Since I am holding the establishment and constitution of Special Courts. Under sections 13 and 14 and that of Appellate Tribunal under section 24 as unconstitutional; logically the conviction and sentence of Mehram Ali, petitioner in Writ Petition No. 25713/97, has to be declared as without lawful authority. This conviction and sentence cannot be saved on the principle of defacto incumbency' as the defect is not in the eligibility and appointment of the Presiding, Officer (Sardar Mashkoor Ahmad, Advocate), but in the establishment and constitution of the Court itself. Question of prejudice is not material in such a case nor such an illegality will save the judgment under section 537 of the Criminal Procedure Code,, 1898. The very trial is vitiated and coram non judice. Further, even the appeal has not been heard and decided by the High Court, the only competent forum under the Constitution, as noted above.

3. I would, resultantly, allow Writ Petition No. 25713/97 and hold petitioner's conviction and sentence vide judgment and orders dated 15.9.1997 and 14.10.1997 to be .Without lawful authority, and of no legal effect. The result will be that challan/charges against this petitioner shall be deemed to be pending and will now be tried by duly constituted and competent Court.

4. Other petitions challenging the ongoing proceedings before the Special Court are also allowed and the criminal charges against such petitioner will be tried by dully constituted and competent Courts. All the petitions are disposed of in the above terms.

5. In the end I would like to place on record my, appreciation of the assistance rendered by the learned counsel and the learned Law Officers.

KARAMAT NAZIR BHANDARI, J.- Oh 9.3.1998 by a dissenting short order I had allowed and disposed of Writ Petitions No. 25713/97, 25712/97, 19006/97, 989/98 (Multan Bench), 24690/97, 20998/97, 19984/97, 19963/97 and Writ Petition No. 3929/98. By way of this judgment I proceed to give detailed reasons.

2. With the declared purposes of controlling terrorism and sectarian violence, Anti-Terrorism Act, 1997 (Act XXVII of 1997) was promulgated and enforced on 20.8.1997. Hereafter this Act will be referred to as "the Act". Under this Act, besides giving additional powers to the police officers/other agencies, the Government was authorised to establish and constitute Special Courts for purposes of trying offence created by the Act and those mentioned in. The Schedule. Mehram Ali; petitioner in Writ Petition No. 25713/97 was tried by Special Court (respondent No. 3 in that petition) and was convicted and sentenced to death on 23 counts on 15.9.1997. Mehram Ali appealed under section 25 of the .Act to the Appellate Tribunal created under section 24 thereof and his appeal was dismissed by the Appellate Tribunal (respondent No. 4). Death sentence of Mehram Ali, petitioner, on three counts was also confirmed by respondent No. 4 under section 374 of the Code of Criminal Procedure. He filed the Constitutional-petition to call in question the validity of the trial, the conviction and sentence recorded by the Special Court as upheld by the Appellate Tribunal on grounds which will be hereafter noted. Meanwhile, number of other petitions by persons apprehending trial before the Special Court or actually facing trial were also lodged. Writ Petition No. 19984/97 was filed' by one Syed Haider Faruq Maudodi through Mr. Rafiq Ahmad Bajwa, Advocate, as pro bono publico to question the vires of the Act/some of its provisions. Similarly, one Abdul Rasheed filed Writ Petition No. 19963/97 through Mr. Irshad Ahmad Qureshi, Advocate, again in pro bono publico for the same purpose. Mr. Nazir Ahmad Shami, Advocate of this Court, himself filed Writ Petition No. 20998/97 in the same capacity for questioning the vires of the Act. R.A. Awan, Advocate, filed Writ Petition No. ,24690/97 questioning the trial of his clients-petitioners by the Special Court. All these and similar other petitions were joined together and placed before the Full Bench.

3. Since important questions of law relating to interpretation of the Constitution was involved, Learned Attorney General for Pakistan was issued notice under Order XXVII-A of the Civil Procedure Cod%, 1908. Learned Advocate General, Punjab, represented the Province of Punjab alongwith his colleagues. Even though in the presence of aggrieved persons, there was no need of a pro bono publico but in view of the importance of questions involved, all the learned counsel were granted opportunity to address the Bench.

4. During the initial hearing Kh. Saeed-uz-Zafar, learned Deputy Attorney General, objected to the maintainability of these petitions on the ground that the Appellate Tribunal impleaded as respondent, consists of to Judges of this Court and under Article 199 of the Constitution the Tribunal is not a "person" and as such no writ can be issued to it nor the judgment passed by it can he subjected to scrutiny under the powers of judicial review. Reliance was placed on judgment reported as Abrar Hassan v. Government of Pakistan and another (PLD 1976 S.C. 315). In later hearing, however, the learned Attorney General did not press the objection of maintainability as, in his submission, the. Appellate Tribunal as constituted under section 24 of the Act, was not a High Court but was a "Persona Designate" and writ against "Persona Designate" is maintainable. He cited Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore etc. (PLD 1966 S.C. 1) and some other cases where Judges of this Court acting in other capacity were held to be Persona Designate and thus amenable to the power of judicial review.

5. The question is well-settled by now and stance taken by the learned Attorney-General is the correct one. Even in Abrar Hasson's case (supra) a distinction has been made between the 'High Court' and 'Judge of the Court'. While the High Court has been excluded from the definition of "person" given in Article 199(5) of the Constitution, a Judge of the Superior Court acting in any other capacity has not been so excluded. In such a situation the order of the special Tribunal or Court although presided by the Judges of the High Court, can be subjected to challenge, as such a Court or Tribunal will he a 'person' within the meaning of Article 199 of the Constitution.

6. Some of the learned counsel, particularly, Mr. Rafiq Ahmad Bajwa and Mr. Irshad Ahmad Qureshi, Advocates, challenged the enforcement of the Act and some of its provisions on the ground that same are un-islamic and violative of the Injunctions of Quran and Sunnah. It was vehemently urged that this Court can and should declare any law to be ineffective, if it finds the same repugnant to the principles of Islam as reflected in Quran and Sunnah, in other words, the argument was that even if the Act or some of its provisions can stand the scrutiny of Constitution, but if the same are repugnant to the principles of Quran and Sunnah, this Court should strike down the Act or/and its provisions.

7. The argument although quite zealous, ignores the repeated declaration of law. On this question by the Supreme Court. In judgments reported in Hakim Khan and others v. Government of Pakistan through Secretary Interior and. Others (PLD 1992 S.C. 595), Zaheer-ud-Din and others v. The State (1993 SCMR 1718), Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 S.C. 324), and M/s. Tank Steel and Re-Rolling Mills (Pvt) Ltd. Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 S.C. 77) the Supreme Court had held that Article 2-A is not a supra Constitutional provision and no provision of Constitution or law can be declared invalid on the ground of its repugnance to the Objectives Resolution. The Court has held that Article 2-A serves only as a beacon light and if it finds any law to be against the Quran and Sunnan, the COurt would bring the repugnance to the notice of Legislature who should make necessary amendments. In view of the above legal position, there is no force in this submission of these learned counsel and the same is hereby repelled. However, if any un-islamic provision in the Act is discovered, the same will be noted for the purpose of guidance of Legislature.

8. It is not disputed that some of the provisions of the Act are departure from normal provisions contained in the Criminal Procedure Code and are adverse to the accused-convict. However, all this is sought to be justified on the touchstone of the grave situation prevailing in the society due to sectarian violence and related terrorism. Learned Attorney General in this connection gave examples from countries like India and U.K. And cited before us the Provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 passed by the Indian Parliament, the Northern Ireland (Emergency) provisions Act, 1973 and The Prevention of Terrorism (Temporary Provisions) Act, 1974 passed by British Parliament, to contend that the provisions of the Act under consideration are not novel or extraordinary and that various countries faced with the threat of terrorism have legislated so to give increased power to the law-enforcing agencies and to create Special Courts or Tribunals to hear and decide cases. The learned Attorney-General also read before us the relevant provisions from the above Statutes to show that insofar as the normal individual rights of a citizen are concerned, these provisions are restrictive in nature. He also claimed that such provisions enforced in democratic countries like India and United kingdom have not been objected to by their Courts. In this connection he referred to some judgments also. According to his assertion, the Legislature has acted purely on bona fide and honest considerations and not a single instance can be cited where the provisions of the Act have been mis-used for political consideration. Learned Advocate General placed On record the figures showing the acts of violence related to religious sectarianism, the number of injured and the number of dead. Both the learned Law Officers claimed with vehemence that prevalent threat of terrorism and violence has to be met with iron had otherwise the country will be destabilized. It was contended that while -scrutinizing the provisions of the Act, this Court should keep in view the above had facts.

9. There can hardly be any cudgel with the laudable objectives underlying the submissions of the learned Law Officers. The society does not remain static and with passage of time law has to be changed to cope with the fresh problem. The power of Assembly/Parliament to do so subject to the provisions of the Constitution, cannot be denied nor Legislature can be attributed any bad motive.

The presumption is to the contrary. Although one or to learned counsel did make a sweeping submission that while passing the law the Legislature had unwittingly fallen trap to International conspiracy of encouraging terrorism, but this submission need not be seriously noticed. While reference to laws made in other countries to deal with the similar situation and instinctive and educative but this alone does not suffice to determine the validity of the Act and its provisions. This latter exercise will have to be undertaken by the Courts of this country keeping in view the provisions of Constitution. The Constitution is the ultimate touch-stone upon which the validity of every law or any provision of law will have to be tested. The reference by the learned Attorney General to cases from Indian Jurisprudence like (AIR 1988 S.C. 922), makes instructive reading but I find that as such there is no adjudication relevant to the points arising in this case, I reiterate, these points will have to be determined according to the Constitution of this country.

10. Administration of criminal justice in this part of the world and in the territories which became Pakistan in 1947, has been taking place mainly in accordance with the provisions of Code of Criminal Procedure, 1898, while Pakistan Penal Code promulgated in 1860, defines crimes and provides for their punishment. The Criminal Procedure Code, 1898, lays down the procedure for report of crime, its investigation, powers of police, place of trial, constitution of various Courts, their powers to try the offences, appeals/revision and all ancillary matters. Sections 6 of the Criminal Procedure Code, 1898 provides the classes of Criminal Courts and places the High Court at the apex. This position is re-affirmed in the Letters Patent of the Lahore High Court, 1919, Government of India Act, 1935 and is further recognized throughout successive Constitutions of 1956, 1962, Interim Constitution, 1972, and finally the Constitution of Islamic Republic of Pakistan, 1973. The High Court is, therefore, the highest Court of administration of criminal. Justice in a Province and by virtue of Article 203 of the Constitution, 1973, the High Court has been given the power of control and supervision over all Courts subordinate to it. Subject to provisions of Article 185 of the Constitution, the judgments and sentences imposed by the High Court are final. This mechanism/procedure for administration of criminal justice has been prevalent for well over a century now and has the advantage of the citizen being familiar with the same and having acquired/reposed confidence in the same.

11. It is a fact that the society does not remain static and, therefore, the laws have also to undergo the change so as to cater to the needs of society. The collective will of the society is represented in Assembly and Parliament. It is these bodies which have been entrusted the task of bringing about changes in-the laws. In all legal dispensations, Constitution stands at the zenith and all other laws are subordinate to the same. It is expected and required that the country will be governed in accordance with the Constitution and the laws made by the Parliament and Assemblies will have to stand the scrutiny and remain under the umbrella of the Constitution. The Constitution [Article 8(1)] provides that if a law or any provision of law is found repugnant to any of the fundamental rights, the same shall be void to the extent of repugnancy. The Constitution creates a forum of superior judiciary in the form of Supreme Court and High Courts to undertake this exercise and also review the administrative actions. The provisions of the Act, therefore, will have to be scrutinized in the light of the Constitution and the concept of independence of the judiciary as enshrined therein and as repeatedly pointed out by the judgments of the Superior Court like Sharaf Faridi and others v. The Federation of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 S.C. 105) and Full Bench Judgment of this Court in Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and others (PLD 1996 Lahore 542) and M/s. Chenab Cement Product (Pvt) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) on the validity and the constitution of Banking Tribunals and Special Courts to try the banking offences. It is in the light of this background that I proceed to examine the questions raised m these petitions.

12. To begin with, I would take up the points/questions which have been either candidly conceded by the learned Attorney General or have not been disputed. The first of such points is the provision with regard to the trial in absentia. The learned Attorney General submitted, and correctly in my opinion, that in view of the law declared by this Court in Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554), as upheld by the Supreme Court, the provisions with regard to trial in absentia axe bad in law. Consequently sub-sections (10), (11) and (12) of section 19 of the Act are hereby declared as illegal and of no legal effect.

13. Next question and this is of vital importance is the provision contained in section 14 regarding composition of and the appointment of Presiding Officers of Special Courts. This Court in Imran's case (supra) laid down the criteria for composition of Courts within the meaning of Articles 175/203 of the Constitution. It was held at page 547 of the report "As to the attributes essential for exercise of judicial power, following features of 'judiciary proper' was emphasized:-

(i) Appointment of the Presiding Officer of the Court with the meaningful consultation of the High Court.

(ii) Providing of definite tenures and terms of appointment and ensuring security of the said tenure and terms.

(iii) Vesting of power of transfer of the Presiding Officers and the cases within the judicial hierarchy and not with the Executive.

(iv) Financial independence to be secured and allowed.

(v) Vesting of general supervision and superintendence in the High Court and not in the Executuve.

During the course of his submissions it was frankly stated by the learned Attorney General that the provisions of section 14 do not come upto the above standard. Under section 14, although provision for consultation with the Chief Justice of the High Court is made but there is absolutely no provision for security of tenure, terms and conditions of appointment and the supervision of Special Courts by the High Court.

14. To the above criteria I would only respectfully add that keeping in view the principle of trichotomy of sovereign power into Executive, Legislative and Judicial as well as the history of administration of criminal justice and the Constitutional provisions, particularly Articles 2-A, 175 and 203, there is absolutely no room to confer judicial power on any executive authority or on any Court, Tribunal, forum or authority by whatever name called which is subject to executive control. In State v. Zia-ur-Rehman (PLD 1973 S.C. 9), with reference to a system based on trichotomy of sovereign powers, it was postulated that "then ex necessitate rei, from the very nature of things, the judicial power must be vested, in the judiciary. This conclusion is further affirmed by frequent and repeated references to Islamic history where the Caliph surrenders to the authority of the Qazi and physically appears before him. As we Pakistanis as a nation draw inspirations from the precepts of Holy Prophet (PBUH) and four rightly guided Caliphs, the Executive and Legislative organs of the State should refrain from encroaching upon judicial organ in any manner whatsoever. A Court or Judge under executive control and influence is an anomaly and self-contradiction. I, therefore, have no hesitation in holding that the Special Courts constituted under section 14 of the Act are no Courts in the eye of law and resultantly the proceedings held by them have to be declared as without lawful authority. If the law-giver has to persist with these Courts, it has to come upto the standards laid down in the Full Bench Judgment in Imran's case (supra), as it did in the case of Special Courts constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as the STA, by adding sub-sections (2A) and (2B) in section 3 of the Act, on 4th February, 1997, providing for security of service and removal only on charge of misconduct. The learned Attorney General was unable to explain as to how the law-maker' failed to notice this accepted legal position and make a departure from the same.

15. The area of dispute as regards provision of appeal by way of sections 24 and 25 of the Act is not much as during the course of discussion, the learned Attorney General accepted that these provisions need recasting and changes so as to bring them in accord with the Constitutional intention and for making it workable. Section 24 provides for establishment of one or more.

Appellate Tribunals for each province consisting of one or to Judges of the High Court to be nominated by the Chief Justice of the said Court and notified by the Government. Under section 25, an appeal from the final judgment of the Special Court lies to the Appellate Tribunal, in case of acquittal by the Special Court or a sentence passed by a Special Court, the Attorney General or an Advocate General can file an appeal to the Appellate Tribunal. Under sub-section (6) an Appellate Tribunal can be directed to, sit at such places and have jurisdiction within such territorial limits as may be fixed by the Government. The Appellate Tribunal under sub-section (7), has been given the power of appellate Court under Chapter 31 of the Code of Criminal Procedure, 1898. This power has been made subject to sub-section (8) which sub-section denies the power of release on bail pending appeal.

16. As noted in earlier part of the judgment, for well over hundred years and under the present Constitutional dispensation, it is the High Court which is the highest Criminal Court in the Province.

Under the Code as well as under the STA, sister legislation in the same field, the appeal vide section 7, against the sentence imposed by the Special Court as also against the order of acquittal, lies to the High Court. Under Article 185 of the Constitution, a further appeal is provided to the Supreme Court of Pakistan in some of the cases [Sub-Article (2)] while in other cases the Supreme Court can hear appeal from the judgment and sentence of a High Court provided it grants leave to appeal. Learned Attorney General admitted the anomalies in sections 24 and 25 of the Act. It was conceded that in the event of appeal against the order of acquittal of the Special Court if the Tribunal convicts the accused for the first time, the convict will have no right to go to the Supreme Court under Article 185(2) of the Constitution because the said Article gives power of appeal against the judgments/Orders of the High Court and not of Appellate Tribunal. Similarly against the order of acquittal recorded by the Tribunal, the State will have no right of recourse to the Supreme Court.

17. This denial of right of appeal to the High Court and in fact the very establishment of Special Courts, has been attempted to be justified by the learned Law Officers on the ground that the Act is a special enactment meant to deal with a grave situation obtaining in the Country due to sectarian violence and related acts of terrorism. In fact learned Advocate General placed on record facts and figures to show the progressive increase in such incidents. However, asked as to why the High Court is not deemed appropriate for the purposes for which the Appellate Tribunal has been created, the learned Law Officers could not give any satisfactory answer except that the cases are generally delayed in the High Court and it is paramount that cases of terrorism be expeditiously dealt with. This argument, in my view, cannot hold water on deeper analysis. The causes of delay in the High Court and the learned Law Officers cannot be unaware of the same, are various and on top of the list of such cases is the under-staffing. For instance the sanctioned strength of this Court is fifty for the last twenty years or so, but at no point of time, this Court has worked to its full strength muchless increasing it to cope with flood of cases, mostly pertaining to review of administrative actions (Pendency figure at present is around 75 to 80 thousands). The other important cause is requests for adjournments coming from members of the Bar including senior one, on ground of their engagements before various Benches of this Court and in the Supreme Court. The argument, therefore, that creation of Appellate Tribunal would expedite the matter, can only be a half truth. In fact at the initial stages the position taken by the learned Attorney General was that for all purposes the Appellate Tribunal is a High Court as it consists of the to Judges of this Court. On further thought, however, the Attorney General took the position the Appellate Tribunal is a persona designata and not the High Court. This position taken by the learned Attorney General is correct. There is absolutely no logic in insisting that when to Judges of this Court hear the appeal as Tribunal the matter is expedited but when the same Judges hear the appeal as High Court, the matter is delayed.

18. The denial of right of appeal to the High Court as the century old highest Criminal Court in the Province, is open to other serious objections. Under Article 175 of the Constitution, there can only a High Court for each Province. How another Court or authority or Tribunal to perform the functions similar to that of the High Court can be created and that also under ordinary law like the Act? I am clear in my mind that this cannot be done either under Article 175 or Article 212 of the Constitution. If at all this could be done, it can only be done by changing the Constitution as was done in 1991 by adding Article 212-B for a period of three years only for "Establishment of Speedy Courts for trial of heinous offences". The law-giver ought to have known that it was the said Constitutional provisions which created a new appellate forum viz Supreme Appellate Court, and not an ordinary law.

19. The constitution of Appellate Tribunal in place of High Court is otherwise discriminatory. While a person sentenced to death by a Sessions Court under the Code of Criminal Procedure, 1898, or by a Special Court under STA can have the satisfaction of his appeal being heard by an aged old institution such as High Court, a person similarly sentenced to death by a Special Court under the Act is denied this satisfaction. Article 185 of the Constitution, while it confers upon and enumerates the powers and jurisdiction of the Supreme Court, simultaneously creates a very important right of appeal and leave to appeal upon the citizen. The convicts in first to cases can resort to the Supreme Court under Article 185 of the Constitution, while a convict in the latter case cannot do so.

This discrimination is admitted but is sought to be justified on the ground that Anti-Terrorism Act, 1997, has been enforced for checking grave danger of sectarianism and related violence in the society. It was pointed. Out to the learned Law Officers that one of the purpose for enacting STA as stated in the Preamble itself is also the control of sectarianism and terrorism. The discrimination, therefore, in my view is not justified keeping in view the objects of the to Acts and Article 25 of the Constitution.

20. Another provision' in section 24 of the Act which offends the independence of judiciary and in fact of the Chief Justice is that nomination of Judges of Appellate Tribunal is to be notified by the Government. This provision provides handle to the executive to manoeuvre the constitution of the Appellate Tribunal and thus the administration of justice. I hold the said provision to be bad and violative of Article 175 (3) of the Constitution.

21. Even on purely practical plane, it is highly likely that every conviction and sentence as upheld by Appellate Tribunal will be subjected to challenge by resorting to the power of judicial review under Article 199 of the Constitution and this will involve definite delay. The aspect of further delay is that against the order of this Court passed in exercise of Article 199 of the Constitution, resort to the Supreme Court can certainly be made under Article 185 of the Constitution. The creation of Appellate Tribunal in derogation of the High Court for hearing appeals etc., therefore, is a self- defeating exercise. It will further delay the end of case rather than accelerate it, which is the declared purpose of the Act; I would, therefore, hold that sections 24 and 25 of the Act are not only ultra vires of the Constitution but pragmatically, a self-defeating exercise.

22. I now proceed to examine the other provisions of the Act. The provisions of sections 5 and 10 may be examined together as the ground of attack on these to provisions is common. It is contended that these provisions confer unguided and excessive powers on the police officers etc. Which have the potential of being misused. It is urged that these provisions are violative of fundamental right contained in Article. 14 of the Constitution. The relevant provisions of the Act and the Constitution are reproduced for facility of reference:- Article 14 of "Inviolability of dignity of man, etc. the Constitution.

(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

(2) No person shall be subjected to torture for the purpose of extracting evidence".

Section 5 of the Act "Use of armed forces and civil armed forces to prevent terrorism:- (1) Any police officer or member of the armed forces, or civil armed forces, who is present or deployed. In any area may, after giving sufficient waring, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in;the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1), an officer of the police, armed forces and civil armed forces may:-

(i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence,' and it shall be lawful for any such officer, or any superior officer to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof;

(ii) arrest, without warrant, any person who has committed an act of terrorism or a scheduled offence or against whom a reasonable suspicion exists that he has committed, or is about to commit, any such act or offence; and

(iii) enter and search, without warrant, any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used, or likely to be used, in the commission of any terrorist act or scheduled offence.

(3) Nothing contained in sub-section (1) or (2) shall affect the provisions of Chapter IX of the Code and the provision of senior. 122 of the Cede shall apply to any person acting under this section".

Section 10 of the Act reads:- {{TEXT MISARRANGED}} "Power to enter or search.- If any officer of the police, armed forces or civil armed forces is satisfied that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 8, he may enter and search the premises where it is suspected the material or recording is situated and take possession of the same"

23. It will be seen that the right of privacy of home is sacrosanct but is subject to law. The expression subject to law came under examination in judgments reported as Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province. Of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 S.C. (Pak)9) and Zaheer- ud-Din and others v. The State and others (1993 SCMR 1718). In both, the expression has been defined to mean that it cannot take away what is guaranteed by the Constitution. In other words by law the privacy of home cannot be destroyed. The Legislature cannot take away what has been conferred by the Constitution. The other consideration is the demand and welfare of the community. The superior Courts, while interpreting the relevant provisions, have to try to strike a balance and give an interpretation which is workable and harmonious. Keeping in view these guidelines and the declared purpose of the Act, I find that the power conferred on police officer under Section 5 (1) is reasonable and is not violative of Article 14 of the Constitution. Similarly the powers conferred under sub-section (2) clauses (i) and (ii) seem to be reasonable. This determination, however, would not protect the mala fide and arbitrary acts of the police officers etc.

24. The provisions of section 5(2)(iii) and section 10 of the Act are disproportionate to the demand of the situation and are repugnant to Article 14 of the Constitution. The provisions, contained in the Criminal Procedure Code, 1898, sections 47, 48, 98 and Chapter XIII seem potent enough to meet the situation, and departure made from these is not justified. The police officer must be obliged to enter a house or a premises under section 10 only under a search warrant issued by a Magistrate.

Power of entry and arrest under sections 47 and 48 Cr.P.C, are adequate' and can meet the contemplated situation. The provisions of sections 5(2)(iii) and section 10 of the Act are hereby struck down as violative of fundamental right contained in Article 14 of the Constitution.

25. Next the question of Oath under section 16 may be examined. The section of the Act is reproduced below:- Oath by Special Court.- A Judge of a Special Court shall, at the commencement of a proceeding under this Act, make oath, in the case of a Muslim, on the Holy Quran, to the effect that he shall decide the case honestly, faithfully and considering himself accountable to Almighty Allah, and in case of a non-Muslim in accordance with his faith to the effect that he will decide the case honestly and faithfully according to his conscience and beliefs."

