PLJ 2010 SC 1
[Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal,
Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday,
Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk,
Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani,
Sarmad Jalal Osmany, Muhammad Sair Ali,
Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ.
SINDH HIGH COURT BAR ASSOCIATION through its Secretary
and another--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and others--Respondents
Const. Ps. No. 9 and 8 of 2009, decided on 31.7.2009.
Per Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ; agreeing
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007, Os. 5 & 6--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits)--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Amending the constitution through several instruments--Appointment of Judges of superior judiciary without consultation of de jure Chief Justice--Contents of Prime Minister's letter addressed to President--Actions of 3rd Nov. 2007 taken by General Pervez Musharraf, viz., PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan to the President of Pakistan.
[P. ] L
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter addressed to President Prime Minister wrote to the President "to share his thoughts on the national security situation and the risks" that it represented for the "future of Pakistan"--Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi and the writ of the government being eroded as non--State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible--Interference by some members of the judiciary in the executive functions and stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security--Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future. [P. ] M
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter--Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Art. 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd Nov., 2007 could be said to have been taken or done while acting in aid of the civil power--Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff--Even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the letter. [P. ] N
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to remove judges of superior Courts to violation of Arts. 2-A & 209 of Constitution--Securing of independence of judiciary and guaranteeing of tenure of Judges--No power vested in the Chief of Army Staff under the Constitution and the law to issue Proclamation of Emergency and PCO on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary--If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency--Nowhere the Prime Minister asked the President to take the actions that he took on 3rd Nov., 2007--In any case, it was not an advice tendered by the Prime Minister in terms of Art. 48 of the Constitution--Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps--Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No. 1 of 2007--Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO--Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well--being and prosperity of Pakistan," issued Oath Order, 2007, illegally assumed to himself power to remove judges of the superior Courts in violation of Arts. 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts. [P. ] O
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Acts of the President were violative of the Constitution, pure and simple. [P. ] P
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The terms of "supra-constitutional" and "extra-constitutional", that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases would hardly change the--unconstitutional nature and character of the said actions, which not only ex-facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law. [P. ] Q
Proclamation of Emergency dated 3-11-2007--
[P. ] R
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Courts Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Constitution--On 3rd Nov., 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff--In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance--By Art. 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other order made by the President be governed, as nearly as may be, in accordance with the Constitution--Under Art. it was provided that the President may amend the Constitution, as may be deemed expedient--Under Art. 2(3) all Courts shall continue to function subject to PCO and Oath Order, 2007, but the Supreme Court, a High Court or any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority--By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Arts. 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments' in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him--Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--An Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution--Purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of Art. 243(1-A) of the Constitution. [P. ] S
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendments) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial Court. [P. ] T
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of constitution--Suspending and amending the constitution--Actions of General Pervez Musharraf dated 3rd Nov., 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President--It could not be said that the said actions were taken for the welfare of the people--Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of manoeuvring another term in office of President, therefore, the same were mala fide as well--Statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect--Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it. [P. ] U
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, (1 of 2007)--Oath of Office (Judges) Order--Constitution (Amendment) Order--Constitution (Second Amendment) Order--Islamabad High Court (Establishment) Order--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Continuation in power of General Pervez Musharraf was all along the result of manoeuvring--Holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the 17th amendment to the Constitution was passed on 31st Dec., 2003 under the umbrella of an accord between the PML(Q) and the MM A, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th Nov., 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid amendment--He promised to relinquish the office of Chief of Army Staff on or before 31 Dec., 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004--That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami's case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed's case--Majority decision in Jamat-e-Islami's case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners--However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President. [P. ] V
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity to unconstitutional acts of General Pervez Musharraf--Contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18 Feb., 2008, that too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd Nov., 2007, which displayed their commitment to the rule of law and supremacy of the Constitution. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007--Supreme Court and Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which Supreme Court is entitled to. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Oath of Office (Judges) Order, 2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of General Pervez Musharraf dated 3rd Nov., 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, are held and declared to be unconstitutional, illegal, mala fide and void ab initio--Chief Justice of Pakistan, the Judges of the Supreme Court Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notifications issued by the Ministry of Law in this behalf are declared to be null and void. [P. ] X
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--General Pervez Musharraf, during the period of the emergency from 3rd Nov., 2007 to 15th Dec., 2007, in pursuance of the instruments and measures of 3rd Nov., 2007, which have been held and declared to be unconstitutional, illegal and void ab initio promulgated some more instruments--On 15th Nov., 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd Nov., 2007. [P. ] Y
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 20th Nov., 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Arts. 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Art. 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Art. 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Art. 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution)--By the same Order, he purported to add Art. 270-AAA in the Constitution (validation and affirmation of laws etc.). [P. ] Z
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 14th Dec., 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Art. 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Arts. 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Art. 270-C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd Nov. 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution. [P. ] AA
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th Dec., 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other Courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, were provided. [P. ] BB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th Dec., 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Art. 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court--Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office w.e.f. 3rd Nov., 2007 would not be entitled to pensionary benefits. [P. ] CC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Art. 3 of Oath Order, 2007 would be entitled to full pension and other retirement benefits [P. ] DD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Finally, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov., 2007 was revoked on and with effect from 15th Dec., 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution. [P. ] EE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--Validity--General Pervez Musharraf could not have introduced his own amendments into the Constitution for self--service and benefit during the so called emergency--Surreptitious validation, affirmation and adoption made by him through insertion of Art. 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Arts. 238 and 239 of the Constitution--Unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment--Amendments were unconstitutionally and illegally validated by so called judgments in Tikka Iqbal Muhammad Khan's case--Therefore, all such instruments and measures including constitutional amendments alongwith the judgments were required to be done away with--They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani's case:
An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Arts. 270C and 270AAA in the Constitution. The provision of Art. 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, die elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the 17th Amendment to the Constitution. Further, when the elections were held on 18th Feb., 2008, the Constitution was in force having already been revived on 15th Dec., 2007. [P. ] FF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Arts. 209 of Constitution--Amending and suspending the constitution through several instruments acts done by General Pervez Musharraf--Validity--To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court--Establishment of a High Court or a. Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution--It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein--Therefore, it was not possible to condone it--However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law--Even while making amendments relating to the judicature, an amendment was made in Art. 186-A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf. [P. ] GG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges--Amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court which could be considered to "have been done for the ordinary orderly running of the State" were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd Nov. 2007 and that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution. [P. ] HH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov. 2007 was revoked on and with effect from 15th Dec. 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the'time of the revival of the Constitution shall take oath under the Constitution--On the pattern of Zafar Ali Shah's case, this was made to appear like "transactions which are past and closed, for, no useful purpose can be served by reopening them" as held in Asma Jilani's case. [P. ] II
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives--It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two--third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court & High Courts Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars. [P. ] KK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [7 & 8 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Amendments purportedly made .by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of Office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the Courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular--Therefore, it was a situation for which the Constitution provided no solution--If one was to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and one would end up seeing each time a new scenario--Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal--Act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more-up to what time, it is not possible to predict--Therefore, one has to see as to where the wrong lies, what options and remedies are available, and then make an objective analysis and reach some conclusion--Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable--On the first two occasions, it was abrogated, but thereafter it was held in abeyance--Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th Oct., 1958, 25th March, 1969, 5th July, 1977, 12th Oct., 1999 and 3rd Nov., 2007 really such that the Constitution provided no solution?--Do similar situations not arise in other countries?--Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries?--Is there no corruption in the other countries?--Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State?--Does rigging in elections not take place in other countries?--What was the wrong with the judiciary in 1958, 1969, 1977 and 1999?--Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable?--Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions--It is for the nation to address these questions in all earnestness. [P. ] MM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, it was wrongly examined earlier on the factual plane--On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle. [P. ] NN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution is the cementing force of the State and the society--By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made--It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means--Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution--That is the destruction of the Constitution and if the Constitutions were to be destroyed, State and the society in the modern times could be preserved in no manner--Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the Civil and the State necessity and the welfare of the people, or in the name of "expediency", by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non--existing facts?--The acts/actions of 3rd Nov., 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court--Doctrine of Civil and State necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd Nov., 2007 until 15th Dec., 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people--Doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, PCO, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court. [P. ] OO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--None of the Judges who did not make oath in pursuance of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah's case--It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people--Even at the international level, grave concerns were expressed on the actions of 3rd Nov., 2007. Statements and resolutions were made by the Bar Associations across the globe. [P. ] PP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The nation had stood up against the unconstitutional and illegal acts of 3rd Nov., 2007--Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt--All this was a healthy sign in the nation's journey on the path of rule of law, constitutionalism and democracy. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and a pathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases--Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievancesof the people against the denial of their Fundamental Rights guaranteed under the Constitution--It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence--Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved--It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence--It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and Oct. 1999 by certain quarters, which would always be politically motivated--Unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a Court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, Pakistan owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam within the constitutional and legal framework--Supreme Court disapproved the approach adopted in the said cases. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se were unconstitutional, illegal and ultra vires. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007 the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past--Bench of Supreme Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed's case--This was the most striking distinction between the action of 3rd Nov., 2007 on the one hand and those of 12th Oct., 1999, 5th July, 1977, 25th March, 1969 and 7th Oct., 1958 on the other--A vast majority of the Judges of the superior Courts rejected the actions of 3rd Nov., 2007 and did not make oath in pursuance with the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country--Abdul Hameed Dogar, J, and some other Judges violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--These Judges, whether they were in Supreme Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the order of 3rd Nov., 2007. [P. ] RR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar as Chief Justice--Validity--Art. 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President--Thus, there is a provision of one Chief Justice of Pakistan alone-Next provision relating to the office of Chief Justice of Pakistan is Art. 180--It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan--On 3rd Nov., 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office--Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed--On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice--Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Art. 180--Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan--In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice--In case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him--The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution--Therefore, the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd Nov., 2007--In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice--His purported appointment as Chief Justice of Pakistan per se, therefore, was unconstitutional, illegal and ultra vires--Abdul Hameed Dogar), was never a constitutional Chief Justice of Pakistan. [P. ] SS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Under Art. 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e- Shoora (Parliament)--Until the number of Judges is so determined, it may be such as may be fixed by the President--By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen--However, by S. 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty--nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of Nov., 2007--Number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President--An Act of Parliament is different to and distinct from a Finance Act--All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Art. 50 of the Constitution--On the other hand, a Finance Act, in general, is concerned with fiscal matters--Since the Constitution, through its Art. 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, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Art. 176 of the Constitution--Increase of number of Judges in such a manner also militates against the independence of the judiciary--Strength of Judges is only to be increased keeping in view its needs--It is also to be ensured that the Courts are not packed with persons in disregard of merit--After 3rd Nov., 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not of Pakistan (Iftikhar Muhammad Chaudhry, C J) men of integrity, were appointed on quid pro quo basis--Against one such appointee, there were serious allegations of misconduct and impropriety--However, after restoration of the Judges to the position they were holding prior to 3rd Nov., 2007, he resigned from office--Thus, the number of Judges of the Supreme Court for purposes of the said Art. 176 would continue to remain sixteen [P. ] TT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges--Even one ad hoc Judge, had also been appointed as such--Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar, as the Chief Justice of Pakistan also stood vitiated by virtue of Notification--Whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd Nov., 2007. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of Abdul Hameed Dogar, or for that matter the appointments of other Judges was unconstitutional, illegal and void ab initio--Further, the recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd Nov., 2007--Recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Art. 209 of the Constitution and the said position, on the same considerations, was reversed in totality--A wrong stood declared wrong with no mincing of words, for all times to come. [P. ] VV
PCO, [1 of 2007]--
----Proclamation of Emergency--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers--They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence--Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. [P. ] WW
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 and 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ, and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were fully aware of the restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency and Oath Order, 2007--No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences--Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The TV channels repeatedly televised the contents of the order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges--The order was also published in the newspapers of 4th Nov., 2007, It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On a perusal of the excerpts from the print and the electronic media, one is left with no manner of doubt that the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajhuddin Ahmed's case was widely covered both in the electronic and print mediaSaid order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the following parameters for the purpose of taking judicial notice of press reports: --
Where direct evidence is not available; Where it is sought to be proved that a person has notice of the contents of the newspaper report; Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him; In cases of defamation; and If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.
Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order--In fact, all and sundry in the length and breadth of the country knew about it--All such Judges, therefore, wilfully violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] ZZ & AAA
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--Consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/confirmation of a Judge in the superior Court shall be invalid--Independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary--Acting Chief Justice was not a consultee as envisaged by the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the was mandatory, any appointment/ confirmation made without consulting any of the consultees interpreted above would be violative of the Constitution and, therefore, would be invalid--Chief Justice of Pakistan was very much available and able to perform the functions of his office--To have access to free, fair and independent Court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Arts. 9 and 25 of the Constitution. [P. ] BBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd Nov., 2007 passed by seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, was not authorized to/be consulted for such appointments--All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd Nov., 2007 to 21st March, 2009 were violative of the provisions of the Constitution--Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, were unconstitutional, illegal, void ab initio and of no legal effect. [P. ] CCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of four persons as Judges on 5th Nov., 2007, two such Judges, a retired Judge of the Lahore High Court and a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed vide notification--Three such Judges, sitting Judges of the Lahore High Court and a retired Judge of the High Court of Sindh were appointed--All these appointments stood vitiated on account of the declaration--The Judges who were sitting Judges of the High Courts violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, which was enforceable and binding upon them under Arts. 187, 189 and 190 of the Constitution, particularly after it had come at their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution. [P. ] DDD
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All these Judges, were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office--Appointments of all the above Judges were unconstitutional, illegal and void ab initio. [P. ] EEE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution--Two such Judges, sitting Judge of the Lahore High Court and a retired Judge of the Lahore High Court were appointed--Two Judges, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed--Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All the Judges shall immediately cease to hold office forthwith--However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, shall revert to their respective High Courts subject to their age of superannuation. [P. ] FFF
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Category of appointments made during the period from 15th Dec., 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time--However, the actions of 3rd Nov., 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance of PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Art. 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself--They continued to be such Judges throughout without interruption of a single day. [P. ] GGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--One judge did not make oath as a Judge of High Court on or after 3rd Nov., 2007 after the order dated 3rd Nov., 2007 was passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and was deposed from office--But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio--Accordingly, he would cease to hold office of Judge of the Supreme Court. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Appointment as Judges of High Court reverted to original position--The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd Nov., 2007 to 15th Dec., 2007, or thereafter, shall be governed in the same terms--However, any of such Judges who was District & Sessions Judge prior to his appointment as Judge of High Court shall revert to his original position subject to age of superannuation. [P. ] III
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court proceeded to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd Nov., 2007 and who made oath in violation of order dated 3rd Nov., 2007 passed by a seven --member Bench of Supreme Court in Wajihuddin Ahmed's case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J--Actions of 3rd Nov., 2007 have already been held and declared to be unconstitutional, illegal and ultra vires--Appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Waj ihuddin Ahmed' s case all have been held to be unconstitutional, illegal and ultra vires--Therefore, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court--They exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts--As such, the decisions rendered by them would be illegal and nullity in the eye of law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--A prime contention of the counsel for the petitioners on the status of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case and the decisions rendered in Tikka Iqbal Muhammad Khan's case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd Nov., 2007--They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed's case, which, lay at the root of the actions of 3rd Nov., 2007--Anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again manoeuvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff--In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd Nov., 2007--On 5th Nov., 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day--However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength--Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th Nov., 2007, four persons, were purportedly appointed as the Judges of Supreme Court--With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd Nov., 2007--Accordingly, on 6th Nov., 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed's case. [P. ] KKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case as well as those in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in the eye of law--Secondly, the order dated 6th Nov., 2007 marked the presence ASC/AOR on behalf of the Federation (applicant), was shown to have appeared on Court's call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, was in respondent Government's own custody and it was quite convenient to procure his attendance--Therefore, order passed on the application suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. it was passed without notice to the other side. [P. ] LLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the invalidity of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, it is noteworthy that the order of 3rd Nov., 2007 was passed in an entirely different setting--Application was presented before the Bench on 2nd Nov., 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th Nov., 2007--Since the apprehensions expressed in the application came true and Proclamation of Emergency "was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd Nov., 2007 and the order was passed thereon, as prayed earlier--It was not something, which was cooked up in the meantime--Filing of application was an already existing fact to the notice of all parties, including the Attorney General for Pakistan--No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court--In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th Nov., 2007--However, the situation on 6th Nov.,. 2007 was entirely different--Unconstitutional acts of 3rd Nov., 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceeding, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th Nov., 2007, as it existed on 3rd Nov., 2007--If the order of 6th Nov., 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J. and other Judges would not have been served. [P. ] MMM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Now, two orders are before the Supreme Court--One was passed on 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. by the Judges appointed under the Constitution, and the other of 6th Nov., 2007 passed by Abdul Hameed Dogar, and other Judges--Former order was passed to preserve, protect and defend the Constitution and the law--Latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of Nov., 2007, PCO No. 1 of 2007 and the law--The one had constitutional and moral authority and power behind it--The other had the gun at its backing--Judges in the former case were bound to abide by the Code of Conduct issued by the Supreme Judicial Council--Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct--There is no manner of doubt left that the order dated 6th Nov., 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd Nov., 2007 and onward--By all recognized principles, the order dated 6th Nov., 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin'Ahmed's case--Therefore, the order dated 6th Nov., 2007 is declared to be unconstitutional, illegal and void ab initio. [P. ] NNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges and Supreme Court (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--While considering the question of validity of the order dated 6th Nov., 2007, a grave error was discovered while examining the record and proceedings--Constitution Petition No. 73 of 2007 alongwith another petition viz. Crl. Orig. P. No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th Nov., 2007 by a subsequently constituted ten--member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLJ 2008 SC 355 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v. Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others). , [P. ] OOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Record, however, showed that the same day the same Bench had already dismissed the two petitions for want of instructions--Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame a new order, surprisingly without making any reference to, rather ignoring its own earlier order so passed. [P. ] PPP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Petitioner had, inter alia, sought a declaration that "General Pervez Musharraf be declared ineligible, lacking in qualifications under Art. 62 and other provisions of the Constitution and is disqualified under Art. 63 of the Constitution to contest the election of the office of the President of Pakistan." On 5th Oct., 2007, the Bench passed an injunctive order, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions--The Bench had been hearing counsel for parties on day-to-day basis till 2nd Nov., 2007 i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007--After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd Nov., 2007, Abdul Hameed Dogar, J, and. other members of the Bench again took up Petition No. 73 of 2007, dismissed the same for want of instructions, as is evident from record yet framed the order without issuance of notice to the petitioner--Order dated 19th Nov., 2007 so passed reflects that a host of counsel, General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, instant petition alongwith Original Petition No. 51 of 2007 was dismissed on merits--Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th Oct., 2007 earlier passed by a 10--member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with, whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally--In such a situation, Const. P. No. 73/2007 was dismissed for want of instructions, as is borne out from the official record of the Court duly supported by the press reports of 20th Nov., 2007. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Action of 3rd Nov., 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well--Action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened--If such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar oaths--Nothing could be more fallacious--Fortunately, the end to a vicious circle came on 3rd Nov., 2007--The order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf. , [P. ] RRR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on 15th Dec., 2007. [P. ] SSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Remedies for curbing terrorism, extremism and militancy lay elsewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order--Proclamation of Emergency, if any, could be promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority. [P. ] TTT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order being a provincial subject, necessary legislative and administrative steps would be required to be taken under the provisions of Art. 234, which empowered the President to assume to himself or direct the Governor of the Province to assume on his behalf, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, etc, in a situation in which the government of the province could not be carried on in accordance with the provisions of the Constitution--But the imposition of any such emergency too, would be subject to judicial review. [P. ] UUU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. [P. ] XXX
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power of judicial review is a cardinal principle of the Constitution--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Fundamental principle of that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges--Power of judicial review was being exercised by the judiciary before 3rd Nov., 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution. [P. ] CCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Though the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision --except a bald reference in Para 2(ii) of the short order--to point to any undue interference in the functioning of the other branches of the government--In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court--But, no such step was ever taken in any case whatsoever--Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3rd Nov., 2007. [P. ] DDDD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578. Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred--from commenting upon the matter. [P. ] EEEE
Oath of Office (Judges) Order, 2007--
----Proclamation of emergency--The whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but iri issuing the unconstitutional and illegal Proclamation of Emergency; PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] FFFF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people. [P. ] GGGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd Nov., 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLJ 2008 SC 446, 500, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th Feb., 2008 passed in Civil Review Petition No.7 of 2008 in the said case, reported as PLJ 2009 SC 18 and the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd, Nov., 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--All the acts/actions done or taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned--Proclamation of Emergency and the PCO No. 1 of 2007 issued by him as Chief, of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the two instruments, all dated 3rd Nov., 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th Nov., 2007; Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007 dated 20th Nov., 2007); Constitution (Second Amendment) Order, 2007 (President's Order No.6 of 2007 dated 14th Dec., 2007); Islamabad High Court (Establishment) Order 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.8 of 2007 dated 14th Dec., 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.9 of 2007 dated 14th Dec., 2007)--Actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case--The decisions have themselves been held and declared to be coram non judice and nullity in the eye of law--Amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd Nov., 2007 till 15th Dec., 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Art. 270AAA of the Constitution. [P. ] IIII
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: the amendments introduced in the relevant Arts. of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of fhe acts/actions of General Pervez Musharraf of 3rd Nov., 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Art. 193 of the Constitution, as held in the Al--Jehad Trust case--However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation--The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd Nov., 2007 and had made such an oath--However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day--to--day business of the Islamabad High Court from 15th Dec., 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali's case--All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other Court, or were instituted before it, shall stand transferred to the Courts which had jurisdiction in such matters before its establishment--Islamabad High Court having ceased to exist all posts on its establishment stand abolished--All the officers and employees of the Islamabad High Court have become surplus--They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/absorption in accordance with law--However, if any such officer or employee was an officer or an employee of some other Court, department or office, such officer or employee shall revert to his respective Court--Department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation--nder Art. 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice--Right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution--Similarly, the right to have access to justice through an independent judiciary was a Fundamental Right--Establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the constitutional mandate and the law laid down in the cases--However, it was unfortunate that the Supreme Court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Art. 270-AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament--Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it--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 and law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the question of protection, if any, of other acts done during the period of the unconstitutional and illegal Proclamation of Emergency, i.e. from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive)--A distinct feature of the present case was that though on 3rd Nov., 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued--Federal and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office--Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office--National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years--Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of 18th Feb., 2008 was held--Thus, all along the day--to--day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution--Therefore, all acts/actions of the said branches of the government from 3rd Nov., 2007 to 15th Dec., 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law--Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool--Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No. 1 of 2007--Proclamation of Emergency having been, revoked on 15th Dec., 2007, the acts/actions done or taken from 16th Dec., 2007 onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way. [P. ] KKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Art. 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye--laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him--Art. 5(i) provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--Art. 5(2) an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to limitations--As a result, all the Ordinances., which were in force on 3rd Nov. 2007 as well as the Ordinances which were promulgated on or after 3rd Nov., 2007 up to 15th Dec., 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts. 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation--Under Art. 89 of the Constitution, an Ordinance issued by the President--Before National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation--Similarly, under Art. 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws--Thus, the fact remains that on the touchstone of the provisions of Arts. 89 and 128 r/w Art. 264 of the Constitution and S. 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd Nov., 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies--However, the period of four months and three months mentioned respectively in Arts. 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in instant case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods--Extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007--Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Questions in issue before Supreme Court, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007--Elections of 18th Feb., 2008 were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution--Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed--Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007--Initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of 3rd Nov., 2007 in no way affects the process whereby elections were held and the people of Pakistan expressed their will--Nor are the elections affected by Art. 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general electidns--The elections of 18th Feb., 2008 were held in accordance with the Constitution and the law--Supreme Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically--elected government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law--Supreme Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and self--enrichment, and will devote themselves to the service of the people--Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises--Any declaration made in instant judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions--However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. [P. ] MMMM
Constitution of Pakistan, 1973)--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non--justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non--justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, as interpreted in Al--Jehad Trust's case, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary--At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the-- Province about the antecedents of the person concerned, which shall be given primacy--The law laid down in Al--Jehad Trust's case that the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation. [P. ] NNNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor in the case of the respondents acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J. [P. ] OOOO
PLD 2000 SC 869; PLD 2008 SC 178; PLD 1969 Central Statutes 42; PLD 1969 Federal Statues 326; PLD 1996 SC 324; PLD 2008 SC 25; PLD 1972 SC 139; PLD 1999 SC 504; PLD 1958 SC 533; PLD 1977 SC 657; PLD 1955 FC 240; PLD 2003 SC 74; PLD 1956 FC 200; Reference by His Excellency the Governor-General PLD 1955 FC 435; Cooley's Constitutional Limitations 8th Edn. Vol. 2, p. 137; PLD 1994 SC 738; PLD 2003 SC 724; PLD 2002 SC 939; PLD 1955 FC 387; PLD 2001 SC 233; Dialogue on the Political Chess Board First Edn. 2004, p.276 by S.M. Zafar; PLD 2005 SC 719; PLD 2009 SC 549; PLD 1976 SC 57; PLD 1988 SC 416; PLD 1993 SC 473; PLD 1998 SC 388; PLD 2000 SC 77; PLD 2004 SC 583; PLD 2006 SC 697; PLD 2004 Lah. 130; (1970) 6 N.S.C.C. 143; PLD 1960 SC 237; PLD 1970 SC 98; PLD 1997 SC 426; PLD 1998 SC 161;, [(1977) 1 All ER 364, at 378-379];, [(2003) 3 All ER 351, p.356; PLD 1989 SC 61; PLD 2000 SC 179; PLD 2008 SC 13; PLD 1975 SC 66; 1980 SC 1789; AIR 1995 SC 1403;, [(2007) 3 SCC 184]; AIR 2007 SC 861;, [(1997) 3 SCC 261];, [(1994) 3 SCC 1]; PLD 1993 SC 341; PLD 1998 SC 1445; PLD 1990 SC 513; PLD 1994 SC 693; 1994 SCMR 1548; 1994 SCMR 2061; PLD 1998 SC 823; PLD 2005 SC 93; PLD 2003 SC 126; 2002 SCMR 1993; PLD 2008 SC 6; PLD 2008 SC 615; PLD 1989 Kar. 404; AIR 1982 SC 149; AIR 1994 SC 268 and, [(1998) 7 SCC 739] ref.
