' AJMAL MIAN, C.J.---By this common judgment we intend to dispose of the above Constitution petitions filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) and the above Civil Appeals.
2. It may be stated that in all the above cases (except Constitution Petition No,18 of 1992) the convicts were tried by the Special Courts for Speedy Trials (hereinafter referred to as the Special Court) for heinous offences mostly for murder, robbery etc. And had been sentenced inter alia to death. They were convicted by the Special Courts concerned. Against the above convictions and sentences they filed appeals before the Supreme Appellate Court, comprising a Judge of the Supreme Court and two Judges of the High Court in terms of clause (5) of Article 212-B of the Constitution. The appeals were also dismissed by the Supreme Appellate Courts. The above Constitution petitions, except Constitution Petition No,18 of 1992, have been filed against the above convictions and sentences awarded by the Special Courts and affirmed by the Supreme Appellate Courts.
3. It may further be stated that Constitution Petition No,18 of 1992 has been filed against the judgment of the Supreme Appellate Court, dated 4-5-1992, dismissing the State appeal against acquittal of the respondent by the Special Court. The above petition has been filed by the complainant against the acquittal by the Special Court and the affirmation of the same by the Supreme Appellate Court.
4. It may be pointed out that in Civil Appeals Nos.770 of 1992 and 154 of 1993, the appellants were tried and convicted and sentenced by the Special Courts, against which their appeals were dismissed by the Supreme Appellate Courts. After that the convicts filed writ petitions in the Lahore High Court, which were also dismissed. Thereupon, they filed petitions for leave to appeal, which were granted to consider the vires of the Ordinances of the Special Courts.
5. Whereas in Civil Appeal No,41 of 1993, the appellant had filed Writ Petition No,277 of 1992 in the Lahore High Court challenging the transfer of his case from the Sessions Court to the Special Court.
It may be observed that the above writ petition was pending when the appellant was tried and convicted and sentenced by the Special Court, against which the appellant filed an appeal before the Supreme Appellate Court, which was dismissed. After that the above writ petition was dismissed. However, the appellant did not amend the Writ Petition after his conviction by the Special Court and dismissal of the appeal by the Supreme Appellate Court.
6. We regret to note that most of the learned counsel have not turned up today, nor they have filed any application for adjournment. Sh. Khizar Hayat, Advocate Supreme Court who was to appear for the petitioners in Constitution Petitions Nos.37 of 1994 and 15 of 1995, had sent a fax requesting for adjournment on the ground that he was busy before this Court at Lahore. Since his cases involved the same points of law, we are not inclined to grant above request which has been made through a fax. Even the Advocates-on-Record had not appeared.
7. In support of Civil Appeal No,41 of 1993, Sh. Masood Akhtar, learned counsel urged that the law in question was first enacted through Ordinance No,VI of 1990, on 27-8-1990 and as the same was not placed before the National Assembly in terms of clause (2) of Article 89 of the Constitution, the subsequent Ordinances on the same subject promulgated by the President were ultra vires, and hence the trial, conviction and sentence awarded by the Special Court and affirmed by the Supreme Appellate Court ware without jurisdiction.
8. On the other hand, Maulvi Anwarul Hach learned Deputy Attorney-General, has submitted that since the Special Courts and Supreme Appellate Courts were created under Article 212-B(1)(5) of the Constitution and the Ordinances provided only the procedure for the trial, the conviction and sentence awarded by the Special Courts cannot be assailed on the ground of vires.
9. Raja M. Ibrahim Satti, learned counsel who appeared in the above Civil Appeal No,41 of 1993, filed by the complainant, has invited our attention to the following judgments:--
(i) Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602).
(ii) Muhammad Naeem alias Naeema v. The State (1992 SCMR 1617).
(iii) Muhammad Arif and another v. The State and another (1993 SCMR 1589).
(iv) The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others (PLD 1994 SC 363).
(v) Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738).
(vi) Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66). ' and pointed out that in all the above cases it has been held by this Court that an Ordinance cannot be repeated by the President if the National Assembly exists. However, he pointed out that in the case of Collector of Customs, Karachi v. Messrs New Electronics (Pvt.) Limited and others (supra), in the majority view it was highlighted that if the National Assembly did not exist for a reason beyond the control of the President, even after the expiry of ninety days for the election provided for in the Constitution, there could not be any vacuum in the interregnum between the date of dissolution and the reconstitution of the Assembly and that in such a situation the President could repeat an Ordinance.