It is clear that the provision is rather unusual. It has never been in dispute that a Judge has to render honest decisions, in accordance with law as he under-stands it. What further purpose the lawgiver Wants to achieve through this provision, has not been made clear. To me it seems the provision is cosmetic and redundant. However, none of the learned counsel was able to show the provision is in any manner, against any Constitutional provision or any fundamental principle of jurisprudence. It, therefore, cannot be struck down. However, the provision for decision of the case by a Non-Muslim Judge "honestly and faithfully according to his conscience and belief" has the potential of being mis-interpreted and misused since a Judge is obliged to decide the case according to Constitution and law and not "according to his conscience and belief. Suppose a Non-Muslim Judge holds killing of a Muslim on the basis of his belief justified even though it is a 'murder', it cannot be said that such a Judge has violated his oath. The Legislature may reconsider the provision for retaining it or recasting it.

26. The next to be considered is section 19. The provision with regard to completion of investigation within seven days under sub-section (i), has been attacked on the ground that in certain circumstances the completion of investigation within this given time may be impossible. Even if this may be so, it hardly is a good ground to strike down the provision as it has not been shown to offend against any provision of the Constitution or accepted norms of natural justice. Such a provision has been appearing in similar earlier statutes and has been judicially held as directory and not mandatory.

27. Sub-sections (10), (11) and (12) of section 19 have already been declared illegal in earlier paragraphs as the same pertain to trial in absentia.

28. Sections 24 and 25 deal with the question of appeal and have already been dealt with in earlier part of this judgment. I hold that the present provisions are invalid and that appeal will have to lie to the High Court.

29. Serious objection has been taken to the provision in section 26 regarding admissibility in evidence of confession made before police, as laid down in section 26 of the Act. The said section is reproduced as under:- "Admissibility of confession made before police. - Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (P.O. 10 of 1984), a confession made by a person accused of an offence punishable under section 7 or section 8 of this Act or an offence covered by subparagraph (a) of paragraph 2, or paragraph 3 of the Schedule to this Act, or robbery or dacoity with murder or rape before a police officer not below the rank of a Deputy Superintendent of Police may be proved against such person; Provided that a Special Court may, for admission of the confession in evidence, require the police office to produce a video tape together with the devices used for recording the confession."

30. It is urged that this provision does away with the safeguard provided to an accused under the Evidence Act, 1872 later incorporated in Qanun-e-Shahadat Order, 1984. It is urged that keeping in view the present standard of efficiency and integrity of our police, making provision for admissibility of confession amounts to arming them with potential weapon of misuse, victimization and corruption. In reply it is contended, by the learned Attorney General that the provision has been made keeping in view the peculiar circumstances in cases of terrorism where the witnesses do not come forth for fear of reprisals. It is emphasised that due to the fear created by such accused, persons are afraid of appearing as witnesses. It was also urged that in any case this provision does not bind the Court to accept or rely or believe such a confession.

31. It is correct that admissibility and veracity of evidence are to different concepts. Whether to rely or not, on a piece of admitted evidence is the function of the Court. Making the confession made before the Deputy Superintendent of Police in cases specified in this section is a a departure from the earlier provisions but has not been shown to be violative of any provision of Constitution. Such a confession is like an extra-judicial confession which may or may not be accepted by the Court, depending upon the facts and circumstances of each case. It is possible to conceive of a case where the extra-judicial confession may be of such a nature that the Court is inclined to accept the same. The objection, therefore, to this provision of law is over-ruled. However, it is clarified that if in a given case, the confession is shown to be violative of Article 13(b), in that the accused has been compelled to be a witness against himself, the Court-will have no hesitation in ruling it out of consideration.

32. Serious objection has been taken by Mr. R.A. Awan, Advocate, and Mr. Rafiq Ahmad Bajwa, Advocate, to the exclusion of power to grant bail from ordinary Court, in particular, the High Court. It is urged that an accused person is presumed to be, innocent and the law-giver has wrongly encroached upon the judicial power to release on bail an accused person on the grounds stated in sections 497 and 498 of the Code. The attack on the same line is directed against sub-section (8) of section 25 of the Act whereby pending the appeal, the Appellate Tribunal has been restrained from releasing the accused on bail. The learned Law Officers have defended the provisions by citing earlier statutes incorporating similar provisions. It is also pointed out that as the Appellate Tribunal is required to decide the appeal within seven days, the provisions shutting out the power to grant bail pending appeal is justified.

33. It may be seen that under sub-section (4) of section 13 of the Act, the power of bail has been exclusively reserved with the Special Court. The Special Court will not release the accused person on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged. Similar provision is contained in ordinary law of bail (sections 497 and 498 Cr.P.C.). It is true that no provision is made for grant of bail by the High Court or by the Appellate Tribunal, pending decision of the trial. Since the question of bail is procedural, the Legislature cannot be denied the right to legislate on the same and to curtail the right. The restrictive provision of bail can be justified for the reasons that the Special Court is under a mandate of decide the case expeditiously. In a case, however, where unconscionable or unnecessary delay is caused, the aggrieved party can approach the High Court under its power of judicial review. However, as discussed in earlier part of the judgment while dealing with sections 24 and 25, if the law is changed to provide for appeal to the High Court this objection of the petitioners will be automatically taken care of.

34. Now I proceed to examine section 34 of the Act which is reproduced below:- "34. Power to amend the Schedule. - The Government may, by notification, amend the Schedule so as to add any entry thereto or modify or omit any entry therein."

It will be seen that Schedule is always part of the statute and any amendment in the statute is a legislative act which can only be performed by Legislature and not by the Executive. It will further be seen that no guideline whatsoever has been provided in section 34 to the Government for adding or modifying of omitting any entry in the Schedule. The argument is to-fold, (i) that on the face of it, the Legislature has effaced itself which is not permissible under the Constitution; (ii) that assuming that the Government could be conferred the power of amending the Schedule, in the absence of any guidelines by the Legislature, the conferment is impermissible. It is correct that in modern legislation, governments and other agencies are given power to make subsidiary laws like rules because the legislature cannot possibly foresee all the eventualities in the working of the law.

This power of rule-making is different from the power of legislation itself. In the Act, power to make rules has been conferred under section 35 and if the Government was to amend the Schedule acting under the rule making power, the amendment would have been indefensible. How can it be defensible if the same purpose is sought to be achieved under section 34 ibid. To me it is a case of abdication of its power by the Legislature. Reliance can be safely placed on Sobho Gyanchandani v. Crown (PLD 1952 F.C. 29), wherein the provision empowering the Executive to extend the life of the Pakistan Public Safety Ordinance, 1949, was held to be a case of excessive delegation. Even if this conferment of power be said to be" not impermissible, the Legislature ought to have given guidelines to the Government for exercising this power. As it is, the same is uncontrolled and unguided. However, I tend to agree with the submission of the learned Law Officers that this provision can be left for deeper examination .In a proper case, i.e., a case where the Government has actually added or modified the Schedule and a person feels directly aggrieved and challenges the same.

35. Mr. Asghar Khan Rokari, Advocate,- objected to the provisions of section 38 of the Act on the ground that the same is violative of Article 12 of the Constitution which provides protection against retrospective punishment. Section 38 reads as under:- "38. Punishment for. Terrorist act committed before this Act.- Where a person has committed an offence before the commencement of this Act which is committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed."

36. It will be seen that this provision makes an offence triable under this Act which has taken place prior to the enforcement of the Act provided the same constitutes a "terrorist act" under the Act but the punishment is the same as authorised by law at the time the offence was committed. The "terrorist act" has been defined in section 2 (h) of the Act and has the same meaning assigned to it as in section 6. Section 6 creates and 'defines a new offence which is known as "terrorist act" and is made punishable under section 7. If the act has taken -place which constitutes a "terrorist act" prior to 20.2.1997, the date of enforcement of the Act and the crime is sought to be punished under the Act, the same is clearly in violation of Article 12 which lays down that no law shall authorise the punishment of a person "for an act or omission that was not punishable by law at the time of the act or omission". As noted, the offence of "terrorist act" is being created for the first time on 20.2.1997 and can only be punished under the Act, prospectively. The bar in Article 12 of the Constitution is not against the quantum of punishment but to the punishment itself. This provision is, therefore, held to be repugnant to fundamental right contained in Article 12 ibid and is, therefore, void.

37. I have dealt with the objections specifically raised and argued before us. The absence of adjudication on any other point would not mean that same is valid. It only means that the same would come under scrutiny later on, if and when challenged by an aggrieved person.

38. I have held the establishment and constitution of Special Court under sections 1'3 and 14 of the Act and that of the provision of appeal under sections 24 and 25 of the Act as un-Constitutional.

The next question to determine is the effect of the above finding on the conviction and sentence of Mehram Ali, petitioner in Writ Petition No. 25713 of 1997. Logically the conviction and sentence has to be declared as without lawful authority. However, it has been strongly. Canvassed that the same are saved on the application of principle of de fecto incumbency. Reference has been made to Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 S.C. 1473), Atlas Autos Limited and others v.

National Industrial Relations Commission, Islamabad and others (PLD 1990 Karachi 362) and It. Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 S.C. 98).

39. In my view the de fecto doctrine is not applicable to the present case. There are to reasons for it. First the trial as well as the judgment delivered by respondent No. 3 in the writ petition as upheld by respondent No. 4 is directly under challenge. A specific prayer has been made that these judgments be declared to have been passed without lawful authority. In other words, the judgments are not under challenge collaterally, but directly. The second reason is that the defect- here is not in the wrong appointment of the Presiding Officer of the Special Court, but in the very establishment and constitution of the Court itself. It has not been argued that Sardar Mashkoor Ahmed, Advocate, the learned Presiding Officer of Special Court (respondent No. 3), was in any manner incapacitated or not eligible to be appointed as Judge of the Special Court. He-qualifies to be appointed to the Special Court under section 14 (I)(iii) of the Act. In other words, he has for a period of not less than ten years been an Advocate. Under sub-section (2), his appointment has been made in consultation with the Chief Justice of the High Court, as is apparent from the documents shown to the Bench during the course of hearing. The finding is that constitution of Special Court itself is defective, inasmu ch as, it falls short of the criteria laid down in the Full Bench Judgment of this Court, already noted. In Gokaraju's case (supra), a distinction between appointment of a person as Judge and a Court itself has been made. The learned Judges, while applying the doctrine of de fecto incumbency have held:- "it matters not that the incumbent was not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders or the Court of Session, notwithstanding that his appointment to such Court might be declared invalid On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the Court itself is under challenge."

The Supreme Court's Judgment in Farzand Ali's case (Supra) relied upon is not directly in point. As noted in the short order itself, the illegality in trial by an incompetent Court is not saved under section 537 of the Criminal Procedure Code, 1898. The trial is coram non judice.

40. The further reason to allow the writ petition and to direct retrial is the defect in the constitution of the appellate forum as discussed in the earlier, paragraphs (paras 15 to 21) of the judgment. The inference is that even the appeal has not been heard by a constitutionally provided forum, i.e., High Court. The argument, therefore, by the learned Law Officers that the defect in the trial and conviction of Mehram Ali, petitioner, stood cured by hearing of the appeal by to Judges of this Court as members of the Appellate Tribunal, does not carry any weight nor for that matter, the judgment of the Special Court merges into that of the Appellate Tribunal. In a case involving capital punishment a convict has a right to insist that his appeal ought to be heard by a forum envisaged by the Constitution and also that he be hanged only after the death sentence has been confirmed by such a forum. With respect, the doctrine of merger of judgments is not applicable in this case.'

41. I would, therefore, allow Writ Petition No. 25713/97 and declare the judgments dated 15.9.1997 and 14.10.1997 passed by respondents Nos. 3 and 4, respectively, to have been passed without lawful authority. The charges against Mehram Ali, petitioner, shall be deemed to be pending and would now be tried by duly constituted Court. The other petitions in which the trial by the Special Court is challenged, are also allowed with the same direction that the charges against each of the petitioner shall be tried by competent and duly established Court. .

42. Before parting with this judgment, I would like to make observations on the advisability of establishment of Special Courts and Tribunals in preference to the ordinary established Courts for trial of offences and for administration of criminal justice. As has been noted in the earlier part of the judgment, the present system of administration of justice at the hands of the Courts of Magistrates, Sessions and High Court have been in vogue for well over a century now I have already held that Legislature is competent to change the law and to also establish new Courts keeping in view the requirement of the society as well as the demands of new situation. However, the Legislature must have some compelling reasons to make departure from the existing system of administration of criminal justice. The reason repeatedly advanced before us by the learned Law Officers in support of the promulgation of the Act was the inability of the Courts of Session to expeditiously try the offences involving sectarian violations and terrorism. This justification is not the whole truth. In any case, if the present set of Courts was found incapable of dealing with the situation, the need was to remove those deficiencies and augment the present system rather than installing and establishing an altogether parallel system of Courts. While Special Courts have been established earlier, the enforcement of Suppression of Terrorist Activities Act, 1975, was a first major departure in administering criminal justicer Insofar as trying offences involving capital punishment are involved, in late 1980's another experiment with establishment of speedy Courts was carried out and in 1997, is the present Act, giving another set of Courts. Before us no rational analysis has been placed by any of the learned Law Officers showing that all the amount of time and money invested in these Courts is justified and that since 1975, the recurrence of offences involving capital punishment has decreased. In one of the documents placed on record by learned Advocate General, I find that a sum of about Rs. 54 million approximately has been reserved for establishment of Special Courts under the Apt, This is lot of money and if this much of the money was spent in augmenting the present system and in removing the deficiencies in the Courts, the things would have been much better and the system would have given better results.

43. Surely the Legislature cannot be presumed to be ignorant of the deficiencies in the present Courts. Leave aside the Courts of Magistrate (Judicial and Executive) even the Courts of Sessions have far less Judges than the phenomenal rise in the number of cases, the building and furniture are hopeless, the pay scales are miserly, the staff and stationery are had to come by. According to the document placed on record by the learned Advocate General, a Judge of Special Court under the Act is paid Rs. 35,000/- salary, more than that of the Judge of the High Court and the Supreme Court, apart from host of other facilities, benefits and special security. The law-maker ought to have considered these aspects also., It takes decades to build confidence in institutions and Courts are no exception. This confidence is a national asset. It is not desirable that this confidence and asset built over decades be whittled down or wasted. If a sum of Rs. 54 millions is reserved for the present Special Courts, lot of money must have been spent on establishing Speedy Courts in the past and no Special Courts under STA Act. And with what result? For a change the Legislature as well as the Government may consider the advisability of providing all these resources to the existing set of Courts and see whether the results are in any way worse.

44. I do place on record my appreciation of the assistance rendered by learned counsel and the learned Law Officers.

FAQIR MUHAMMAD KHOKHAR, J.- By this common judgment we propose to give detailed-reasons in support of our short order dated 9-3- 1998 whereby the following writ petitions were dismissed by us, by a majority of 4 to 1 (Karamat Nazir Bhandari, J. Dissenting):-

(1) W.P. No. 25713 of 1997.

(2) W.P. No.25712 of 1997.

(3) W.P. No.19006 of 1997.

(4) W.P. No.989 of 1998 (Multan).

(5) W.P. No.24690 of 1997.

(6) W.P. No.20988 of 1997.

(7) W.P. No.19964 of 1997.

(8) W.P. No. 19963 of 1997.

(9) W.P. No.3929 of 1998.

The short order announced by us is reproduced here-under so as to form part of this judgment:- "2. On 20-8-1997, the President of Pakistan promulgated Anti- Terrorism Act (XXVII of 1997) whereby Special Courts for trial of terrorists were set up. The validity and vires of this enactment has been questioned in these petitions inter alia on the ground that as a similar law already exists in the form of Suppression of Terrorist Activities (Special Courts) Act, 1975, no second law was necessary nor could it have been framed, that the promulgation of the Act was beyond the Federal legislative competence and that the Act militates against the "independence of judiciary guaranteed by Article 175 of the Constitution. Apart from the Act as a whole, certain provisions of the Act have also specifically been challenged on the touchstone of fundamental rights.

3. Writ Petitions No. 20998/97, 19984/97, 19963/97 and 19006/97 have been filed probono publico by the respective petitioners who have no personal interest in the matter. However, in W.P. No. 25713/97, Mehram Ali petitioner has challenged his conviction by the Appellate Tribunal and the trial Court, in W.P. Nos. 989/98 (Multan) and 24690/97, Falak Sher and Basam Laeeq petitioners are presently being tried by different Special Courts for different offences and they have assailed their trial by filing these petitions.

4. After hearing the learned counsel for the parties, learned Attorney-General for Pakistan and the learned Advocate-General, Punjab, we have reached the following conclusion for which detailed reasons shall be furnished later on.

(i) That the challenge of the petitioners to the legislative competence of the Parliament to enact Anti-Terrorism Act, 1997 is wholly without basis. The subject clearly falls in the concurrent legislative list given in the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973, particularly items Nos.1, 2, 4, 46 and 47. From the material placed on record and the facts and circumstances obtaining on the record, we are of the view that terrorism had reached such a stage that it has become threat to the State itself. Consequently, the Parliament could legislate on this subject under item No.1 of the legislative list also.

It is a settled principle of law that the entries in the legislative list are to be construed liberally and widely and hot in a narrow pedantic sense. (Sed M/s. Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582), Sohail Juete Mills Ltd. And-others v. Federation of Pakistan (PLD 1991 SC 329) and M/s. Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623).

(ii) There was ample justification both under the Constitution and the law for creation of Special Courts for trying terrorists. While so holding, we cannot lose sight of the fact that since the recent past there have been subversive and terrorist activities on a large-scale which have shaken the country as a whole and has created a sense of fear and despondency in the citizens. The figures supplied by the learned Advocate-General, Punjab in this behalf has shaken our conscience and we can only lament that had effective measures been taken earlier, the precious lives might not have been next.

(iii) While it is true that to be treated in accordance with law and allow alone is the right of every citizen, but it is equally true that there is no right in absolute terms without a corresponding obligation. Every person who claims to have a fundamental right must also show that he has performed his obligation towards the State as required by Article 5 of the Constitution of Islamic Republic of Pakistan, 1973. While interpreting a law like, Anti-Terrorism Act, 1997, this aspect and the purpose for which the Act has been enforced must be kept in mind. To protect the life and liberty of every citizen is the fundamental duty of the State and efforts made by it, in discharge of this obligation for curbing terrorism should not be hampered with by the judiciary, whose role is only to see that the Legislature 'while enacting law does not over-step its Constitutional limits, in view of the circumstances prevailing in the country no legitimate exception can be taken to the creation of Special Courts with a view to provide speedy justice in cases of terrorism.

(iv) The contention that as Courts constituted under the Suppression of Terrorist Activities Act, 1975 already exist. Special Courts could not be created lost sight of the fact that the Courts constituted under the Anti-Terrorism Act, 1997 have limited jurisdiction and are meant for trial of persons charged with commission of terrorist acts and that to only in areas where declaration of intent has been issued by the Federal Government under section 3 of the Act. Be that as it may, there is no bar under the Constitution or the law for setting up more than one Special Courts and if the competent Legislature has so enacted, we cannot question its wisdom as torr jurisdiction is limited only to finding out as to whether any provision of the Constitution or the Islamic injunction, has been violated by enacting this law.

(v) There is nothing in the Anti-Terrorism Act,- 1997 which goes against the Islamic principles of administration of justice which are not only sacred but are also very dear to us. While interpreting any law on the subject the same have to be given due consideration as ordained by the Constitution itself especially the principles of public policy.

(vi) Coming now to the question as to whether certain provisions of the Act militate against the Constitution or erode the independence of judiciary we must express our dismay that while enacting this law, the principles enunciated in the Full Bench judgments of this Court in the case of Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lah. 452) and M/s. Chenab Cement Product (Pvt.) Ltd. And 2 others v. Banking Tribunal, Lahore and others (PLD 1996 Lah. 672) were not kept in view which provide not only that no person can be inducted into judiciary except in consultation with the Hon'ble Chief Justice but also that there should be security of service for the holder of the office -in order to enable him to administer fair and free justice.

There is nothing in this Act which guarantees any security of service to the Judges. We endorse and re-affirm the view taken the Full Bench and hold that without providing security of service to the Judges, their appointment would not be legal and valid.

(vii) We have pondered over the question as to what Should be the effect of the above declaration on the sentence rendered and orders passed by these Courts, in this respect, we are clear in our mind that these orders, judgments and sentences cannot be invalidated on to grounds; firstly, because of doctrine of de facto exercise of power which is now part of our corpus juris. (See It. Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98), Malik Fulani Gillani V. Province of Punjab (PLD 1979 Lah. 564), Abdul Salam Qureshi & another v. Judge Special Court of Banking for Sindh and another (PLD 1984 Karachi 462) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 33) and secondly because of the reason that the convictions and orders have gone through the process of appeal which have been heard and decided by a Tribunal comprising of to Judges of this Court nominated by the Hon'ble Chief 'Justice and about whom it cannot be said that they did not enjoy the security of. Service. It is well-established principle of law that once an order is subject-matter of the appeal the order' of the trial Court merges into the appellate judgment and it is the judgment of the appellate Court or Tribunal which alone remains in field. (See F.A. Khan v. The Government of Pakistan (PLD 1964 SC 520)). While on this question we may state that the composition of Appellate Tribunal has not been questioned before us nor any prejudice has shown to occur to the petitioners.

(viii) in the case of Mehram Ali. The conviction and sentences were appealed against but his appeal was dismissed by the Appellate Tribunal comprising of Hon'ble Chief Justice and our learned brother M. Javed Buttar. J. Who on re-appraisal of evidence came to the conclusion that his conviction was justified on 3 counts. It cannot be said that Hon'ble Judges comprising the Tribunal did not have any security of service. Consequently, even if there be any defect in the appointment of judges of Special Courts, it would not vitiate the conviction of the petitioners which has been rendered finally by the Appellate Tribunal.

(ix) As regards the objection to section 26 of the Act which makes a confession before the police admissible in evidence suffice it to say that generally speaking, evidence is a matter of procedure and the question of admissibility is quite different from its credibility. Every confession made by an accused before a Police Officer would have to stand the test of strict scrutiny by the trial Court as also the Appellate Tribunal. Although proviso to section 26 provides some guarantee but we are of the view that in order to ensure that the provisions in question is not misused certain additional safeguards should be provided, which should be that ordinarily the confession should be recorded in the presence of a Magistrate but if he is not available for some reasons which shall have to be stated by the Police Officer, the confession shall be recorded in the presence of a Superintendent of Police, who shall not be from the same division in which the investigation is being carried out. The same view was taken in Kartar Singh v. State of Punjab (1994) 3 Supreme Court Cases 569). We may also at, this stage reiterates that the confession to be recorded by the Police Officer under the new law has been made merely admissible but is not conclusive. This confession shall be scrutinized by the Courts and in any case, it does not carry more value than extra-judicial confession.

(x) As regards the objection that the High Court and the Supreme Court have been deprived of their jurisdiction, there is nothing either in the Islamic Law or in the Constitution which says that the appellate forum must be either the High Court or the Supreme Court. Be that as it may, even if the judgment of the Appellate Tribunal is considered to be final in terms of section 31 of the Act, the power of judicial review vesting under Article 199 of the Constitution is not whittled down and remains available against the judgment and orders of the Appellate Tribunal, provided, a case for interference within the scope thereof is made out. We may, however, add that the learned Attorney-General for Pakistan has stated before us that in cases where the judgment of the trial Court is reversed by the Appellate Tribunal, a further right of appeal would be made available both to the State- as also to the convict by making suitable amendment in the law.

(xi) Similarly, the contention raised on behalf of the petitioners that the Act is being retrospectively applied in violation of Article 12 of the Constitution is baseless. The acts of which the petitioners are found or alleged to have committed were offences at the time of commission of those offences and carried the same punishment which has been awarded to them by the Special Court/Appellate Tribunal and as such there is no violation of Article 12 of the Constitution. It is a trite law that forum is a matter of procedure, and no one can claim any vested right in it. Consequently, the mere fact that the petitioners were liable to be tried by the special Court consisted under the Suppression of Terrorist Activities Act, 1975 and after the promulgation of the present Act, by the Special Courts under the provisions stated therein, does not militate or offend against the Constitutional provisions especially when no prejudice has been shown to have been caused to the accused. All this discussion appears to be academic inasmuch as section 38 itself before the promulgation of the Act would be the same as authorised by law at the time when the offence was committed.

(xii) Mr. Muhammad Asghar. Rokari, the learned counsel appearing for Mehram Ali has contended that through he was charged with Qisas but he has been punished under Diyat. The learned counsel himself conceded that it is permissible for a Court to punish a person for lesser offence though he has been charged with high offence.

(xiii) Some of the learned counsel have challenged the validity of section 4 of the Act which allows the Federal Government to call armed forces and civil armed forces in aid of civil powers. No: possible exception can be taken to this provision as a similar provision exists in Article 243 of the Constitution as also Cr.P.C.

