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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction).
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Javed Iqbal
Mr. Justice Sardar Muhammad Raza Khan
Mr. Justice Khalil-ur-Rehman Ramday
Mr. Justice Mian Shakirullah Jan
Mr. Justice Tassaduq Hussain Jillani
Mr. Justice Nasir-ul-Mulk
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Ch. Ijaz Ahmed
Mr. Justice Ghulam Rabbani
Mr. Justice Sarmad Jalal Osmany
Mr. Justice Muhammad Sair Ali
Mr. Justice Mahmood Akhtar Shahid Siddiqui
Mr. Justice Jawwad S. Khawaja.
CONSTITUTION PETITION NO. 09 OF 2009
Sindh High Court Bar Association through its Secretary.….PETITIONER
CONSTITUTION PETITION NO. 08 OF 2009
Nadeem Ahmed Advocate……………………………………..PETITIONER
VERSUS
Federation of Pakistan through Secretary, Ministry of Law
and Justice, Islamabad and others………………………….................................………..….RESPONDENTS
For the petitioner: Mr. Hamid Khan, Sr. ASC. (Const.P.09/2009)
Mr. Rashid A. Razvi, ASC. Mr. M. S. Khattak, AOR Assisted
by M/s Waqar Rana, Waheed Khalid Khan & Haq Nawaz Talpur,
Advocates. For the petitioner: Mr. Muhammad Akram Sheikh,
Sr. ASC. (Const.P.08/2009) Assisted by Barristers Ms Natalya
Kamal & Syed Shehryar, Advocates 2 For responde nt No.1
Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan.
Agha Tariq Mehmood Khan, DAG Mr. Shah Khawar, DAG. Ch. Akhtar
Ali, AOR. For respondent No.2. Mr. Muhammad Yousaf Leghari,
A.G.Sindh. Raja Abdul Ghafoor, AOR. For respondent Nos.3 &
4. Nemo. Respondent No.5. Not represented. Dates of hearing:
20th to 24th and 27th to 31st July, 2009.
JUDGEMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- The above
Constitutional Petitions bearing Nos. 9 of 2009 and 8 of
2009 involve common questions of facts and law and are disposed
of by this single judgment.
2. In the first mentioned petition, the petitioner while
referring to several provisions of Constitution and the case
law, beside making other contentions, legal and factual, has
stated, in para No.5, that:
"The removal of Judges of Supreme Court and High Courts
on 3.11.2007 was not only violative of Article 209 of the
Constitution, 1973 but was against the rule laid down by the
bench of twelve (12) Judges of Supreme Court in the case of
Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation
in the case of Tika Iqbal Khan (PLD 2008 SC 178) a smaller
bench of the Supreme Court is perincuriam and in any event,
is not by a Supreme Court that is de jure. It is respectfully
submitted, that Justice Abdul Hameed Dogar could not be treated
as Constitutional head of the Supreme Court even after the
decision in the case of Tika Iqbal Khan (supra) as he himself
was the real beneficiary of the said Judgement and contrary
to one of the cardinal principles of Natural justice, "no
person should be judge in his own cause" had headed the
Bench. Hence, in view of the facts and reasons stated above
Justice 3 Iftikhar Muhammad Chaudhry is still the Chief Justice
of Pakistan as per Constitution and all appointments and reappointments
made in the Supreme Court and High Courts without consultation
of de jure Chief justice of Pakistan are unlawful, illegal,
ultra-vires of the Constitution as well as malafide".
3. Having made above averments, the petitioner has, inter-alia,
sought a declaration to the effect that the respondents Nos.