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Efforts of Supreme Court to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd.) Pervaiz Musharraf who despite order dated 3-11-2007 passed by Supreme Court but following ill--advice, in his capacity as Chief of Army Staff, promulgated PCO followed by the Oath of Office (Judges) Order, 2007. [P. ] SSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution of Pakistan (1973) for the first time has prescribed Oath for the members of the Armed Forces--Earlier they only took oath prescribed in the Army Act, 1952. Military Courts cannot be equated with the original Courts on the basis of well known principle that establishment of military Courts militates the independence of judiciary--Arts. 243 and 245 of the Constitution do not show that the Chief of Army Staff has any authority whatsoever to impose emergency which is in violation of Arts. 232 to 236--Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the provisions of the Constitution--There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended--President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior Courts through extra constitutional instruments i.e. Proclamation of Emergency, PCO and Oath of Judges Order--President of Pakistan is the supreme commander of the forces--Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President--Delegation ought not to be permitted unless it is authorized by statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect--In view of the rules of business Minister has authority to delegate power to any Officer of that department--It is not known to any canon of justice in any part of the world that subordinate can delegate powers to superior--Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of fhe President was fixed before Supreme Court. [P. ] AAAAA
PLD 1998 SC 1445; PLD 1964 SC 829; AIR 1978 Punjab Haryana 294; (1970 Vol. Ill AELR 871; (1983 Vol H, AELR 353; (AIR 1964 SC 1573 and (1921 Vol.3 KB 621) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of 3-11-2007 are based on mala fide therefore they are not sustainable in the eyes of law--It was admitted by the Gen. Pervez Musharaf that he" had taken extra constitutional actions which tantamounts to amend the Constitution, which is not permissible--Power to amend the Constitution is vested in the Parliament by Part II vide Arts. 238 and 239. Constitution may be amended by Parliament vide Art. 238 whereas Art. 239 prescribes procedure for amending the Constitution--Even the Parliament cannot change the salient features of the Constitution to destroy one organ of the judiciary in view of Art. 238 and 239 of the Constitution. [P. ] BBBBB
PLD 1997 SC 426 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In case all the three instruments (Proclamation, PCO and Oath Order) be read together then Emergency Plus, does not remain within the parameters of emergency as Constitution was in fact abrogated under the garb of emergency coupled with the fact that'action was taken by him for his personal benefit which does not fall in the category of good faith. [P. ] CCCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions were taken by Mushraf at night in spite of the fact that the order dated 3-11-2007 of Supreme Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening newspapers dated 3.11.2007 which contained that news--All the daily newspapers contained that news in the newspapers published on 4-11-2007--Almost more than 60 Judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO) and Oath of Office of Judges Order, 2007. Mr. Justice Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other Judges of Supreme Court had taken oath on the said night as Judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the Chief Justice had not resigned or removed or had gone out of the country--Four other Judges had also taken oath as the order dated 3-11-2007 was passed by seven Judges Bench, therefore new four Judges were also appointed with the consultation of Abdul Hameed Dogar for the purpose to complete the quorum--Said application was taken up for hearing on 6-11-2007 wherein the said order set aside by the Court and subsequently petition was also dismissed--The case was decided by the Court which was coram non judice in terms of Arts. 175, 177 and 184(3)--The Judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses--Such fact was also known to every one--Not only in Pakistan but also in the whole world it was considered a unique action that the Judges of the superior Courts were detained--Judges and Advocates are two parts of one body i.e. Judiciary--Every part of the body had played unprecedented historical role for the supremacy of Constitution and law--Their struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution and law, duly supported by the civil society--People of Pakistan had also joined hand in the struggle of the lawyers--On account of that unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the Judges of the superior Courts vide notification dated 17-3-2009--All the appointments of the Judges of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar, which was not in terms of the mandate of the Constitution--He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on 3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law. [P. ] DDDDD
PLD 1971 SC 197; PLD 1996 SC 324; PLD 1998 SC 161; PLD 1997 SC 84; AIR 1982 SC 149; AIR 1994 SC 268 and AIR 1999 SC 1 at 1 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the constitution of the Court falls in the category of coram non judice then any order passed by such tribunal comes within the purview of without lawful authority--General Muhammad Yahya Khan was declared as usurper in Asma Jillani's case (PLD 1972 SC 139) when he was not in power whereas General Musharraf was restrained to pass any order on 3-11-20Q7 when he was in full power--Supreme Court has been validating actions of the usurper since imposition of Martial Law in Dosso's and Zafar Ali Shah's cases--General Pervez Musharraf wanted to contest the election of the President of Pakistan while in service of Pakistan as Chief of Army Staff--Justice (R.) Wajihuddin Ahmed had also filed nomination papers to participate in the election of President and had filed objections before the Chief Election Commissioner qua his candidature--On rejection by the Chief Election Commissioner he filed petition before Supreme Court which was pending adjudication at that time before the Bench consisting of 11 Judges of Supreme Court--General Pervez Musharraf had the apprehension that case would be decided against him as his counsel were not ready to conclude their arguments in spite of the suggestion of the Bench to hear the case after Jummah Prayer and even on Saturday--The manner of appointing the judges after 3-11-2007 for the purpose to complete the strength to form a Bench of seven Judges as the earlier order was passed by a Bench of Supreme Court consisting of seven Judges whereas the other case was fixed before a Bench of 11 Judges--Therefore, assumption of jurisdiction by Supreme Court to decide the cases of Wajihuddin Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous with the precedents of Supreme Court apart from the orders passed for their benefit, therefore, such type of judgments are not sustainable in the eyes of law and such types of orders/judgments are without lawful authority. [P. ] EEEEE
PLD 1972 SC 139; PLD 1958 SC 533; PLD 2000 SC 869; PLD 2008 SC 25; PLD 2008 SC 30; PLD 2008 SC 178 and PLD 2008 SC 615 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Both the orders/judgments in Tikka Muhammad Iqbal's case are judgments per incuriam--Supreme Court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law--Judgment of larger Bench of Supreme Court has binding effect on the Bench consisting of lesser number--The judgments/orders of the Court are not sustainable in the eyes of law and in terms of well known maxim per incuriam and sub silentio--These doctrines parted as exceptions to the rule of precedents--Decision which is not based on reason is not judgment in the eyes of law--Following are three basic ingredients of every decision:--
Findings of fact both direct and inferential; Statement of principles of law applicable to the legal terms disclosed by the facts; The judgment passed on the combined effect of the above ingredients.
Principles on which the question is decided is alone binding as precedent--The word decision or decisions means decision of Supreme Court binding only when it fulfils the following three conditions: (a) It decides a question of law; (b) It is passed upon the basis of law; (c) It enunciates a principle of law--To determine whether the decision has `declared law', it is immaterial whether the Supreme Court gave the decision ex parte or after a hearing--But no law is laid down when a point is disposed of on the concession. However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view notwithstanding the earlier judgments. [P. ] FFFFF
PLD 2000 SC 869; PLD 1995 SC 423; 1999 SCMR 2883 at 2912; AIR 1999 SC 1958; 1991 Vol. 4 SCC 139; AIR 1996 SC 2124; 1999 Vol. 9 SC 596 para. 32; AIR 1998 SC 2735 para. 2; PLD 1970 SC 158; PLD 1978 SC 173; PLD 1975 Lah. 65; AIR 1979 SC 451 and AIR 2000 SC 1650 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court has ample power to reconsider, revise its earlier decisions, nothing in the Constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests--Such power vests in Supreme Court in terms of Art. 188 of the Constitution. [P. ] GGGGG
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para 5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672); (1924 (264) U.S. 219); (1898 A.C. 375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people of Pakistan to have an independent judiciary. , [P. ] HHHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It is no doubt that in Iqbal Tikka's case, the earlier decision of the larger Bench was noted but it was neither followed in its true sense nor made any attempt to distinguish it and in fact had taken a counter view to the one adopted by Larger Bench in Syed Zafar Ali Shah's case--Therefore, judgment of Iqbal Tikka's case is liable to be reviewed. [P. ] IIIII
AIR 1955 SC 661 at 672 ref.
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--`Incuria' literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered "in ignoratium of a statute or other binding authority--What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196];, [LR 1955 QB 379 at 380],, [Weekly Law Reports 1988 (3) 867 at 875 and 878];, [AELR 1944 (2) 293 at page 294] and, [AELR.1955 (1) 708] ref.
Constitution of Pakistan, 1973--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Once the Court has come to the conclusion that judgment was delivered per incuriam then Court is not bound to. follow such decision on the well known principle that the judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over--ruled at the earliest opportunity--In such situation, it is the duty and obligation of the apex Court to rectify it--The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, Supreme Court, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Arts. 4, 5 (2) r/w Arts. 189 and 190 of the Constitution. [P. ] KKKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the particular point of law involved in the decision is not perceived by the Court or present to it its mind--Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent--Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. [P. ] LLLLL
[1991 (4) SCC 139 at 163];, [AIR 1999 SC 2378] and
[AELR 1941 (2) 11 at page 13 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decisions rendered, without reference to crucial words of rule and without any citation of authority are not binding and would not be followed. [P. ] MMMMM
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Principle laid down by any provision of law or Constitution by the larger Bench has binding effect over the smaller Bench. [P. ] NNNNN
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12);, [1982 (2) SCC 289 at 290 para 4] and (AIR 1991 SC 574) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of the larger Bench is binding upon the smaller Bench--It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as Supreme Court will not permit a wrong decision to operate as a good law of the land. [P. ] OOOOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Binding nature of judicial decisions may be derived either from a constitutional or statutory provision or it may be derived from the conventions which the Courts observe in the administration of justice--Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ except Supreme Court by virtue of Art. 201 of the Constitution--Conflict between the judgment of Supreme Court and the High Court, then the judgment of Supreme Court is binding on all State organs. [P. ] PPPPP
AIR 1943 Nag 340 (345) and AIR 1950 Pat 50 (FB) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of Supreme Court is binding not only under Art. 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article. [P. ] QQQQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it--Purpose and object of principle of precedent is to achieve consistency in judicial pronouncements, the Courts have evolved the role of precedents, principle of stare decisis which are based on public policy and if these are not followed by Courts and not implemented in letter and spirit by the other organs of the State then there will be chaos in the administration of justice. [P. ] RRRRR
Extract from the Book "Suneray Faislay" under the heading "Adulka Krishma written by by Al-Sheikh Ali Al-Tnatawi R.A. in his book "Qasus mun Al-Tareek" ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Irreconcilable decisions of Supreme Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench--Latter decision, per incuriam in that important aspect of the matter considered by earlier Bench not considered by latter Bench. [P. ] SSSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment in Tikka Iqbal's case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali's case which was rendered by a larger Bench--The judgment was delivered in Tikka Iqbal's case in violation of ratio of Syed Zafar Ali Shah's case--The judgment of Tikka Iqbal's case is not sustainable in the eye of law on any canon of justice--Action of 3rd Nov., 2007 by is not within the parameters of the Constitution as highlighted herein above and also accepted by him, therefore, trie same is declared to be void and is hereby set aside. [P. ] TTTTT
Per Jawwad S. Khawaja, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The whole case before Supreme Court can be reduced to one foundational question--Can Constitutional legitimacy flow from the force of arms or as is more graphically put at times - from the barrel of a gun?--Basic issue here because General Musharraf, on 3rd Nov., 2007 took actions in his capacity as the Chief of Army Staff (and then purportedly, as President) without the slightest pretence that these actions were permitted to him by the Constitution--As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of 3rd Nov., 2007--He, however, chose not to avail that opportunity--For reasons which have been spelt out in the main judgment, there can be no doubt at all that the actions of 3rd Nov., 2007 were un-Constitutional--General Musharraf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command--This constituted a frontal attack on the Constitution and directly undermined the writ of the State--It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted--If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan--Supreme Court to embark on a discussion on questions which do not directly arise in instant case--It would, however, be for the representatives of the People and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today--Causal connection very strongly suggests itself--Prime Minister of Pakistan, addressed letter to the President, General Pervez Musharraf has been reproduced--The contents of the letter have also been commented upon but at this stage--At two places in the said letter the term " writ of the government" has been used and interference with the said 'writ' by the judiciary has been criticised--It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by them--It is the writ of the State which has to, be enforced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution--It is the duty of Courts to call in-question all executive measures which transgress and are not in line with constitutional norms--Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to constitutional principles--The wholly specious and untenable reasoning in the Prime Minister's letter was used by General Musharraf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the State--On 3.11.2007, with utter disdaim for the Constitution and in a manner which was brazenly imperious, General Musharraf arrogated on himself the right to decide what was good for the people of Pakistan and the manner in which they ought to be governed--This was an anachronistic throw--back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say "l'Etat, c'est moi." Surely, as President of Pakistan, General Musharraf cannot be presumed to have been ignorant of the Constitution of the country--The people of Pakistan have consciously chosen the method for their own governance--Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State--Initial lines appearing in the preamble to the Constitution stipulate, inter alia, "that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people." The operative part of the preamble in the clearest possible terms, states that "we the people of Pakistan do hereby adopt, enact and give to ourselves this Constitution"--It was nothing but haughty arrogance on the part of General Musharraf to claim to be above the Constitution and to assume the power of arbitrarily amending it--Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them--There can be no other explanation for the actions of 3rd Nov., 2007 when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to see behind the false face and deceptive veneer of an essentially anti--people dispensation--These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain--head) of power--This heady realization must, however, be tempered with the awareness that Judges can exercise constitutional and moral authority, but they alone cannot thwart un--Constitutional forces without the people actively standing up in defence of their Constitution--As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith ein themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:
[P.] UUUUU
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Following were held to be the legal consequences of the above:--
(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 afore alleged judgments or any other such judgment and on account instruments shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
(ii) Office of the Chief Justice of Pakistan never fell vacant on Nov. 3, 2007 and as a consequence thereof it was 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;
(iii) since Mr. Justice Abdul Hameed Dogar, was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges 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) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
(iv) the Judges of. the Supreme Court of Pakistan, if any, the Chief Justices of the High Courts, 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 disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in CM. A.No.2869 of 2007 in Const. P. No. 73 of 2007, shall be proceeded against under Art. 209 of the Constitution;
(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 inpluded the afore--described Judges whose appointments had been declared void ab initio, were protected on the principle laid down in Malik Asad All's case (PLD 1998 SC 161);
(vi) 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, were declared to be unconstitutional 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 present order shall revert/stand transferred to the Courts which had jurisdiction in the said matters before the promulgation of President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th Dec., 2007;
(vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the PCO No.l 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 PCO had been validated by the judgment delivered in Tikka Iqbal Muhammad Khan's case, stood shorn of their purported permanence on account of Supreme Court declarations--Since on account of the judgment in Tikka Iqbal Muhammad Khan's case purporting to be a judgment of Supreme Court, the presumption that the Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Art. 89 or 128 of the Constitution and since it was today (31-7-2009) that Supreme Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Art. 89 and the said Art. 128 of the Constitution, would be deemed to commence to run from today (31-7-2009) 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 Art. 176, authorised 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, 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 Art. 176 of the Constitution--The number of Judges of the Supreme Court for purposes of the said Art. 176 shall continue to remain sixteen;
(ix) Code of Conduct prescribed for the Judges of the Superior Courts in terms of Art. 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 Art. 209 of the Constitution;
(x) Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Addl. Judges of the High Court of Sindh were declared to be un-constitutional and of no legal effect;
(xi) Supreme Court observed that the Court acknowledged and respected the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which was the essence of the rule of law--Any declaration made in the present 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; said acts were fully protected in terms of the age old principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139;
(xii) Supreme Court reiterated that to defend, protect and uphold the Constitution was 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." Supreme Court observed that while rendering present judgment, said abiding values had weighed with the Court and the Court was 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. [P. ] C
Constitutional developments in Pakistan--
----A cursory glance. [P. ] D
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p.276; PLD 2008 SC 178 and PLD 2008 SC 25 ref.