(xiv) A strong exception has been taken by some of the learned counsel to section 5 of the Act which, according to them, violates Islamic right of privacy and also vests unbridled power in the Police to shoot down any person. Under Article 14 of the Constitution of Islamic Republic of Pakistan 1973, the right to privacy is to be guaranteed as a fundamental right and it is indeed one of the cherished rights vesting in any individual. As is evident from Article 14, the right is subject to law and must yield to the ground realities. In order to curb the terrorist activities effectively, such powers have to be vested In the Police. Even Cr.P.C, contemplates use of such power and there is nothing new in section 5. However, while upholding section 5, let a note of warning go to all concerned that in case section 5 is misused for ulterior purpose or even otherwise is abused, the person responsible for the same would have to face the consequence. Furthermore, if in a given case it is demonstrated that the power has been exceeded those responsible for the same can be taken to task but as a general principle we cannot strike down the Act on the- mere apprehension that it may be missed especially when in none. Of the cases before us nothing has been placed on record to show the misuse of powers.

(xv) As regard the appellate provisions, though appellate forum has been mentioned as a Tribunal, it has all the trappings of a Court and judicial power can be vested in it. (See Iftikhar Ahmad v. The Muslim Commercial Bank Ltd., etc., PLD 1984 Lahore 69, which was affirmed in M/s. Chenab Cement Product Pvt. Ltd. v. Banking Tribunal etc., PLD 1996 Lahore 672). Neither under the Constitution nor under any principles of Islamic Law there is any compulsion when an appeal lies to a higher forum it must lie to the High Court. There are many instances where the appeal is provided to an appellate forum. The apprehension that the jurisdiction of the High Court has been ousted by making this law is again based on misconception as notwithstanding finality given to the judgments and orders passed under the Act the same can be judicially reviewed by the High Court under Article 199 of the Constitution. Furthermore, so far as the trial Courts are concerned, the High Court has the power to supervise and control their working as provided by Article 203 of the Constitution.

(xvi) We are also not impressed by the contention that the executive has been given unbridled power to choose as to whether a particular accused would be tried by the Special Court constituted under this Act or Special Court under the Suppression of Terrorist Activities Act, 1975 or the ordinary Court. This contention fails to take notice of section 32 of the Act which over-rides any provision of the law for the time being in force and if a person is accused of having committed terrorist act under section 6, that case can only be tried by the Special Court constituted under the present Act and not any other Court.

(xvii) The other argument raised by the learned counsel to which notice may be taken is that under the Anti-Terrorism Act, 1997, the Government has been given unbridled power to amend the Schedule so as to exclude or include any offence in it. According to them, this amounts to application of legislative power by the Legislature in favour of the executive which could not be done.

(xviii) This contention is without any force. In law there is no bar on the Legislature to Relegate some of its functions to some outside agency like carrying out amendments in the Schedule. However, what is prohibited is, the unbridled and naked or excessive delegation of the these powers. There is nothing new in the Act as regard the delegation of power to amend the Schedule as similar power exists in many other laws like Customs Act, 1969 which has been upheld by superior Courts in many cases including that of Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 SC 358). Furthermore it is a misconception on the part of the petitioners to assume that the power to amend the Schedule is naked or unbridled or unguided. In this respect while amending the Schedule the Legislature has confined itself within the limits laid down in section 6 of the Act. If any offence is included in the Schedule which has no concern directly or indirectly with the terrorist acts, obviously the amendment would be ultra vires.

(xix) As regards trial in absentia, the learned Attorney-General as conceded before us that no trial in absentia can be held. Appropriate measures shall be taken within a period of to months to amend or repeal section 19 of the Anti-Terrorism Act, 1997.

(xx) So far as the oath for non-Muslim Judge is concerned, it requires modification inasmuch as, they cannot be asked to decide the cases according to their on religious belief which may come in conflict with the Injunctions of Islam or the Constitution. Section 16 should be suitably amended so as to provide that in case of non-Muslim Judges, they shall take oath to decide the cases in accordance with the Constitution, Law and their conscience.

We by majority four to one (-Karamat Nazir Bhandari, J. Dissenting) hold that the convictions and sentences awarded by the Appellate Tribunal and the Special Courts are legal and valid and these petitions are, therefore, dismissed to that extent and the pending trials shall continue. If the remedial measures as suggested are not taken within the period fixed by us, the Act shall cease to operate. There shall be no order as to costs."

2. The main Writ Petition No. 25713/97 arises out of an FIR No.44/97 dated 18-1-1997 under sections.

302/324/34 PPC read with sections 3/4 of the Explosive Substances Act registered against the petitioner Mehram Ali at Police Station, Islampura, Lahore. It was alleged therein that the petitioner had caused a bomb blast in the premises of the Sessions Court, Lahore, as a result whereof 23 persons were killed while 55 were injured. The explosion was caused by a modern device of a remote control. After investigation, the police submitted challan against the petitioner. Dr. Munir Raza a co-accused was declared a proclaimed offender. Proceedings under section 512 Cr.P.C, were taken against him. The learned Special Court constituted under the Anti-Terrorism Act, 1997, framed a charge, recorded the evidence and after hearing the arguments, convicted the petitioner and sentenced him to death by judgment dated 5-9-1997 on 23 counts and to pay Rs. 50,000/- each to all the legal heirs of deceased. In addition, he was held guilty under section 324 PPC for attempting to commit Qatl-i-Amd and sentenced him to undergo 10 years' R.I. For 55 counts and payment of Rs. 10,000/- each to the injured persons as compensation or to undergo six months' R.I.

In default of payment. The judgment by the learned Special Court was assailed by an appeal before the learned Appellate Tribunal which was dismissed, vide judgment dated 14-10-1997, by to learned Judges of this Court. The petitioner filed the Constitutional petition against the judgment passed by the learned Special Court and the learned Appellate Tribunal and also called in question the vires of the Act.

3. Mr. Muhammad Asghar Khan Rokhri, Advocate, the learned counsel for the petitioner in W.P. No. 25713/97 argued that there was a need for the constitution of Special Courts in view of the prevailing situation in the country but the provisions of sections 6, 7, 14, 25, 31 and 38 of the Ant- Terrorism Act (Act No. XXVII of 1997)(hereinafter referred to as the Act) were ultra vires the Constitution and eroded the independence of judiciary. It was contended that the Act as a whole was violative of Article 25 of the Constitution of Islamic Republic of Pakistan. The judgment of the learned Appellate Tribunal constituted under section 23 had been made final under section 31 of the said1 Act. The petitioner was deprived of the remedy under Article 185 of the Constitution whereas such a remedy was available to the other persons who had been convicted and sentenced by the High Court. In this way, a discriminatory treatment was meted out to the petitioner without there being any reasonable classification. In an ordinary case, a convicted person could avail the remedy of filing a review petition before the Hon'ble Supreme Court even if his appeal was dismissed, The Presiding Officers of the Special Courts were at the mercy and pleasure of the Government as no safeguards had been provided against their arbitrary removal. It was submitted that the petitioner was charged under section 302(a) PPC, tried under section 304 PPC but convicted under section 302(a) PPC., The trial was, therefore, vitiated. According to the learned counsel, the trial Court-was bound tp follow the procedure of purgation of-witnesses for which no proof was forthcoming. It was emphasised that the Anti-Terrorism Act being a penal law could not be given retrospective effect. Reliance was placed on the judgments In the cases of Wajid Umar alias Gogi v. The State (1992 PCrLJ 1536) and Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542) by a Full Bench of this Court. Lastly, it was argued that the provisions of section 374 Cr.P.C, as to the confirmation of death sentence having not been complied with the capital punishment of the petitioner was not sustainable in law.

4. Dr. A. Basit, Advocate, the learned counsel for the petitioner Nawabzada Nasarullah Khan in W.P.

No. 19006 of 1997 argued that the Anti- Terrorism Act as a whole was mala fide. The Special Courts were established under a law which was parallel to the established system of judiciary. This was not within the legislative competence of the Parliament and was not covered by any of the items of the Legislative List.. The law was mala fide and was repugnant to the provisions of Articles 4, 8, 12, 13, 14 and 25. It was argued that the provisions of the Act particularly sections 4, 14, 19 and 34 therof were unconstitutional. The Schedule of the Act conferred on the executive an unbridled power to add, amend or delete any of the offences in the Act which was patently unconstitutional. The Army could not be called in aid of the civil power under this Act in view of the existing provisions of the Cr.P.C. The trial of the accused in absentia was against the law laid down by the" superior Courts.

There was no security of tenure of Judges of the Special Courts. The method of their appointment also militated against the independence of judiciary. Similar were the arguments of Malik Muntazir Mehdi, Advocate, the learned counsel for the petitioner in W.P. No. 989/98-Multan and Mr. Nazir Ahmad Ghazi, Advocate, for the petitioner in W.P. No.3929/98.

5. Ch. Rafiq Ahmad Bajwa, Advocate, for the petitioner in W.P. No,19984/97 argued that the Act as a whole was void, against Islamic ideology. The rights available to an accused/convict under Article 185 of the Constitution of Islamic Republic of Pakistan had been taken away. The confession before a Police Officer had been made admissible against all rules of law and justice. The law as enacted by the Parliament was repugnant to Articles 2-A and 227 of the Constitution. The sentence of imprisonment was not contemplated in the Holy Quran and had not been provided by the Holy Prophet (peace by upon him). The learned Counsel argued that the Objectives Resolution was recognised as a landmark in the Constitutional history of Pakistan. It has been declared in unequivocal terms that the sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by him is a sacred trust. It has been accepted that Injunctions of Islam as enshrined in the Holy Quran and Sunnah are to be the guidelines for running the affairs of the State in almost all spheres, i.e., political, social, economic or religious. The Objectives Resolution having been enacted as Article 2- A as become a substantive part of the Constitution and has to be given effect accordingly.

Reliance was placed on the cases of Messrs Bank of Oman Ltd. v'. M/s. East Trading Co. Ltd. And others (PLD 1987 Karachi 404), Shoukat Hussain v. Mst. Rubina and others (PLD 1989 Karachi 513), Jagan and others v. The State (PLD 1989 Karachi 281), Aijaz Haroon v. Inam Durrani (PLD 1989 Karachi 304), Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Karachi 169), Muhammad Naseer v. The State (PLD 1988 FSC 58), Zaheerudin and others v. The State and others (1993 SCMR 1718), Mst. Sakina Bibi v. Federation of Pakistan (PLD 1992 Lahore 99), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and Mian Aziz A. Sheikh v. The Commissioner of Income-Tax Investigation, Lahore (PLD 1989 SC 613) in support of his contentions.

The learned counsel further argued that introduction and repeal of the provisions of Article 212-B of the Constitution of Pakistan led to an irresistible conclusion that the Anti-Terrorism Act, without the Constitutional cover, was unconstitutional. The learned counsel lastly submit that the Act, a result of deep rooted conspiracy, was calculated to cause this country declared as a terrorist State and that the law was also violative of the Principles of Policy of the Constitution.

6. Mr. R.A. Awan, Advocate, for the petitioner in W.P. No. 24690/97 argued that the provisions of sections 10, 13, 14, 15 19, 24, 25, 26, 28 and 31 of the Act were ultra vires Articles 14, 175 and 203 of the Constitution of Pakistan. It was submitted that the Act being a penal statute could not operate so as to affect the vested rights of the accused. The offences committed prior to the commencement of the Act could not be tried by the Special Courts under the Anti-Terrorism Act. The independence of the judiciary had been undermined by virtue of the said Act. It was further argued that a conviction made on the basis of a confession before a Police Officer was illegal and unconstitutional. The learned counsel also contended that the normal remedies before the High Court and the Hon'ble Supreme Court were illegally and unconstitutionally by-passed. Reliance was placed on the cases of Imran (supra), Referring Authority /Chief Secretary, Azad Government of the State of Jammu & Kashmir v. Sardar Sikandar Hayat Khan (PLD 1982 SC (A J & K) 112), Independent Newspapers Corporation (Pvt.) Ltd. And another v, Chairman, Fought Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533) (1542) and Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457)'. Mr. Nazir Ahmad Shami, Advocate, for the petitioner in W.P. No.20988/97 addressed the arguments on the lines of Mr. R.A. Awan, Advocate.

7. On the other had, Ch. Muhammad Faruq, the learned Attorney General for Pakistan, argued that there were similar laws prevalent in the other countries of the world. In United Kingdom the Prevention of Terrorism (Temporary Provisions) Act, 1974, was enacted within few hours by the British Parliament after the serious bomb blasts were made by the I.R.A, in Birmingham in 1974.

Additional powers were conferred on the police and the Home Office to deal with the suspected terrorists. The law was re-enacted with modifications in 1976. The old law called the Civil Authorities (Special Powers) Act, 1922 passed by the Northern Ireland Parliament was replaced by the Northern Ireland (Emergency Provisions) Act, 1973 passed by the United Kingdom Parliament which was further amended in 1975. Reference was made to the Constitutional and Administrative Law by Wade and Philips Ninth Edition pages 517 to 519. In India to cope with a similar situation as prevailing in Pakistan, the Terrorist and Disruptive Activities (Prevention) Act was firstly passed in 1985 and then in 1987. In Northern Ireland, a person charged with scheduled offence was tried without a jury with no question of bail concession except by a Judge of the High Court. Even the confessions by the persons before the Police were made admissible. A Police Constable could arrest a person, suspected to be a terrorist, without a warrant: The learned Attorney General referred to the provisions of section 3 of the impugned Act which had been made applicable only to the notified areas and not the whole of Pakistan. It was brought fo our notice that the Provinces of Punjab and Sindh only had been notified. He pointed out that there were other laws such as Rent Restriction Ordinance, etc., whereunder a right of appeal before the High Court was not available. In India only one right of appeal had been given in the cases pertaining to terrorist activities. The provisions of the Ant-Terrorism Act being special one were to over-ride the general provisions of a general law. The Act was passed in order to counter the serious threat to the State itself and that there was no concept of any right above the security and integrity of the country. The learned Attorney General defended the Act as a valid piece of legislation which was not violative of any provisions of the Constitution. The learned Attorney General made a categorical statement that there would be no absentia trial of the accused under this Act and that no Special Judge would be removed without the prior consultation/concurrence by the Chief Justice of the High Court. The learned Attorney General stated that Article 2-A of the Constitution could not be pressed into service in these circumstances to invalidate the provisions of the Act. The text of the President Clinton's statement dated 25-4- 1996 on the anti-terrorism was referred to. It was further pointed out that the Indian Parliament had also passed the SAARC Convention (Suppression of Terrorism)

Act, 1993, to give effect to the South Asian Association of Regional Co-operation Convention on Suppression of Terrorism and for matters connected therewith. The learned Attorney General relied on the State v. Manzoor Ahmad (PLD 1966 SC 664), Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554), Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602) and Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6).

8. Kh. Muhammad Sharif, the learned Advocate-General, Punjab, narrated the background and history of events in the wake of which the said Act was passed. The learned Advocate General placed on record the data showing the persons who were allegedly involved in various terrorist activities on the sides of Shia and Sunni communities and as to how many bomb blasts and killings had taken place. In the first place, the names of the deceased lawyers belonging to both the sects have been mentioned. They were either prosecuting or defending Court cases. He further pointed out that highly qualified and trained persons were appointed to constitute a new force called the Elite Force to counter the acts of terrorism. He stated that one of the arrested terrorists was involved in 62 cases including killing of 25 persons and several injured in Al-Khair Masjid. Similarly, another alleged terrorist was stated to be involved in 23 murder cases and another in 13 cases. The learned Law Officer referred to the Preamble, Articles 29 and 30 of the Constitution in support of his contentions that the terrorists did not deserve any mercy or leniency. It was argued that the people were so much scared and terrified that they did not come forward to testify against such accused and refused to identify them even in the Jail. He made a reference to Articles 37 and 38 of the Qanun-e-Shahadat Order, 1984. He relied on the cases of F.A. Khan v. The Government of Pakistan (PLD 1964 SC 520), Khalid Malik and others v. Federation of Pakistan and others (PLD 1991 Karachi 1)

(F.B.), Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473) and Atlas Autos Limited and 3 others v. National Industrial Relations Commission, Islamabad and 16 others (PLD 1990 Karachi 362) in support of his contention that the original judgment of the learned Special court merged into that of the learned Appellate Tribunal. He also pressed into service the de facto doctrine. The learned Advocate General assured that in no case any Special Judge would be removed without the consultation/consent/concurrence of the Hon'be Chief Justice of the concerned High Court. He stated that the law will also be suitably amended in this behalf. He also made a categorical statement that the confession by an accused to a DSP under the Act would not be binding on the Court but would be treated to be an admissible piece of evidence. He relied on Bismal Kaur Khalsa v. Union of India and others (AIR 1988 Punjab and Haryana 95).

9. We have carefully considered the arguments of the learned counsel for the parties and law officers. The Anti-Terrorism Act, 1997, contains to some extent, the substantive but mainly the provision procedural in nature. Its preamble clearly shows that the said Act provides for the prevention of terrorism, sectarian violence, speedy trial of heinous offences and matters connected therewith and incidental thereto. By section 3 of the Act, the Federal Government is empowered to apply its provisions at any time of the commission of the terrorist acts and scheduled offences have become common place in Pakistan. Under section 5, any police officer, or a member of the armed/civil armed forces may used necessary force to prevent the commission of terrorist acts or scheduled offences. The terrorist act has been defined in section 6. Its punishment has been provided for in section 7. By virtue of section 38, a person who has committed an offence prior to the commencement of the Act, if constituted a terrorist act, would be tried under this Act but the punishment would be the: same as was awardable at the time when the offence was committed.

Section 8 prohibits the acts intended to create sectarian hatred whereas section 9 provides punishment for contravention thereof. By section 12 of the Act, a Special Court has the exclusive jurisdiction to try a Scheduled offence committed in an area within its territorial jurisdiction. Sub- sections (I) and (3) of section 12 further provide that prosecution in respect of a scheduled offence shall be instituted only in the Special Court concerned and if any case in respect of such an offence is pending the same shall stand transferred to the Special Court. By section 13, the Federal Government and, if so directed by it, the Provincial Government are empowered to establish, by notification, one or more Special Courts in respect of an area. Under section 14, a Special Court shall consist of a Judges, being a person who is or has been a Sessions Judge or an Additional Sessions Judge or has exercised the powers of a District Magistrate or has been an Advocate for a period of not less than 10 years. The Presiding Officer of the Special Court is appointed by the Federal Government after consultation with Chief Justice of the High Court. Under section 16 of the Act, before entering upon his office, a Judge of a Special Court, is required to make an oath, at the commencement of the proceedings, in the case of a Muslim, on the Holy Quran that he shall decide the case honestly, faithfully and considering himself accountable to Almighty Allah. But in the case of oath of a non-Muslim Judge, he is to decide in accordance with his faith, honestly and faithfully according to his conscience and beliefs. Under section 19 of the Act, an investigation of a case triable by a Special Court is required to be completed within seven working days to be forwarded directly to the Special Court under section 173 Cr.P.C, unless such period is extended by the Special Court for good reasons. The case is to be heard from day to day and trial in absentia is also permissible. The Special Court enjoys all the powers of a Court of Sessions for the purposes of trial of any offence. The Special Court is to follow procedure as if a Court of Sessions. The Appellate Tribunals consisting of one or to Judges of the High Court nominated by the Chief Justice of the said Court and notified by the Federal Government have also been constituted. An appeal lies before them from the final judgment of a Special Court. A confession made before a Police Officer not below the rank of a Deputy Superintendent of Police is admissible by virtue of section 26. A punishment has also been provided for defective investigation. Under section 28, an Appellate Tribunal may, in the interest of justice, or the convenience or safety of the witnesses or the accused transfer any case from one Special Court to another. The trial before the Special Court is to have precedence. A finality of judgment or order or sentence passed by a Special Court is attached under section 31. The provisions of the Act override all other laws. Both the Special Courts and the Appellate Tribunal have been invested with the powers to punish for their contempt. A schedule of offences exclusively triable by a Special Court has also been appended to the Act as required by clause (a) of section 2 of the Act. The Federal Government is empowered under section 34 of the Act to amend the schedule so as to add any entry thereto or modify or omit any entry therein.

10. Now, We proceed to examine the question of the competence of the Parliament to enact the provisions of the Anti-Terrorism Act including those relating to the creation of the Special Court and the Appellate Tribunal. Article 142 of the Constitution provides that the Parliament shall have the exclusive power to make laws with respect to any matter in the Federal Legislative List. Both the Parliament and a Provincial Assembly have the Concurrent power to make laws with respect of any matter in the concurrent Legislative List. As regards the residuary matters, it is a Provincial Assembly alone which shall have the power to make the laws. The Parliament shall have legislative power for such areas in the Federation as are not included in any Province. Under Article 143 of the Constitution, in case of repugnancy between the Federal legislation and a Provincial legislation in respect of the concurrent list, the Act of Parliament shall prevail over the law made by a Provincial Assembly. Article 175 of the Constitution relating to judiciary reads as follows:- "175. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.

(2) No Court shall' have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day."

11. The word "terrorism" has its political origins in the French revolution- in the sense of terror carried out by the State. With the Enlightenment, the idea of popular sovereignty was born: it was in its name and in its defence that the revolution justified State terror. Political terrorism was later used in the second half of the nineteenth century, notably by the Russian populists who were influenced by the Romantic tradition. The distant origin of terrorism is to be found in tyrannicide. The assassination of a tyrant was traditionally committed in the name of justice. But it was in the name of ideological purity that the most powerful terrorist organization ever created, that of the Assassins, operated in the eleventh and twelfth centuries. In today's world, after the ideas introduced by the French revolution, Romanticism, socialism, and so on, the doctrine of just rebellion no longer meets with strong objections; it has become a wide spread phenomenon. Given the particular climate of violence and secrecy that terrorism involves, factions within a movement often reject the realistic or moderate platform agreed to by the political leadership. In the Third World, terrorism has been used as a technique for desalinization or as a (supposed) means of eventually seizing power. Yet in every case, as should have been foreseen, it has led to the rise of extremism. The number of victims of terrorist acts in this country as given by the learned. Advocate General is alarming but the responses to the terrorism have so far been very poor. In a country like Pakistan which claims to be governed by the Constitution and the law, it has become necessary to take effective legislative measure to counter-act the terrorism. This, of course, would be in addition to the preventive action that can be taken by the State administrative side under the law.

12. The terrorism has posed a serious threat and danger to the proper defence, sovereignty, solidarity and security of Pakistan. The Anti-Terrorism Act in the present context, therefore, is covered by Item No.1 of Part-1 of the Federal Legislative List in the Fourth Schedule of the Constitution being relatable to the defence of the Federation. Similarly, the Act is also covered by Items No.1 and 2 of the Concurrent Legislative List which provide for the criminal law, criminal procedure, evidence and oath.

13. In the case of Kartar Singh v. State of Punjab (1994) 3 Supreme Court Cases 569), the Indian Supreme Court had the occasion to examine the validity of similar laws called the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Terrorist Affected Areas (Special Courts)

Act, 1984. It was held that activities of a more serious nature which threatened the security and integrity of the country as a whole would fall within the ambit of Entry 1 of the Union List relating to defence of India. Il was further held that in order to ascertain the pith and substance of the impugned enactments, the preamble, the Statement of Objects and Reasons, the legal significance and the intendment of the provisions of these Acts, their scope and the nexus with the object that Acts sought to subserve must be objectively examined in the background of the totality of the series of events-due to the unleashing of terrorism thereby injecting- a sense of insecurity in the minds of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the alleged violent crimes was shown to have vulnerable territorial frontiers which formed part of the scene of unprecedented and unprovoked occurrences, led to an inescapable illation and conclusion that the activities of the terrorists and disruptionist posed a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges came by way. Of external aggression or internal disturbance. The expression 'criminal law' enlarged the scope to any matter which could validly be considered to be criminal in nature. The exercise of power under that Entry, therefore, had to be construed liberally so as to give full play to the legislative activity. The legislation by the Parliament satisfied the requirements of the Constitution as it related to the criminal law and the offences. Any Act or Rules dealing with the crime was criminal law. The Constitution-makers, therefore, conferred such powers both on Central and State Legislatures to make laws in this regard. Terrorist or disruptive activities were criminal in content, reach and effect.

The TADA Act and the Act of 1984, was held to have been validly enacted by the Parliament.