3 and 4 namely Justice Zaffar Ahmad Khan Sherwani and Justice
Abdul Rashid Kalwar are and continue to be Judges of High
Court of Sindh and that they would continue as Additional
Judges till 25.8.2010 and that their term of appointment has
not expired as opined by Mr. Justice Abdul Hameed Dogar, as
then he was called. During the course of his submissions,
learned counsel appearing for him prayed further that following
declarations be also granted:
i) that the purported acts done by General Pervez Musharraf,
(Rtd) between 3.11.2007 to 16.12.2007 aimed at to suspend
and amend the Constitution through several instruments are
unconstitutional, invalid and without any legal consequence;
ii) that on account of his acts taken during 3.11.2007 to
15.12.2007 relating to superior judiciary, General Pervez
Musharraf (Rtd) became a usurper;
iii) all the appointments of Judges of superior judiciary
on or after 3.11.2007 up till 22.3.2009 which were without
consultation of de-jure Chief Justice of Pakistan are/were
unconstitutional, invalid and without any legal consequence;
iv) that the two (so called) Judgments dated 23.11.2007 and
15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007
filed by Tika Iqbal Muhammad and WATAN Party and the Review
Petition No.7 of 2008 filed by the former are/were nullity
in law, being decisions per incuriam, corum-nonjudice, without
any legal basis and based on mala-fide proceedings rendered
by biased persons of Tribunal (then calling themselves as
Judges of this Court) fraudulently, collusively and lacking
in bona-fides;
4. In the other petition No. 8 of 2009 which has been filed
by Nadeem Ahmad, a practicing Advocate, while criticizing
the judgement delivered in case of Tikka Iqbal Muhammad Khan
versus Federation of Pakistan (PLD 2008 SC 178), the petitioner
has, inter-alia, averred as follows:
"All the persons who were not judges on 3rd November
2007 but who were brought into Supreme Court and High Courts
as 'judges' despite the fact that the Honourable Chief Justice
of Pakistan was never consulted before their appointment which
meant that they were never appointed under the Constitution."
AND
"On the night of 22 March 2009, issuance of cause lists
comprising persons who have not been appointed in strict adherence
to Article 177 and who are therefore complete strangers to
the Supreme court, is a serious matter and it is incumbent
on the Honourable Chief Justice, before proceeding with any
other judicial work, to forthwith stop all these persons from
hearing any cases till such time that he, along with other
validly appointed judges, are able to look into and judicially
determine validity of their appointments as judges."
5. The petitioner has, among others, sought a declaration
that all those persons, both in Supreme Court and High Courts,
regardless of whether they have taken oath under PCO or the
Constitution, who have been appointed without 'consultation'
of Honourable Chief Justice of Pakistan as not judges and
therefore, not entitled to function as such.
6. On 22.7.2009 a notice was issued to General Pervez Musharraf
(Rtd) on his available address intimating him about the proceedings
in this case and 29.7.2009 as the date fixed therein before
this Court. The Process Serving Officer reported on the same
day that he had gone to the residential place viz: C-1, B
Park Road, Chak Shahzad, Islamabad where a person identifying
himself as Muhammad Hussain son of Amir and that on formers
offer the latter refused to receive the notice. The factum
of issuance of the afore-referred notice was widely televised
through National and International T.V. channels. Also, it
was widely published in National and International print media,
but, on the date so fixed no one entered appearance.
7. We have heard learned counsel for petitioners and learned
Attorney General for Pakistan.
8. Before dilating upon the pleas taken in the arguments
by learned counsel for the parties, in our view, some of the
facts/events which took place before 3rd November, 2007 touching
the very basis of the issues involved in the matter are brought
on record.
9. In our country, during sixty years of its independence
after partition, to the misfortune of people, several times,
the Constitutions framed by Legislative Bodies were desecrated.
Sovereignty of people was not allowed to flourish and get
deep-rooted in the polity of our country. Prior to 3rd November,
2007, the Constitutions were either abrogated or put in abeyance
and the democratic system of governance was put to an end.
For the first time, Constitution of 1956 was abrogated on
7th October, 1958 and Martial Law was imposed by the then
President, Sikandar Mirza who dismissed the Central and Provincial
Governments; dissolved the Parliament and Provincial Assemblies
and abolished all Political Parties and appointed General
Muhammad Ayub Khan, the then Commander in Chief as Martial
Law Administrator. Sikandar Mirza was soon, within few days,
replaced by the latter. On 25th March, 1969, again the then
head
of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution
of 1962 and by proclamation (PLD 1969 Central Statutes 42)
Promulgated Martial Law followed by Provisional Constitution
Order (Gazette of Pakistan, Extraordinary 4th April, 1969).
On 5th July, 1977 once again Martial Law was imposed throughout
the country by the then head of Army Chief viz. former General
Muhammad Zia-ul-Haq, who, vide Proclamation of Martial Law
(PLD 1969 Federal Statutes 326) dissolved the National Assembly,
the Senate, the Provincial Assemblies etc. and put the Constitution
of 1973 in abeyance followed by Laws (Continuance in Force)
Order, 1977. When the Constitution was revived, it was undeniably,
in a mutilated form by the notorious Eighth Amendment.