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Constitution does not envisage any situation where the Armed Forces act without any direction by the Federal Government--Proclamation requiring the aid of Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their autnority or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and law and does so at his own risk and cost--Any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subservt the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason--Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan--No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance of the Constitution, or its subsequent mutilation by incorporating amendments in it by any authority not mentioned in the Constitution and in a manner not provided for in the Constitution--By Art. 6 of the Constitution, an in--built mechanism is provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts.238 and 239 of the Constitution, or it is repealed on the pattern of the Interim Constitution under the provisions of Art.266 of the Constitution, which too is possible by recourse to the provisions of Arts.238 and 239 of the Constitution, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives--Validity accorded to such an action, in the past did not give a licence to any holder of the office of the Chief of Army Staff of repeating such acts at his will--Holding in abeyance the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner nor authorised under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus, constitutes the offence of high treason--Principles--Art. 245(1) of the Constitution the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Art. 243 of the Constitution the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces Act under the directions of the Federal Government--Thus, the provisions of Art. 243(1-A) under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law--Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government. [P. ] E
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. [P. ] F
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--In the cases of State v. Dosso (PLD 1958 SC 533), Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1997 SC 657), (PLD 2000 SC 869) and Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 25 and 178) the Court did not take into consideration the aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and State necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. Supreme Court, in Liaquat Hussain's case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Art. 237 of the Constitution wherein the words "martial law" have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan--Language of Art. 237 of the Constitution was preceded by a discussion of the term 'martial law' in Asma Jilani's case, a decision which was rendered only a year before the promulgation of the Constitution of 1973. [P. ] G
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Art. 237 as finally approved, the framers of the Constitution also legislated Art. 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. [P. ] H
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Supreme Court while affirming Asma Jilani's case ruled that Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution--Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Art. 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people--He is also sworn not to engage himself in any political activities whatsoever--He also solemnly affirms and declares that he will honestly arid faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law--General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution--Constitution was framed to continue to be in force at all times. By Art. 6, an in--built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts. 238 and 239, or it is repealed on the pattern of the Interim Constitution under, the provisions of Art. 266, which too, is possible by recourse to the provisions of Arts. 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the CJiief of Army Staff and to be revived after he has achieved his objectives--Validity apcorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will--Holding in abeyance of the Constitution or any other Act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason. [P. ] I & J
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Therefore, the military rule, direct or indirect, is to be shunned once and for all--Supreme Court made it clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theorj whatsoever--Military rule is against the dignity, honour and glory of the Nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the. sovereignty and integrity of the Nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath--bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services--Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government--In the course of the discharge of his duties, a soldier, therefore, is obligated to see that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution--If a member of the Armed Forces acts in aid of a person who does any of the above'acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law. [P. ] K
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ et seq
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf on 3rd Nov., 2007 and thereafter being unconstitutional, illegal and void ab initio , the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc. [P. ] KK
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Amendments purportedly made by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Cpnstitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p. 276; PLD 2008 SC 178; PLD 2008 SC 25 and PLD 1999 SC 504 ref.
Constitution of Pakistan, 1973--
----Art. 209--Assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any Court, including the Supreme Court--Judge playing any role in the recognition of such assumption of power would be guilty of misconduct within the ambit of Art.209 of the Constitution. [P. ] R
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is head of the Judiciary, therefore his views deserve due deference and his recommendation is non--justiciable which is inextricably linked with the independence of judiciary-- Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--An Acting Chief Justice was not a consultee as envisaged by the relevant Arts. of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness--Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/ Executive with consultees mentioned in the relevant Arts. of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees interpreted would be violative of the Constitution and, therefore, would be invalid. [P. ] BBB
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciaryTo achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consideration the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. [P. ] NNNN
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid. [P. ] OOOO
Judicial Review--
----Scope--The judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Judicial Review--
----Scope--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and Vigilantly. [P. ] XXX
Judicial Review--
----Scope--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the , sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Judicial review--
----Scope--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--Duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Judicial Review--
----Scope--Fundamental principle of jurisprudence Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges. [P. ] CCCC
Constitution of Pakistan, 1973--
----Arts. 270AAA, 89 & 128--Validation of laws--Proclamation of Emergency, dated 3-11-2007 and PCO, 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA of the Constitution and by the judgment in Tikka Iqbal Muhammad Khan's case (PLJ 2008 SC 446, 500; PLD 2008 SC 178 and PLJ 2009 SC 18) also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts,89 & 128 of the Constitution--Any validation whether with retrospective effect or otherwise shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Principles. [P. ] LLLL & MMMM
Judicial Notice--
----Qanun-e-Shahadat, 1984 (10 of 1984), Art. 164--Reports of the relevant period from the electronic and print media had been taken into consideration by the Supreme Court, in forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the matter--Parameters for the purpose of taking judicial notice of press reports detailed. [P. ] W & ZZ
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Independence of judiciary--
----Supremacy of law--Two nation theory--Genesis of Pakistan is based on justice--Historical events recapitulated. [P. ] PPPP
AIR 1916 Bom.9 ref.
Constitution of Pakistan, 1973--
----Preamble--Basic salient feature of Constitution of Pakistan is justice and independence of judiciary--Constitutional history of Pakistan surveyed. [P. ] QQQQ et seq
Shahabnama by Qudurat Ullah Shahab ref.
Interpretation of Constitution--
----Basic rules enumerated. [P. ] RRRR
Understanding Statute by S.M. Zafar ref.
Constitution of Pakistan, 1973--
----Preamble--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Principles--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Moment when one organ interferes or encroaches the sphere of the other organ then situation will automatically arise when said constitutional organs would not discharge their duties and obligations due to which the only net result is chaos--When system is disturbed then destruction is must as abnormal situation creates an opportunity for the adventurers to get the benefit of the situation which was created on account of incompetency of the three organs of the State which do not perform their functions within their parameters. Constitution of Pakistan has a very beautiful scheme which consists of rights and obligations--When any person, body, organ is not vigilant about its rights then he is also not vigilant and aware about his obligations and duties. [P. ] TTTT
Constitution of Pakistan (1973)--
----Preamble--Balance must be maintained in each and every sphere of life otherwise destruction is must--Once the constitutional machinery has broken on account of interference by one of the organs into the sphere of the other organs, then destruction is must--Constitution is based on trichotomy, i.e. legislature, executive and judiciary--Role has also been defined with regard to the function of the said organs--There are four organs which are as foliows:--
(1) Legislature; (2) Executive; (3) Judiciary; (4) People of Pakistan
It is the paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan--Unfortunately since the creation of Pakistan this principle has not been acted upon in letter and spirit and that is why the nation has riot progressed in real sense in every sphere of life--No body is above the Constitution--Even the Chief Executive of the country is bound to obey the command of the Constitution. [P. ] UUUU
Constitution of Pakistan (1973)--
----Preamble--Constitution is a social binding contract--Conduct of all organs has to be in terms of the Constitution subject to the condition that you accept the Constitution from the core of your heart--No body is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law. [P. ] VVVV
Understanding Statute by S.M. Zafar ref.
Rule of law--
----Definition and application--Scope--Governmental power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformally applied--Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it means "a Government of laws and not of men" which described in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59. [P. ] XXXX
1997 MLD 299 ref.
Constitution of Pakistan, 1973--
----Art. 177--Appointment of Judges of the superior Courts--Consultation with the consultees--Scope--According to Art. 177 of the Constitution Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas Judges of the High Courts are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the--Chief Justices of the High Courts, with the Chief Justices of the High Courts--Consultation must be meaningful and executive has no authority whatsoever to ignore the recommendations of the Chief Justices--Governor has no right to disagree with the recommendations of the Chief Justice. However executive has authority to judge/evaluate the antecedents of the appointees--Opinion of the Chief Justices must be given preference and the Governor has no right to directly send the proposal for appointment of Supreme Court or High Courts Judges. [P. ] WWWW
(AIR 1975 Delhi 66 at 73); (AIR 1991 SC 63 at 640 to 641, 645 to 646); (AIR 1982 SC 149); (AIR 1999 SC 1); (AIR 1994 SC 268 at 437, 342, 431, 434, 438, 439, 356); (PLD 1996 SC 324); (PLD 1997 SC 84); (PLD 1998 SC 161); (PLD 2000 SC 179) and PLJ 2007 Mag. 195 at 195 and 198 rel.
Constitution of Pakistan, 1973--
----Art. 243(1)A--Command of Armed Forces--Scope--Principles--According to Art. 243(1) of the Constitution the Federal Government has control and command of the Armed Forces whereas the supreme command of the Armed Forces shall be vested in the President in terms of Art. 243(1)(A)--Principles--Personnel of the Armed Forces are under the final administrative control of the Federal Government; (ii) Every member of the Armed Forces has to take oath in the term stated in the Third Schedule in term of Art. 244; Armed Forces which owe allegiance to Pakistan cannot be used for political motive by the party in power; It not only is violative of the oath prescribed in the Third Schedule which prohibits engagement of the army in political activities and further tarnishes the image of the Army. [P. ] ZZZZ
PLD 1999 SC 504 and PLD 1980 Lah. 206 ref.
Decision--
----Basic ingredients of `decision' enumerated. [P. ] FFFFF
Constitution of Pakistan (1973)--
----Art. 188--Review of Supreme Court judgment--Scope. [P. ] GGGGG & HHHHH
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para.5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672);, [1924 (264) U.S. 219]; (1898 A.C.375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Maxim--
----"Per incuriam"--Meaning and applicability--Scope. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196]; (LR 1955 QB 379 at 380);, [Weekly Law Reports 1988 (3) 867 at 875 and 878],, [AELR 1944 (2) 293 at p.294] and, [AELR 1955 (1) 708] ref.
Maxim--
--"Sub silentio"--Scope and application. [P. ] KKKKK
[1991 (4) SCC 139 at 163]; (AIR 1999 SC 2378) and
[AELR 1941 (2) 11 at page 13] ref.
Precedent--
----Principle laid down by a Larger Bench--Binding effect--Scope and extent [Pp. ] NNNNN & OOOOO
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12); (1982 (2) SCC 289 at 290 para 4) and (AIR 1991 SC 574) ref.
Precedent--
----Source and authority of judicial precedents--Binding effect--Scope.
[P. ] PPPPP
[AIR 1943 Nag 340 (345) (FB)] and, [AIR 1950 Pat 50 (FB)] ref.
Constitution of Pakistan, 1973--
----Art. 189--Supreme Court judgment--Binding effect of--Scope and extent. [P. ] QQQQQ
Precedent--
----Two irreconcilable decisions of Court consisting of two different Benches--Principles. [P. ] RRRRR & SSSSS
Mr. Hamid Khan, Sr. ASC, Mr. Rashid A. Razvi, ASC, Mr. M. S. Khattak, AOR Assisted by M/s. Waqar Rana, Barrister Waleed Khalid & Haq Nawaz Talpur, Advocates for Petitioner (in Const. P. No. 09/2009).
Mr. Muhammad Akram Sheikh, Sr. ASC Assisted by Barristers Ms. Natalya Kamal & Mr. Sajeel Shehryar, Advocates for Petitioners (in Const. P. No. 08/2009)
Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan, Agha Tariq Mehmood Khan, DAG, Mr. Shah Khawar, DAG and Ch. Akhtar Ali, AOR for Respondent No. 1.
Mr. Yousaf Khan Leghari, AG Sindh and Raja Abdul Ghafoor, AOR for Respondents No. 2.
Nemo for Respondents No. 3 & 4.
Mr. Mazhar Ali B. Chohan, AOR (absent) for Respondent No. 5.
Dates of hearing: 20 to 22 and 29 to 31.7.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--These Constitution Petitions were disposed of by the short order dated 31st July, 2009 as under:-
"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 ca se of Tikka Iqbal Khan (PLD 2008 SC 178) a smaller Bench of the Supreme Court is per-incuriam 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 Tikka Iqbal Khan (supra) as he himself was the real beneficiary of the said judgment 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 Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and re-appointments 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 mala fide".
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 Zafar Ahmad Khan Sherwani and Justice Abdul Rasheed 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 22.3.2008 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 Tikka 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, coram non judice, 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 judgment delivered in case of Tikka Iqbal Muhammad v. 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, Is kandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointe d General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Iskandar Mirza was soon, within few days, replaced by the lat
[Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal,
Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday,
Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk,
Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani,
Sarmad Jalal Osmany, Muhammad Sair Ali,
Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ.
SINDH HIGH COURT BAR ASSOCIATION through its Secretary
and another--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and others--Respondents
Const. Ps. No. 9 and 8 of 2009, decided on 31.7.2009.
Per Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ; agreeing
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007, Os. 5 & 6--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits)--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Amending the constitution through several instruments--Appointment of Judges of superior judiciary without consultation of de jure Chief Justice--Contents of Prime Minister's letter addressed to President--Actions of 3rd Nov. 2007 taken by General Pervez Musharraf, viz., PCO No. 1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan to the President of Pakistan.