14. The Legislative Entries in our Constitution as such are not to be construed narrowly and in a pedantic sense. These also include the matters incidentally and ancillary to any matter enumerated therein. A liberal construction has to be placed on the Constitutional provisions so that they may have effect in their widest amplitude in a progressive society to cope with the future contingencies and situations. This is particularly for the reason that the Constitution is not amenable to alteration by ordinary procedure of legislation. It is not easy to amend the Constitution every now and then. In Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582 at 622 Para-16), the Supreme Court of Pakistan held as under:- "16. We may point out that in a Federal Constitution like we have in Pakistan, the legislative power is distributed between the Provincial and the Federal Legislatures. With that view legislative lists are prepared. The entries contained therein indicate the subjects on which a particular Legislature is competent but they do not provide any restriction as to the power of the Legislature concerned. It can legislate on the subject mentioned in an entry so long as it does not transgress or encroach upon the power of the other Legislature and also does not violate any fundamental right as the Legislative power is subject to constraints contained in the Constitution itself. It is also a well- settled proposition of law that an entry in a legislative list cannot be construed narrowly or in a pedantic manner but it is to be given liberal construction. In this behalf reference may be made to the following cases :-

(i) Assistant Commissioner of Land Tax, Madras and others v. Buckinghem and Carnatic Co. Ltd., (1970) 75 ITR 603; in which the facts were that the Madras Urban Land Tax Act, 1966, imposed a. Tax on urban land at a percentage of the market value. The above Act was enacted by the State Legislature pursuant to the power contained in entry 49 of List II of Schedule VII to the Constitution of India. The same was impugned in the Madras High Court to declare the provisions of the aforesaid Act as ultra vires. The matter was brought before the Indian Supreme Court by the Revenue Authorities. The Supreme Court while setting aside the judgment of the Madras High Court made the following observations as to how the entries in the legislative list are to be interpreted:- 'The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of the subjects to the list is not by way of scientific or logical definition but by way of a mere simplexenumeratio of broad categories. We see no reason, therefore, for holding that entries 86 and 87 or List I preclude the State Legislature from taxing capital value of lands and buildings under entry 49 of List II. In our opinion there is no conflict between entry 86 of List I and entry 49 of the List II. The basis of taxation under the to entries is quite distinct. As regards entry 86 of List I the basis of the taxation is the capital value of the asset................................

(ii) The Elet Hotels and Investments Ltd. And another v. Union of India (AIR 1990 SC 1664); In the above case validity of the Hotel Receipts Tax Act (1980), which imposed a Special tax on the gross receipts of certain category of hotels, was impugned through a batch of writ petitions under Article 32 of the Indian Constitution directly before the Supreme Court of India, on the ground of lack of legislative competence and violation of Articles 14 and 19(l)(g) of the Indian Constitution.

The Supreme Court while dismissing the aforesaid writ petition and upholding the validity of the afore-mentioned Act made the following observations as to the interpretation of entry 82 of the Legislative List 1 of the Indian Constitution (which corresponds to entry 47 of our Constitution):- '6. On a consideration of the matter, we are of the opinion that the submissions of the learned Attorney-General as to the source of the legislative power to enact a law of the kind in question require to be accepted. The word "income" is of elastic import. In interpreting expression in the legislative lists a very wide meaning should be given to the entires. In understanding the scope and amplitude of the expression "income" in the Entry 82, List I, any meaning which fails to accord with the plenitude of the concept of income in all its width and comprehensiveness should be avoided.

The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to legislative practice may be admissible in reconciling to conflicting provisions of rival legislative lists. I construing the words in a Constitutional document conferring lagislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.'"

15. In Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance (1992 SCMR 891), it has been held that the Constitution provides governance to the country, confers rights, privileges and liabilities on the citizens and also controls the working in all fields of life, it is a living document and is to be interpreted in the widest possible manner to ensure continuity and balance in the several constituents and Organs of the State. The item in the list in respect of which the power of taxation can be exercised should not be interpreted in a restricted and pedantic manner. In Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457 at 668), it has been held that Item No.1 as worded should be construed not in a narrow or restricted sense but in a wider sense so as to include all ancillary or subsidiary matters which can reasonably be included within it. "Applying this test it is obvious that the project was conceived for the welfare of the serving personnel and ex-service men and came into being with the G.H.Q, welfare funds, necessarily, therefore, the transfer of the Mill to the appellant, which was a charitable trust and engaged in welfare activities for the benefit of the serving and ex-servicemen, was covered by Item No.1, which, in terms, is wide enough to include the GHQ funds as well as the well-being and the morale of the armed forces in particular, as these factors are directly linked with their fighting efficiency, and the welfare of the ex-servicemen in general, who are either in the category of reserves or have retired, and accordingly such matters must necessarily come within the scope of the term "defence of Pakistan." In Pir Rashid- ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 401 at 418), the following observations were made and the principles of interpretation of the legislation were laid down:- "In a federal constitution, in which an elaborate division of legislative powers is attempted, it is inevitable that controversy should raised whether one or the other Legislature is encroaching on the other's legislative field, for, no matter how careful the draftsman or how exhaustive the legislative list it is not possible to provide for all conceivable eventualities or to categories each subject of legislation under a specific label. It is for the resolution of such controversies that the Courts have evolved certain basic tests. A careful examination of the relevant decisions indicates that the main principles deducible from them are :-

(i) That legislation, the validity of which has to be tested must be scrutinized in its entirety in order to determine its true character in pith and substance. (Great Saddelory Co. Ltd. v. The King (AIR 1921 PC 148).

(ii) That after considering the legislation as a whole in pith and substance it has to be seen as to with respect to which topic or category of legislation in the various fields, it delays substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way. (Subrahmanyam Chettiar v. Muttusawami Gourdan, AIR 1941 FC 47).

(iii) That none of the items in the lists is to be read in a narrow or restricted sense and each general word therein should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. (United Provinces v. Atiqa Begum, AIR 1941 FC 16).

(iv) That where there appears to be apparent overlapping in respect of the subject-matter of the impugned legislation it must first be considered whether a fair reconciliation cannot be effected by giving to the language of the federal and concurrent context bear, is yet one that can properly be given to it. (Governor- General-in-Council v. Province of Madras, AIR 1945 PC 98).

(v) That a general power ought not to be so construed as to make a particular power conferred by the same Act and operating in the same field a nullity. (In re: C.P. Motor Spirit Act AIR 1939 FC1)."

In Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623 at 640), the question of the validity of Legal Practice (Disqualifications)' Ordinance (No.1 of 1964), debarring the former permanent Judges of the High Courts from legal practice before their respective High Courts was examined. It was held that the given legislation was relatable to the terms and conditions of a Judge of a superior Court covered by Item No.38 of the Third Schedule. Reliance was placed on the case of United Provinces v. Mst. Atique Begum and others (AIR 1941 FC 16) in which it was observed with reference to the Government of India Act, 1935, that the Items in the Legislative List were not to be read in any narrow or pedantic sense. Each general word therein should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended within it. These items described only comprehensive categories of legislation by a word of broad and general meaning. Thus, by being given the authority to legislate in respect of the Constitution, organisation, jurisdiction and powers of the Supreme Court, the Central Legislature, acquired the jurisdiction also to legislate with regard to the number of Judges to be appointed, the salaries to be paid to them and the terms and conditions upon which they were to serve in the Supreme Court.

16. In Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506), the vires of the Defence Services Laws (Amendment) Ordinances (Nos. III and IV of 196.7) came under challenge. By the amending laws even the civilians could be brought to face a trial before a Court Martial in certain contingencies. The Hon'ble Supreme Court took the view that the legislation was covered by Item.

No. 1 of the Third Schedule of the 1962 Constitution. The nexus with the defence of Pakistan was not only close but also direct, it was difficult to conceive of an object more intimately linked therewith.

The prevention of-the subversion of the loyalty of a member of the Defence Services of Pakistan was as essential as the provision of arms and ammunition to the Defence Services or their training.

The fact that it incidentally encroached upon the provisions of the Criminal Procedure Code did not make it in substance a legislation for amending the Criminal Procedure Code and, therefore, under the pith and substance rule, this to was, a valid legislation within Item No. 1 of the Third Schedule.

17. While examining the question of constitutionality of a statute, a Court of record is expected to explore every possibility of upholding a piece of legislation before proceeding to strike it down.

Ordinarily, even in a debatable area, a legislative measure is to be respected unless there is some unavoidable reason to come to a contrary conclusion on the touchstone of the provisions of the Constitution. In the case of Messrs Elahi Cotton Mills Ltd. (supra), the Hon'ble Supreme Court laid down at page 676 of the report as under:- "(viii) That while interpreting Constitutional provisions Court should keeping in mind, social setting of the country, growing requirements of the society/nation, burning problems of the day and the complex issues facing the people, which, the Legislature in its wisdom through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.

(ix) That the law should be saved rather than be destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex facie it is violative of a Constitutional provision."

In the case of Ogden v. Saunders (12 Wheaton 213 (1827), the U.S. Supreme Court held as under: "It is but a decent respect to the wisdom, integrity and patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond a reasonable doubt."

In the case of N.L.R.B. v. Jones & Langhlin Steel (1937) 301 U.S. 1), Mr. Chief Justice Hughes, wrote,-- "The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between to possible interpretations of a statutes by one of which it would be unconstitutional and the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same."

Similar view was taken in the cases of Multiline Associates v. Ardeshir Cowasjee and 2 others1 PLD 1995 SC 423), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397 at 433) and The Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854).

18. Section 6 of the Act defines a "Terrorist" that "whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act." The punishment for such an act has been provided for in section 7. An offence satisfying the ingredients of section 6 if committed before commencement of the Act is required to be tried under the Act but with liability to punishment as authorised by law at the time the offence was committed. It is, thus, clear that if an act constituting the elements of section 6 of the Act was already an offence, under any law, only forum for trial of such an offence was changed with some what different procedure. However, for such an offence, if committed prior to the commencement of the Act, the punishment as provided in section 7 of this .

Act cannot be awarded. Section 38 of the Act takes into consideration the salutary provisions of Article 12 of the Constitution of Islamic Republic of Pakistan whereunder no law can authorise punishment of a person for an offence which was not punishable at the time of its Commission. No law can prescribe a pen greater than or different from that prescribed by law at the time of the Commission of such an offence. Similarly, by sub-section (3) of section 12 of the Act any prosecution in respect of a scheduled offence pending in any other Court ipso facto stands transferred to the Special Court constituted under this' Act immediately upon the declaration by the Federal Government for the application of the provisions of the Act in a notified area. The said Act is essentially of a procedural in nature. The substantive rights of the accused persons, by and large, remain un-affected. The provisions of the said Act, as a whole, are not ex facie violative of the Constitution. The mere fact that the Act envisages a speedy trial of certain heinous offences with a special procedure cannot be construed as violative of fundamental or other Constitutional rights of the citizens. No exception can be taken to the retrospective operation of the law which deals with procedure of trial of offences, of terrorism, sectarian violence and/or otherwise heinous in nature.

There are no Constitutional limitations or constraints upon the Parliament to legislate retrospectively. The Act although retrospective in operation but cannot be said to have taken away or abridged any vested rights of the accused/convicts in absence of a greater different kind of punishment for the past offences. The offence, under section 6 of the Act is not a new offence but was already an offence punishable under the law. However, the same would be triable by the Special Court under section 38 ibid. But if such an offence is related to the period prior to the commencement of the Act, the same would not entail the punishment prescribed by section 7.

What is sought to be changed by the impugned legislation retrospectively is the forum of trial with a special procedure and not the punishment of the crime which remains the same as before.

19. The provisions of Article 12 of the Constitution prohibition ex post facto criminal law providing punishments for an act which was not an offence or punishable with a penalty different or greater than the previous ones are not offended in any manner by the impugned Act. The scope and import of Article 12 of the Constitution was elaborately considered by a Full Bench of this Court in Riffat Askari v. The State (PLD 1997 Lahore 285). The provisions of Ehtesab Ordinance (CXI of 1996) were called in' question. It was laid down that "Article 12(1)(2) of the Constitution furnished a guarantee that an act or omission, which was not punishable by law at relevant time could not be punished subsequently and no offence could be created retrospectively. An act which was innocent at the time of its commission could not be made punishable by subsequent legislation.

The acts or omissions forming part of charge were not innocent even in 1996 when the same had been committed and facts constituting offence also remained same. Neither any greater penalty nor of different kind had been provided in the Ehtesab Ordinance, 1996. No new offence having been created, Article 12 of the Constitution of Pakistan was not attracted. Matters of procedure were not covered by Article 12 of the Constitution. An accused had no vested right of trial in a specific forum." The Supreme Court of India also took the same view in case of S.A. Venkatarman v. Union of India (AIR 1954 SC 375) and Union of India v. Sukumar Pyne (AIR 1966 SC 1206). It was observed that " what was prohibited under Article 20 (similar to our Article 12) was only conviction or sentence under an ex post facto law and not the trial thereby. Such a trial under a procedure different from what obtained at the time of the offence or by a Court different from that which had the competence at the time could not ipso facto be held to be unconstitutional." It is significant to note that even the Universal Declaration of Human Rights does not prohibit all kinds of retrospective legislation. It declares in Article 11(2) that a certain kind of retrospective legislation connected with penal law is a violation of human rights. There are kinds retrospective legislation which would not amount to a violation of the Declaration. Sir Carleton Kemy Allen in Law in the Making (1951) at page 444 has stated: - ........ "There may be occasions when public exigency compels a departure from the general principle and it is impossible therefore to say that retrospective legislation is in all circumstances unjustifiable."

In the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), the Hon'ble Supreme Court had observed as follows:- "The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving 1905 AC 269 is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other had, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" gives the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1875) 1 Ch. D. 48 where it was observed that "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford to takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statue. On the other had, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively.

A comparison of provisions of section 488 of the Criminal Procedure Code, 1898 and of the West Pakistan Family Courts Act,' 1964 indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Looking at the provisions as a whole it is therefore clearly that all the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus,% in every sense of the term, brought-about only procedural changes and not affected and substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. It could, therefore, rightly be held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance."

Similar view was taken in the case of Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599). In the case of Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan and others (1993 SCMR 1905), it was held that the legislature which was competent to make a law had full plenary powers within its sphere of operation to legislate retrospectively or retroactively. It was further observed that even vested right could be taken away be a retrospective/retroactive legislation which could not be struck down on that ground. In the aforesaid judgment, even the past transactions and vested rights against the imposition of customs duty were held to be capable of being re-opened by virtue of addition of section 31-A of the Customs Act, 1969. Similar view was taken in the cases of Abdur Rahim and another (PLD 1988 SC 670), Pir Rashid-ud-Din and 3 others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 401), Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623), Sanderaraincer v. State of Andhra Pradesh (1959) SCR 1422), Jute Mills v. State of U.P. (AIR 1961 SC 1486) and Gouse v. State of Kerala (AIR 1980 SC 271). In Grimes v. London Borough of Sutton (1973) 2 All E.R. 448), it has been held that the person who finds that his or her rights in litigation are changed because Parliament has passed an Act changing the procedure may well consider that Act to be unfair, but he Courts treat a procedural Act as, prima facie, intended to be retrospective.

20. In the cases of Liaqat Parvez Khan v. Government of the Punjab through Home Secretary and 2 others (PLD 1992 Lahore 517) and Muhammad Naeem alias Naima v The State (1992 SCMR 1617), it was held that the Parliament was competent to legislate the Suppression of Terrorist Activities (Special Courts) Act, 1975, retrospectively and that Article 12 of the Constitution did not deprive the Parliament of such power of legislation in respect of procedural laws.

21. We notice that in the wake of ,bomb explosions and other acts of terrorism and sabotage in the year 1975 particularly in to Provinces, the Suppression of Terrorist Activities (Special Courts) Act, 1975, was enacted. Later, The Special Courts for Speedy Trial Ordinance and Act, 1987, were promulgated for the trial by the Special Courts of crimes which were heinous and gruesome. The Constitution of Pakistan was amended by the Constitution (12th Amendment) Act, 1991. Article 212-B was added for a period of three years providing for the Special Courts for the Speedy Trial of heinous offences with one right of appeal before the Supreme Court. In Ceylon, the Suspension of Capital Punishment Act, 1958, suspending the capital sentences already awarded was itself repealed by the Suspension of Capital Punishment (Repeal). Act, 1959, with retrospective effect.

Another law called the Criminal Law (Special Provisions) Act, 1962, was also brought into force to deal with the cased of terrorism. The British Parliament passed a more stringent law. Called the Northern Ireland (Emergency Provisions) Act, 1973, which was further amended in 1975 to deal with acts of sabotage in the Northern Ireland. There were serious bomb explosions made by the Irish Republic Army (IRA) in Birmingham (U.K.) in 1974 which led to the passage of the Prevention of Terrorism (Temporary Provisions) Act, 1974, within few-hours. Thereafter, the law was re-enacted in 1976 and 1984. The Police and other authorities were given wide powers of detention, entry, search and deportation of suspects. The IRA was banned by the British Government. It is now unlawful and an offence to aid the said Organisation. In West Germany, to cope -with a serious threat of the Red Army Fraction, the toughest Anti-Terrorism Legislation was introduced. It allowed the administration to refuse to employ elements deemed 'undesirable'. From 1974 to 1978 the Criminal Code was amended to give the authorities the grates possible latitude to fight against terrorism: five years' imprisonment for those who formed or participated in, to whatever degree, a terrorist- type association (Sections 129 and 129-A of the Code of Criminal Procedure), three years imprisonment for propaganda against the constitution, or against the existence and security of the Federal Republic of Germany (Section 88A of the Code). The police were empowered by section 1,031 to search a whole building if they had reason to believe that a suspect was hidden there. In 1977, the Council of Europe adopted a convention on the suppression of terrorism, which was an attempt to create a viable framework for that purpose. In Italy, drastic measures were taken to fight against the terrorism of the Red Brigades. As already stated in India a very harsh law known as the Terrorist and Disruptive Activities (Prevention) Act, 1987, was passed. The said law has since been repealed. On 4th day of November, 1987, a convention on Suppression of Terrorism was signed by the countries including. Pakistan being members of South Asian Association of Regional Cooperation Convention. India has already given effect to the convention by passing the SAARC Convention (Suppression of Terrorism) Act, 1993. As stated earlier by Article 11 of the Universal Declaration of Human Rights, what was prohibited was the retroactive penal laws which made an offence of acts which were not an offence when committed but did not prohibit the manner and forum of trial of offences. Therefore, the provisions of sections 6, 7, 12 and 38 of the Act do not suffer from any taint of unconstitutionality even if tested on the touchstone of Article 12 of the Constitution.

22. The learned counsel for the petitioners, to be fair to them, frankly conceded that the State was empowered to take extraordinary legislative measures to cope with prevailing situation. There is no denying the fact that at present the country is in the grip of acts of sabotage, terrorism, sectarian violence and other heinous rimes which call for taking strict measures to counter them. In come of the serious incidents, the possibility of involvement of a foreign had cannot be ruled out. The Anti- Terrorism Act is not a new phenomenon. Such measures were taken in the past in this country and outside.

23. In his paper, titled "Justice and State Security" Page 234 published by the Journal of the International Commission of Jurists, Winter 1964 Volume-V, No.2, read at the Annual Meeting of the Libre Justice (The Grench Section of the International Commission), it was stated as follows:- "All rules of social life (the most important of which, are sanctions by the criminal law) impose restrictions on the freedom of individuals. The rule must allow the maximum of freedom that is compatible with the general interest and the harmonious adjustment of individual relations.

But exceptional circumstances may arise where the social balance and perhaps protection of members of society or the survival of society necessitate greater restrictions on freedom, stricter duties, swifter justice and more severe penalties. Such cases could be a dangerous epidemic, an economic crises, or the disasters brought by storms or earthquakes. As far as the security of the State is concerned exceptional measures of this kind are especially necessary if the security of the State is in special danger.

Libre Justice has recognised the need for special rules to deal with exceptional circumstances but these special rules can be laid down in advanced and appplied as the necessity arises. They must be an improved version, suitable for our time, of an old nation of a State of siege, which the republicans have never been without; no one is surprised that in war time stricter duties are laid down, especially so far as national defence is concerned. Apart from the case of actual war with another State, external tensions and severe internal disturbances giving rise to anxiety for the life of the nation may justify the use of special rules of greater severity especially when the security of the State is in question."

24. By section 13 of the Act, the Federal Government or if so directed the Provincial Government are empowered to establish one or more Special Courts for the purpose of providing speedy trial of scheduled offences committed in any area and to authorise a Judge of any such Court to distribute cases among such other Courts. The composition and appointment of presiding officers of Special Courts is provided for by the provisions of section 14 of the Act'. A Special Court shall consist of a Judge being a person who is or has been a Sessions Judge or an Additional Sessions Judge exercised powers of a District or an Additional District Magistrate with an advance course in Shariah (Islamic Law) or an Advocate of not less than ten years. The Federal Government can make the appointment only after consultation with the Chief Justice of the High Court concerned.

Under section 24 of the Act Appellate Tribunals consisting of one or to Judges of the High Court nominated by the Chief Justice of the High Court have been notified by the Federal Government.

We have noticed that Special Courts for speedy trial of heinous crimes were established in the past by special laws. Such Special Courts for Speedy Trials were constituted by the Act of 1987 and Article 212-B added by the Constitution (Twelfth Amendment) Act, 1991 with a Supreme Appellate Court. There are other law whereunder Special Courts/Tribunals were created. For example, Special Courts/Tribunals were set up under the Customs Act, 1969, the Drugs Act, 1976, Suppression of Terrorist Activities (Special Courts) Act, 1975, the Criminal Law Amendment (Special Court) Act, 1976 for trial of offences punishable under the High Treason (Punishment) Act, 1973 with special procedures. The Pakistan Criminal Law (Amendment) Act, 1958, to try corruption cases against public servants, Offences in Respect of Banks (Special Courts) Ordinance, Defence of Pakistan Ordinance, 1971, Prevention of Anti-National Activities Act, 1974, Banking Companies (Recovery of Loans, Advances Credits and Finances) Act, 1997 and the Members of Parliament and Provincial Assemblies (Punishment for Misconduct) Order, 1977 (PPO XVI of 1977).

25. Section 6(1) of the Code of Criminal Procedure, 1878, provides that besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be to classes of Criminal Courts in Pakistan. Article 175(1) of the Constitution lays down that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. Even in cases not specifically envisaged in the Constitution a Court can be validly created by law if it is not in conflict with Article 175 or violative of any other provision of the Constitution. See the Case of the Commissioner of Income Tax v. United Builders Corporation (1985 CLC 1102). In Sajjad Hussain v. The State (PLD 1989 F.S.C. 50) it has been observed that no exception can be taken to the jurisdiction of the Federal Shariat Court if it examines any case decided by any Criminal Court including Political Agent under any law relating to the enforcement of Hudood. The question of Special Courts/Tribunals was examined by the Supreme Court in Abdul Nafaz v. The State (PLD 1981 SC 352). It was laid down that besides the Supreme Court and High Court for each Province there could be as many other Courts as might be established by law covering several fields of jurisdiction. Classes of Criminal Courts as given in section 6 Cr.P.C, was not exhaustive.

Section 6 of the Code itself contemplated constitution of other Courts as might be established under any law other than the Code and the Constitution. This Court, in Altaf Hussain v. The State (PLD 1985 Lahore 10) and Muhammad Yaqoob Ali v. The State (PLD 1985 Lahore 48) held that a Special Court under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, presided over by a sitting Judge of High Court would not be a High Court. It would be inferior to High Court having appellate jurisdiction against the judgments of the Special Courts.

26. The Constitution-makers in their wisdom considered it necessary to expressly authorise the Legislature by Article 175 of the Constitution, to set up subordinate judiciary. Similar provisions had been made by some other Constitutions such as Indian, Australian, American and Canadian. In absence of such a provision in our Constitution it might have been argued that no power was given to Parliament or a Provincial Assembly to establish subordinate judiciary. The object of Article 175 of the Constitution seems to set all doubts at rest. The Australian High Court had laid down in Peacock v. Newtown Marrickville Society Ltd. (1943) 67 C.L.R. 25) that the power to make laws in relation to any subject carried with it a power to establish Courts to administer laws with no' infringement, transgression or deviation from the provisions of the Constitution. It is no function of this Court to question the wisdom or justification of the Legislature in enacting the Anti-Terrorism Act, 1997, on the basis of any extrinsic factors. It is not for this Court to substitute its opinion for that of the Parliament as to whether a particular category of offences would be triable by the Special Courts or not. The judiciary cannot over-reach the Legislative Department of the Government. No idea or philosophy extraneous to Constitution can constitute a criteria for validity of the law providing for the forum of Special Courts and Appellate Tribunals with a special procedure, different from the normal one, for speedy trial of scheduled offences. Legislative tests are to determine legislative authority, not dependent on any motive, wisdom, policy, impolicy or rule or jurisprudence, etc., and other considerations. A law may declared void ipso jure not because our Parliament attempted to over-reach the judicial field but because of the Constitutional limitations or restraints in that field of legislation which is the touchstone of testing the vires of legislation. A statute which is otherwise competently and validly made cannot be struck down solely on the basis of inquiry by the Court into the object, intention of legislature, necessity, hardship in some exceptional cases or with reference to extraneous considerations which are foreign to our Constitution. The Legislature understands the needs and requirements of the people better. A legislative measure such as the impugned legislation must be meaningfully construed and given effect so as to subserve the purpose for which it is meant. See the cases of Fauji Foundation (supra), Muhammad Sajjad and another v. The State (PLD 1961 SC 13), State v. Ziaur Rehman (PLD 1973 SC 49), Abdul Khalique v. The State (PLD 1990 Karachi 448), Messrs Automobile Ltd. v. Pakistan (PLD 1969 SC 623 at 645), Pakistan Chrome Mines Ltd. v. Enquiry Officer, War Risks Insurance and another (PLD 1977 Karachi 978), K. Balakrishna Rao and other's v. Haji Abdulla Sait and others (AIR 1980 SC 214), Shri Ram Krishna Dalmiay. Shri Justice S.R. Tendolkar and others (AIR 1958 SC 538), Elahi Cotton Mills Ltd. (supra), Rashad Ehsan and another v. Bashir Ahmad and another (PLD 1989 SC 146), Vacher & Sons, Limited v. London Society of Compositors (1913 A.C. 107), Williamson v. Lee Optical of Oklahoma (1955) 348 U.S. 583), Ferguson v. Skrupa (1963) 372 U.S.726), Lee v. Bude (1871)

L.B. 6 C.P. 576 (582) and Muhammad Sadiq Khan v. Federation of Pakistan (PLD 1983 FSC 24).