10. Later, there was another onslaught on the ongoing democratic
system of governance. On 12th October, 1999, the then Chief
of Army Staff, General Pervez Musharraf, now retired, once
more, put the Constitution in abeyance and the whole of Pakistan
was brought under the control of Armed Forces. The National
Assembly, the Senate and the Provincial Assemblies were suspended,
so also, the Chairman and Deputy Chairman of Senate, the Speaker
and Deputy Speaker of the National Assembly and the Provincial
Assemblies were suspended and it was declared that the Prime
Minister, Federal Ministers, Parliamentary Secretaries, the
Provincial Governors, the Provincial Chief Ministers and the
Advisor to the Chief Ministers would ceased to hold offices,
followed by issuance of Provisional Constitution Order and
the Oath of Office (Judges) Order 2000. General Pervez Musharraf
(Rtd), self styled himself as Chief Executive and started
ruling the country under the new dispensation. Later, he,
unceremoniously, occupied the office of President and in the
coming years revived the Constitution with Seventeenth Amendment.
11. Again, on 3rd November, 2007 the General Pervez Musharraf,
(Rtd), in his capacity as Chief of Army Staff, in the garb
of declaration of emergency, put the Constitution in abeyance,
issued Provisional Constitution Order No.1 of 2007 followed
by the Oath of Office (Judges) Order, 2007, making as many
as sixty one (61) Judges of superior judiciary including Chief
Justice of Pakistan and Chief Justices of three Provinces
dysfunctional for many of them either did not agree to take
or were not given the oath. Of them were; from Supreme Court
13 out of 18 (17 permanent and one ad-hoc) Judges including
Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore
High Court, 24 out of 28 Judges including Chief Justice of
High Court of Sindh, 6 out of 13 Judges including Chief Justice
of Peshawar High Court. It is quite saddening that
all the five Judges including the Chief Justice of Balochistan
High Court took oath under the Oath of Office (Judges) Order,
2007.
12. An independent and strong judiciary is a back bone of
viable democratic system all over the world. The time tested
experience has proved that independent and strong judiciary
provides strength to the institutions running government particularly,
those who roll on the wheels of democracy. Equally the independent
and strong judiciary acts as an arbiter striking balance among
various segments of Democratic system. It helps State organs,
such, as, Legislature, Executive and the judiciary itself
to function smoothly maintaining balance inter se. The constitution
of Pakistan, of 1973, too, provides the judiciary guarantees
enshrined in it and states that the judiciary shall be fully
secured, but, unfortunately, to its great dismay, this organ
of State has, all along been under the wrath of
adventurers imposing their dictatorial terms obviously for
their ulterior designs. The history of this country witnessed
that in a set up of one government tenure of a Chief Justice
of Pakistan was curtailed with ulterior motives and was restored
to its original position when the designs
were stood achieved. Likewise, through various instruments,
the favourites and pliant members of superior judiciary were
out rightly given
underserved benefits while the others were shown doors. This
happened during the era of the then Martial Law Administrator
General Zia-ul-Haq and following the same foot steps, General
Pervez Musharraf (Rtd) did the same in the year 2000. Many
judges of superior judiciary who declined to toe his line
of action were unceremoniously sacked.
13. General Pervez Musharraf (Rtd) through his 1999/2000
action, declared that the national Assembly, the provincial
Assemblies, Senate, Chairman and Deputy Chairman of Senate,
Speaker of National Assembly and the Provincial Assemblies
were suspended and the Prime Minister, Federal Ministers,
Parliamentary Secretaries, the Provincial Governors and the
provincial Chief Ministers and the Advisors to the Chief Ministers,
to have ceased to hold offices. However, his November, 2007
action was a singular in nature, in that, the onslaught was
on judiciary alone. All other institutions were in tact. The
independence of judiciary was given a serious blow. In order
to save the judiciary from being destroyed, for the first
time in the history of this Country, a seven member bench
of this Court headed by the de jure Chief Justice of Pakistan,
passed an order, inter-alia, restraining the President and
Prime Minister of Pakistan from undertaking any such action,
which was contrary to the Independence of Judiciary. So also
the Judges of this Court and that of the High Courts including
Chief Justice (s) were required not to take oath under the
Provincial Constitution Order or any other extra Constitutional
step and on the same day viz: 3.11.2007, the order was served
on the members of superior judiciary through the respective
Registrars of the Courts by way of Fax. It was also sent to
all the relevant Executive functionaries. 14. The action of
General Pervez Musharraf (Rtd) was, undeniably, taken to prevent
the 11 member Bench of this Court which was hearing the Petition
No. 73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad
and others in which the qualification of the General was in
question, and perhaps, he was not expecting a favourable decision.
