SUBJECT WISE HEAD NOTE ON
OPERATIVE PART OF THE SHORT ORDER

OF SUPREME COURT DATED 31st JULY, 2009

 

1. TIKKA IQBAL CASE AND ITS ORDER IN REVIEW


" The Judgment in Petitions No. 87 and 88 of 2007, TIKA IQBAL MUHAMMAD KHAN VS GENERAL PERVEZ MUSHARRA AND OTHERS (PLD 2008 SC 25 and PLD 2008 SC 170) and the Judgment dated 15-2-2008, and any other passed on strength of the said two judgment are hereby declared to be void ab initio ".

2. THE PROCLAMATION PCO; OATH OF JUDGES ORDER AND AMENDMENTS TO CONSTITUTION.

" The Proclamation of Provisional Constitution Order the Oath of Office (Judges) Order of 2007, Constitution (Amendment) Order, 2007, the Constitution (Second Amendment) Order, 2007, are hereby declared to be unconstitutional, ultra vires of the Constitution and consequently being illegal and of no legal effect ".

3. JUDGES CONFIRMED BEFORE NOVEMBER, 3RD 2007, WHO WERE EITHER RESTORED WITHOUT OATH OR TOOK FRESH OATH UNDER THE CONSTITUTION AS REVIVED ON THE 15TH OF DECEMBER, 2007.

" The Chief Justice of Pakistan; the Judges who were declared to have ceased to hold their respective offices shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration ".

4. CHIEF JUSTICE IFTIKAR MUHAMMAD CHAUDERY

" It is declared that the office of the Chief Justice of Paksitan never fell vacant ".

5. JUSTICE ABDUL HAMEED DOGAR

" The appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was unconstitutional, void ab initio and of no legal effect.

Provided unconstitutional appointment 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 ".

6. JUDGES OF SC AND CHIEF JUSTICES AND JUDGES OF HIGH COURTS, WHO TOOK OATH ON PCO AND/OR WERE APPOINTED IN CONSULTATION WITH JUSTICE DOGAR BETWEEN 3RD NOVEMBER, 2007 AND 22ND FEBRUARY, 2009.

" 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, from 3-11-2007 to 22-3-2009 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 while holding offices as Judges of High Courts shall revert back as Judges of the respective High Courts.

Likewise, Judges who were District and Sessions Judges shall revert back as District and Session Judge ".

7. CONFIRMED JUDGES WHO TOOK OATH ON PCO AND THEIR JUDGMENTS AND ORDERS.

a) " The Judges who stood appointed to the said offices prior to 3-11-2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench, shall be proceeded against under Article 209 ".

b) " Any Judgment delivered or orders made or any decrees passed by any Bench which comprised of or which included the afore-described Judges protected on the principle laid down in MALIK ASAD ALI CASE (PLD 1998 SC 161) ".

8. THE ISLAMABAD HIGH COURT AND ITS JUDGES

a) " The said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court shall revert/stand transferred to the courts which had jurisdiction ".

b) " 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 were Judges of some other High Court who shall revert ".

9. FEDERAL AND PROVINCIAL ORDINANCES PROMULAGATED BEFORE 3RD NOVEMBER, 2007.

" The Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by Provisional Constitution Order stand shorn of their purported permanence on account of our afore-mentioned declarations. 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 ".

10. NUMBER OF JUDGES OF SUPREME COURT

" Since Article 176, authorizes only the Parliament to determine the number of Judges of the Supreme Court, (and not National Assembly by passage of Finance Bill) the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen ".

11. THE CODE OF CONDUCT OF SUPERIOR COURT JUDGES

" In the Code of Conduct prescribed for the Judges of the Superior Courts, a new clause shall be added commanding that no such Judge shall hereinafter, offer any support in whatever manner to any unconstitutional 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 ".

12. MR. JUSTICES ABDUR RASHID KALWAR AND ZAFAR AHMED KHAN SHERWANI.

" 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 Ahmed Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be unconstitutional and of no legal effect ".


13. GENERAL ELECTION OF FEBRUARY, 2008 AND GOVERNMENT FORMED THERE AFTER.

a) " The Court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 ".

b) " 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 Government, any thing 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 Supreme Lex reflected in PLD 1972 SC 139 ".

 



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