[P. ] L
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter addressed to President Prime Minister wrote to the President "to share his thoughts on the national security situation and the risks" that it represented for the "future of Pakistan"--Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi and the writ of the government being eroded as non--State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible--Interference by some members of the judiciary in the executive functions and stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security--Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future. [P. ] M
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Contents of the letter--Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Art. 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd Nov., 2007 could be said to have been taken or done while acting in aid of the civil power--Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff--Even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the letter. [P. ] N
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to remove judges of superior Courts to violation of Arts. 2-A & 209 of Constitution--Securing of independence of judiciary and guaranteeing of tenure of Judges--No power vested in the Chief of Army Staff under the Constitution and the law to issue Proclamation of Emergency and PCO on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary--If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency--Nowhere the Prime Minister asked the President to take the actions that he took on 3rd Nov., 2007--In any case, it was not an advice tendered by the Prime Minister in terms of Art. 48 of the Constitution--Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps--Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No. 1 of 2007--Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO--Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well--being and prosperity of Pakistan," issued Oath Order, 2007, illegally assumed to himself power to remove judges of the superior Courts in violation of Arts. 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts. [P. ] O
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Art. 209 of Constitution--Acts of the President were violative of the Constitution, pure and simple. [P. ] P
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The terms of "supra-constitutional" and "extra-constitutional", that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases would hardly change the--unconstitutional nature and character of the said actions, which not only ex-facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law. [P. ] Q
Proclamation of Emergency dated 3-11-2007--
[P. ] R
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Courts Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Constitution--On 3rd Nov., 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff--In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance--By Art. 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other order made by the President be governed, as nearly as may be, in accordance with the Constitution--Under Art. it was provided that the President may amend the Constitution, as may be deemed expedient--Under Art. 2(3) all Courts shall continue to function subject to PCO and Oath Order, 2007, but the Supreme Court, a High Court or any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority--By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Arts. 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments' in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him--Further, an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--An Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution--Purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of Art. 243(1-A) of the Constitution. [P. ] S
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendments) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated upon by an impartial Court. [P. ] T
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of Judges of Supreme Court and High Courts in violation of Art. 209 of constitution--Suspending and amending the constitution--Actions of General Pervez Musharraf dated 3rd Nov., 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President--It could not be said that the said actions were taken for the welfare of the people--Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of manoeuvring another term in office of President, therefore, the same were mala fide as well--Statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect--Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it. [P. ] U
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, (1 of 2007)--Oath of Office (Judges) Order--Constitution (Amendment) Order--Constitution (Second Amendment) Order--Islamabad High Court (Establishment) Order--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Continuation in power of General Pervez Musharraf was all along the result of manoeuvring--Holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the amendments so made in the Constitution were ultimately accepted and the 17th amendment to the Constitution was passed on 31st Dec., 2003 under the umbrella of an accord between the PML(Q) and the MM A, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th Nov., 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid amendment--He promised to relinquish the office of Chief of Army Staff on or before 31 Dec., 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act, 2004--That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami's case, and later by the two rival candidates of the election of President in Wajihuddin Ahmed's case--Majority decision in Jamat-e-Islami's case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the petitioners--However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President. [P. ] V
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity to unconstitutional acts of General Pervez Musharraf--Contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18 Feb., 2008, that too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd Nov., 2007, which displayed their commitment to the rule of law and supremacy of the Constitution. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007--Supreme Court and Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which Supreme Court is entitled to. [P. ] W
Proclamation of Emergency dated 3-11-2007--
----Oath of Office (Judges) Order, 2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of General Pervez Musharraf dated 3rd Nov., 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, are held and declared to be unconstitutional, illegal, mala fide and void ab initio--Chief Justice of Pakistan, the Judges of the Supreme Court Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notifications issued by the Ministry of Law in this behalf are declared to be null and void. [P. ] X
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional--Constitution (Amendment) Orders, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order--Supreme Court Judges (Pensionary Benefits) Order--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--General Pervez Musharraf, during the period of the emergency from 3rd Nov., 2007 to 15th Dec., 2007, in pursuance of the instruments and measures of 3rd Nov., 2007, which have been held and declared to be unconstitutional, illegal and void ab initio promulgated some more instruments--On 15th Nov., 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd Nov., 2007. [P. ] Y
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 20th Nov., 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Arts. 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Art. 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Art. 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Art. 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution)--By the same Order, he purported to add Art. 270-AAA in the Constitution (validation and affirmation of laws etc.). [P. ] Z
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 14th Dec., 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Art. 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Arts. 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Art. 270-C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd Nov. 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution. [P. ] AA
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (No. 5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th Dec., 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other Courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, were provided. [P. ] BB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th Dec., 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Art. 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court--Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office w.e.f. 3rd Nov., 2007 would not be entitled to pensionary benefits. [P. ] CC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Art. 3 of Oath Order, 2007 would be entitled to full pension and other retirement benefits [P. ] DD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Finally, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov., 2007 was revoked on and with effect from 15th Dec., 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution. [P. ] EE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court and High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Suspending and amending the Constitution through several instruments--Validity--General Pervez Musharraf could not have introduced his own amendments into the Constitution for self--service and benefit during the so called emergency--Surreptitious validation, affirmation and adoption made by him through insertion of Art. 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Arts. 238 and 239 of the Constitution--Unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment--Amendments were unconstitutionally and illegally validated by so called judgments in Tikka Iqbal Muhammad Khan's case--Therefore, all such instruments and measures including constitutional amendments alongwith the judgments were required to be done away with--They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani's case:
An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Arts. 270C and 270AAA in the Constitution. The provision of Art. 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, die elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the 17th Amendment to the Constitution. Further, when the elections were held on 18th Feb., 2008, the Constitution was in force having already been revived on 15th Dec., 2007. [P. ] FF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Removal of judges of Supreme Court and High Courts in violation of Arts. 209 of Constitution--Amending and suspending the constitution through several instruments acts done by General Pervez Musharraf--Validity--To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court--Establishment of a High Court or a. Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution--It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein--Therefore, it was not possible to condone it--However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law--Even while making amendments relating to the judicature, an amendment was made in Art. 186-A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf. [P. ] GG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges--Amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court which could be considered to "have been done for the ordinary orderly running of the State" were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd Nov. 2007 and that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution. [P. ] HH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 & 6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th Dec., 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd Nov. 2007 was revoked on and with effect from 15th Dec. 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date--Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the'time of the revival of the Constitution shall take oath under the Constitution--On the pattern of Zafar Ali Shah's case, this was made to appear like "transactions which are past and closed, for, no useful purpose can be served by reopening them" as held in Asma Jilani's case. [P. ] II
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives--It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two--third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--Supreme Court & High Courts Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars. [P. ] KK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 & of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [7 & 8 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Amendments purportedly made .by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of Office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the Courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular--Therefore, it was a situation for which the Constitution provided no solution--If one was to distinguish between these cases on the basis of facts and circumstances, they were all different from each other, and one would end up seeing each time a new scenario--Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the military takeover and thereby an unconstitutional and illegal--Act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more-up to what time, it is not possible to predict--Therefore, one has to see as to where the wrong lies, what options and remedies are available, and then make an objective analysis and reach some conclusion--Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable--On the first two occasions, it was abrogated, but thereafter it was held in abeyance--Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th Oct., 1958, 25th March, 1969, 5th July, 1977, 12th Oct., 1999 and 3rd Nov., 2007 really such that the Constitution provided no solution?--Do similar situations not arise in other countries?--Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries?--Is there no corruption in the other countries?--Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State?--Does rigging in elections not take place in other countries?--What was the wrong with the judiciary in 1958, 1969, 1977 and 1999?--Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable?--Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions--It is for the nation to address these questions in all earnestness. [P. ] MM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, it was wrongly examined earlier on the factual plane--On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle. [P. ] NN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution is the cementing force of the State and the society--By making a Constitution, the society has already used and applied such a force and brought into existence a State and has chosen to govern itself in accordance with the Constitution so made--It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means--Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution--That is the destruction of the Constitution and if the Constitutions were to be destroyed, State and the society in the modern times could be preserved in no manner--Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the Civil and the State necessity and the welfare of the people, or in the name of "expediency", by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non--existing facts?--The acts/actions of 3rd Nov., 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court--Doctrine of Civil and State necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd Nov., 2007 until 15th Dec., 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people--Doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, PCO, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court. [P. ] OO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--None of the Judges who did not make oath in pursuance of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah's case--It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people--Even at the international level, grave concerns were expressed on the actions of 3rd Nov., 2007. Statements and resolutions were made by the Bar Associations across the globe. [P. ] PP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The nation had stood up against the unconstitutional and illegal acts of 3rd Nov., 2007--Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt--All this was a healthy sign in the nation's journey on the path of rule of law, constitutionalism and democracy. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and a pathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases--Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievancesof the people against the denial of their Fundamental Rights guaranteed under the Constitution--It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence--Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved--It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence--It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and Oct. 1999 by certain quarters, which would always be politically motivated--Unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a Court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, Pakistan owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam within the constitutional and legal framework--Supreme Court disapproved the approach adopted in the said cases. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se were unconstitutional, illegal and ultra vires. [P. ] QQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders, 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On 3rd Nov., 2007 the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past--Bench of Supreme Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed's case--This was the most striking distinction between the action of 3rd Nov., 2007 on the one hand and those of 12th Oct., 1999, 5th July, 1977, 25th March, 1969 and 7th Oct., 1958 on the other--A vast majority of the Judges of the superior Courts rejected the actions of 3rd Nov., 2007 and did not make oath in pursuance with the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country--Abdul Hameed Dogar, J, and some other Judges violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--These Judges, whether they were in Supreme Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the order of 3rd Nov., 2007. [P. ] RR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar as Chief Justice--Validity--Art. 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President--Thus, there is a provision of one Chief Justice of Pakistan alone-Next provision relating to the office of Chief Justice of Pakistan is Art. 180--It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan--On 3rd Nov., 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office--Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed--On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice--Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Art. 180--Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan--In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice--In case of a temporary vacancy, he could not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him--The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution--Therefore, the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd Nov., 2007--In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice--His purported appointment as Chief Justice of Pakistan per se, therefore, was unconstitutional, illegal and ultra vires--Abdul Hameed Dogar), was never a constitutional Chief Justice of Pakistan. [P. ] SS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Under Art. 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e- Shoora (Parliament)--Until the number of Judges is so determined, it may be such as may be fixed by the President--By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen--However, by S. 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty--nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of Nov., 2007--Number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President--An Act of Parliament is different to and distinct from a Finance Act--All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Art. 50 of the Constitution--On the other hand, a Finance Act, in general, is concerned with fiscal matters--Since the Constitution, through its Art. 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, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Art. 176 of the Constitution--Increase of number of Judges in such a manner also militates against the independence of the judiciary--Strength of Judges is only to be increased keeping in view its needs--It is also to be ensured that the Courts are not packed with persons in disregard of merit--After 3rd Nov., 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not of Pakistan (Iftikhar Muhammad Chaudhry, C J) men of integrity, were appointed on quid pro quo basis--Against one such appointee, there were serious allegations of misconduct and impropriety--However, after restoration of the Judges to the position they were holding prior to 3rd Nov., 2007, he resigned from office--Thus, the number of Judges of the Supreme Court for purposes of the said Art. 176 would continue to remain sixteen [P. ] TT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges--Even one ad hoc Judge, had also been appointed as such--Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Abdul Hameed Dogar, as the Chief Justice of Pakistan also stood vitiated by virtue of Notification--Whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd Nov., 2007. [P. ] UU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of Abdul Hameed Dogar, or for that matter the appointments of other Judges was unconstitutional, illegal and void ab initio--Further, the recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd Nov., 2007--Recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Art. 209 of the Constitution and the said position, on the same considerations, was reversed in totality--A wrong stood declared wrong with no mincing of words, for all times to come. [P. ] VV
PCO, [1 of 2007]--
----Proclamation of Emergency--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers--They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence--Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio. [P. ] WW
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders 5 and 6 of 2007--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ, and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were fully aware of the restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency and Oath Order, 2007--No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences--Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The TV channels repeatedly televised the contents of the order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges--The order was also published in the newspapers of 4th Nov., 2007, It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows. [P. ] YY
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--On a perusal of the excerpts from the print and the electronic media, one is left with no manner of doubt that the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajhuddin Ahmed's case was widely covered both in the electronic and print mediaSaid order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the following parameters for the purpose of taking judicial notice of press reports: --
Where direct evidence is not available; Where it is sought to be proved that a person has notice of the contents of the newspaper report; Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him; In cases of defamation; and If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.
Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order--In fact, all and sundry in the length and breadth of the country knew about it--All such Judges, therefore, wilfully violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] ZZ & AAA
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--Provisional Constitution Order, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--Consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/confirmation of a Judge in the superior Court shall be invalid--Independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary--Acting Chief Justice was not a consultee as envisaged by the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the was mandatory, any appointment/ confirmation made without consulting any of the consultees interpreted above would be violative of the Constitution and, therefore, would be invalid--Chief Justice of Pakistan was very much available and able to perform the functions of his office--To have access to free, fair and independent Court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Arts. 9 and 25 of the Constitution. [P. ] BBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd Nov., 2007 passed by seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, was not authorized to/be consulted for such appointments--All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd Nov., 2007 to 21st March, 2009 were violative of the provisions of the Constitution--Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, were unconstitutional, illegal, void ab initio and of no legal effect. [P. ] CCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Purported appointment of four persons as Judges on 5th Nov., 2007, two such Judges, a retired Judge of the Lahore High Court and a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed vide notification--Three such Judges, sitting Judges of the Lahore High Court and a retired Judge of the High Court of Sindh were appointed--All these appointments stood vitiated on account of the declaration--The Judges who were sitting Judges of the High Courts violated the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, which was enforceable and binding upon them under Arts. 187, 189 and 190 of the Constitution, particularly after it had come at their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution. [P. ] DDD
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All these Judges, were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office--Appointments of all the above Judges were unconstitutional, illegal and void ab initio. [P. ] EEE
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution--Two such Judges, sitting Judge of the Lahore High Court and a retired Judge of the Lahore High Court were appointed--Two Judges, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed--Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, who was not a consultee within the ambit of Art. 177 of the Constitution--All the Judges shall immediately cease to hold office forthwith--However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, shall revert to their respective High Courts subject to their age of superannuation. [P. ] FFF
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Category of appointments made during the period from 15th Dec., 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time--However, the actions of 3rd Nov., 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance of PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration--Notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Art. 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself--They continued to be such Judges throughout without interruption of a single day. [P. ] GGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--One judge did not make oath as a Judge of High Court on or after 3rd Nov., 2007 after the order dated 3rd Nov., 2007 was passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and was deposed from office--But his subsequent appointment as a Judge of the Supreme Court was made, firstly, in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio--Accordingly, he would cease to hold office of Judge of the Supreme Court. [P. ] HHH
Proclamation of Emergency dated 3-11-2007--
----Appointment as Judges of High Court reverted to original position--The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-members Bench of Supreme Court in Wajihuddin Ahmed's case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd Nov., 2007 to 15th Dec., 2007, or thereafter, shall be governed in the same terms--However, any of such Judges who was District & Sessions Judge prior to his appointment as Judge of High Court shall revert to his original position subject to age of superannuation. [P. ] III
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court proceeded to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd Nov., 2007 and who made oath in violation of order dated 3rd Nov., 2007 passed by a seven --member Bench of Supreme Court in Wajihuddin Ahmed's case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J--Actions of 3rd Nov., 2007 have already been held and declared to be unconstitutional, illegal and ultra vires--Appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Waj ihuddin Ahmed' s case all have been held to be unconstitutional, illegal and ultra vires--Therefore, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court--They exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts--As such, the decisions rendered by them would be illegal and nullity in the eye of law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--A prime contention of the counsel for the petitioners on the status of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case and the decisions rendered in Tikka Iqbal Muhammad Khan's case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd Nov., 2007--They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed's case, which, lay at the root of the actions of 3rd Nov., 2007--Anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case--Said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again manoeuvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff--In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd Nov., 2007--On 5th Nov., 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day--However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength--Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th Nov., 2007, four persons, were purportedly appointed as the Judges of Supreme Court--With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd Nov., 2007--Accordingly, on 6th Nov., 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed's case. [P. ] KKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case as well as those in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in the eye of law--Secondly, the order dated 6th Nov., 2007 marked the presence ASC/AOR on behalf of the Federation (applicant), was shown to have appeared on Court's call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, was in respondent Government's own custody and it was quite convenient to procure his attendance--Therefore, order passed on the application suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. it was passed without notice to the other side. [P. ] LLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the invalidity of the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, it is noteworthy that the order of 3rd Nov., 2007 was passed in an entirely different setting--Application was presented before the Bench on 2nd Nov., 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th Nov., 2007--Since the apprehensions expressed in the application came true and Proclamation of Emergency "was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd Nov., 2007 and the order was passed thereon, as prayed earlier--It was not something, which was cooked up in the meantime--Filing of application was an already existing fact to the notice of all parties, including the Attorney General for Pakistan--No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court--In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th Nov., 2007--However, the situation on 6th Nov.,. 2007 was entirely different--Unconstitutional acts of 3rd Nov., 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceeding, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th Nov., 2007, as it existed on 3rd Nov., 2007--If the order of 6th Nov., 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J. and other Judges would not have been served. [P. ] MMM
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Now, two orders are before the Supreme Court--One was passed on 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. by the Judges appointed under the Constitution, and the other of 6th Nov., 2007 passed by Abdul Hameed Dogar, and other Judges--Former order was passed to preserve, protect and defend the Constitution and the law--Latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of Nov., 2007, PCO No. 1 of 2007 and the law--The one had constitutional and moral authority and power behind it--The other had the gun at its backing--Judges in the former case were bound to abide by the Code of Conduct issued by the Supreme Judicial Council--Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct--There is no manner of doubt left that the order dated 6th Nov., 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd Nov., 2007 and onward--By all recognized principles, the order dated 6th Nov., 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin'Ahmed's case--Therefore, the order dated 6th Nov., 2007 is declared to be unconstitutional, illegal and void ab initio. [P. ] NNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges and Supreme Court (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--While considering the question of validity of the order dated 6th Nov., 2007, a grave error was discovered while examining the record and proceedings--Constitution Petition No. 73 of 2007 alongwith another petition viz. Crl. Orig. P. No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th Nov., 2007 by a subsequently constituted ten--member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLJ 2008 SC 355 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v. Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others). , [P. ] OOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Record, however, showed that the same day the same Bench had already dismissed the two petitions for want of instructions--Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame a new order, surprisingly without making any reference to, rather ignoring its own earlier order so passed. [P. ] PPP
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Petitioner had, inter alia, sought a declaration that "General Pervez Musharraf be declared ineligible, lacking in qualifications under Art. 62 and other provisions of the Constitution and is disqualified under Art. 63 of the Constitution to contest the election of the office of the President of Pakistan." On 5th Oct., 2007, the Bench passed an injunctive order, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions--The Bench had been hearing counsel for parties on day-to-day basis till 2nd Nov., 2007 i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007--After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd Nov., 2007, Abdul Hameed Dogar, J, and. other members of the Bench again took up Petition No. 73 of 2007, dismissed the same for want of instructions, as is evident from record yet framed the order without issuance of notice to the petitioner--Order dated 19th Nov., 2007 so passed reflects that a host of counsel, General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, instant petition alongwith Original Petition No. 51 of 2007 was dismissed on merits--Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th Oct., 2007 earlier passed by a 10--member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with, whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally--In such a situation, Const. P. No. 73/2007 was dismissed for want of instructions, as is borne out from the official record of the Court duly supported by the press reports of 20th Nov., 2007. [P. ] QQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Action of 3rd Nov., 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well--Action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened--If such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar oaths--Nothing could be more fallacious--Fortunately, the end to a vicious circle came on 3rd Nov., 2007--The order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf. , [P. ] RRR
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on 15th Dec., 2007. [P. ] SSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Remedies for curbing terrorism, extremism and militancy lay elsewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order--Proclamation of Emergency, if any, could be promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority. [P. ] TTT
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The law and order being a provincial subject, necessary legislative and administrative steps would be required to be taken under the provisions of Art. 234, which empowered the President to assume to himself or direct the Governor of the Province to assume on his behalf, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, etc, in a situation in which the government of the province could not be carried on in accordance with the provisions of the Constitution--But the imposition of any such emergency too, would be subject to judicial review. [P. ] UUU
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. [P. ] XXX
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Power of judicial review is a cardinal principle of the Constitution--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Fundamental principle of that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges--Power of judicial review was being exercised by the judiciary before 3rd Nov., 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution. [P. ] CCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Though the exercise of suo moto powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision --except a bald reference in Para 2(ii) of the short order--to point to any undue interference in the functioning of the other branches of the government--In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court--But, no such step was ever taken in any case whatsoever--Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3rd Nov., 2007. [P. ] DDDD
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578. Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred--from commenting upon the matter. [P. ] EEEE
Oath of Office (Judges) Order, 2007--
----Proclamation of emergency--The whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but iri issuing the unconstitutional and illegal Proclamation of Emergency; PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case. [P. ] FFFF
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people. [P. ] GGGG
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The Judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd Nov., 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLJ 2008 SC 446, 500, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th Feb., 2008 passed in Civil Review Petition No.7 of 2008 in the said case, reported as PLJ 2009 SC 18 and the order dated 6th Nov., 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd, Nov., 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case. [P. ] HHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--All the acts/actions done or taken by General Pervez Musharraf from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned--Proclamation of Emergency and the PCO No. 1 of 2007 issued by him as Chief, of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the two instruments, all dated 3rd Nov., 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th Nov., 2007; Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007 dated 20th Nov., 2007); Constitution (Second Amendment) Order, 2007 (President's Order No.6 of 2007 dated 14th Dec., 2007); Islamabad High Court (Establishment) Order 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.8 of 2007 dated 14th Dec., 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.9 of 2007 dated 14th Dec., 2007)--Actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case--The decisions have themselves been held and declared to be coram non judice and nullity in the eye of law--Amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd Nov., 2007 till 15th Dec., 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Art. 270AAA of the Constitution. [P. ] IIII
Islamabad High Court (Establishment) Order, [7 of 2007]--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: the amendments introduced in the relevant Arts. of the Constitution under which they were appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of fhe acts/actions of General Pervez Musharraf of 3rd Nov., 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No.7 of 2007 dated 14th Dec., 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Art. 193 of the Constitution, as held in the Al--Jehad Trust case--However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation--The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd Nov., 2007 passed by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd Nov., 2007 and had made such an oath--However, the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day--to--day business of the Islamabad High Court from 15th Dec., 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Asad Ali's case--All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other Court, or were instituted before it, shall stand transferred to the Courts which had jurisdiction in such matters before its establishment--Islamabad High Court having ceased to exist all posts on its establishment stand abolished--All the officers and employees of the Islamabad High Court have become surplus--They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/absorption in accordance with law--However, if any such officer or employee was an officer or an employee of some other Court, department or office, such officer or employee shall revert to his respective Court--Department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation--nder Art. 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice--Right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution--Similarly, the right to have access to justice through an independent judiciary was a Fundamental Right--Establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the constitutional mandate and the law laid down in the cases--However, it was unfortunate that the Supreme Court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Art. 270-AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament--Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it--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 and law. [P. ] JJJ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--As to the question of protection, if any, of other acts done during the period of the unconstitutional and illegal Proclamation of Emergency, i.e. from 3rd Nov., 2007 to 15th Dec., 2007 (both days inclusive)--A distinct feature of the present case was that though on 3rd Nov., 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued--Federal and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office--Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office--National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years--Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of 18th Feb., 2008 was held--Thus, all along the day--to--day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution--Therefore, all acts/actions of the said branches of the government from 3rd Nov., 2007 to 15th Dec., 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law--Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool--Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No. 1 of 2007--Proclamation of Emergency having been, revoked on 15th Dec., 2007, the acts/actions done or taken from 16th Dec., 2007 onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way. [P. ] KKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Art. 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye--laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him--Art. 5(i) provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution--Art. 5(2) an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of Nov., 2007 shall also not be subject to limitations--As a result, all the Ordinances., which were in force on 3rd Nov. 2007 as well as the Ordinances which were promulgated on or after 3rd Nov., 2007 up to 15th Dec., 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts. 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation--Under Art. 89 of the Constitution, an Ordinance issued by the President--Before National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation--Similarly, under Art. 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws--Thus, the fact remains that on the touchstone of the provisions of Arts. 89 and 128 r/w Art. 264 of the Constitution and S. 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd Nov., 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies--However, the period of four months and three months mentioned respectively in Arts. 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in instant case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods--Extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007--Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground. [P. ] LLLL
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Questions in issue before Supreme Court, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007--Elections of 18th Feb., 2008 were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution--Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed--Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007--Initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of 3rd Nov., 2007 in no way affects the process whereby elections were held and the people of Pakistan expressed their will--Nor are the elections affected by Art. 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled, and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general electidns--The elections of 18th Feb., 2008 were held in accordance with the Constitution and the law--Supreme Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically--elected government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law--Supreme Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and self--enrichment, and will devote themselves to the service of the people--Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises--Any declaration made in instant judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions--However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non--conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. [P. ] MMMM
Constitution of Pakistan, 1973)--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act, (XXXIII of 1997)--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non--justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non--justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, as interpreted in Al--Jehad Trust's case, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary--At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the-- Province about the antecedents of the person concerned, which shall be given primacy--The law laid down in Al--Jehad Trust's case that the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation. [P. ] NNNN
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor in the case of the respondents acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J. [P. ] OOOO
PLD 2000 SC 869; PLD 2008 SC 178; PLD 1969 Central Statutes 42; PLD 1969 Federal Statues 326; PLD 1996 SC 324; PLD 2008 SC 25; PLD 1972 SC 139; PLD 1999 SC 504; PLD 1958 SC 533; PLD 1977 SC 657; PLD 1955 FC 240; PLD 2003 SC 74; PLD 1956 FC 200; Reference by His Excellency the Governor-General PLD 1955 FC 435; Cooley's Constitutional Limitations 8th Edn. Vol. 2, p. 137; PLD 1994 SC 738; PLD 2003 SC 724; PLD 2002 SC 939; PLD 1955 FC 387; PLD 2001 SC 233; Dialogue on the Political Chess Board First Edn. 2004, p.276 by S.M. Zafar; PLD 2005 SC 719; PLD 2009 SC 549; PLD 1976 SC 57; PLD 1988 SC 416; PLD 1993 SC 473; PLD 1998 SC 388; PLD 2000 SC 77; PLD 2004 SC 583; PLD 2006 SC 697; PLD 2004 Lah. 130; (1970) 6 N.S.C.C. 143; PLD 1960 SC 237; PLD 1970 SC 98; PLD 1997 SC 426; PLD 1998 SC 161;, [(1977) 1 All ER 364, at 378-379];, [(2003) 3 All ER 351, p.356; PLD 1989 SC 61; PLD 2000 SC 179; PLD 2008 SC 13; PLD 1975 SC 66; 1980 SC 1789; AIR 1995 SC 1403;, [(2007) 3 SCC 184]; AIR 2007 SC 861;, [(1997) 3 SCC 261];, [(1994) 3 SCC 1]; PLD 1993 SC 341; PLD 1998 SC 1445; PLD 1990 SC 513; PLD 1994 SC 693; 1994 SCMR 1548; 1994 SCMR 2061; PLD 1998 SC 823; PLD 2005 SC 93; PLD 2003 SC 126; 2002 SCMR 1993; PLD 2008 SC 6; PLD 2008 SC 615; PLD 1989 Kar. 404; AIR 1982 SC 149; AIR 1994 SC 268 and, [(1998) 7 SCC 739] ref.