The reasons shall, in that behalf be found in the detailed
judgement. Be that as it may, Justice Abdul Hameed Dogar,
as then he was called, alongwith four other Judges of this
Court took oath in pursuance of unconstitutional Provisional
Constitution Order and the Oath of Office (Judges) Order,
2007 and by that he also violated the order of seven member
Bench of this Court which was headed by de jure Chief Justice
of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath
of Chief Justice
of Pakistan, although, the office was not vacant. Some of
High Courts Judges too took oath likewise violating the constitution
and the order of seven member Bench, legally and lawfully
passed. Besides, many other Judges in this Court and in the
High Courts were appointed and they took oath in violation
of constitutional provisions and the order of seven member
Bench of this Court.
15. Subsequently, in order to dilute the effect of afore-referred
7 member Bench order, Mr. Justice Abdul Hameed Dogar, the
CJP, as then was called, constituted a Bench of 8 Judges including
those appointed afresh in pursuance of Provisional Constitution
Order and took up CMA bearing No.2874 of 2007 in Constitution
Petition No.73 of 2007 and by their order dated 6.11.2007
illegally and unlawfully, without the mandate of the Constitution,
declared the order dated 3.11.2007 to be illegal and without
jurisdiction. Later, a 10 member Bench was also constituted
which was headed by Mr. Justice Abdul Hameed Dogar, Chief
Justice of Pakistan, as then he was called. This Bench again
illegally and unlawfully took up and dismissed the petition
No.73 and Original Criminal Petition No.51 of 2007 filed by
Justice (Rtd) Wajihuddin Ahmad calling in question the eligibility
of General Pervez Musharraf to contest election to the office
of President although, it already stood dismissed for want
of instruction. Further details in this behalf shall be given
in the detailed judgment.
16. Also subsequently, an other 7 member bench headed by
Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan,
as then he was called, took up hearing the case of Tikka Iqbal
Muhammad Khan and WATAN Party and decided the same on the
principle of ' Salus Populi Supreme Lex' and granted that
relief which was even not prayed by the petitioner. This judgement
is/was, ex-facie, per incuriam, corum-nonjudice illegal and
unlawful. Later, a time barred Review Petition was filed by
Tikka Iqbal Khan which was heard by 13 member Bench and was
dismissed, palpably to give impression that a larger Bench
decided the matter to dilute the effect of a previous judgment
handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).
17. It may be noted that the chosen representative of the
time, too, did not extend validation to the unconstitutional
acts taken upto 3rd November, 2007 as is universally known.
It is, however, quite heartening that, for the first time,
in the history of our beloved country, the chosen representative
of people, who took their offices as a result of election
taking place on 18th February, 2008 have, commendably, stayed
their hands off and have not sanctified the unconstitutional
acts, such as, the Declaration of Emergency, the Provisional
Constitution Order No.1, the Oath of Office (Judges), Order,
2007, the Constitution (Amendment) Order, 2007 (President's
Order No.5 of 2007), the Constitution (Second Amendment) Order
of 2007 (President's Order No.6 of 2007) and many other instruments
made and declared by General Pervez Musharraf (Rtd). In this,
their restraint not extending validity to all these unconstitutional
and illegal instruments and other steps taken by retired General
are laudable. Evidently, this was done by the present representatives
of people believing firmly that the prosperity of the country
lies in the strong and independent democratic system which
can alone flourish and survive with democratic steps to be
taken in the better interest of people always apt and keen
to choose them in such a viable system of governance. We are
sanguine that the current democratic dispensation comprising
of the President, the Prime Minister, Ministers and the Parliament
shall continue to uphold the Constitution, its institutions
and sacred values.