' He has also invited our attention to a Full Bench Judgment of this Court in the case of Riaz Ahmed v. The State (1998 SCMR 1729) in which, according to him, somewhat different view has been taken contrary to what was above consistent view. In this behalf he referred to para. 15 of the above judgment.
10. Mr. M. Munir Peracha, learned counsel who has appeared for the petitioners in Constitution Petitions Nos.14 of 1994 and 38 of 1995, candidly submitted that the petitioners were tried and convicted after Act No,IX of 1992 (hereinafter referred to as the Act) was enacted by the Parliament, whereas the petitioner in Constitution Petition No,38 of 1995 was tried and convicted under the first Ordinance promulgated after the incorporation of above Article 212-B in the Constitution.
' His submission was that clause (c) of section 2 of the Act which defines 'offence' has gone beyond the scope of clause (1) of Article 212-B of the Constitution.
' His further submission was that in any case, the creation of the Special Courts does not fit in the scheme of the Constitution as it is against the sailent features of the Constitution.
11. Before taking up the above other Constitution petitions and Civil Appeals it may be pertinent to first deal with the above contentions of Mr. Peracha.
Adverting to his first above contention, it may be pointed out that he has candidly conceded that his client was tried for murder and, therefore, the offence was covered even under clause (1) of Article 212-B of the Constitution and it comes within the ambit of heinous crimes. In this view of the matter, it is not necessary to examine as whether the definition given in clause (c) of section 2 of the Act was violative of above clause (1) of Article 212-B of the Constitution.
As regards the above second contention of Mr. Peracha it will be pertinent to refer to the following observation from the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), wherein this Court had examined the vires of Anti-Terrorism Act, 1997 and in that context quoted Article 212-B of the Constitution, indicating that under the above provision Special Courts should be constituted during the operation of the above Article for a period of three years. The relevant portion reads as under:-- "It may again be pointed out that in 1991 by the Constitution (Twelfth Amendment) Act, 1991, by incorporating Article 212-B in the Constitution, Special Courts were established for a period of three years with effect from 27-7-1991. The above Courts were also outside the ambit of the above Articles i.e, Articles 175, 202 and 203 of the Constitution and, therefore, special provision was incorporated in the Constitution."
In this view of the matter, the above contention has no force.
12. Adverting to the main contention as to the vires of the Ordinances which were repeated several times after issuance of Ordinance No, VI of 1990, it may be pertinent to reproduce the following extract from the,case of Collector of Customs, Karachi v. New Electronics (Pvt.) Limited (PLD 1994 SC 363) (supra):-- ... I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly. Kaikaus, J. Though has given weighty reasons in the case of Tirathmal (supra) for taking a contrary view, but in my humble view, it runs-counter to the spirit/scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra). But if the National Assembly stands dissolved and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rahman, J. In his above-quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the reconstitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. Theobservations of Shafiur Rahman, J. In the above-quoted portion of his opinion namely, 'However, it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a)' are to be viewed in the context of the facts of the above case i.e, the elections were to be held on 16-11-1988 and 19-11-1988 and the above opinion was rendered on 24-10-1988 and, therefore, by the time new Assemblies would have been re-constituted, the Ordinance could have been placed before the National and the Provincial Assemblies within a period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second Ordinance.
' The case in hand stands on stronger footing in view of the following peculiar features:--
(i) That this Court though maintained the finding of the Lahore High Court that the order of dissolving the National Assembly was without jurisdiction but it declined to restore the same, and when the then Speaker of the National Assembly attempted to summon the Assembly, he was prohibited from doing so by this Court. If the National Assembly would have been restored on 5-10- 1988, Ordinance II of 1988 could have been converted into an Act as three weeks would have still be available before the expiry of the above Ordinance, and there would not have been any need to issue Ordinance No, XXII of 1988.
(ii) That this Court in its order, dated 5-10-1988 held that in view of the exceptional situation the elections scheduled on 16-11-1988 and 19-11-1988 would be valid under the Constitution.