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Efforts of Supreme Court to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd.) Pervaiz Musharraf who despite order dated 3-11-2007 passed by Supreme Court but following ill--advice, in his capacity as Chief of Army Staff, promulgated PCO followed by the Oath of Office (Judges) Order, 2007. [P. ] SSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Constitution of Pakistan (1973) for the first time has prescribed Oath for the members of the Armed Forces--Earlier they only took oath prescribed in the Army Act, 1952. Military Courts cannot be equated with the original Courts on the basis of well known principle that establishment of military Courts militates the independence of judiciary--Arts. 243 and 245 of the Constitution do not show that the Chief of Army Staff has any authority whatsoever to impose emergency which is in violation of Arts. 232 to 236--Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the provisions of the Constitution--There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended--President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior Courts through extra constitutional instruments i.e. Proclamation of Emergency, PCO and Oath of Judges Order--President of Pakistan is the supreme commander of the forces--Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President--Delegation ought not to be permitted unless it is authorized by statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect--In view of the rules of business Minister has authority to delegate power to any Officer of that department--It is not known to any canon of justice in any part of the world that subordinate can delegate powers to superior--Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of fhe President was fixed before Supreme Court. [P. ] AAAAA
PLD 1998 SC 1445; PLD 1964 SC 829; AIR 1978 Punjab Haryana 294; (1970 Vol. Ill AELR 871; (1983 Vol H, AELR 353; (AIR 1964 SC 1573 and (1921 Vol.3 KB 621) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions of 3-11-2007 are based on mala fide therefore they are not sustainable in the eyes of law--It was admitted by the Gen. Pervez Musharaf that he" had taken extra constitutional actions which tantamounts to amend the Constitution, which is not permissible--Power to amend the Constitution is vested in the Parliament by Part II vide Arts. 238 and 239. Constitution may be amended by Parliament vide Art. 238 whereas Art. 239 prescribes procedure for amending the Constitution--Even the Parliament cannot change the salient features of the Constitution to destroy one organ of the judiciary in view of Art. 238 and 239 of the Constitution. [P. ] BBBBB
PLD 1997 SC 426 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--In case all the three instruments (Proclamation, PCO and Oath Order) be read together then Emergency Plus, does not remain within the parameters of emergency as Constitution was in fact abrogated under the garb of emergency coupled with the fact that'action was taken by him for his personal benefit which does not fall in the category of good faith. [P. ] CCCCC
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Actions were taken by Mushraf at night in spite of the fact that the order dated 3-11-2007 of Supreme Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening newspapers dated 3.11.2007 which contained that news--All the daily newspapers contained that news in the newspapers published on 4-11-2007--Almost more than 60 Judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO) and Oath of Office of Judges Order, 2007. Mr. Justice Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other Judges of Supreme Court had taken oath on the said night as Judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the Chief Justice had not resigned or removed or had gone out of the country--Four other Judges had also taken oath as the order dated 3-11-2007 was passed by seven Judges Bench, therefore new four Judges were also appointed with the consultation of Abdul Hameed Dogar for the purpose to complete the quorum--Said application was taken up for hearing on 6-11-2007 wherein the said order set aside by the Court and subsequently petition was also dismissed--The case was decided by the Court which was coram non judice in terms of Arts. 175, 177 and 184(3)--The Judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses--Such fact was also known to every one--Not only in Pakistan but also in the whole world it was considered a unique action that the Judges of the superior Courts were detained--Judges and Advocates are two parts of one body i.e. Judiciary--Every part of the body had played unprecedented historical role for the supremacy of Constitution and law--Their struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution and law, duly supported by the civil society--People of Pakistan had also joined hand in the struggle of the lawyers--On account of that unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the Judges of the superior Courts vide notification dated 17-3-2009--All the appointments of the Judges of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar, which was not in terms of the mandate of the Constitution--He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on 3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law. [P. ] DDDDD
PLD 1971 SC 197; PLD 1996 SC 324; PLD 1998 SC 161; PLD 1997 SC 84; AIR 1982 SC 149; AIR 1994 SC 268 and AIR 1999 SC 1 at 1 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the constitution of the Court falls in the category of coram non judice then any order passed by such tribunal comes within the purview of without lawful authority--General Muhammad Yahya Khan was declared as usurper in Asma Jillani's case (PLD 1972 SC 139) when he was not in power whereas General Musharraf was restrained to pass any order on 3-11-20Q7 when he was in full power--Supreme Court has been validating actions of the usurper since imposition of Martial Law in Dosso's and Zafar Ali Shah's cases--General Pervez Musharraf wanted to contest the election of the President of Pakistan while in service of Pakistan as Chief of Army Staff--Justice (R.) Wajihuddin Ahmed had also filed nomination papers to participate in the election of President and had filed objections before the Chief Election Commissioner qua his candidature--On rejection by the Chief Election Commissioner he filed petition before Supreme Court which was pending adjudication at that time before the Bench consisting of 11 Judges of Supreme Court--General Pervez Musharraf had the apprehension that case would be decided against him as his counsel were not ready to conclude their arguments in spite of the suggestion of the Bench to hear the case after Jummah Prayer and even on Saturday--The manner of appointing the judges after 3-11-2007 for the purpose to complete the strength to form a Bench of seven Judges as the earlier order was passed by a Bench of Supreme Court consisting of seven Judges whereas the other case was fixed before a Bench of 11 Judges--Therefore, assumption of jurisdiction by Supreme Court to decide the cases of Wajihuddin Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous with the precedents of Supreme Court apart from the orders passed for their benefit, therefore, such type of judgments are not sustainable in the eyes of law and such types of orders/judgments are without lawful authority. [P. ] EEEEE
PLD 1972 SC 139; PLD 1958 SC 533; PLD 2000 SC 869; PLD 2008 SC 25; PLD 2008 SC 30; PLD 2008 SC 178 and PLD 2008 SC 615 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Both the orders/judgments in Tikka Muhammad Iqbal's case are judgments per incuriam--Supreme Court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law--Judgment of larger Bench of Supreme Court has binding effect on the Bench consisting of lesser number--The judgments/orders of the Court are not sustainable in the eyes of law and in terms of well known maxim per incuriam and sub silentio--These doctrines parted as exceptions to the rule of precedents--Decision which is not based on reason is not judgment in the eyes of law--Following are three basic ingredients of every decision:--
Findings of fact both direct and inferential; Statement of principles of law applicable to the legal terms disclosed by the facts; The judgment passed on the combined effect of the above ingredients.
Principles on which the question is decided is alone binding as precedent--The word decision or decisions means decision of Supreme Court binding only when it fulfils the following three conditions: (a) It decides a question of law; (b) It is passed upon the basis of law; (c) It enunciates a principle of law--To determine whether the decision has `declared law', it is immaterial whether the Supreme Court gave the decision ex parte or after a hearing--But no law is laid down when a point is disposed of on the concession. However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view notwithstanding the earlier judgments. [P. ] FFFFF
PLD 2000 SC 869; PLD 1995 SC 423; 1999 SCMR 2883 at 2912; AIR 1999 SC 1958; 1991 Vol. 4 SCC 139; AIR 1996 SC 2124; 1999 Vol. 9 SC 596 para. 32; AIR 1998 SC 2735 para. 2; PLD 1970 SC 158; PLD 1978 SC 173; PLD 1975 Lah. 65; AIR 1979 SC 451 and AIR 2000 SC 1650 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court has ample power to reconsider, revise its earlier decisions, nothing in the Constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests--Such power vests in Supreme Court in terms of Art. 188 of the Constitution. [P. ] GGGGG
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para 5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672); (1924 (264) U.S. 219); (1898 A.C. 375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Supreme Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people of Pakistan to have an independent judiciary. , [P. ] HHHHH
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--It is no doubt that in Iqbal Tikka's case, the earlier decision of the larger Bench was noted but it was neither followed in its true sense nor made any attempt to distinguish it and in fact had taken a counter view to the one adopted by Larger Bench in Syed Zafar Ali Shah's case--Therefore, judgment of Iqbal Tikka's case is liable to be reviewed. [P. ] IIIII
AIR 1955 SC 661 at 672 ref.
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--`Incuria' literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered "in ignoratium of a statute or other binding authority--What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the Court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196];, [LR 1955 QB 379 at 380],, [Weekly Law Reports 1988 (3) 867 at 875 and 878];, [AELR 1944 (2) 293 at page 294] and, [AELR.1955 (1) 708] ref.
Constitution of Pakistan, 1973--
----Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Once the Court has come to the conclusion that judgment was delivered per incuriam then Court is not bound to. follow such decision on the well known principle that the judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over--ruled at the earliest opportunity--In such situation, it is the duty and obligation of the apex Court to rectify it--The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, Supreme Court, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Arts. 4, 5 (2) r/w Arts. 189 and 190 of the Constitution. [P. ] KKKKK
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court and Supreme Court Judges (Pensionary Benefits) Order, [8 & 9 of 2007]--Supreme Court (Number of Judges) Act--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--When the particular point of law involved in the decision is not perceived by the Court or present to it its mind--Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent--Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. [P. ] LLLLL
[1991 (4) SCC 139 at 163];, [AIR 1999 SC 2378] and
[AELR 1941 (2) 11 at page 13 ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decisions rendered, without reference to crucial words of rule and without any citation of authority are not binding and would not be followed. [P. ] MMMMM
PCO, [1 of 2007]--
----Proclamation of Emergency dated 3-11-2007--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Principle laid down by any provision of law or Constitution by the larger Bench has binding effect over the smaller Bench. [P. ] NNNNN
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12);, [1982 (2) SCC 289 at 290 para 4] and (AIR 1991 SC 574) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of the larger Bench is binding upon the smaller Bench--It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as Supreme Court will not permit a wrong decision to operate as a good law of the land. [P. ] OOOOO
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Binding nature of judicial decisions may be derived either from a constitutional or statutory provision or it may be derived from the conventions which the Courts observe in the administration of justice--Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ except Supreme Court by virtue of Art. 201 of the Constitution--Conflict between the judgment of Supreme Court and the High Court, then the judgment of Supreme Court is binding on all State organs. [P. ] PPPPP
AIR 1943 Nag 340 (345) and AIR 1950 Pat 50 (FB) ref.
Provisional Constitution (Amendment) Order, 2007--
----Proclamation of Emergency dated 3-11-2007--PCO, [1 of 2007]--Oath of Office (Judges) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Decision of Supreme Court is binding not only under Art. 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article. [P. ] QQQQQ
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it--Purpose and object of principle of precedent is to achieve consistency in judicial pronouncements, the Courts have evolved the role of precedents, principle of stare decisis which are based on public policy and if these are not followed by Courts and not implemented in letter and spirit by the other organs of the State then there will be chaos in the administration of justice. [P. ] RRRRR
Extract from the Book "Suneray Faislay" under the heading "Adulka Krishma written by by Al-Sheikh Ali Al-Tnatawi R.A. in his book "Qasus mun Al-Tareek" ref.
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Irreconcilable decisions of Supreme Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench--Latter decision, per incuriam in that important aspect of the matter considered by earlier Bench not considered by latter Bench. [P. ] SSSSS
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Order, 2007--Constitution (Amendment) Order, [5 of 2007]--Constitution (Second Amendment) Order, [6 of 2007]--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--Judgment in Tikka Iqbal's case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali's case which was rendered by a larger Bench--The judgment was delivered in Tikka Iqbal's case in violation of ratio of Syed Zafar Ali Shah's case--The judgment of Tikka Iqbal's case is not sustainable in the eye of law on any canon of justice--Action of 3rd Nov., 2007 by is not within the parameters of the Constitution as highlighted herein above and also accepted by him, therefore, trie same is declared to be void and is hereby set aside. [P. ] TTTTT
Per Jawwad S. Khawaja, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Proclamation of Emergency dated 3-11-2007--
----Provisional Constitution Order, [1 of 2007]--Oath of Office (Judges) Order, 2007--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Islamabad High Court (Establishment) Order, [7 of 2007]--High Court Judges (Pensionary Benefits) Order, [8 of 2007]--Supreme Court Judges (Pensionary Benefits) Order, [9 of 2007]--Supreme Court (Number of Judges) Act (XXXIII of 1997)--Constitution of Pakistan (1973), Arts. 176, 177, 89, 128, 209(8), 245, 48, 50, 260 & 184(3)--The whole case before Supreme Court can be reduced to one foundational question--Can Constitutional legitimacy flow from the force of arms or as is more graphically put at times - from the barrel of a gun?--Basic issue here because General Musharraf, on 3rd Nov., 2007 took actions in his capacity as the Chief of Army Staff (and then purportedly, as President) without the slightest pretence that these actions were permitted to him by the Constitution--As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of 3rd Nov., 2007--He, however, chose not to avail that opportunity--For reasons which have been spelt out in the main judgment, there can be no doubt at all that the actions of 3rd Nov., 2007 were un-Constitutional--General Musharraf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command--This constituted a frontal attack on the Constitution and directly undermined the writ of the State--It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted--If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan--Supreme Court to embark on a discussion on questions which do not directly arise in instant case--It would, however, be for the representatives of the People and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today--Causal connection very strongly suggests itself--Prime Minister of Pakistan, addressed letter to the President, General Pervez Musharraf has been reproduced--The contents of the letter have also been commented upon but at this stage--At two places in the said letter the term " writ of the government" has been used and interference with the said 'writ' by the judiciary has been criticised--It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by them--It is the writ of the State which has to, be enforced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution--It is the duty of Courts to call in-question all executive measures which transgress and are not in line with constitutional norms--Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to constitutional principles--The wholly specious and untenable reasoning in the Prime Minister's letter was used by General Musharraf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the State--On 3.11.2007, with utter disdaim for the Constitution and in a manner which was brazenly imperious, General Musharraf arrogated on himself the right to decide what was good for the people of Pakistan and the manner in which they ought to be governed--This was an anachronistic throw--back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say "l'Etat, c'est moi." Surely, as President of Pakistan, General Musharraf cannot be presumed to have been ignorant of the Constitution of the country--The people of Pakistan have consciously chosen the method for their own governance--Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State--Initial lines appearing in the preamble to the Constitution stipulate, inter alia, "that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people." The operative part of the preamble in the clearest possible terms, states that "we the people of Pakistan do hereby adopt, enact and give to ourselves this Constitution"--It was nothing but haughty arrogance on the part of General Musharraf to claim to be above the Constitution and to assume the power of arbitrarily amending it--Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them--There can be no other explanation for the actions of 3rd Nov., 2007 when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to see behind the false face and deceptive veneer of an essentially anti--people dispensation--These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain--head) of power--This heady realization must, however, be tempered with the awareness that Judges can exercise constitutional and moral authority, but they alone cannot thwart un--Constitutional forces without the people actively standing up in defence of their Constitution--As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith ein themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:
[P.] UUUUU
Oath of Office (Judges) Order, 2007--
----Proclamation of Emergency--Provisional Constitution (Amendment) Orders (5 & 6 of 2007)--Following were held to be the legal consequences of the above:--
(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 afore alleged judgments or any other such judgment and on account instruments shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
(ii) Office of the Chief Justice of Pakistan never fell vacant on Nov. 3, 2007 and as a consequence thereof it was 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;
(iii) since Mr. Justice Abdul Hameed Dogar, was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges 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) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
(iv) the Judges of. the Supreme Court of Pakistan, if any, the Chief Justices of the High Courts, 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 disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in CM. A.No.2869 of 2007 in Const. P. No. 73 of 2007, shall be proceeded against under Art. 209 of the Constitution;
(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 inpluded the afore--described Judges whose appointments had been declared void ab initio, were protected on the principle laid down in Malik Asad All's case (PLD 1998 SC 161);
(vi) 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, were declared to be unconstitutional 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 present order shall revert/stand transferred to the Courts which had jurisdiction in the said matters before the promulgation of President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th Dec., 2007;
(vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the PCO No.l 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 PCO had been validated by the judgment delivered in Tikka Iqbal Muhammad Khan's case, stood shorn of their purported permanence on account of Supreme Court declarations--Since on account of the judgment in Tikka Iqbal Muhammad Khan's case purporting to be a judgment of Supreme Court, the presumption that the Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Art. 89 or 128 of the Constitution and since it was today (31-7-2009) that Supreme Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Art. 89 and the said Art. 128 of the Constitution, would be deemed to commence to run from today (31-7-2009) 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 Art. 176, authorised 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, 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 Art. 176 of the Constitution--The number of Judges of the Supreme Court for purposes of the said Art. 176 shall continue to remain sixteen;
(ix) Code of Conduct prescribed for the Judges of the Superior Courts in terms of Art. 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 Art. 209 of the Constitution;
(x) Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Addl. Judges of the High Court of Sindh were declared to be un-constitutional and of no legal effect;
(xi) Supreme Court observed that the Court acknowledged and respected the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th Feb., 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which was the essence of the rule of law--Any declaration made in the present 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; said acts were fully protected in terms of the age old principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139;
(xii) Supreme Court reiterated that to defend, protect and uphold the Constitution was 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." Supreme Court observed that while rendering present judgment, said abiding values had weighed with the Court and the Court was 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. [P. ] C
Constitutional developments in Pakistan--
----A cursory glance. [P. ] D
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p.276; PLD 2008 SC 178 and PLD 2008 SC 25 ref.