18. From above, the conclusions drawn are that:
i) The General Pervez Musharraf (Rtd) in the garb of Emergency
Plus and the Provisional Constitution Order made amendments
in the Constitution by selfacquired the powers which all are
unconstitutional, unauthorized, without any legal basis, hence,
without any legal consequences;
ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation
of the order dated 3.11.2007 passed by a 7 member Bench headed
by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional
instruments introduced by General Pervez Musharraf (Rtd),
additionally knowing well that the office of Chief Justice
of Pakistan was not lying vacant;
iii) Also, the Judges who were either retired or were not
holding any judicial office, beside those in High Courts took
fresh oath on their appointment on and after 3.11.2007 till
15.12.2007 in Supreme Court where the full strength of Judges
alongwith an Ad-hoc Judge appointed under the Constitution
were already working and thus there was no vacancy. Similarly,
many Judges took oath in Provincial High Courts. All of them
did so in violation of order dated 3.11.2007 passed by 7 member
Bench headed by de-jure Chief Justice of Pakistan. Four incumbent
Judges already functioning in the Supreme Court took fresh
oath under the influence of and in pursuance of unconstitutional
steps of General Pervez Musharraf (Rtd);
iv) The Petition No.73 of 2007 filed by Mr. Justice (Rtd)
Wajihuddin Ahmad challenging the eligibility of General Pervez
Musharraf (Rtd) to contest for the office of President in
uniform was dismissed purportedly on merits although the record
maintained in the Supreme Court revealed otherwise;
iv) The decisions in the cases of Tikka Iqbal Muhammad Khan
granting validity to the actions of General Pervez Musharraf
(Rtd) were per incuriam, corumnon-judice, without any legal
basis hence, of no legal consequences;
vi) The amendments in the Supreme Court (Number of Judges)
Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising
the strength of Judges in Supreme Court from 17 (1+ 16) to
30 (1+29) seemingly aimed at providing allocation of funds
for increasing the strength of Judges is unconstitutional
because the strengths of Judges of Supreme Court is be increased
by Parliament as defined in Article 50 to be read with Article
260 of the Constitution which defines the acts of Parliaments;
vii) Surprisingly, in the past the Courts of the time used
to extend favours empowering the adventurers to amend the
Constitution in actual effect were to achieve their overt
and covert agenda but this time, such powers were acquired
by the General Pervez Musharraf (Rtd) himself through the
PCO and brought a host of unconstitutional amendments for
his own benefits; and
viii) The present representative of people firmly believe
in strong and independent judiciary and the democratic system
which is evident that the deposed Judges of Supreme Court,
High Courts and the de-jure Chief Justice of Pakistan were
restored with effect from 3rd of November, 2007 implied that
the present representatives of people denied the validity
of the actions of General Pervez Musharraf (Rtd) taken from
3.11.2007 to 15.12.2007 during which the Constitution remained
suspended.
19. Considering the above, in the light of submissions of
learned counsel for the parties and on examination of the
material brought before us and for the detailed reasons to
be recorded, we dispose the above petitions as follows.
20. The judgment purported to have been delivered in Constitutional
Petitions bearing No: 87 and 88 of 2007 in the case titled
as TIKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ MUSHARRAF AND
OTHERS (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgment
dated 15.2.2008, purported to have been passed in C.R.P.No.7
of 2008 titled as TIKA IQBAL MUHAMMAD KHAN VS. GENERAL PERVEZ
MUSHARRAF AND OTHERS and any other judgment/judgments passed
on the strength of the said two judgments are hereby declared
to be void ab initio.
21. The Proclamation of Emergency issued by General Pervez
Musharraf as the Chief of Army Staff (as he then was) on November
3, 2007; the Provisional Constitution Order No.1 of 2007 issued
by him on the same date in his said capacity; the Oath of
Office (Judges) Order of 2007 issued by him also on the same
date though as the President of Pakistan but in exercise of
powers under the aforesaid Proclamation of Emergency and the
Provisional Constitution Order No.1 of 2007; The Provisional
Constitution (Amendment) Order, 2007 issued by him likewise
on 15.11.2007; the Constitution (Amendment) Order, 2007 being
President's Order No.5 of 2007 issued on November 20, 2007;
the Constitution (Second Amendment) Order, 2007 being the
President's Order No.6 of 2007 issued on 14th December, 2007;
the Islamabad High Court (Establishment) Order 2007 dated
14th December 2007 being the President's Order No.7 of 2007;
the High Court Judges (Pensionary Benefits) Order, 2007 being
Presidents Order No.8 of 2007; the Supreme Court Judges (Pensionary
Benefits) Order, 2007 being President's Order No.9 of 2007
dated 14th December, 2007 are hereby declared to be unconstitutional,
ultra-vires of the Constitution and consequently being illegal
and of no legal e.