(iii) That Ordinance II of 1988, which was to expire on 26-10-1988 was a Finance Ordinance, and therefore, it was a matter of State necessity to have a legal cover for the recovery of State revenues.
(iv) That the elections could not be held within the stipulated period on account of lapse inter alia on the part of the Parliament, in not complying with the provisions of Article 222(2) read with 51(3) of the Constitution as pointed out in the above President Reference No,1 of 1988.
' In my view, the Constitution is to be construed as an organic whole and its various provisions are to be read as a part of one integrated scheme. The widest possible interpretation is to be given to the provisions of the Constitution with the object to meet all eventualities. The efforts should be made to construe Constitutional provisions in such a way, that it may avert chaos and uncertainly in the country and may foster the smooth functioning. The view, which I am inclined to take, is in line with the above principles of construction of a Constitutional document.
' I may reinforce my above view by giving an example. Suppose the National Assembly completes its Constitutional tenure, but elections could not take place within Constitutional mandate on account of an act of God for nearly one year. Can it be said that after the expiry of a Finance Ordinance upon expiry of four months, the President cannot reenact the same by invoking reserve power contained in Article 89 of the Constitution."
13. It may be pertinent to reproduce Article 212-B of the Constitution, which reads as follows:-- "212-B.---(1) In order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to them by the Federal Government, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary.
(2) Where the Federal Government constitutes more than one Special Court, it shall determine the territorial limits within which each one of . Them shall exercise jurisdiction.
(3) A Special Court shall consist of a Judge, being a person who is, or has been, or is qualified for appointment as, a Judge of a High Court and is appointed by the Federal Government after consultation with the Chief Justice of the High Court.
(4) A person other than a Judge of a High Court who is appointed as a Judge of a Special Court shall hold office for the period this Article remains in force and shall not be removed from office except in the manner prescribed in Article 209 for the removal from office of a Judge, and, in the application of the said Article for the purposes of this clause, any reference in that Article to a Judge shall be construed as a reference to a Judge of a Special Court.
(5) The law referred to in clause (1) shall make provision for the constitution of as many Supreme Court as the Federal Government may consider necessary and for an appeal against the sentence or final order of a Special Court being preferred to a Supreme Appellate Court which shall consist of---
(a) a Chairman, being a Judge of the Supreme Court to be nominated by the Federal Government after consultation with the Chief Justice of Pakistan; and
(b) two Judges of the High Courts to be nominated by the Federal Government after consultation with the Chief Justice of the High Court concerned.
(6) Where the Federal Government constitutes more than one Supreme Appellate Court, it shall determine the territorial limits within which each one of them shall exercise jurisdiction.
(7) A Special Court and a Supreme Appellate Court shall decide a case or, as the case may be, an appeal within thirty days.
(8) Notwithstanding anything contained in the Constitution, no Court shall exercise any jurisdiction whatsoever in relation to any proceedings before, or order or sentence passed by a Special Court or a Supreme Appellate Court constituted under a law referred to in clause (1), except as provided in such law."
14. The above Article was incorporated by the Constitution (Twelfth Amendment) Act, 1991, with effect from 27-7-1991. The perusal of the above-quoted Article indicates that it envisages the establishment of Special Courts and Supreme Appellate Courts. It may further be noticed that it provides the security of tenure for a person other than a Judge of the High Court, who is appointed as a Judge of the Special Court in terms of Article 212-B of the Constitution by virtue of clause (4) of the above Article. Whereas clause (5) of the above Article provides for the composition of the Supreme Appellate Court by laying down that the Supreme Appellate Court shall consist of a Chairman who will be a Judge of the Supreme Court to be nominated by the Federal Government after consultation with the Chief Justice of Pakistan, and two Judges of the High Court to be nominated by the Federal Government after consultation with the Chief Justice of the High Court concerned. After the incorporation of the above Article in the Constitution, the First Ordinance promulgated was on 5-8-1991, namely, Ordinance No,XXV of 1991, followed by Ordinance No,XXXVIII of 1991 on 4-12-1991, and finally Act IX of 1992 on 18-7-1992, when the assent was given by the President and it was gazetted on 22-7-1992.