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Constitution does not envisage any situation where the Armed Forces act without any direction by the Federal Government--Proclamation requiring the aid of Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their autnority or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and law and does so at his own risk and cost--Any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subservt the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason--Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan--No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance of the Constitution, or its subsequent mutilation by incorporating amendments in it by any authority not mentioned in the Constitution and in a manner not provided for in the Constitution--By Art. 6 of the Constitution, an in--built mechanism is provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts.238 and 239 of the Constitution, or it is repealed on the pattern of the Interim Constitution under the provisions of Art.266 of the Constitution, which too is possible by recourse to the provisions of Arts.238 and 239 of the Constitution, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives--Validity accorded to such an action, in the past did not give a licence to any holder of the office of the Chief of Army Staff of repeating such acts at his will--Holding in abeyance the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner nor authorised under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus, constitutes the offence of high treason--Principles--Art. 245(1) of the Constitution the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Art. 243 of the Constitution the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces Act under the directions of the Federal Government--Thus, the provisions of Art. 243(1-A) under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law--Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government. [P. ] E
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. [P. ] F
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--In the cases of State v. Dosso (PLD 1958 SC 533), Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1997 SC 657), (PLD 2000 SC 869) and Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 25 and 178) the Court did not take into consideration the aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and State necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come--Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect--Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. Supreme Court, in Liaquat Hussain's case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Art. 237 of the Constitution wherein the words "martial law" have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan--Language of Art. 237 of the Constitution was preceded by a discussion of the term 'martial law' in Asma Jilani's case, a decision which was rendered only a year before the promulgation of the Constitution of 1973. [P. ] G
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Art. 237 as finally approved, the framers of the Constitution also legislated Art. 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. [P. ] H
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Supreme Court while affirming Asma Jilani's case ruled that Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution--Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Art. 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people--He is also sworn not to engage himself in any political activities whatsoever--He also solemnly affirms and declares that he will honestly arid faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law--General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution--Constitution was framed to continue to be in force at all times. By Art. 6, an in--built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever--Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts. 238 and 239, or it is repealed on the pattern of the Interim Constitution under, the provisions of Art. 266, which too, is possible by recourse to the provisions of Arts. 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself--The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the CJiief of Army Staff and to be revived after he has achieved his objectives--Validity apcorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will--Holding in abeyance of the Constitution or any other Act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason. [P. ] I & J
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Therefore, the military rule, direct or indirect, is to be shunned once and for all--Supreme Court made it clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theorj whatsoever--Military rule is against the dignity, honour and glory of the Nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the. sovereignty and integrity of the Nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath--bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services--Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government--In the course of the discharge of his duties, a soldier, therefore, is obligated to see that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution--If a member of the Armed Forces acts in aid of a person who does any of the above'acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law. [P. ] K
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Arts. 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else--Holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se--No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power--Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. [P. ] JJ et seq
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Only those acts which were required to be done for the ordinary orderly running of the State could be protected--Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken--Actions taken by General Pervez Musharraf on 3rd Nov., 2007 and thereafter being unconstitutional, illegal and void ab initio , the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd Nov., 2007 on the other, including passing of order dated 3rd Nov., 2007 by a seven-member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc. [P. ] KK
Constitution of Pakistan, 1973--
----Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule--High treason--Command and functions of Armed Forces--Scope--Amendments purportedly made by General Pervez Musharraf from 3rd Nov., 2007 up till 15th Dec., 2007 (both days inclusive) were neither made by an authority mentioned in the Cpnstitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio--Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Arts. 238 & 239 and the Third Schedule to the Constitution (Oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [P. ] LL
PLD 1955 FC 387; PLD 1955 FC 435; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 637; PLD 2000 SC 869; PLD 2001 SC 233; 1st Edn. 2004, p. 276; PLD 2008 SC 178; PLD 2008 SC 25 and PLD 1999 SC 504 ref.
Constitution of Pakistan, 1973--
----Art. 209--Assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any Court, including the Supreme Court--Judge playing any role in the recognition of such assumption of power would be guilty of misconduct within the ambit of Art.209 of the Constitution. [P. ] R
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is head of the Judiciary, therefore his views deserve due deference and his recommendation is non--justiciable which is inextricably linked with the independence of judiciary-- Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid--Appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary--Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court--An Acting Chief Justice was not a consultee as envisaged by the relevant Arts. of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness--Since consultation for the appointment/ confirmation of a Judge of a superior Court by the President/ Executive with consultees mentioned in the relevant Arts. of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees interpreted would be violative of the Constitution and, therefore, would be invalid. [P. ] BBB
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Arts. 177 and 193 of the Constitution, has to be effective, meaningful, purposive, consensus--oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciaryTo achieve the primary objective of mandatory, effective, meaningful, purposive and consensus--oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates--However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consideration the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. [P. ] NNNN
Constitution of Pakistan, 1973--
----Arts. 177, 193 & 105--Appointment of Judges of the. Supreme Court and High Courts--Constitutional consultative process--Mandatory--Appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Art. 105 of the Constitution--Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid. [P. ] OOOO
Judicial Review--
----Scope--The judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits. [P. ] VVV
Judicial Review--
----Scope--It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and Vigilantly. [P. ] XXX
Judicial Review--
----Scope--Judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation--No one could claim to be the , sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution. [P. ] AAAA
Judicial review--
----Scope--Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government--Duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature. [P. ] BBBB
Judicial Review--
----Scope--Fundamental principle of jurisprudence Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive--Such expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the Courts and Judges. [P. ] CCCC
Constitution of Pakistan, 1973--
----Arts. 270AAA, 89 & 128--Validation of laws--Proclamation of Emergency, dated 3-11-2007 and PCO, 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Art. 270AAA of the Constitution and by the judgment in Tikka Iqbal Muhammad Khan's case (PLJ 2008 SC 446, 500; PLD 2008 SC 178 and PLJ 2009 SC 18) also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts,89 & 128 of the Constitution--Any validation whether with retrospective effect or otherwise shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground--Principles. [P. ] LLLL & MMMM
Judicial Notice--
----Qanun-e-Shahadat, 1984 (10 of 1984), Art. 164--Reports of the relevant period from the electronic and print media had been taken into consideration by the Supreme Court, in forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the matter--Parameters for the purpose of taking judicial notice of press reports detailed. [P. ] W & ZZ
Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.--
Independence of judiciary--
----Supremacy of law--Two nation theory--Genesis of Pakistan is based on justice--Historical events recapitulated. [P. ] PPPP
AIR 1916 Bom.9 ref.
Constitution of Pakistan, 1973--
----Preamble--Basic salient feature of Constitution of Pakistan is justice and independence of judiciary--Constitutional history of Pakistan surveyed. [P. ] QQQQ et seq
Shahabnama by Qudurat Ullah Shahab ref.
Interpretation of Constitution--
----Basic rules enumerated. [P. ] RRRR
Understanding Statute by S.M. Zafar ref.
Constitution of Pakistan, 1973--
----Preamble--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Principles--Each and every organ of the State is bound to discharge its duties within the command of the Constitution--Moment when one organ interferes or encroaches the sphere of the other organ then situation will automatically arise when said constitutional organs would not discharge their duties and obligations due to which the only net result is chaos--When system is disturbed then destruction is must as abnormal situation creates an opportunity for the adventurers to get the benefit of the situation which was created on account of incompetency of the three organs of the State which do not perform their functions within their parameters. Constitution of Pakistan has a very beautiful scheme which consists of rights and obligations--When any person, body, organ is not vigilant about its rights then he is also not vigilant and aware about his obligations and duties. [P. ] TTTT
Constitution of Pakistan (1973)--
----Preamble--Balance must be maintained in each and every sphere of life otherwise destruction is must--Once the constitutional machinery has broken on account of interference by one of the organs into the sphere of the other organs, then destruction is must--Constitution is based on trichotomy, i.e. legislature, executive and judiciary--Role has also been defined with regard to the function of the said organs--There are four organs which are as foliows:--
(1) Legislature; (2) Executive; (3) Judiciary; (4) People of Pakistan
It is the paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan--Unfortunately since the creation of Pakistan this principle has not been acted upon in letter and spirit and that is why the nation has riot progressed in real sense in every sphere of life--No body is above the Constitution--Even the Chief Executive of the country is bound to obey the command of the Constitution. [P. ] UUUU
Constitution of Pakistan (1973)--
----Preamble--Constitution is a social binding contract--Conduct of all organs has to be in terms of the Constitution subject to the condition that you accept the Constitution from the core of your heart--No body is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law. [P. ] VVVV
Understanding Statute by S.M. Zafar ref.
Rule of law--
----Definition and application--Scope--Governmental power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformally applied--Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it means "a Government of laws and not of men" which described in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59. [P. ] XXXX
1997 MLD 299 ref.
Constitution of Pakistan, 1973--
----Art. 177--Appointment of Judges of the superior Courts--Consultation with the consultees--Scope--According to Art. 177 of the Constitution Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas Judges of the High Courts are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the--Chief Justices of the High Courts, with the Chief Justices of the High Courts--Consultation must be meaningful and executive has no authority whatsoever to ignore the recommendations of the Chief Justices--Governor has no right to disagree with the recommendations of the Chief Justice. However executive has authority to judge/evaluate the antecedents of the appointees--Opinion of the Chief Justices must be given preference and the Governor has no right to directly send the proposal for appointment of Supreme Court or High Courts Judges. [P. ] WWWW
(AIR 1975 Delhi 66 at 73); (AIR 1991 SC 63 at 640 to 641, 645 to 646); (AIR 1982 SC 149); (AIR 1999 SC 1); (AIR 1994 SC 268 at 437, 342, 431, 434, 438, 439, 356); (PLD 1996 SC 324); (PLD 1997 SC 84); (PLD 1998 SC 161); (PLD 2000 SC 179) and PLJ 2007 Mag. 195 at 195 and 198 rel.
Constitution of Pakistan, 1973--
----Art. 243(1)A--Command of Armed Forces--Scope--Principles--According to Art. 243(1) of the Constitution the Federal Government has control and command of the Armed Forces whereas the supreme command of the Armed Forces shall be vested in the President in terms of Art. 243(1)(A)--Principles--Personnel of the Armed Forces are under the final administrative control of the Federal Government; (ii) Every member of the Armed Forces has to take oath in the term stated in the Third Schedule in term of Art. 244; Armed Forces which owe allegiance to Pakistan cannot be used for political motive by the party in power; It not only is violative of the oath prescribed in the Third Schedule which prohibits engagement of the army in political activities and further tarnishes the image of the Army. [P. ] ZZZZ
PLD 1999 SC 504 and PLD 1980 Lah. 206 ref.
Decision--
----Basic ingredients of `decision' enumerated. [P. ] FFFFF
Constitution of Pakistan (1973)--
----Art. 188--Review of Supreme Court judgment--Scope. [P. ] GGGGG & HHHHH
(AIR 1965 SC 1636 at 1643 and 1644); (AIR 1967 SC 997 at 1001 para.5); (PLD 1962 SC 336); (PLD 1972 SC 139); (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); (AIR 1954 SC 119 at 137); (AIR 1955 SC 661 at 672);, [1924 (264) U.S. 219]; (1898 A.C.375); (AIR 1969 SC 1100) and (AIR 1965 SC 845 at 855 para 21) ref.
Maxim--
----"Per incuriam"--Meaning and applicability--Scope. [P. ] JJJJJ
[2004 SCC 558 at 565 para 21]; (LR 1972 AC 1027 at 1107, 1113, 1131);, [AELR 1947 (2) 193 at 196]; (LR 1955 QB 379 at 380);, [Weekly Law Reports 1988 (3) 867 at 875 and 878],, [AELR 1944 (2) 293 at p.294] and, [AELR 1955 (1) 708] ref.
Maxim--
--"Sub silentio"--Scope and application. [P. ] KKKKK
[1991 (4) SCC 139 at 163]; (AIR 1999 SC 2378) and
[AELR 1941 (2) 11 at page 13] ref.
Precedent--
----Principle laid down by a Larger Bench--Binding effect--Scope and extent [Pp. ] NNNNN & OOOOO
(PLD 2004 SC 600 at 618); (PLD 1995 SC 423); (1997 SCMR 314); (1999 SCMR 2518); (AIR 1976 SC 2433 at 2437 para 12); (1982 (2) SCC 289 at 290 para 4) and (AIR 1991 SC 574) ref.
Precedent--
----Source and authority of judicial precedents--Binding effect--Scope.
[P. ] PPPPP
[AIR 1943 Nag 340 (345) (FB)] and, [AIR 1950 Pat 50 (FB)] ref.
Constitution of Pakistan, 1973--
----Art. 189--Supreme Court judgment--Binding effect of--Scope and extent. [P. ] QQQQQ
Precedent--
----Two irreconcilable decisions of Court consisting of two different Benches--Principles. [P. ] RRRRR & SSSSS
Mr. Hamid Khan, Sr. ASC, Mr. Rashid A. Razvi, ASC, Mr. M. S. Khattak, AOR Assisted by M/s. Waqar Rana, Barrister Waleed Khalid & Haq Nawaz Talpur, Advocates for Petitioner (in Const. P. No. 09/2009).
Mr. Muhammad Akram Sheikh, Sr. ASC Assisted by Barristers Ms. Natalya Kamal & Mr. Sajeel Shehryar, Advocates for Petitioners (in Const. P. No. 08/2009)
Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan, Agha Tariq Mehmood Khan, DAG, Mr. Shah Khawar, DAG and Ch. Akhtar Ali, AOR for Respondent No. 1.
Mr. Yousaf Khan Leghari, AG Sindh and Raja Abdul Ghafoor, AOR for Respondents No. 2.
Nemo for Respondents No. 3 & 4.
Mr. Mazhar Ali B. Chohan, AOR (absent) for Respondent No. 5.
Dates of hearing: 20 to 22 and 29 to 31.7.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--These Constitution Petitions were disposed of by the short order dated 31st July, 2009 as under:-
"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 ca se of Tikka Iqbal Khan (PLD 2008 SC 178) a smaller Bench of the Supreme Court is per-incuriam 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 Tikka Iqbal Khan (supra) as he himself was the real beneficiary of the said judgment 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 Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and re-appointments 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 mala fide".
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 Zafar Ahmad Khan Sherwani and Justice Abdul Rasheed 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 22.3.2008 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 Tikka 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, coram non judice, 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 judgment delivered in case of Tikka Iqbal Muhammad v. 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, Is kandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointe d General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Iskandar Mirza was soon, within few days, replaced by the lat
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