22. As a consequence thereof:-
i) the Chief Justice of Pakistan; the Judges of the Supreme
Court of Pakistan; any Chief Justice of any of the High Courts
and the Judges of the High Courts who were declared to have
ceased to hold their respective offices in pursuance of the
afore17 mentioned alleged judgments or any other such judgment
and on account of the instruments mentioned in para 21 above,
shall be deemed never to have ceased to be such Judges, irrespective
of any notification issued regarding their reappointment or
restoration;
ii) it is declared that the office of the Chief Justice of
Pakistan never fell vacant on November 3, 2007 and as a consequence
thereof it is further declared that the appointment of Mr.
Justice Abdul Hameed Dogar as the Chief Justice of Pakistan
was un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter,
the said unconstitutional appointment of Mr. Justice Abdul
Hameed Dogar as the Chief Justice of Pakistan shall not affect
the validity of any administrative or financial acts performed
by him or of any oath made before him in the ordinary course
of the affairs of the said office;
iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional
Chief Justice of Pakistan, therefore, all appointments of
Judges of the Supreme Court of Pakistan, of the Chief Justices
of the High Courts and of the Judges of the High Courts made,
in consultation with him, during the period that he, unconstitutionally,
held the said office from 3.11.2007 to 22.3.2009 (both days
inclusive) are hereby declared to be unconstitutional, void
ab initio and of no legal effect and such appointees shall
cease to hold office forthwith; Provided that the Judges so
unconstitutionally appointed to the Supreme Court while holding
the offices as Judges of any of the High Courts shall revert
back as Judges of the respective High Courts subject to their
age of superannuation and likewise, the Judges of the High
Courts, who were District and Sessions Judges before their
said un-constitutional elevation to the High Courts shall
revert back as District and Sessions Judge subject to limitation
of superannuation;
iv) the Judges of the Supreme Court of Pakistan, if any,
the Chief Justices of the High Court, if any, and the Judges
of any of the High Courts, if any, who stood appointed to
the said offices prior to 3.11.2007 but who made oath or took
oath of their respective offices in dis-obedience to the order
passed by a Seven Member Bench of the Supreme Court of Pakistan
on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition
No.73 of 2007, shall be proceeded against under Article 209
of the Constitution. The Secretary of the Law Division of
the Government of Pakistan shall take steps in the matter
accordingly; Provided that nothing hereinabove shall affect
those Judges who though had been appointed as Judges/Chief
Justices of any of the High Courts between 3.11.2007 to 22.3.2009
but had subsequently been appointed afresh to other offices
in consultation with or with the approval of or with the consent
of the Constitutional Chief Justice of Pakistan;
v) any judgments delivered or orders made or any decrees
passed by any Bench of the Supreme Court or of any of the
High Courts which comprised of or which included the afore-described
Judges whose appointments had been declared void ab initio,
are protected on the principle laid down in MALIK ASAD ALI'S
CASE (PLD 1998 SC 161);
vi) since the Constitution (Amendment) Order, 2007 being
the President's Order No.5 of 2007 and the Islamabad High
Court (Establishment) Order being President's Order No.7 of
2007 establishing Islamabad High Court for the Federal Capital
Territory, have been declared to be un-constitutional and
of no legal effect, therefore, the said Islamabad High Court
shall cease to exist forthwith. All judicial matters pending
before the said High Court before the passing of this order
shall revert/stand transferred to the courts which had jurisdiction
in the said matters before the promulgation of afore-mentioned
President's Order No.5 of 2007 and President's Order No.7
of 2007 promulgated on 14th December, 2007. The Judges of
the said Court shall, as a consequence thereof, cease to be
Judges except such Judges or the Chief Justice of the said
court, who prior to their appointments in the said Islamabad
High Court, were Judges of some other High Court who shall
revert to the court of which they were originally the Judges,
subject to their age of superannuation. The officers and employees
of the said Court shall also cease to hold their respective
appointments and shall become part of the Federal Government
Surplus Pool for their further appointments. However, if any
such officer or employee was an officer or an employee of
some other court or department or office, such officers or
employees shall revert to their respective courts, departments
or offices to which they belonged before joining the service
in the Islamabad High court, subject again to their age of
superannuation; we would like to mention here that establishment
of a High Court or a Federal Court for the Federal Capital
Territory might be a desirable act but it is unfortunate that
such a step was taken in an un-constitutional and a highly
objectionable manner. We may, therefore, add that notwithstanding
what has been declared and ordered above, the relevant and
competent authorities may take steps to establish such a court
in accordance with the Constitution/the law.