15. It may also be pertinent to reproduce para. 15 from the judgment in the case of Riaz Ahmad v.
State (1998 SCMR 1729) (supra), which reads as under:-- "15. The instant case stands on much strong footing as every Ordinance promulgated from time to time was laid before both the Houses, thus, the mandate and the scheme of the Article of not allowing the Executive to usurp the power and function of the Legislature was duly complied with but both the Houses took time rather years to make up its mind to approve the law. Either of the house did not disapprove the legislation. In this situation, the vacuum had to be filled and provided for to prevent chaos and disruption of administration of criminal justice. There was no other mechanism to fill the vacuum provided for by the Constitution. The President had to act and as matter of State necessity to provide for the legal cover and bringing to book the violators of rights of citizens in person, body and property. The criteria laid down and condition necessary for re- enactment of the Ordinance as noted in the abovenoted precedent existed, as such in our view the Ordinance XXX of 1991 promulgated on 28-8-1991 validly held the field and was operative in law and the appellant was rightly tried for the offence of murder as defined and made punishable under the said Ordinance."
16. In our view it is not necessary to go into the question, whether in the judgment in case of Riaz Ahmad v. State (supra) this Court had taken a somewhat different view than the view found favour with the Court in the earlier judgments referred to hereinabove, as we are of the view that the above Constitution petitions are not fit cases in which this Court should press into service its Constitutional jurisdiction under Article 184(3) of the Constitution. Admittedly, the convicts were tried by the Special Courts which were headed by the persons who had been or were qualified to be Judges of the High Court. The petitioners were found guilty for the commission of heinous crimes and were convicted. The above findings were affirmed by the Supreme Appellate Court comprising a Judge of this Court and two Judges of the High Court as pointed out hereinabove.
17. Except in Constitution Petitions Nos.18 of 1992, 28 of 1995, 38 of 1995 and 42 of 1995 in all the above Constitution petitions the convictions were recorded after the enforcement of the Act, and therefore, it cannot be urged that at the time of rendering the judgment the Special Courts were not competently constituted for want of valid statute. It may be observed that Constitutional jurisdiction is a discretionary jurisdiction, designed and intended to foster the cause of justice. The Court is to weigh and consider all the circumstances before pressing into service the above jurisdiction. In the instant cases, the convicts have been found guilty of heinous crimes, which include murdering of seven persons comprising men, women and children in one case. If we were to set aside the above concurrent finding of guilt on the above technical ground the same will not foster the cause of justice.
18. The High Court in the above three appeals has rightly declined to press into service Constitutional jurisdiction for cogent reasons inter alia contained in para.10 of the judgment which is reported under the title Rehmat Khan v. Federation of Pakistan (PLD 1993 Lahore 70), which reads as follows:-- "10. In view of the principle enshrined in the aforementioned cases, we are inclined to hold that the President is fully competent to re-enact Ordinance No,XXXVIII of 1991 and Ordinance No,11 of 1992, and therefore, the trial, conviction and dismissal of the appeal of the petitioner by the Supreme Appellate Court do not warrant interference in these proceedings. There is another circumstance which desentitles the petitioner to claim any equitable relief, inasmuch as, the, petitioner admittedly did not raise any objection to the holding of the trial by the Special Court for Speedy Trials but actually participated therein in the exception of obtaining a favourable decision from the trial Court as well as from the Appellate Court. The petitioner himself allowed the trial Court as well as the Appellate Court to exercise the jurisdiction which according to the petitioner did not vest in the respective forums. In Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (PLD 1964 SC 829) the principle laid down in The King v. William and others Ex parte Philips (LR (1914) 1 KB 608) was approved wherein it was held: ' 'Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurption of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise.'
' Also refer S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCMR 367) wherein it was held that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it. Also see Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others (PLD 1973 SC 236) wherein it was held that an order in the nature of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong.
Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. The same principle was followed in case of Begum Shamsun-Nisa v. Said Akbar Abbasi and another (PLD 1982 SC 413) and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 SC 691)."
' In this view of the matter, no exception can be taken to the above judgment and the appeals are liable to be dismissed.
20. The upshot of the above discussion is that the above Constitutional petitions and the A-deals are dismissed.