27. In Mirza Gulzar Beg v. The Station House Officer, Railway Police Station, Lahore and 3 others (PLD 1977 Lahore 435), it has been observed at page 441 asunder:- .....

It was laid down in Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506) that trial of persons who committed a particular type of offence or offences by a Special Tribunal did not offend against Article 25 of the Constitution. Similarly, if the Defence of Pakistan Ordinance and the Defence of Pakistan Rules are valid laws as laid down in Malik Muhammad Suleman M.N.A, v.

Islamic Republic of Pakistan (PLD 1976 Lahore 1250) then establishment of Special Tribunals thereunder does not suffer from any lack of power. It is well known that numerous Tribunals in the country are functioning, for example, Authority under the Payment of Wages Act, Industrial Tribunals/Labour Courts, Income-Tax Appellate Tribunals etc. Etc. It is not necessary for setting up a Tribunal that there should be a specific sanction in the constitution for that purpose. The real test is to see the subject-matter and pith and substance of the relevant law under which a Tribunal is established. If that law falls within the competence of the appropriate Legislature then the establishment of Special Tribunals under the law and on those subjects which fall under that law would be a matter well covered by that law and no exception could be taken against their establishment on the score on which it is being advanced before me. Indeed apart from the High Courts or Supreme Court, it will be difficult at the present day to find any Court/Tribunal which does not owe its existence to an Act of the Legislature. Were I to hold that such Acts were ultra vires practically the whole administration of justice in the country would cease to exist. The power to make laws, in my opinion, includes the power to enforcing their observance by the creation of Courts or Tribunals of justice. See Parmeshwar Ahir v. Emperor (AIR 1918 Patna 155), where it was held that Special Tribunals could be created under the Defence of India (Criminal Amendment) Act (IV of 1915), which was an Act corresponding or similar to the present Defence of Pakistan Ordinance. The point raised by the learned counsel has no substance even on the bare wording of the Article 175(1) of the Constitution, where it is laid down that, "there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law".

Clause (2) of this Article states that, "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." This shows that the Constitution does confer power on appropriate Legislature to create and establish Courts of all types including Special Courts or Tribunals and can regulate their jurisdiction by the relevant law... "

In the case of Ch. Zahur Elahi. M.N.A, v. The State (PLD 1977 SC 273 at 357). It was observed that "the mere fact that forum created under section 8 of the 1971 Ordinance is designated as Special Tribunal and not Court hardly makes any difference. Indeed a Tribunal is a generic term which includes a Court and often these terms are used interchangeably. The functions of the, Special Tribunal set up under section 8 are wholly judicial and not administrative". The Parliament was fully empowered to create Special Courts for speedy trial of scheduled offences both under the Constitution and the law. No exception can be taken by reference to the provisions of Article 175 of the Constitution to the enactment of the Anti-Terrorism Act. 1997.

28. Another objection had been raised that in the presence of ordinary Courts of criminal justice, the cases of scheduled offences could not have been tried by the Special Courts created under the Act. Such a legislative measure was said to be violative of Articles 4 and 25 of the Constitution of Pakistan being discriminatory and without any reasonable classification. Subsection (1) of section 12 of the Act lays down that notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area. The Schedule of the Act specifies. The offences which are triable by the Special Court subject to certain conditions. The Schedule was amended by the Government from time to time the latest notification being that of dated 13th of December, 1997. The Schedule would show that only a specific category of the offences with special features are exclusively triable by a Special Court. Once a pase is shown to be involving a scheduled offence, the same is triable by the Special Court automatically, by operation of the self- executory provisions of section 12 or 38 of the Act as the case may be. The offences mentioned in the Schedule, prima facie, constitute a special category of offences involving elements of terrorism, sectarian violence and heinous in nature. No choice is left to the Executive to send a case of scheduled offence to any other Court. In our opinion, to treat heinous and terrorist acts differently than the ordinary offences to be dealt with by a different forum was a reasonable classification which did not offend the guarantees of equal protection of laws or equality before law within the meaning of Articles 4 and 25 of the Constitution. The persons accused of heinous offences or terrorist acts are not similarly situated with those of ordinary crimes. The Government functionaries cannot pick and choose any case they like. There is only one forum of Special Courts with Appellate Tribunals which can try the offences satisfying the ingredients of scheduled offences. Ordinarily, it is only where an unguided discretion is given by the Legislature with liberty to pick and choose that the provisions of law may be found to be ex facie discriminatory and, therefore, invalid as was held in the case of Waris Mean v. The State and another (PLD 1957 SC Pak. 157). In the precedent case, the Authorities had the absolute discretion to refer a case for trial under the ordinary law, or by an adjudication officer or by a Tribunal under the Foreign Exchange Regulation Act, 1947.

However, in Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9), the provisions of the East Bengal State Acquisition and Tenancy Act, 1950, had been called in question on the ground of being discriminatory legislation. It was held that the Act was not discriminatory on the face of it because it did no more than to empower the Provincial Government to acquire the interests of such rent- receivers as might be specified in the notification in any district, part of a district or local area, and the Provincial Government could acquire the interests of all rent-receivers throughout the Province at one and the same time. Where a statute was not ex facie discriminatory, but was capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it had actually been administered to the detriment of a particular person in a partial, unjust and oppressive manner. It was further held that the conferment of that kind of discretion could not be held to be void, though the action taken in exercise of that power if it was unjust, oppressive and partial might be called in question on the ground that the person or persons less favourably treated had been denied the equal protection of the law. In the present case, the nature of terrorist acts or heinous offences constituted a distinct and different class of offences connected not only with the law and order but with the defence of the Federation. There was an ample justification for the Legislature to treat-such particular category of offences differently than the ordinary offences if the same was found to have been committed in a notified area affected by the terrorist activities.

There was, therefore, a rational basis to treat such offences as a distinct class of offences. A Full Bench of the erstwhile West Pakistan High Court examined the question of classification of accused and offences in the case of Malik Muhammad Usman v. The State through E.A.C, and A.D.M., Quetta and another (PLD 1965 Lahore 229). It was held that a classification based on an area was not necessarily discriminatory. In Yick Wo v. Hopkins (1886) 118 US 356), the United States Supreme Court took the view that the guarantee of equal protection did not prevent the State from applying different laws or different systems of judicature to different parts or local subdivisions of the country according to local circumstances, for the clause did not secure to all persons the benefit of the same laws and the same remedies, equal protection of the laws was a pledge of the protection of equal laws. In our view the offenders of heinous crimes and ordinary offences are unequals and are to be treated differently. The Hon'ble Supreme Court in the case of Messrs Gadoon Textile Mills and 814 others v. WAPDA and-others (1997 SCMR 641 at 811) observed that only 20 industries had been picked up by the executive order for the grant of concessions of electricity tariff while others had been so denied. A challenge was made that such an action of the executive violated the principles of equality contained in Article 25 of the Constitution. It was laid down that equal protection of law did not envisage that every citizen was to be treated alike in all circumstances. It contemplated that persons similarly situated were to be treated alike. It was further observed that different laws could validly be enacted' for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes. Similar view had been earlier expressed in I.A. Sherwani v. Federation of Pakistan (1991 SCMR 1041). In Benazir Bhutto v. Federation of Pakistan (1991 MLD 2622) (D.B. Karachi), the provisions of Presidential Order No.XVII of 1977 providing for disqualification of holders of representative offices and trial by the Special Courts were sought to be struck down on the basis of Article 25 of the Constitution. It was held that the holders of public representative offices constituted a reasonable classification of persons in one group which did not offend the provisions of Article 25 of the Constitution even if the said law was capable of being administered in a discriminatory manner. In Messrs Elahi Cotton Mills Ltd. And others (supra), the Hon'ble Supreme Court went further to hold that the State did not have to tax everything in order to tax something and was allowed to pick and. Choose districts, objects, persons, method and even rates' for taxation if it did not reasonably. In the precedent case, it was also observed that reasonable classification did not imply that every person should be taxed equally. Reasonable classification was permissible provided same was based on an intelligible differentia which distinguished persons or things that were grouped together from those who had been left out and that differentia must have a rational nexus to the objects sought to be achieved by such classification. The question, as to whether a particular classification was valid or not, could not be decided on the basis of advantages and disadvantages to the individual assessee which were accidental and inevitable and were inherent in every taxing statute as it had to draw a line somewhere and some cases necessarily might fall on the other side of the line. In Tingu v. Taxes (1940) 310 US 1417), the U.S. Supreme Court took the view that the Government encountered and must deal with the problems which came from persons in an infinite variety of relations.

Classification was the recognition of the relations, and in making it a Legislature must be allowed a wide latitude of discretion and judgment. In State of Bombay v. F.N. Balsora(AIR 1951 SC 318), the Indian Supreme Court took the view that it must be assumed that the Legislature understood and correctly appreciated the needs of its on people, that its laws were directed to problems made manifest by experience and its discriminations were based on adequate grounds. The principle of equality did not mean that every law must have universal application for all-persons who were not by nature, attainment or circumstances in' the same position, and varying needs of different classes of persons often required separate treatment. The concept did not take away from the State the power of classifying persons for legitimate purposes. Every classification was in some degree likely to produce some inequality and mere production of inequality was not enough. If a law dealt equally with members of a well-defined class, it was not abnoxious and it was not open to charge of denial of equal protection on the ground that it had no application to other persons. In Goplan v. State of Madhya Pradesh (1955) SCR 168) and Kishori v. Union of India (AIR 1962 SC 1139), it was observed that if the few itself laid down the policy and provides principles and guidelines according to which the selection was to be made by the administrative authority, it would not be violative of the guarantee if certain offences or classes of offences were prescribed by the.

Legislature to be triable by a Special Court or under such special procedure, on the basis of reasonable classification. A similar view was taken in the case of Ramtanu v. State of Madras (AIR 1970 SC 1771) and Dhirendre v. Legal Remembrancer (AIR 1954 SC 424). It was laid down by the Supreme Court of India that there was no discrimination if the scope of the to enactments was different or one of them dealt with a special situation. In Gopi Chand v. Delhi Administration (AIR 1959 SC 609), the special trial of specified offences was held to be valid and rational basis for classification as it had an intimate relation to the object of the legislation, such as, 'public safety" or "maintenance of public order" in a dangerously disturbed area. A similar question was examined by our Supreme Court in Brig. (Retd.) F.B. Ali and another (supra) wherein the Defence Services Laws (Amendment) Ordinances, 1967. Were upheld. It was held that retired civilians seducing army personnel constituted a different class of people and wct4 liable to be prosecuted before a special forum, i.e., the Field General Court Martial. There was no violation of Article 25 of the Constitution of Pakistan. Their Lordships made the following observations:- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same maimer. The phrase equal protection' of the laws means that no person or groups of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates there by a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g., minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti- social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order- removal of comipition from amongst public servants or for meeting an emergency.

(Underlining is ours).

The concept of the 'equal protection of laws', which is derived from the American Constitution is not susceptible of any exact definition, 'in other words', as stated by the editors of American Jurisprudence, Vol.12, page 409,. 'no rule as to protection of laws that will cover every case can be formulated and no test of the type of cases involving such a clause of the Constitution and unwise to attempt to lay down any generalization covering the subject; each case must be decided as it arises'. Be that as it may, the only generalization that is possible is that it means subjection to equal laws applying to all in the same circumstances' but this does not mean that laws must affect every man, woman and child alike. This guarantee does not forbid discrimination with respect to things that are different nor does it prohibit classification which is reasonable ana is based upon substantial differences having a relation to the objects br persons dealt with and to the public purpose sought to be achieved. It guarantees equality and not identity of rights.

The principle is well recognised that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification-whereby some people acquire rights or suffer disabilities which others do not. What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to other does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."

In Shaheen Welfare Association v. Union of India and others (1996) 2 SCC 616), the provisions of section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, came for interpretation on the question of bail. The Supreme Court of India took the view that had core terrorists were to be dealt with strictly while in other cases liberal view was commended.

29. The validity of the Special Courts for Speedy Trials Act (II of 1987) was examined by a Division Bench of this Court on the touchstone Of Article 25 of the Constitution in the case of Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554). In the precedent case, the Court held that the Act of 1987 had made deviations from the ordinary procedure governing the criminal trials. These deviations ought, in practice, operate in some respects to the disadvantage of the persons subjected to trial before the Special Courts. Those provisions of the impugned enactment showed that some of the rights/safeguards available to an accused under the general law had been abridged and certain benefits denied to which the accused would otherwise be entitled under the general law. Certain principles on the subject of discriminatory legislation were also summarized as follows:-

(i) The expression "equality before law" or the "equal protection of laws does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or- circumstanced shall be treated alike.

(ii) The guarantee of equal protection of laws does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) The guarantee of equal protection of laws forbids class legislation, but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or {flings within the class.

(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation.

(v) Reasonableness of classification is a matter for the Courts to determine and when determining this question, the Courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.

(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the Legislature is the best Judge of the needs of particular classes and the , degree of harm so as to adjust its legislation according to the exigencies found to exist.

(vii) One who assails the classification must show that it does not rest on any reasonable basis.

(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards norms for the guidance of the designated authority, in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the Statute would be condemned as unconstitutional.

(ix) Where the statute itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation the power to the Government so .As to enable it to discriminate between the persons or the things similarly situated.

It was held that special legislation providing for differential treatment would not offend against the equal protection clause of the Constitution if the persons or the things falling within the mischief of the provisions of the Special Statute formed a class or a category in themselves distinct from others. The offences triable by Special Courts constituted under the Special Courts for Speedy Trials Act, 1987, were duly created with reference to their special features and characteristics mentioned in the definition contained in section 2(c). The classification so made also appeared to be quite reasonable because instances were not wanting where the crimes of murder, dacoity, robbery, kidnapping and abduction were committed in a manner and under the circumstances which brought them within the mischief of the definition of 'offence embodied in section 2(c). In facts, the offences as were visualized in the said definition were unfortunately becoming the order of the day.

Such offences by reason of the peculiar characteristics and special features attending them were distinguishable .From stray cases of similar offences or even same species of offences committed under ordinary circumstances. They could, therefore, weil be constituted into a special class of offences requiring special treatment. In the field of criminal justice, a classification could well be made on the basis of heinousness of the crime committed, the degree of harm/evil. Likely tb be caused to the society as a whole or a part thereof as a result of the commission of certain offences or the necessity of preventing certain immoral or anti-social effects of a particular crime. In the circumstances, the classification of the offences having special features/characteristics as were mentioned in the definition was quite valid and reasonable based as it was on intelligible differentia. The classification made had the rational relation with the object sought to be admitted by the legislation. Both the conditions viz. The reasonable classification of the offences and the rational relation thereof with the object of the statute, being thus satisfied, the legislation could not be said to be violative of Article 25 of the Constitution. The case of Zia Ullah Khan (supra) was affirmed in appeal by the Hon'ble Supreme Court In The State v. Zia Ullah Khan (1992 SCMR 602). It is noteworthy to mention that there was some discretion available with the Government to transfer any case to the Special Courts under the 1987 Act. However, under the impugn legislation, i.e. Anti- Terrorism Act. No such discretion has been given to the Government. All the scheduled offences or offences connected therewith are exclusively triable by the Special Courts and no other case can be transferred to such Special Courts. Under the present law, even the cases constitution scheduled offences pending in any Court stand transferred to the Special Courts by operation of law and not at the sweet will of the Executive.

30. Section 12(3) of the Act is self-executory in nature. Self-executory provisions are defined in Black's Law Dictionary as under:- "Self-execution constitutional provisions.-Term has reference to provisions which are immediately effective without the necessity of ancillary legislation. Constitutional provision is self-executing if it supplies sufficient rule by which right given may be enjoyed or duty imposed enforced; Constitutional provision is not self-executing when it merely indicates principles without laying down rales giving them force of law."

In Ballentine's Law Dictionary, it is stated that:-- "Self-execution provision.-A provision of Constitution which is effective without Legislation, no action' by the Legislature being required to put it in operation. 16 Am 12d Const L 94.

A Constitutional provision may be said to be self-executing when it takes immediate effect and ancillary legislation is not necessary jo the enjoyment of the duty imposed. In short, if a Constitutional provision if complete in itself, it executes itself, Lanigan v. Callup, 17 NM 627, 131 p. 627."

The distinction of the self-executor)' provisions and the non-self executory provisions was made by the Hon'ble Supreme Court in the case of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99 at page 151) as follows:-- "As most of the provisions found repugnant to Injunctions of Islam happen to be, self-executory, they have of their on force taken effect, accomplished the object of . The legislation leaving the mere implementation of it, to be completed on the strength of machinery provisions. Such self- executory provisions will remain unaffected by this decision. However, those provisions which have a prospective effect also and are not self-executory, shall get annulled from the date the decision declaring them repugnant to the Injunctions of Islam takes effect."

In the case of Mst. Kameez Fatima v. Wali Muhammad and another (PLD 1993 SC 901 at page 910), their Lordships held as under:-- "The self-executing provision not only confers a right but it provides for its protection and a further duty is cast to enforce it without the said aid of legislative enactment. There may be supporting legislative enactments which may flow from such self-executing provisions of the Constitution, but they will not change the character of the self-executing provisions of the Constitution- nor will they be dependent upon such supporting legislation. But where merely a policy has been laid down or some guidelines have been provided', they are dependent upon supporting legislations and enactments because without them the same cannot be enforced by themselves. Sometimes, as in Constitution of Pakistan, procedure is provided for enforcing or making such nonself-executing provisions operative. Therefore, in such circumstances, the non-self-executing provisions of the Constitution serve as a beacon light for the enactment of laws by the Legislature and also for making rules and regulations which have the force of law."

31. In Kartar Singh (supra), the provisions of a similar law in India to be known as TADA were upheld on the touchstone of Article 14 of the Indian Constitution which is similar to Article 25 of our Constitution. In State (Delhi Admn.) v. V.C. Shukla and another (AIR 1980 SC 1382), the provisions of the Special Courts Act, 1979, the Constitution of Special Courts for the trial of specified offences with a special procedure had been called in question on the grounds of discrimination, excessive delegation of powers and the erosion of independence of Judiciary. It was held by the Supreme Court of India that:~ "The classical tests laid down for the application of Article 14 are the following:-- -

(1) The classification must be founded on an intelligible difference which distinguishes persons who are placed in a group from others who are left out of the group.

(2) Such determination must have a rational relation to the object sought to be achieved by the Act.

(3) There must be a nexus between the differentiation which is the basis of the classification and the object of the Act.

The heading of the Special Courts Act (1979) shows that its main object is to provide for the speedy trial of a .Certain class of offences. To sum up from the object of the various clauses of the preamble it is manifest that particular type of persons namely, those who are holding high public or political offices by way of a trust, have been put in a separate class alongwith those who have committed offences during the emergency and who' also bear the same characteristics as those indicated in clause (4). By and large, the Act contains almost the same provisions as were contained in the Bill which was sent to the Supreme Court for its opinion by the President. It is true that the Supreme Court while dealing with, the reference case was not at all concerned with the provisions of the Act which is of much wider application than the Bill considered by the Court in the reference. The Bill contained provisions for punishing only those offenders who were accused of offences committed during a particular period, namely, the period of Emergency. It is true that the period of Emergency was an extraordinary one in the history of our country and its features have been spelt out in the preamble of the Bill as also in the judgment given by the Supreme Court in the reference case, But that by itself does not debar Parliament from passing a permanent Act to deal with a specified class of persons who occupy high public or political offices (which are offices of - trust) and misuse or abuse them. For the establishment and continuance of a Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such persons commit serious abuse of power and are guilty of a breach of the trust reposed in them, they would form a special class of offenders. The circumstance that the Act applies to offences committed at any time by a particular set of persons possessing special characteristics does not render it unconstitutional for, when it puts into a class a particular set of persons having special characteristics which distinguish them from others who are left out of that class and who are to be tried under the ordinary law, the classification is eminently reasonable. Further the classification made has a reasonable nexus' with the object sought to be achieved namely, quick despatch and speedy trials. The Act does not contravene the provisions of Article 14.

The Special Courts Act cannot be held to be void on the ground that the Aa creates an invidious distinction inasmuch as persons holding high public or political offices would have the-benefit of trial by such an experienced officer as a sitting Judge of a High Court while the accused had been deprived of that right and were tried by a. Special Judge who was only a Sessions Judge.. The existence of such fortuitous circumstances cannot attract Article 14. it cannot be said that section 5(1) suffers from the vice of excessive delegation of powers so as to violate Article 14 because the discretion conferred on the Central Government is absolute, naked and arbitrary and is clearly discriminatory. No unguided or uncanalized power has been conferred on the Central Government. A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble. It is well settled that discretionary power is not the same thing as power to discriminate nor can the Constitutional validity of a law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may or would be exercised in a discriminatory manner. The power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of section 5(1) becomes a part of that section. As the power is vested in a very high authority, it cannot be assumed that it is likely to be abused. On the other had, where the power is conferred on such a high authority as the Central Government, the presumption will be that the power will be exercised in a bona fide manner and according to law. It cannot also be said that declarations under section 5(1) of the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party. Burden lies on he party alleging bias or malice to prove its existence, and if malice or bias is proved in a particular case, the Courts would strike down the act vitiated by it, in exercise of its powers under Article 226, 227 or 136. So also it cannot be said that the provisions about declaration contained in section 5(1) are violative of the principles of natural justice on the ground that they do not provide for any hearing being given to the accused before a declaration is made. It is to be borne in mind that at the stage when the declaration is sought to be made there is no lis pending nor has any prosecution been launched against the accused.

In view of finding of the Supreme Court that the classification made by the Special Courts Act complies with the dual test laid down by the Court and is a reasonable classification, Article 14 would not be attracted even if the procedure provided by the Act is held to be harsher than that available under the ordinary law. Apart from that, however, the procedure prescribed by the Act is not harsh or onerous but is more liberal and advantageous to the accused who is assured of an expeditious and fair trial thereunder. The procedure regarding appeals is not harsher than that prescribed by the Code of Criminal Procedure. Even &e Code of Criminal Procedure does not provide for any revision against an interlocutory order. Viewed from any angle, the procedure prescribed by the Act cannot be said to be prejudicial or less advantageous the accused, much less harsher or more rigorous than the one provided in the Code of Criminal Procedure. The procedure for trial of warrant cases gives a full opportunity to the accused to participate in the trial at all its stages and to rebut the case for the prosecution in every possible manner and the adoption thereof for trials under the Act would not be to the disadvantage of the accused.

Under the Special Courts Act not only is the appointment of a Special Judge made free of control by the Government as it now rests with the Chief Justice of the High Court concerned subject to the only condition that he must obtain the concurrence of the Chief Justice of India therefor. A provision for transfer of cases from one Special Court to another Special Court has also been inserted in section 10(1). The Act cannot be challenged on the ground of violation of Article 21 of the Constitution." in an earlier case of Kangshari Haidar and another v. The State of West Bengal (AIR 1960 SC 457), the provisions of the West Bengal Tribunals of Criminal Jurisdiction Act, 1952, providing for Special Tribunals to try the scheduled offences were upheld. Similar view was taken in the case of Syed Qasim Razvi and others v. State of Hyderabad and others (AIR 1953 SC 156) wherein the creation of Special Tribunal and a trial for a dacoity under the Hyderabad Special Tribunals Regulation, 1358, was upheld. In a Presidential Reference (AIR 1979 SC 478), the Indian Supreme Court opined that the creation of Special Courts for certain scheduled offences was not violative of the Constitution.

32. From the above discussion, it is clear that the Constitution of Special Courts and Appellate Tribunals for the purposes of speedy trial of more serious crimes cannot be invalidated on the touchstone of Articles 4 and 25 of the Constitution of Pakistan. No exception can be taken to the reasonable classification of Special Courts/Appellate Tribunals with reference to a particular category of offences. Unequals cannot be treated as equals on the basis of Article 25 of the Constitution. Persons accused of more serious offences have to be treated differently than those indicted for ordinary crimes. We find that even in section 497, Cr.P.C, the distinction has been made between various categories of accused with' reference to. The gravity of the offence and the category of offenders. For the purpose of bail.