vii) the Ordinances promulgated by the President or a Governor
of a Province before 3.11.2007 which were given permanence
by the Provisional Constitution Order No.1 of 2007 as also
the Ordinances issued by the President or a Governor between
3.11.2007 and 15.12.2008 (both days inclusive) which were
also, like-wise given permanence through the same instrument
and which legislative measures alongwith the said Provisional
Constitution Order had been validated by the aforementioned
judgment delivered in TIKA IQBAL MUHAMAD KHAN'S CASE, stand
shorn of their purported permanence on account of our afore-mentioned
declarations. Since on account of the said judgment in TIKA
IQBAL MUHAMMAD KHAN'S CASE purporting to be a judgment of
this Court, the presumption that the said Ordinances were
valid laws not requiring approval of the Parliament or the
respective Provincial Assemblies in terms of Article 89 or
128 of the Constitution and since it is today that this Court
has attributed invalidity to the said legislative instruments,
therefore, the period of 120 days and 90 days mentioned respectively
in the said Article 89 and the said Article 128 of the Constitution,
would be deemed to commence to run from today and steps may
be taken to place the said Ordinances before the Parliament
or the respective Provincial Assemblies in accordance with
law;
viii) since the Constitution, through its Article 176, authorises
only the Parliament to determine the number of Judges of the
Supreme Court of Pakistan and since the Parliament had so
done through the Supreme Court (Number of Judges) Act XXXIII
of 1997, therefore, the increase in the strength of the Judges
through the Finance Act of 2008 which Act was not passed by
the Parliament but was passed only by the National Assembly
would be deemed to be valid only for financial purposes and
not for the purposes of Article 176 of the Constitution. It
is resultantly declared that the number of Judges of the Supreme
Court for purposes of the said Article 176 shall continue
to remain sixteen.
ix) in the Code of Conduct prescribed for the Judges of the
Superior Courts in terms of Article 209(8) of the Constitution,
a new clause shall be added commanding that no such Judge
shall, hereinafter, offer any support in whatever manner to
any un-constitutional functionary who acquires power otherwise
than through the modes envisaged by the Constitution and that
any violation of the said clause would be deemed to be misconduct
in terms of the said Article 209 of the Constitution;
x) in view of our findings above regarding Mr. Justice Abdul
Hameed Dogar not being a constitutional and a valid consultee,
the notification dated 26.8.2008 and the notification dated
15.9.2008 extending the term of office of Mr. Justice Abdur
Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani
as Additional Judges of the High Court of Sindh are declared
to be un-constitutional and of no legal effect.
xi) that the court acknowledges and respects the mandate
given by the sovereign authority i.e. electorate to the democratically
elected Government on 18th February, 2008 and would continue
to jealously guard the principle of tricotomy of powers enshrined
in the Constitution, which is the essence of the rule of law.
Any declaration made in this judgment shall not in any manner
affect the General Elections held and the Government formed
as a result thereof i.e. the President, the Prime Minister,
the Parliament, the Provincial Governments, anything done
by these institutions in the discharge of their functions.
These acts are fully protected in terms of the age old of
principle of Salus Populi Est Suprema Lex reflected in PLD
1972 SC 139.
xii) Before parting with the judgment, we would like to reiterate
that to defend, protect and uphold the Constitution is the
sacred function of the Supreme Court. The Constitution in
its preamble, inter alia, mandates that there shall be democratic
governance in the country, "wherein the principles of
democracy, freedom, equality, tolerance and social justice
as enunciated by Islam shall be fully observed; .................
wherein the independence of judiciary shall be fully secured."
While rendering this judgment, these abiding values have weighed
with us. We are sanguine that the current democratic dispensation
comprising of the President, Prime Minister and the Parliament
shall equally uphold these values and the mandate of their
oaths.
23. A copy of this judgment shall be sent to the Secretary
Law and Parliamentary Affairs, Government of Pakistan, for
compliance.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Islamabad,
July 31, 2009.
APPROVED FOR REPORTING
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