33. The learned counsel for the petitioners also sought to challenge the vires of the Act, creation of the Special Courts and Appellate Tribunals with a special procedure on the basis of Article 2A of the Constitution. Article 2A was inserted by the Presidential Order No.14 of 1985 with effect from 2-3- 1985. The principles and provisions set out in the Objectives Resolution reproduced in the Annex were made substantive part of the Constitution in order to have effect accordingly. The said Article provides that sovereignty over the entire universe belongs to Allah Almighty alone who has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by-Him being a sacred trust. The Constituent Assembly representing the people of Pakistan resorted to frame a Constitution for the sovereign independent State of Pakistan.

The State shall exercise its powers and authority through the chosen representatives of the people wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah. Fundamental rights of equality before law, social, economic and political justice, and freedom of thought, expression, belief, faith worship and association, shall be guaranteed and the independence of the Judiciary shall be fully secured. There is no denying the fact that the Constitution has already been framed and enforced by the elected representatives of the people. The fundamental rights have been guaranteed in the Constitution. Necessary provisions have been made to enable the Muslims to order their lives in the individual and collective spheres in accordance with the teaching and requirements of the Holy Qur'an and the Sunnah. The Judiciary as an institution has already been made independent of the Executive as observed in Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi-and others (PLD 1994 SC 105). By Article 2 of the Constitution, Islam is the State religion of Pakistan. The Constitution-makers while guaranteeing fundamental rights to freedom of speech and expression and the press took particular care to harmonise them with reasonable restrictions imposed by law in the interest of the glory of Islam, the President of Pakistan and the Prime Minister of Pakistan are necessarily to be Muslims. The Government is already in the hands of elected representatives of the people. Article 227 requires that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah and that no law shall be enacted which is repugnant to the injunctions of Islam. The Federal Shariat Court and the Shariat Appellate Bench have been constituted in terms of the provisions of the Constitution. A Council of Islamic Ideology is already functioning to make recommendations to the Parliament and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims to order their lives individually and collectively in accordance with the principles and concepts of Islam. The Council advises the Parliament, a Provincial Assembly, the President or a Governor as to whether any proposed law is or is not repugnant to the Injunctions of Islam.

34. The meaning and scope of Article 2A was examined by the Hon'ble Supreme Court 'of Pakistan in the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595). It was laid down that Article 2A was not a supra-Constitutional provision inasmuch as it had become an essential and integral pan of the Constitution possessing the same weight and sums as other Articles of the Constitution which were already a substantive part thereof. Similar view was taken in the case of Mst. Kameez Fatima v. Wali Muhammad and another (PLD 1993 SC 901). In the case of Zaheeruddin and others v. The State and others (1993 SCMR 1718).

The Supreme Court synchronised Article 2A to be read in harmony with Articles 19 and 20 of the Constitution as a source for interpretation of the Constitution and the law. In Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 SC 11). An argument was raised that the Punjab Local Government (Repeal) Act. 1996. Was violative of Article 2A of the Constitution. It was repelled by the Supreme Court by observing that admittedly the said Act had been passed by the chosen representatives of the people, namely, the members of the Provincial Assembly who were competent to pass the same under the. Constitution, in Al-Jehad Trust through Raees-ul- Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others (PLD 1997 SC 84) it was held that the preamble as made substantive part of the Constitution by Article 2A envisaged a Parliamentary form of Government. The scope and construction of Article 2A was elaborately discussed in the recent case of Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426). It was held as under:- "In all the Constitutions, the Objectives Resolution has been the prevading spirit. It spells out broad principles for the Government of the country. The common factors throughout have been Federal democratic form of Government guaranteeing all the freedoms, equality, tolerance and social justice, as enunciated by Islam and full securing the independence of Judiciary. The other aspect singularly unique is that 'Sovereignty over the entire universe belongs to Almighty Allah and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. The Parliament therefore is not as independent as the British Parliament. However, the Court enjoys power to strike down any law which is in conflict with the provisions of the Constitution, in spite of this power vested in the superior Court they do not have power to strike down any provision of the Constitution which ma/ be in conflict with any of its provisions. Even in the presence of Article 2A as a substantive part of the Constitution the Court cannot strike down any provision of the Constitution on its (Article 2A) touchstone.

Constitutional provision cannot be struck down on the ground of being violative of basic structure or the framework of the Constitution.

In Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature, characteristic or structure of the Constitution. The theory of basic structure has thus completely been rejected.

However, every Constitution has its on characteristics and features which play important role in formulating the laws and interpreting the provisions of the Constitution. Such prominent features are found within the realm of the Constitution, it does not mean that Court impliedly accepts the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its on characteristics.

Article 2A was added to the Constitution of Pakistan (173), which has made the Objectives Resolution a substantive part of the Constitution, but to say that it is the basic structure does hot hold force.

It is not open to the Court to hold that a provision of the Constitution can be struck down on the ground of its being violative of the Objectives Resolution or of national aspirations or of higher ethical notions or of philosophical concepts of law or of the basic structure ."

As such no valid objection can be sustained to the creation of the Special Courts and the Appellate Tribunals with a special procedure for trial of scheduled offences on the touchstone of Article 2A,

35. The appointment of the Judges of the Special Courts are required, by subsection (2) of section 14 of the Act, to be made by the Government after consultation with the Chief Justice of the High Court. The Executive does not have a free had in the making of such appointments. As to the meaning of consultation we can do no better than to rely on the recent judgments of the Supreme Court in the cases of Al-Jehad Trust through Raseeul Mujahideen Habib-ul - Wahabb-u!-Khairi and others v. Federation of Pakistan (PLD 1996 SC 324) and Al-Jehad Trust through Raees-ul- Mujahidin Habib Al-Wahabul Khairi, Advocate, Supreme Court and another (PLD 1997 SC 84), The Federal Government is bound to accept the recommendations of the Hon'ble Chief Justice of the High Court except for valid reasons justifying a departure. We were informed by the learned Attorney-General for Pakistan and the learned Advocate-General, Punjab, that no Presiding Officer of the Special Court shall be removable except with the consent/concurrence or recommendation by the Hon'be'Chief Justice of the High Court. Even otherwise, the power of removal is basically an adjunct to the power of appointment. We, however, notice that the security of tenure for a certain period is also required to be provided by making necessary provisions in the statute itself as held by a Full Bench of this Court in the case of Imran v. Presiding Officer, Punjab .Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542). In the precedent case, provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Offences in Respect of Banks'(Special Courts)

Ordinance 1980, were examined threadbare. We allow to months' time for making necessary amendments in the law.

36. A serious objection was taken as to the appeals from the Special Courts being heard by the Appellate Tribunals instead of by the High Court. This departure was stated to be derogatory to the independence ot judiciary. By section 24 of the Act one or more Appellate Tribunals for each Province can be constituted by the Government consisting of one or to Judges of the High Court as may be nominated by the Chief Justice of the High Court concerned to hear the appeals against the final judgments of the Special Courts. It is only the nominee Judge of the .High Court who can be appointed by the Government as an Appellate Tribunal. The Government cannot of its on pick and choose any Judge to be an Appellate Tribunal. The Government is divested of any discretion in the matter of appointment of sitting Judges of the High Court to be the Appellate Tribunals. For all practical purposes, the appointment is made by the Chief Justice although formally notified by the'

Government. As already discussed above, the Code of Criminal Procedure itself contemplates the creation of certain Courts other than the High Court and the ordinary Courts of criminal jurisdiction.

There is nothing in the Constitution which prohibits the Parliament from conferring by a special statute an appellate jurisdiction on the Court or a Tribunal other than the High Court. But for the provisions of Cr.P.C., the High Court would not have exercised the appellate or revisional jurisdiction other than that conferred by the Constitution itself. The appeal under the Act is heard by Judges of the High Court who are nominated by the Chief Justice of the High Court concerned. Their independence to decide the cases is not in any way affected. The Appellate Tribunal exercises the judicial power independently of any supervision or control by the Executive Wing of the Government. It hardly makes any difference whether it is designated as a Tribunal or Court. For all practical purposes and legal, consequences, the Appellate Tribunal is a Judicial Tribunal and a Court. All Judicial Tribunals are Courts. In the case of Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1997 SC (Pak.) 91), it was held that the Election Petitions Tribunal was a Court and its "report'' was a "judgment" in every sense necessary for the exercise of the Supreme Court powers to entertain appeals under Article 160 of the 1956 Constitution. A Tribunal, it was observed, falling within the Article must be a person or body charged with function which led upon the conclusion of-any matter before him or it to a final order falling with the expression "judgment", "decree", "order," or "sentence". Clearly reference was to a Tribunal whose functions were main of a judicial nature, culminating in the making of a decision which when stated in formal terms, had operation, of its on force, in relation to the rights of parties.

It was implicit, within the terms of the Article, that the procedure of such a Tribunal shall be judicial in nature, namely, upon a case or a matter raised by one party, and after notice and opportunity of replying to the other party, to proceed by the method of receiving evidence and hearing arguments from both sides, to the decision of questions of fact and law arising in the case, and to make eventually a definitive and self-operative order, adjudicating upon the respective rights and liabilities of parties to the dispute". In Ch. Zahur Ilahi (supra), the Supreme Court took the view that the mere fact that forum created under section 8 of the Defence of Pakistan Ordinance, 1971, was designated as a "Special Tribunal" and not "Court" hardly made any difference. Indeed Tribunal was a generic term which included a Court and often those terms were used interchangeably. The functions of the Special Tribunal set up under section 8 ibid were wholly judicial and not administrative.

In Muhammad Ahmad v. Governor-General-in-Council (AIR 1945 Lahore 313 (F.B.), the High Court took the view that to be a Court, the person or persons who constituted it must be entrusted with judicial functions; that is, functions of deciding litigated questions according to law. Also see the cases of Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. And another (PLD 1984 Lahore 69), Altaf Hussain v. The State (PLD 1985 Lahore 10), Muhammad Yaqub. Ali v. The State (PLD 1985 Lahore 48), Engineering Mazdoor Sabha and another v. Hind Cycles Ltd. (AIR 1963 SC 874), Brajnandan Sinha v. Jytol Narain (AIR 1956 SC 66), Haringar Sugar Mills Limited v. Shyam Sundar Jhunjhunwala (AIR 1961 SC 1669), Associated Cement Companies Ltd. v. P.N. Sharma and another (AIR 1965 SC 1595), Bapusaheb Balasaheb Patil and others v. The State of Maharashtra and others (AIR 1975 Bombay 143) and Satdeo Pandey v. Baba Raghav Das (AIR 1953 Allahabad 419). The Appellate Tribunal is also empowered under section 28 of the Act to transfer any case from one Special Court to another. It is to be noticed that the judgments of the Special Courts constituted under Article 212-B for the trial of the heinous offences were not appealable before the High Court or before the Supreme Court. The appeal had been provided by clause (5) of Article 212 of the Constitution before the Supreme Appellate Courts, appointed by the Government, consisting of a Judge of the Supreme Court and to Judges of the High Court to be nominated by the Federal Government after consultation with the Chief Justice concerned. Clause (2) of Article 175 of the Constitution is a Constitutional limitation that no Court should have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. If the Parliament has in its wisdom thought it fit to confer the appellate jurisdiction on the Judges of the High Court under the Act, no valid exception can be taken thereto in the absence of any transgression of the provisions of the Constitution. The Constitutional prohibition of clause (2) of Article 175 equally applies in the case of a High Court. In Commissioner of Income Tax, Lahore V. Umar Saigol (PLD 1975 Lahore 1558), the provisions of Article 175(2) were construed. It was held that the said Article was neither an enabling provision nor did it confer any powers. It was, in fact, an inhibiting provision, Which, far from conferring jurisdiction, limited it. The reference to jurisdiction "under any law" was relatable to specific provisions made in the Constitution enabling Parliament to make law in certain cases for the conferment of jurisdiction on the Supreme Court in matters specifically provided for by the Constitution itself. Under the Election Laws, an appeal from a decision of an Election Tribunal tries directly to the Supreme Court without channel of the High Court. A similar question was considered by the Privy Council in the well known case of Bhagat Singh and others v. The Ki Emperor (288) I.L.R. Volume-XII 11931) = AIR 1931 RC 111 = 131 IC 1931. In the precedent case, a Tribunal of three Judges of the High Court had been constituted by the Chief Justice of Lahore under the Lahore Conspiracy Case Ordinance, 1930. For the trial of 12 persons under various provisions of the Penal Code and the Explosive Substances Act.

Three of the accused were sentenced to death, seven to transportation for life and to With rigorous imprisonment. The validity of the Ordinance had been challenged on the ground that the High Court had been bypassed in the matter of appeals no such appeal had been provided. The Privy Council took the view that an Ordinance so promulgated constituted a Special Tribunal for the trial of a criminal case was not invalid, in that, it deprived the accused of the right of appeal to the High Court which they would otherwise have had. The challenge to the validity of the Ordinance was not sustained. A similar question came up before the Indian Supreme Court in the case of Usman bhai Dawood bhai Memon v. State of Gujarat (AIR 1988 SC 922). The Terrorist and Disruptive Activities (Prevention) Act, 1987, had been challenged on the ground that the appeal to the High Court had not been provided from the decision of the designated Courts. It was held that special procedure prescribed under the Act was to prevail over that prescribed under Criminal Procedure Code. The hierarchy of Courts provided under the Act excluded those provided under section 6 of the Code of Criminal Procedure including the High-Court. Also see Syed Qasim Razvi v. State of Hyderabad (AIR 1953 SC 156). It is now well settled that where particular enactment and general enactment deal with the same matter, it is the particular enactment which governs and not the general one. See the cases of Saiyid Abut A'la Maudoodi and 2 others v. The Government of West Pakistan and another (PLD 1964 SC 673), General Steel Tools Company. Gujranwala v. Presiding Officer, Punjab Labour Court No.2, Lahore and 2 others (PLD 1976 Lahore 528). We have no doubt in our mind that the provisions of Anti-Terrorism Act prevail over the general provisions of the Criminal Procedure Code in case of any inconsistency. In Muhammad Nawaz v. The Crown (PLD 1951 FC 73), the Federal Court took the view that a decision of the Court Martial was not appealable before the Federal Court. In Krishna v. The State (PLD 1972 SC 1), no exception was taken by the Supreme Court for not providing any appeal to the Supreme Court from a decision of a Judge of High Court acting as a revising authority under the Enemy Agents Ordinance, 1943. In the cases of Kartar Singh (supra) and Bimal Kaur Khalsa v. Union of India and others (AIR 1988 Punjab and Haryana 95) (F.B.), it was held that the judicial independence was not subvened in a trial by the designated Courts and that the provisions of TADA Act were not discriminatory or unconstitutional. In a Presidential Reference reported in AIR 1979 SC 478, the Supreme Court of India gave advice that Special Courts with a special procedure of appeals could be validly established under a special law to deal with the cases of heavy weight criminals. An Appellate Tribunal under the Act consisting of High Court Judges is to exercise the control and supervision over the Special Courts in the Province like all other subordinate Courts, in terms of Article 203 of the Constitution of Pakistan. Section 6, Cr.P.C, itself contemplates the creation of the Courts other than the! High Court. The constitution of the Appellate Tribunals consisting of High I Court Judges cannot be said to be invalid merely on the ground that the High Court had been bypassed in the matter of appeals.

37. The Constitutional jurisdiction of the High Court remains intact notwithstanding the decision by the Appellate Tribunal constituted under the Act. In appropriate cases a writ petition before the High Court can be filed under Article 199 of the Constitution of Islamic Republic of Pakistan. If a person feels aggrieved from the judgment of the High Court in exercise of the Constitutional jurisdiction, he may have recourse to the Supreme Court by filing a petition/appeal Under Article 185 of the Constitution. The Supreme Court is empowered to intervene under Article 184(3) of the Constitution even if no remedy by way of appeal or petition has been provided by law. See the cases of , Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1984 1 SC 885) and Mamtaz Khan v. Government of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad and 4 others (PLD 1995 SC 512).

38. The learned counsel for the petitioners raised another point that the impugned Act did not provide for any appeal to a person who was convicted for the first time by the Appellate Tribunal.

None of the present writ petitioners had been convicted in appeal for the first time. Ordinarily, the Courts are not required to determine academic issues as to the constitutionality of a provision of law without there being actual dispute between the parties. We might have deferred the question for decision in some other appropriate case. The learned Attorney General for Pakistan, however, stated at the Bar that he had already moved the Federal Government to initiate the legislation providing a further right of appeal to a person who was convicted by the Appellate Tribunal for the first time. It is now well settled that the Courts do not decide hypothetical or contingent questions or give mere declarations in the air unless settling down rights and obligations of the parties. See the cases of the Province of East Pakistan and another v. Md. Mehdi Ali Khan and others (PLD 1959 SC (Pak.) 387 at pages 407-408), Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139 at 166) Doaba Goods Forwarding Agency Ltd. Through Sh. Aziz Ahmad, Sarai Sultan, Lahore and 10 others v. Province of Punjab through Secretary, Transport, Lahore and 3 others (1971 SCMR 527), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738) and M/s. Shri Sitaram Sugar Co. Ltd. And another v. Union of India and others (AIR 1990 SC 1277). We may also observe that an appeal by itself is a continuation of the original proceedings. When an appeal is filed the matter becomes sub judice and is re-heard by the Appellate Court which does not act merely as a Court of error. The original and the appellate proceedings are steps in one proceedings. Ordinarily, when an appellate judgment is delivered, the only order in existence is the order of the appellate Court or authority. An order which is otherwise appealable remains inchoate till the Appellate Tribunal decides the appeal. The doctrine of merger applies in such cases.

However, the appeal being creature of a statute is confined to limits set out by it. Reliance is placed on Messrs Haider Automobile Ltd. (supra), F.A. Khan v. Government of West Pakistan (PLD 1964 SC 520), Mahboob Aalam v. Mir Zaman and 2 others (PLD 1974 Lahore 218), The Province of East Pakistan v. Muhammad Hussain Mia (PLD 1965 SC 1), Pir Muhammad Farid Jan v. Colonization Officer, Sukkur Barrage, Hyderabad and others (PLD 1965 SC 399), Javed Iqbal and another v.

District Judge. Jhang and 2 others (PLD 1987 Lahore 9), Roshan Din v. S.M. Badruddin (PLD 1969 Karachi 546), Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income-tax and others (PLD 1992 SC 549), Khalid Malik and others v. Federation of Pakistan and others (PLD 1991 Karachi 1) (F.B.), Abida Rashid v. The Secretary, Government of Sindh and others (PLD 1995 Karachi 587), Commissioner of Income-Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. (PLD 1991 SC 368) and Habib Bank Ltd. v. The State and 6 others (1993 SCMR 1853). It may well happen that in some cases an adverse decision is made against a party for the first time by the highest Court of the country against which there is no further appeal. Therefore, the provisions of section 25 of 'the Act cannot be declared to be void and unconstitutional on the ground that the law does not cater for another category of persons for filing an appeal if they are convicted by the Appellate Tribunal.

In this connection, reliance can be placed cm McDonald v. Board of Education Election Commission (394 US 801) (1969)., Kramer v. Union Free School District (393 US 818) (1969) and The Superintendent and Remembrancer of Legal Affairs, W. Bengal v. Girish Kumar Navalkha and others (AIR 1975 SC 1030). In the case of Syed Qasim Razvi (supra), it was held that a convict tried by a Special Tribunal could avail one right of appeal only and not the right of second appeal as was otherwise allowed under the Hyderabad Code. Also see PLD 1989 SC 6.

39. As to the trial in absentia, the learned Attorney-General conceded before us that no trial in absentia could be held. The trial in absentia has already been held to be illegal and unconstitutional, in the case of Zia Ullah Khan (supra), by this Court as well as by the Supreme Court, and also in the case of Zafar Iqbal and another v. The State (1995 MLD 1526) (D.B. Lahore). We allow a period of to months to take appropriate measures to amend/repeal the provisions of subsection (10) of section 19 of the Act, otherwise the said provisions would be invalid to that extent.

39-A. Some of the learned counsel have also challenged the validity of provisions of section 4 of the Act under which it is lawful for the Government to call armed forces and civil armed forces in aid of civil power. We find that similar provisions already exist in the Cr.P.C, as well as in Article 243 of the Constitution whereby the armed forces can be required to act in aid of civil power. As to the powers of an officer of the police, armed/civil armed forces to enter and search without warrant, as provided in clause (iii) of subsection (2) of section 5 and section 10 of the Act, no possible exception can be taken to the same. Such a provision is not hit by any provision of the Constitution particularly Article 14 thereof. The right of privacy of home is not affected if in a rare case and after taking proper and reasonable care and caution a premises is searched for the purpose of arresting a person and taking possession of fire-arms or weapons which are reasonably considered to be connected in the commission of any terrorist act or scheduled offence. Similar provisions though not very stringent in nature are already there in the Code of Criminal Procedure.

Even in other countries, wide powers of search and seizure have been given to the police and the law enforcing agencies in order to counter the terrorism. If a weaponry meant for terrorist activities is found in a house the authorities should not be powerless to enter and seize the same. The purpose of such entry and search would not be to outrage the privacy of home but to curb the commission of terrorist acts and other serious crimes including the cases of hot pursuit. Article 14 is not in absolute terms but is subject to law.

40. Section 26 of the Act contains a non obstante clause whereby a confession made by a person accused of offences specified in the said section made before a Police Officer not below the rank of Deputy Superintendent of Police admissible in evidence which may be proved against such person.

In none of the cases before us any confession before a Police Officer was made the basis for conviction. It essentially remains an academic issue. The provisions relating to the confession basically fall within the domain of procedural law being the rules of evidence. The law of evidence being a matter of procedure does not affect the substantive rights. Such rules are ordinarily deemed to be retrospective in nature. See the cases of Tika Sau v. Hari Lal (AIR 1940 Patna 385), Paris Ram v. Mst. Mewa Kanwar (AIR 1930 Allahabad 561), Gardner v. Lucas (1878) 3 Appeal Cases 582) and Blyth v. Pugh (1965) 2 All ER 817). The Special Court or the Appellate Tribunal is, however, not bound by the confession made before the Police Officer. Only the admissibility of the confession in evidence has been provided for. It is open to the Court to accept or reject such a confession in a particular case. This question was examined in the case of Kartar Singh (supra) by the Indian Supreme Court in which the I confession recorded, by a Superintendent of Police, of an accused under the TAD A Act was held to he admissible in evidence. It was held that the said provision, enjoined the statutory obligation on the part of the Police Officer recording the confession to explain to the person making it that he was not bound to make a confession and was to give a statutory warning that if he did so it might be used as evidence against him. The provisions of section 15 were held to be not liable to be struck down as the same did not offend either Article 14 or Article 21 of the Indian Constitution also laid down so as to ensure that the confession obtained in the pre indictment interrogation by a Police Officer was , not tainted with any bias but was in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness:- "(1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(2) The person from whom a confession has been recorded under section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.

(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon:

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in/ the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act, moreso when the Prevention of Corruption Act, 1988 under section 17 and the Immoral Traffic Prevention Act, 1956 under section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts.

(5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody.

(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure."

If a confession before a Magistrate under section 164, Cr.P.C, is not held to be violative of Article 13 of the Constitution, then such a confession made before a Police Officer following the normal rules for recording such confession cannot ipso facto be held invalid. The confession before a Police Officer would not carry more value than extra-judicial confession. Although proviso to section 26 of the Act does provide some safeguards but we are of the view that additional guarantees should also be provided. Ordinarily, a confession by an accused under the Act should be recorded in the presence of a Magistrate. If such a Magistrate is not available for some reasons, the confession shall be recorded in the presence of a Superintendent of Police of the area other than the one in which the investigation is being conducted. The Police Officer recording the confession shall have to record reasons as to the non-security of office is already provided, to some extent, to the Judges of the Special Courts. On account of meaningful consultation with the Chief Justice of the High Court concerned, it is not open to the Government to appoint anyone, it likes, as a Judge. The discretion of the Government in this regard has already been circumscribed and structured with the binding recommendations of the: Chief Justice. The Judges of the Special Courts performed their functions and j exercise their powers like any other validly appointed incumbents. They acted under the colour of office without any objection from anybody at any earlier stage of proceedings as to their appointment. The de facto doctrine is clearly attracted to protect the decisions and proceedings taken by them as if their appointment was without any taint of invalidity. No direct challenge to the appointment of the incumbents of the Special Courts was made. It was only by way of collateral attack that their de jure holding of office was sought to be challenged. In the recent case of Malik Asad Ali and others v. Federation of Pakistan and others (PLD 1998 SC 33), the appointment of Mr. Justice Sajjad Ali Shah' (as he then was) as the Chief Justice of Pakistan, was held unconstitutional.

However, any orders passed or actions taken by him prior to 26-1-1997 were held to be not challengeable on the the principle of de facto doctrine, in the case. Of It.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 816), the acts of a de facto holder of office were treated to be as good as that of a de jure holder of office, in Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), the Supreme Court did not consider it to be necessary in the collateral proceedings to hold whether the Acting Governor of N.-W.F.P, was validly appointed or not as his acts, actions taken or orders passed were covered by the de facto doctrine. In Mian Muhammad Nawaz Sharif v.

Federation of Pakistan and others (PLD 1993 SC 473), the orders passed or actions taken by the care-taker Government were held to be covered by the de facto doctrine. In Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another (PLD 1984 Karachi 462), a decree passed by the Presiding Officer was challenged amongst others on. The ground that the Presiding Officer could not have been validly appointed. It was held that such a ground was not sustainable to set aside the decree as the appointment order was existing when the decree challenged by the writ petition was passed by him. The same view has been taken by the Supreme Court of India in Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473) and State of U.P. v. Rafiuddin and others (AIR 1988 SC 162). Also see the cases of Atlas Autos Limited and 5 others v.

National Industrial Relations Commission, Islamabad and 16 others (PLD 1990 Karachi 362), Malik Ghulam Jilani v. The Province of Punjab and others (PLD 1979 Lahore 564), Parameswa ran Pillai Bhaskaran Pillai and another v. State Prosecutor (AIR 1951 . Travancore-Cochin 45), P.S. Menon v.

State of Kerala and others (AIR 1970 Kerala 165), Manzoor Hussain v. The State (PLD 1998 Lahore 239). In Dr. Kamal Hussain and 7 others v. Muhammad Sirajul. Islam and others (PLD 1969 Sc 42 ). the elections of the Bar Council were not invalidated on the ground that the Chairman of the Bar Council who conducted the elections had not been properly appointed. In the well known Judges' case Al-Jehad Trust (supra) (PLD 1996 SC 324) a number of Judges of various High Courts of the country appointed on the recommendations of the Acting Chief Justices were held to be not valid but orders/judgments passed by them were not invalidated. Eventually some of the incumbents were regularised while others were not. In Colley's "Constitutional Limitations", Volume II, page 1357, the following statement appears on the de facto doctrine "For the sake of order and regularity and to prevent confusion in the conduct of public business and insecurity of private rights the acts of officers de facto are not supposed to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In ail other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain his office, as though he were an officer by right and the same legal sense- quences will flow from them for the protection of the public and of third parties."

In Black on "JUDGMENTS", the learned author observed:- " A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet is no more usurper but holds it under colour of lawful authority. And there can be-no question that judgments rendered and other acts performed by which a person who is ineligible to a judgship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto Judge, and his acts are valid until he is properly removed."

In perhaps the earliest case of Saedding v. Lorant (1851) 3 HLC 418) on the point by the House of Lords, some vestrymen were found to be de facto and not de jure holder of offices on account of some dispute about their election. Their acts were treated as valid. Later, in Milward v. Thatcher (1887) 2 TR 81) = 10 ER 45), the Court made the following statement of law:~ "... Suppose a person were even criminally convicted in a Court of Record and the Recorder of such Court were not duly elected. The conviction would still be good in law, he being the Judge de facto."

44. The argument of Mr. Muhammad Asghar Khan Rokhri, Advocate, as to the defective framing of charge is not considered to vitiate or prejudice the trial of the petitioner as nothing turns out from such an objection. This question has already been adequately dealt with by the learned Appellate Tribunal.

45. We, therefore, hold that the convictions and sentence awarded by the Appellate Tribunals and the Special Courts are legal and valid. These writ petitions are dismissed to that extent and the pending trials shall continue. If the remedial measures as suggested by- us are not taken within the period of to months, the relevant provisions of the Act shall cease to operate. Before parting with the judgment, we like to express our appreciation for the learned Attorney-General for Pakistan, learned Advocate-General of Punjab, the learned Law Officers and the learned counsel for the parties, for the valuable assistance rendered in the resolution of legal issues involved in these petitions.

There shall be no order as to costs.

(Sd.)

Malik Muhammad Qayyum, J.

(Sd.)

Amir Alam Khan, J.

(Sd.)

Raja Muhammad Sabir, J.

(Sd.)

Faqir Muhammad Khokhar, J.

KARAMAT NAZIR BHANDARI, J.-On 9-3-1998 by a dissenting short order I had allowed and disposed of Writ Petitions Nos.25713/97, 25712/97, 19006/97, 989/98 (Multan Bench), 24690/97, 20998/97, 19984/97, 19963/97 and Writ Petition No.3929 of 1998. By way of this judgment I proceed to give detailed reasons.

2. With the declared purposes of controlling terrorism and sectarian violence, Anti-Terrorism Act, 1997 (Act XXVII of 1997) was promulgated and enforced oh 20-8-1997. Hereafter this Act will be referred to as "the Act". Under this Act, besides giving additional powers to the police officers/other agencies, the Government was authorised to establish and constitute Special Courts for purposes of trying offence created by the Act and those mentioned in the Schedule. Mehram Ali, .Petitioner in Writ Petition No.25713 of 1997 was tried by Special Court (respondent No.3 in that petition) and was convicted and sentenced to death on 23 counts on 15-9-1997. Mehram Ali appealed under section 25 of the Act to the Appellate Tribunal created under section 24 thereof and his appeal was dismissed by the Appellate Tribunal (respondent No.4). Death sentence of Mehram Ali. Petitioner, on three counts was also confirmed by respondent No.4 under section 374 of the Code of Criminal Procedure. He filed the Constitutional petition to call in question the validity of the trial, the conviction and sentence recorded by the Special Court was upheld by the Appellate Tribunal on grounds which will be hereafter noted. Meanwhile, number of other petitions by persons apprehending trial before the Special Court or actually facing trial were also lodged. Writ Petition No. 19984 of 1997 was filed by one Syed Haider Faruq Maudoodi through Mr. Rafiq Ahmad Bajwa, Advocate, as pro bono publico to question the vires of the Act/some of its provisions. Similarly, one Abdul Rasheed filed Writ Petition No. 19963 of 1997 through Mr. Irshad Ahmad Qureshi, Advocate, again in pro bono publico for the same purpose. Mr. Nazir Ahmad Shami, Advocate of this Court, himself filed Writ Petition No.20998 of 1997 in the same capacity for questioning the vires of the Act.

Mr. R.A. Awan, Advocate, filed Writ Petition No.24690 of 1997 questioning the trial of the clients- petitioners by the Special Court. All these and similar other petitions were joined together and placed before the Full Bench.

3. Since important questions of law relating to interpretation of the Constitution were involved, learned Attorney-General for Pakistan was issued notice under Order XXVII-A of the Civil Procedure Code, 1908. Learned Advocate-General, Punjab, represented the Province of Punjab alongwith his colleagues. Even though in the presence of aggrieved persons, there was no need of a pro bono publico but in view of the importance of questions involved all the learned counsel were granted.

Opportunity to address the Bench.

4. During the initial hearing Kh. Saeed-uz-Zafar, learned Deputy Attorney-General, objected to the maintainability of these petitions on the ground that the Appellate Tribunal impleaded as respondent, consists of to Judges of this Court and under Article 199 of the Constitution the Tribunal is not a 'person' and as such no writ can be issued to it nor the judgment passed by it can be subjected to scrutiny under the powers of judicial review. Reliance was placed on judgment reported as Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315. In later hearing, however, the learned Attorney-General did not press the objection of maintainability as, in his submission, the Appellate Tribunal as constituted under section 24 of the Act, was not a High Court but was a 'persona designata" and writ against 'persona designata' is maintainable. He cited Mian Jamal Shah v. The Member Election Commission, Government of Pakistan Lahore etc. PLD 1966 SC 1 and some other cases where Judges of this Court acting in other capacity were held to be persona designata and thus amenable to the power of judicial review.

5. The question is well-settled by now and stance taken by the learned Attorney-General is the correct one. Even in Abrar Hassan's case (supra) a distinction has been made between the 'High Court' and 'Judge of the Court'. While the High Court has been excluded from the definition of "person" given in Article 199(5) of the Constitution, a Judge of the superior Court actipg in any other capacity has not been so excluded. In such a availability of Magistrate. The Government/Legislature may amend the law within to months.

41. A Special Court constituted under the Act is empowered to try the offences under the Ait or specified in the Schedule or any offence connected therewith. The Parliament specified scheduled offences while enacting the law. By section 34 of the Act, the Government has also been empowered, by notification, to amend the Schedule so as to add any entry thereto or modify or Omit any entry therein. Some of the learned counsel for the petitioners argued that it was a case of arbitrary discretion to empower the Government to add to or to delete any offence from the Schedule, it was argued that the excessive delegation of legislative power was not permissible as no guidelines had been provided for the exercise of the power by the Government . The Preamble of the Act clearly lays down the object of law, The law was enacted for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. The "terrorist act" has also been defined by section 6 of the Act. The Federal Government can make amendment to the Schedule only where a scheduled ? Offence is shown to have some -nexus with the object of the law for which it was enacted, it cannot be said that no guidelines have been provided by the Legislature to be kept in view by the Government. It has become common for the Legislature to permit the Government to operate within the parameters of the law in order to work out certain details which are considered by the Legislature to be unnecessary for legislation by itself. The Schedule of an Act is treated to be as much a part of an enactment as any other provision. The Conditional legislation by the Government within the scope of the Parent Act is ordinarily not taken to be a case of excessive delegation. Unless a scheduled offence by its very nature is found to be unrelatable to the object or any other provision of the Act, the same may not be seriously objected to. The exercise of delegated power by the Government is essential for the purposes of carrying out the legislative will.

It is considered to be one of the modes of legislation. It may not be possible for the Legislature to hold session frequently to work out necessary details in the context of a given situation. After all. It is for the Executive to execute the legislative policies. Sometimes, even the power of levy of tax delegated to an outside agency has been upheld by the Courts where maximum rate of tax is fixed by the Legislature. Our Supreme Court had considered this question in the case of Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others (PLD 1983 SC 358). In that case, the levy of capacity tax on Textile Mills by the Board of Revenue had been challenged on the ground of being excessive delegation of legislative powers. .The Supreme Court held that the Legislature could delegate authority to subordinate or outside authorities for carrying laws into effect and operation.

The said power of delegation was inherent and ancillary to legislation. The Legislature still retained legislative power intact to do away with agency. Constitutional theory underlying doctrine of impossible delegation of legislative power was held to be not applicable. The Constitution did not prescribe any limits within which such delegation was permissible. The levy of the tax was upheld.

In Baxter v. Ah Way (1909) 8 CLR 626), the question raised before the Australian High Court related to the validity of certain provisions of the Customs Act, 1901: It was held that:-- "Legislature from the very earliest times, and particularly in modem times has taken the form of conditional legislation leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to .Which it shall be applied."

In Premium Grantes and another v. State of T.N. And others (1994) 2 SCC 691), it was observed that absence of exhaustive guidelines were not to render a provision of conferment of discretionary power on Government as unconstitutional when guidelines could be gathered from sating of statutes. In The Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. And others (AIR 1976 SC 1031), the following observations were made in para. 27:-- ..................

In the Queen v. Burah, (1875) 5 Ind. App. 178 at page 194 (PC) it was observed :- '................ The Governor-General-in-Council has determined, in the due and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district; but to apply by public notification to that district any law, or pan of a law, which either already was, or from time to time might be, in force, by proper legislative authority, 'in the other territories subject to his Government'. The Legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant- Governor; and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient on that point also, to entrust a discretion to the Lieutenant- Governor...............................................................................................................

Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it. Placed confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient.....................................

We are of opinion that the power conferred by the Kerala Act is a case of conditional legislation as contemplated in the above decision. The various types of powers that can be exercised under that Act enumerated in it. Only the article with reference to which those powers are to be exercised is left to be determined by the executive. That will vary from time to time; at one time salt may be an essential article, at another time rice may be an essential article and on a third occasion match boxes, it is the executive that would be- in a position to judge when and under what circumstances an article becomes an essential article and therefore it is necessary to control the production, supply and distribution or trade and commerce in a particular article. The corresponding Madras Act, the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 originally had ten articles included in the Schedule as 'essential articles' with powers to add others to the Schedule, it now contains only one article in the Schedule, electricity. It cannot therefore be said to suffer from the vice of excessive delegation either.

The Kerala Essential Articles Central (Temporary Powers) Act, 3961, Kerala State Electricity Supply (Kerala State Electricity Board and Licences Areas) Surcharge Order, 1968 are valid."

The State of Nagaland v. Ratan Singh, Constable 7878 and others (AIR 1967 SC 212) dealt with the extent of power of the Government to amend the Schedule of the Scheduled. Districts Act, 1874. The Act was held to be valid not exceeding the delegation of legislative power. It was observed that there were sufficient guidelines in the Preamble and the other provisions of the Act. In Union of India and others v. M/s. Bhanamal Gulzari Lal Ltd. And others (AIR 1960 SC 475), the power of the Central Government to amend the list of essential articles was held to be valid. In-Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore v. Corporation of the City of Bangalore by its Commissioner, Bangalore City (AIR 1962 SC 1263), the following rule was laid down:-- "The Supreme Court considered the validity of a power conferred on a Municipal Corporation to levy octroi on 'other articles' not specified in the Schedule but 'which may be approved by the Corporation by an order in this behalf. The Court upheld the provision on the ground that it was mere in the nature of conditional delegation and in that connection referred with approval the case of Baxter (supra)."

Similar view was expressed in Edward Mills Co. Ltd., Beaware and others v. State of Ajmer and another (AIR 1955 SC 25). Even where there is a doubt whether the delegation of a power is valid or not, the Courts are required to adopt the construction, if possible, to uphold the validity of such delegation. Reliance is placed on in re: Hindu Woman's Rights to Property Act, 1937 (AIR 1941 Federal Court 72 at 76). Somewhat similar opinion has been expressed by Craies on Statute Law Seventh Edition at pages 314 and 374. A Full Bench of the Dacca High Court had also upheld such-like conditional legislation in the case of Dacca Picture Palace Ltd. v. Pakistan through Secretary, Ministry of Education and Information and others (PLD 1969 Dacca 1). In the case of-Fauji Foundation (supra), it was held at page 688 that "the legislation, conditional on the use of particular power in exercise of a limited discretion, was entrusted by the Legislature to persons in whom it placed confidence........ The power to amend the Schedule by the Government by adding or deleting certain items of the agricultural produce in the legislative Act was upheld in case of Muhammad Hussain Ghulam Muhammad and another v. The State of Bombay and another (AIR 1962 SC 97). To us it appears to be a case of conditional legislation and not of excessive delegation of powers. The Government which is to cany out the legislation may justifiably consider that certain other offences have assumed an alarming proportion posing a serious threat to the society and may add them in the Schedule in conformity with the object of the law. We do not find any taint of invalidity in the conferment of this power by the statute. None of the learned counsel was able to point out that any of the scheduled offences had no nexus with the Act.

42. The validity of provisions of section 16 of the Act providing oath to be taken by a Judge of a Special Court was partly objected to. It is stated that in case of a non-Muslim Judge, he was required to take on oath to decide the cases honestly and faithfully according to his conscience and belief. The learned Attorney-General as well as the learned Advocate-General Punjab, frankly conceded that the oath in relation to a non-Muslim Judge was not valid and assured that necessary amendments would be made so that in case of a non- Muslim Judge he would have to decide the cases honestly, faithfully and in accordance with Constitution and law. We allow to months' time to the Government to make necessary amendments, otherwise, the said provision shall be invalid to th eTextent of a non-Muslim Judge.

43. We have already found that without (providing security of tenure to the Judges of the Special Courts, the relevant provisions of section 14 of the Act are defective in view of the cases of Imran (supra) an Messrs Chenab Cement Product (Pvt.) Limited v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). We have given to months' time for the purpose of making necessary amendments in the law'. We are not persuaded to declare the orders, judgments or proceedings by the Judges of the Special Courts as invalid. The Judges of the Special Courts were appointed in consultation with the Chief Justice of the High Court concerned. They are removable in the same manner for which necessary amendments shall also be carried out within" to months. Thus, situation the order of the Special Tribunal or Court although presided by the Judges of the High Court, can be subjected to challenge, as such a Court or Tribunal will be a 'person' within the meaning of Article 199 of the Constitution.

6. Some of the learned counsel, particularly, Mr. Rafiq Ahmad Bajwa and Mr. Irshad Ahmad Qureshi, Advocates, challenged-the enforcement of the Act and some of its provisions on the ground that same are Un-Islamic and violative of the Injunctions of Qur'an and Sunnah, it was vehemently urged that this Court can and should declare any law to be ineffective, if it finds the same repugnant to the principles of Islam as reflected in Qur'an and Sunnah. In other words, the argument was that even if the Act or some of its provisions can stand the scrutiny of Constitution, but if the same are repugnant to the principles of Qur'an and Sunnah, this Court should strike down the Act or/and its provisions.

7. The argument although quite zealous, ignores the repeated declaration of law on this question by the Supreme Court. In judgments reported as Hakim Khan and others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Zeheeruddin and others v. The State and others 1993 SCMR 1718; Al-Jehad Trust through Raeesul Mujahideen Habib-uI-Whabab-ul- Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324, and M/s.-Tank Steel and Re- Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 the Supreme Court has held that Article 2A is not a supra-Constitutional provision and no provision of Constitution or law can be declared invalid on the ground of its repugnance to the Objectives Resolution. The Court, has held that Article 2A serves only as a beacon light and if it finds any law to be against the Qur'an and Sunnah, the Court would bring the repugnance to the notice of Legislature who should make necessary amendments. In view of the above legal position, there is no force in this submission of these learned counsel and the same is hereby repelled. However, if any un-islamic provision in the Act is discovered, the same will be noted for the purpose of guidance of Legislature.

8. It is not disputed that some of the provisions of the Act are departure from normal provisions contained in the Criminal Procedure Code and are adverse to the accused-convict. However, all this is sought to be.Justified on the touchstone of the grave situation prevailing in the society due to sectarian violence and related terrorism. Learned Attorney-General in this connection gave examples from countries like India and U.K. And cited before us the provisions of the Terrorist and Desruptive Activities (Prevention) Act. 1987 passed by the Indian Parliament, the Northern' Ireland (Emergency) Provisions Act, 1973 and The Prevention of Terrorism (Temporary Provisions) Act. 1974 passed by British Parliament, to contend that the provisions of the Act under consideration are not novel or extraordinary and that various countries faced with the threat of terrorism have legislated so as to give increased power to the law enforcing agencies and to create Special Courts or Tribunals to hear and decide cases. The learned Attorney-General also read before us the relevant provisions from the above Statutes to show that in so far as the normal individual rights of a citizen are concerned, these provisions are restrictive in nature. He also claimed that such provisions enforced in democratic countries like India and United Kingdom have not been objected to by their Courts. In this connection he referred to some judgments also. According to his assertion, the Legislature has acted purely on bona fide and honest considerations and not a single instance can be cited where the provisions, of the Act have been misused for political consideration. Learned Advocate-General placed on record the figures showing the acts of violence related to religious sectarianism, the number of injured and the number of dead. Both the learned Law Officers claimed with vehemence that prevalent threat of terrorism and violence has to be met with iron had otherwise the country will be destabilized. It was contended that while scrutinising the provisions of the Act, this Court should keep in view the above had facts.

9. There can hardly be any cudgel with the laudable objectives underlying the submissions of the learned Law Officers. The society does not remain static and with passage of time law has to be changed to cope with the fresh problem. The power of Assembly/Parliament to do so subject to the provisions of. The Constitution, cannot be denied nor Legislature Can be attributed any bad motive.

The presumption is to the contrary. Although one or to teamed counsel did make a sweeping submission that while passing the law the Legislature has unwittingly fallen trap to international conspiracy of encouraging terrorism, but this submission need not be seriously noticed. While reference to laws made in other countries to deal with the similar situation are instructive and educative but this alone does not suffice to determine the validity of the Act and its provisions. This later exercise will have to be undertaken by the Courts of the country keeping in view the provisions of Constitution. The Constitution is the ultimate touchstone upon which the validity of every law or any provision of law will have to be tested. The reference by the learned Attorney-General to cases from Indian Jurisprudence like (AIR 1988 SC 922), makes instructive reading but I find that as such there is no adjudication relevant to the points arising in this case. I reiterate, these points will have to be determined according to the Constitution of this country.

10. Administration of criminal justice in this part of the world and in the territories which became Pakistan in 1947, has been taking place mainly in accordance with the provisions of Code of Criminal Procedure 1898 while Pakistan Penal Code promulgated in 1860. Defines crimes and provides for their punishment. The Criminal Procedure Code, 1898, lays down the procedure for report of crime, its investigation, powers of police, place of trial, constitution of various Courts, their powers to try the offences, appeals/revision and. All ancillary matters. Section 6 of the Criminal Procedure Code, 1898 provides the classes of criminal Courts and places the High Court at the apex. This position is reaffirmed in the Latters Patent of the Lahore High Court, 1919 Government of India Act, 193S, and is farther recognized throughout successive Constitutions of 1956, .1962, Interim Constitution, 1972, am1 finally the Constitution of Islamic Republic of Pakistan, 1973. The High Court is. Therefore, the highest Court of Administration of Criminal Justice in a Province and by virtue of Article 203 of the Constitution 1973, the High Court has been given the power of control and supervision over all Courts subordinate to it. Subject to provisions of Article 185 of the Constitution, the judgments and sentences imposed by the High Court are final. This mechanism/procedure for administration of criminal justice has been prevalent for well over a century now and has the advantage of the citizen being familiar with the same and having acquired/reposed confidence in the same.

11. It is a fact that the society does not remain static and, therefore, the laws have also to undergo the change so as to cater to the needs of society. The collective will of the society is represented in Assembly and Parliament. It is these bodies which have been entrusted the task of bringing about changes in the laws. In all legal dispensations. Constitution stands at the zenith and all other laws are subordinate to the same. It is expected and required that the country will be governed in accordance with the Constitution and the. Laws made by the Parliament and Assemblies will have to stand the scrutiny and remain under the umbrella of the Constitution. The Constitution [Article 8(1)] provides that if a law or any provision of law is found repugnant to any of the fundamental rights, the same shall be void to the extent of repugnancy. The Constitution creates a forum of superior judiciary in the form of Supreme Court and High Courts to undertake this exercise and also review the administrative actions. The provisions of the Act, therefore, will have to be scrutinized in the light of the Constitution and the concept of independence of the judiciary as enshrined therein and as repeatedly pointed out by the judgments of the superior Courts like Sharaf Faridi and others v. The Federation of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105) and Full Bench Judgment of this Court in Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and others (PLD-1996 Lahore 542) and M/s. Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) on the validity and the constitution of Banking Tribunals. And Special Courts to try the banking offences. It is in the light of this background that I proceed to examine the questions raised in these petitions.

12. To begin with. I would take up the points/questions which have been either candidly conceded by the learned Attorney-General or have not been disputed. The first of such points is the-provision with regard to the trial in absentia. The learned Attorney General submitted, and correctly in my opinion, that in view of the law declared by this Court in Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore SS4), as upheld by. The Supreme Court, the provisions .With regard to trial in absentia are bad law. Consequently subsections (10), (11) and (12) of section 19 of the Act. Are hereby declared as illegal and Of no legal effect.

13. Next question and this is of vital importance is the provision contained in section 14 regarding composition of and the appointment of Presiding Officers of Special Courts. This Court in Imran's case (supra) laid down the criteria for composition of Courts within the meaning of Article 175/203 of the Constitution. It was held at page 547 of the report "As to the attributes essential for exercise of judicial power, following features of 'Judiciary proper' was emphasized:-

(i) Appointment of the Presiding Officer of the Court with the meaningful consultation of the High Court.

(ii) Providing of definite tenures and terms of appointment and ensuring security of the said tenure and terms.

(iii) Vesting of power of transfer of the Presiding Officers and the-cases within the judicial hierarchy and not with the Executive.

(iv) Financial independence to be secured and allowed.

(v) Vesting of general supervision and superintendence in the High Court and not in the Executive.

During the course of his submissions it was frankly stated by the learned Attorney-General that the provisions of section 14 do not come up to the above standard. Under section 14 although provision for consultation with the Chief Justice of the High Curt is made but there is absolutely, no provision for. Security of tenure, terms and conditions of appointment and the supervision of | Special Courts by the High Court.

14. To the above criteria I would only respectfully add that keeping in view the principle of trichotomy of sovereign power into Executive, Legislative and Judicial as well as the history of administration of criminal justice and the Constitutional provisions, particularly Articles 2A, 175 and 203, there is absolutely no room to confer judicial power on any executive authority or on any Court, Tribunal, forum or authority by whatever name called which is subject to executive control. In State v. Zia-ur-Reman (PLD 1973 SC 9), with reference to a system based on trichotomy of sovereign powers, it was postulated that "then ex necessitate rei. From the very nature of things, the judicial power must be vested in the judiciary". This conclusion is further affirmed by frequent and repeated references to Islamic history where the Caliph surrenders to the authority of the Qazi and physically appears before him. As we Pakistanis as a nation draw inspirations from the precepts of Holy Prophet (p.b.u.h.) and four rightly guided Caliphs, the Executive and Legislative organs of the State should refrain from encroaching upon judicial organ in any manner whatsoever. A Court or Judge under executive control and influence is an anomaly and self- contradiction. I, therefore, have no hesitation in holding that the Special Courts constituted under section 14 of the Act are no Courts in the eye of law and resultantly the proceedings held by them have to be declared as without lawful authority. If the law-giver has to persist-with these Courts , it has to come up to the standards laid down in the. Full Bench judgment in Imran's case (supra), a it did in the case of Special Courts constituted under Suppression of Terrorist Activities (Special Colms ) Act, 1975, hereinafter referred to as the STA, by adding subsections (2A) and (2B) in section 3 of the Act, on 4th February, 1997, providing for security of service and removal only on charge of misconduct. The learned Attorney- General was unable to explain as to how the law-maker failed to notice this accepted legal position and make a departure from the same.

15. The area of dispute as regards provision of appeal by way of sections 24 and 25 of the Act is not much as during the course of discussion, the learned Attorney-General accepted that these provisions need recasting and changes so as to bring them in accord with the Constitutional intention and for making it workable. Section 24 provides for establishment of one or more Appellate, Tribunals for each Province consisting of one or to Judges of the High Court to be nominated by the Chief Justice of the said Court and notified by the Government. Under section 25, an appeal from the final judgment of the Special Court lies to the Appellate Tribunal. In case of acquittal by the Special Court or a sentence passed by a Special Court, the Attorney-General or an Advocate- General can file an appeal to the Appellate Tribunal. Under subsection (6) an Appellate Tribunal, can be directed to sit at such places and have jurisdiction within such territorial limits as may be fixed by the Government. The Appellate Tribunal under subsection (7), has been given the power of Appellate Court under Chapter XXXI of the Code of Criminal Procedure, 1898. This power has been made subject to subsection (8) which subsection denies the power pf release on bail pending appeal.

16. As noted in earlier pan of the judgment, for well over hundred years and under the present Constitutional dispensation, it is the High Court which is the highest criminal Court in the Province.

Under the Code as well as under the STA, sister legislation in the same field, the appeal vide section 7, against the sentence imposed by the Special Court as also against the order of acquittal, lies to the High Court. Under Article 185 of the Constitution, a further appeal is provided to the Supreme Court of Pakistan in some of the cases [Sub-Article (2)] while in other cases the Supreme Court can hear appeal from the judgment and sentence of a High Court provided it grants leave to appeal. Learned Attorney- General admitted the anomalies in sections 24 and 25 of the Act. It was conceded that in the event of appeal against the order of acquittal of the Special Court if the Tribunal-convicts the accused for the first time, the convict will have no right to go to the Supreme Court under Article 185(2) of the Constitution because the said Article gives power of appeal against the judgments/orders of the High Court and not of Appellate Tribunal. Similarly against the order of acquittal recorded by the Tribunal, the State will have no right of recourse to the Supreme Court.

17. This denial of right of appeal to the High Court and in fact the very establishment of Special Courts, has been attempted to be justified by the learned law officers on the ground that the Act is a special enactment meant to deal with a grave situation obtaining in the country due to sectarian violence and related acts of terrorism, in fact learned Advocate-General placed on record facts and figures to show the progressive increase in such incidents. However, when asked as to why the High Court is not deemed appropriate for the purposes for which the appellate Tribunal has been created, the learned Law Officers could not give any satisfactory answer except that the cases are generally delayed in the High Court and it is paramount that cases of terrorism be expeditiously dealt with. This argument, in my view, cannot hold water on deeper analysis. The causes of delay in the High Court and the learned Law Offices cannot be unaware of- the same, are various and on top of the list of such cases is the under staffing. For instance the sanctioned strength of this Court is fifty for the last twenty years or so, but at no point of time, this Court has worked to its full strength muchless increasing it to 'cope with flood of cases, mostly pertaining to review of administrative actions {Pendency figure at present is around 75 to 80 thousands). The other important cause is requests for adjournments coming from members of the Bar including senior one, on ground of their engagements before various Benches of this Court and in the Supreme Court. The argument, therefore, that creation of Appellate Tribunal would expedite the matter, can only be a half truth, in fact,' at the initial stages the position taken by the learned Attorney-General was that for all purposes the Appellate Tribunal is a High Court as it consists of the to Judges of this Court. On further thought, however, the Attorney-General took the position that Appellate Tribunal is a persona designata and not the High Court. This position taken by the learned Attorney-General is correct. There is absolutely no logic in insisting that when to Judges of this Court hear the appeal as Tribunal the matter is expedited but when the same Judges hear the appeal as High Court,' the matter is delayed.

18. The denial of right of appeal to the High Court as the century old highest criminal Court in the Province, is open to other serious objections. Under Article 175 of the Constitution, there can only be a High Court for each Province. How another Court or Authority or Tribunal to perform the functions similar to that of the High Court can be created and that also under ordinary law like, the Act? I am clear in my mind that this cannot be done either under1 Article 175 or Article 212 of the Constitution.

If at all this could be done, it can! Only be done by changing the Constitution as was done in 1991 by adding Article 212-B for a period of three years only for "Establishment of Speedy Courts for trial of heinous offences". The law-giver ought to have known that it was the said Constitutional provisions which created a new appellate forum viz. Supreme Appellate Court, and not an ordinary law.

19. The constitution of Appellate Tribunal m place of High Court is otherwise discriminatory. While a person sentenced to death by a Sessions Court under the Code of Criminal Procedure, 1898. Or by a Special Court under S.T.A, can have the satisfaction of his appeal being heard by an age. Old institution such as High Court, a person similarly sentenced to death by a Special Court under the Act is denied this satisfaction. Article 185 of the Constitution, while it confers upon and enumerates the powers and jurisdiction of the Supreme Court, simultaneously creates a very important right of appeal and leave to appeal upon the citizen. The convicts in first to cases can resort to the Supreme Court under Article 185 of the Constitution, while a convict in the latter case cannot do so.

This discrimination is admitted but is sought to be justified on the ground that Anti-Terrorism Act, 1997, has been enforced for checking grave danger of sectarianism and related violence in the society. It was pointed out to the learned Law Officers that one of the purpose for enacting S.T.A, as stated in the Preamble itself is also the control of sectarianism and terrorism. The discrimination., therefore, in my view is not justified keeping in view the objects of the to Acts and Article 25 of the Constitution.

20. Another provision in section 24 of the Act which offends the independence of judiciary and in fact of the Chief Justice is that nomination of Judges of Appellate Tribunal is to be notified by the Government.' This provision provides handle to the executive to manoeuvre the constitution of the Appellate Tribunal and thus the administration of justice. I hold the said provision to be bad and violative of Article 175(3) of the Constitution.

21. Even on purely practical place, it is highly likely that every conviction and sentence as upheld by Appellate Tribunal will be subjected to challenge by resorting to the power of judicial review under Article 199 of the Constitution and this will involve definite delay. The aspect of further delay is that against the order of this Court passed in exercise of Article 199 of the Constitution, resort to the Supreme Court can certainly be made under Article 185' of the Constitution. The creation of Appellate Tribunal in derogation of the High Court for hearing appeals etc. Therefore, is a self- defeating exercise, it will further delay the end of case rather than accelerate it,-which is the declared purpose of the Act. I would, therefore, hold that sections 24 and 25 ot the Act are not only ultra vires of the Constitution but pragmatically, a self-defeating exercise.

22. I now proceed to examine the other provisions of the Act. The provisions of sections 5 and 10 may be examined together as the ground of attack on these to provisions- is common. It is contended that these provisions confer unguided and excessive powers on the police officers etc. Which have the potential of being misused. It is urged that these provisions are violative of fundamental right contained in Article 14 of the Constitution. The relevant provisions of the Act and the Constitution are reproduced for facility of reference:-- " Article 14 of the Constitution: Inviolability of dignity of man, etc.-

(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

(2) No person shall be subjected to torture for the purpose of extracting evidence.

Section 5 of the Act: Use of armed forces and civil armed forces to prevent terrorism.--! 1) Any Police Officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code.

(2) In particular and without prejudice to the generality of the provisions of subsection (1), an officer of the police, armed forces and civil armed forces may-

(i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, and it shall be lawful for any such officer, or any superior officer to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof;

(ii) arrest, without warrant, any person who has committed an act of terrorism or a scheduled offence or against whom a reasonable suspicion exists that he has committed, or is about to commit, any such act or offence; and

(iii) enter and search, without warrant, any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used, or likely to be used, in the commission of any terrorist act or scheduled offence.

(3) Nothing contained in subsection .(1) or (2) shall affect the provisions of Chapter IX of the Code and the provisions of section 132 of the Code shall apply to any person acting under this section.

Section 10 of the Act reads Power to enter or search.--If any officer of the police, armed forces or civil armed forces is satisfied that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 8, he may enter and search the premises where it is suspected the material or recording is situated and take possession of the same."

23. It will be seen that the right of privacy of home is sacrosanct but is subject to law. The expression subject to law came under examination in judgments reported as Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue), Department, Government of East Pakistan PLD 1957 SC (Pak.) 9 and Zaheer- ud-Din and others v.- The State and others 1993 SCMR 1718. In both, the expression has been defined to mean that it cannot take away what is guaranteed by the Constitution. In other words by law the privacy of home cannot be destroyed. The Legislature cannot take away what has been conferred by the Constitution. The other consideration is the demand and welfare of the community. The superior Courts, while interpretting the relevant provisions, have to try to strike a balance and give an interpretation which is workable and harmonious. Keeping in view these guidelines and the declared purpose of the Act, I find that the power conferred on police officer under section 5(1) is reasonable and is not violative of Article 14 of the Constitution. Similarly the powers conferred under subsection (2), clauses (i) and (ii) seem to be reasonable. This determination! However, would not protect the mala fide and arbitrary' acts of the police officers etc.

24. The provisions of section 5(2)(iii). And section 10 of the Act are disproportionate to the demand of the situation and are repugnant to Article 14 of the Constitution. The provisions contained in the Criminal Procedure Code, 1898, sections 47, 48, 98 and Chapter XIII seem potent enough to meet the Situation, and departure made from these is not justified. The police officer must be obliged to enter a house or a premises. Under section 10 only under a search warrant issued by a Magistrate.

Power of entry and arrest under sections 47 and 48, Cr.P.C, are adequate and can meet, the contemplated situation. The provisions of sections 5(2)(iii) and section 10 of the Act ate hereby struck down as violative of fundamental right contained in Article 14 of the Constitution.

25. Next the question of oath under section 16 may be examined. The section of the Act is reproduced below:-- Oath by Special Courts.-A Judge of a Special Court shall, at the commencement of a proceeding under this Act, make oath, in the case of a Muslim, on the Holy Qur'an, to the effect that he shall decide the case honestly, faithfully and considering himself accountable to Almighty Allah, and in case of a non-Muslim in accordance with his faith to the effect that he will decide the case honestly and faithfully according to his conscience and beliefs."

It is clear that the provision is rather unusual. It has never been in dispute that a Judge has to render honest decisions, in accordance with law as he understands it. What further purpose the lawgiver wants to achieve through this provision, has not been made clear. To me it seems the provision is cosmetic and redundant. However, none of the learned counsel was able to show that the provision is in any manner, against any Constitutional provisions or any fundamental principle of jurisprudence. It, therefore, cannot be struck down. However, the provision for decision of the case by a non-Muslim Judge "honestly and faithfully according to his conscience and belief" has the potential of being misinterpreted and misused since a Judge is obliged to decide the case according to Constitution and law and not "according to his conscience and belief". Suppose a non-Muslim Judge holds killing of a Muslim on the basis of his belief justified even though it is a 'murder', it cannot be said that such a Judge has violated his oath. The Legislature may reconsider the provision for retaining it or recasting it.

26. The next to be considered is section 19. 1116 provision with regard to completion of investigation within seven days under subsection (i), has been attacked on the ground that in certain circumstances the completion of investigation within this given time may be impossible. Even if this may be so, it hardly is a good ground to strike down the provision as it has not been shown to offend against any provision of the Constitution or accepted norms of natural justice. Such a provision has been appearing in similar earlier statutes and has been judicially held as director)' and not mandatory.

27. Subsections (10). (11) and (12) of section 19 have already been declared illegal in earlier paragraphs as the same pertain to trial in absentia.

28. Sections 24 and 25 deal with the question of appeal and have already been dealt with in earlier part of this judgment. I hold that the present provisions are invalid and that appeal will have to lie to the High Court.

29. Serious objection has been taken to the provision in section 26 regarding admissibility in evidence of confession made before police, as laid down in section 26 of the Act. The said section is reproduced as under:-- 'Admissibility of confession made before police.-Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (P.O. 10 of 1984), a confession made by a person accused of an offence punishable under section 7 or section 8 of this Act or an offence covered by subparagraph (a) of paragraph 2, or paragraph 3 of the Schedule to this Act, or robbery or dacoity with murder or rape before a police officer not below the rank of a Deputy Superintendent of Police may be proved against such person: Provided that a Special Court may, for admission of the confession in evidence, require the police officer to produce a video tape together with the devices used for recording the confession."

30. It is urged that this provision does away with the safeguard provided to an accused under the Evidence Act, 1872 later incorporated in Qanun-e- Shahadat, 1984. It is urged that keeping in view the present standard of efficiency and integrity of our police, making provision for admissibility of confession amounts to arming them with potential weapon of misuse, victimization and corruption.

In reply it is contended by the learned Attorney- General that the provision has been made keeping in view the peculiar circumstances in cases of terrorism where the witnesses do not come forth for fear of reprisals. It is emphasised that due to the fear created by such accused persons are afraid of appearing as witnesses. It was also urged that in any case this provision does not bind the Court to accept or rely or believe such a confession.

31. It is correct that admissibility and veracity of evidence are to different concepts. Whether to rely or not, on a piece of admitted evidence is the function of the Court. Making the confession made- before the Deputy Superintendent of Police in cases specified in this section is a departure from the earlier provisions but has not been shown to be violative of any provision of Constitution. Such a confession is like an extra-judicial confession which may or may not be accepted by the Court, depending upon the facts and circumstances of each case. It is possible to conceive of a case where the extra-judicial confession may be of such a nature that the Court is inclined to accept the same. The objection, therefore, to this provision of law is overruled. However, it is clarified that if in a given! Case, the confession is shown to be violative of Article 13(b), in that the accused has been compelled to be a witness against himself, the Court will have no hesitation in ruling it out of consideration.

32. Serious objection has been taken by Mr. R.A Awan, Advocate, and Mr. Rafiq Ahmad Bajwa, Advocate, to the exclusion of power to grant bail from ordinary Court in particular, the High Court. It is urged that an accused person is presumed to be innocent and the law-giver has wrongly encroached upon the judicial power to release on bail an accused person on the grounds stated in sections 497 and 498 of the Code. The attack on the same line is directed against subsection (8) of section 25 of the Act whereby pending the appeal, the Appellate Tribunal has been restrained from releasing the accused on bail. The learned Law Officers have defended the provisions by citing earlier statutes incorporating similar .Provisions, it is also pointed out that as the Appellate Tribunal is required to decide the appeal within seven days, the "provisions shutting out the power to grant bail pending appeal is justified.

33. It may be seen that under subsection (4) of section 13 of the Act, the power of bail has been exclusively reserved with the Special Court. The Special Court will not release the accused person on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged. Similar provision is contained in ordinary law of bail (sections 497 and 498 Cr.P.C.), it is true that no provision is made for grant of bail by the High Court or by the Appellate Tribunal, pending decision of the trial. Since the question of bail is procedural, the Legislature cannot be denied the right to legislate on the same and to curtail the right. The restrictive provision of bail can be justified for the reasons that the Special Court is under a mandate to decide the case expeditiously. In a case, however, where unconscionable or unnecessary delay is caused, the aggrieved party can approach the High Court under its power of judicial review. However, as discussed in earlier part of the judgment while dealing with sections 24 and 25, if the law is changed to provide for appeal to the High Court this objection of the petitioners will be automatically taken care of.

34. Now I proceed to examine section 34 of the Act which is reproduced below:- "34. Power to amend the Schedule.-The Government may, by notification, amend the Schedule so as to add any entry thereto or modify or omit any entry therein."

It will be seen that Schedule is always part of the statute and any amendment in the statute is a legislative act which can only be performed by Legislature and riot by the Executive. It will further be seen that no guideline whatsoever has been provided in section 34 to the Government for adding or modifying or omitting any entry in the Schedule. The argument is to-fold, (i) that on the favour of it, the Legislature has effaced itself which is not! Permissible under the Constitution; (ii) that assuming that the Government could' be conferred the power of amending the Schedule, in the absence of any guidelines by the Legislature, the conferment is impermissible. It is correct that in modem legislation, Governments and other agencies are given power to make subsidiary laws like rules because the Legislature cannot possibly foresee all the eventualities in the working of the- law. This power of rule-making is different.

From the power of legislation itself. In the Act, power to make rules has been conferred under section 35 and if the Government was to amend the Schedule acting under the rule-making power, the amendment would have been indefensible. How can it be defensible if the same purpose is sought to be achieved under section 34 ibid. To me it is a case of abdication of its power by the Legislature. Reliance can be safely placed on Sobho Gyanchandani v. Crown (PLD 1952 FC 29), Wherein the provision empowering the Executive to extend the life of the Pakistan Public Safety Ordinance, 1949, was held to be a case of excessive delegation. Even if this conferment of power be said to be not impermissible, the Legislature ought to have given guidelines to the Government for exercising this power. As it is, the same is uncontrolled and unguided. However, 1 tend to agree with the submission of the learned Law Officers that this provision can be left for deeper examination in a proper case, i.e., a case where the Government has actually added or modified the Schedule and a person feels directly aggrieved and challenges the same.

35. Mr. Asghar Khan Rokari, Advocate, objected to the provisions of section 38 of the Act on the ground that the same is violative of Article 12 of the Constitution which provides protection against retrospective punishment. Section 38 reads as under: - "38. Punishment for terrorist act committed before this Act.-Where a person has committed an offence before the commencement of this Act which is committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed."

36. It will be seen that1 this provision makes an offence triable under this Act which has taken place prior to the enforcement of the Act provided the same constitutes a "terrorist act" under the Act but the punishment is the same as authorised by law at the time the offence was committed. The "terrorist act" has been defined in section 2(h) of the Act and has the same meaning assigned to it as in section 6. Section 6 creates and defines a new offence which is known as "terrorist act" and is made punishable under section 7. If the act has taken place which constitutes a "terrorist act" prior to 20-2-1997, the date of enforcement of the Act and the crime is sought to be punished under the Act the Same is clearly in violation of Article 12 which lays down that .No law shall authorise the punishment of a person "for an act or omission that was not punishable by law at the time of the act or omission". As noted, the offence of "Terrorist Act" is being created for the first time on 20-2- 1997 and can only be punished upper the Act, prospectively. The bar in Article 12 of the Constitution is not against the quantum of punishment but to the punishment itself. This provision is therefore, held to be repugnant to fundamental right contained in Article 12 ibid and is, therefore, void.

37. I have dealt with the objections specifically raised and argued before us. The absence of adjudication on any other point would not mean that same is valid, it only means that the same would come under scrutiny later on, if and when challenged by an aggrieved person.

38. I have held the establishment and constitution of Special Courts under sections 13 and 14 of the Act and that of the-provision of appeal under sections 24 and 25 of the Act as un-Constitutional.

The next question to determine is the effect of the above finding on the conviction and sentence of Mehram Ali, petitioner in Writ Petition No.25713 of 1997. Logically the conviction and sentence has to be declared as without lawful authority. owever, it has been strongly canvassed that the same are saved on the application of principle of de facto incumbency. Reference has been made to Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473), Atlas Autos Limited and others v.

National Industrial Relations Commission, Islamabad and others (PLD 1990 Karachi 362) and It.Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98).

39. In my view the de facto doctrine is not applicable to the present case. There are to reasons for it. First the trial as well as the judgment delivered by respondent No.3 in the writ petition as upheld by respondent No.4 is directly under challenge. A specific prayer has been made that these judgments be declared to have been passed without lawful authority. In other words, the judgments are not under challenge collaterally, but directly. The second reason is that the defect here is not in the wrong appointment of the Presiding Officer of the Special Court, but in the very establishment and constitution of the. Court itself. It has not been argued that Sardar Mashkoor Ahmed, Advocate, the learned Presiding Officer of Special Court (respondent No.3), was in any manner incapacitated or not eligible to be appointed as Judge of the Special Court. He qualifies to be appointed to the Special Court under section 14(1)(iii) of the Act. In other words, he has for a period of not less than ten years been an Advocate. Under subsection (2), his appointment has been made in consultation with the Chief Justice of the High Court, as is apparent from the documents shown to the Bench during the course of hearing. The finding is that constitution of Special Court itself is defective, inasmu ch as, it falls short of the criteria laid down in the Full Bench judgment of this Court, already noted. In Gokaraju's case (supra), a distinction between appointment of a person as Judge and a Court itself has been made. The learned Judges while applying the doctrine of de facto incumbency have held:- "It matters not that the incumbent was not Validly appointed. A person appointed as a Sessions Judge. Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the Court itself is under challenge."

The Supreme Court's judgment in Faizand Ali's case (supra) relied upon is not directly in point. As noted in the short order itself, the illegality in trial by an incompetent Court is not saved under section 537 of the Criminal Procedure Code, 1898. The trial is coram non judice.

40. The further reason to allow the writ petition and to direct retrial is the defect in the constitution of the appellate forum as discussed in the earlier paragraphs (paras. 15 to 21) of the judgment. The inference is that even the appeal has not been heard by a Constitutionally provided forum, i.e., High Court. The argument,, therefore, by the learned Law Officers that the defect in the trial and conviction of Mehram Ali, petitioner, stood cured by hearing of the appeal by to Judges of this Court as members of the Appellate Tribunal, does not cany any weight nor for that matter, the judgment of the Special Court merges into that of the Appellate Tribunal. In a case involving capital punishment a convict has a right to insist that his appeal ought to be heard by a forum envisaged by the Constitution and also that he be hanged only after the death sentence has been confirmed by such a forum. With respect, the doctrine of merger of judgments is not applicable in this case.

41. I would, therefore, allow Writ Petition No.25? 13/97 and declare the judgments dated 15-9-1997 and 14-10-1997 passed by respondents Nos.3 and 4, respectively, to have been passed without lawful authority. The charges against Mehram All, petitioner, shall be deemed to be pending and would now be tried by duly constituted Court. The other petitions in which the trial by the Special.

Court is challenged, are also allowed with the same direction that the charges against each of the petitioner shall be tried by competent and duly established Court.

42. Before parting with this judgment, I would like to make observations on the advisability of establishment of Special Courts and Tribunals in preference to the ordinary established Courts for trial of offences and for administration of criminal justice. As has been noted in the earlier part of the judgment, the present system of administration of justice at the hands of the Courts of Magistrates, Sessions' and High Court have been in vogue for well over a century now. I have already held that Legislature is competent to change the law and to also establish new Courts keeping in view the requirement of the society as well as the demands of new situation. However, the Legislature must have some compelling reasons to make departure from the existing system of administration of criminal justice. The reason repeatedly advanced before us by the learned Law Officers in support of the promulgation of the Act was the inability of the Courts of Sessions to expeditiously try the offences involving sectarian violations and terrorism. This justification is not the whole truth', in any case, .If the present set of Courts was found incapable of dealing with the situation, the need was to remove those deficiencies and augment the present system rather than installing and establishing an altogether parallel system of Courts. While Special Courts have been established earlier, the enforcement of Suppression of Terrorist Activities Act, 1975, was a first major departure in administering criminal justice. In so far as trying offences involving capital punishment are involved, in late 1980's another experiment with establishment of Speedy Courts was carried out and in 1997, is the present Act, giving another set of Courts. Before us no rational analysis has been placed by any of the learned Law Officers showing that all the amount of time and money invested in these Courts is justified and that since 1975, the recurrence of offences involving capital punishment has decreased, in one of the documents placed on record by learned Advocate-General, I find that a sum of about Rs.54 million approximately has been reserved for establishment of Special Courts under the Act. This is lot of money and if this much of the money was spent in augmenting the present system and in removing the deficiencies in the Courts, the things would have been much better and the system would have given better results.

43. Surely the Legislature cannot be presumed to be ignorant of the deficiencies in the present Court. Leave aside the Courts of Magistrate (Judicial and Executive) event the Courts of Session haye far less Judges than the phenomenal rise in the number of cases, the building and furniture are hopeless, the pay scales are miserly, the staff and stationery are had to come by. According to the document placed on record by the learned Advocate-general, a Judge of Special Court under the Act is paid Rs.35,000 salary, more than that of the Judge of the High Court and the Supreme Court, apart from host of other facilities, benefits and special security. The law-maker ought to have considered these aspects also. It takes decades to build confidence in institutions and Courts are no exception. This confidence is a national asset. It is not desirable that this confidence and asset built over decades be whittled down or wasted. If a sum of Rs.54 millions is reserved for the present Special Courts, lot of money must have been spent on establishing Speedy Courts in the past and on Special Courts under STA Act. And with what result? For a change the Legislature as well as the Government may consider the advisability of providing all these resources to the existing set of Courts and see whether the results are in any way worse;

44. I do place on record my appreciation of the assistance rendered by learned counsel and the learned Law Officers.

M.B.A./M-644/L