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Petitioner: MST. SAKINA BIBI VS Respondent: FEDERATION OF PAKISTAN
Court Name: Lahore High Court Judge(s): Raja Afrasiab Khan, Sh. Riaz Ahmad, Malik Muhammad Qayyum Title: MST. SAKINA BIBI vs FEDERATION OF PAKISTAN Case No.: Writ Petition No. 26 of 1989 Date of Judgment:1992-01-14 Reported As: K.L.R. 1992 Criminal Cases 83 Result: N/A
JUDGMENT
JUDGMENT RIAZ AHMAD, J.- in 1988 after the assumption of the Office of Prime Minister Benazir Bhutto, The President of Pakistan acting upon the advice of the Prime Minister vide letter No. 8/15/88 Ptns. Islamabad dated the 8th December, 1988 purporting to act under Article 45 of the Constitution of Islamic Republic of Pakistan, issued the following order: a) to commute all death sentences awarded by the Military or other Courts upto the sixth of December, 1988, to Imprisonment for life; b) to grant pardon to all women prisoners, except those convicted for murder who are undergoing imprisonment under sentences awarded by the Military Or other Courts; c) to remit the sentences of all persons who have been convicted and sentenced under MLR 31 in absentia, such persons will however have to rice trial for the substantive offences for which they may be charged; d) to remit the sentences of convicts who are above sixty years of age and have undergone imprisonment for five years or more under sentences awarded by the Military or other Courts; e) to remit the sentences of all persons, other than members of the Armed Forces convicted and sentenced by Military Courts for offences not involving drugs, smuggling, corruption,
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embezzlement, bank fraud, robbery, dacoity, murder, rape or un-natural offence; the cases of the Members of the Armed Forces will be reviewed by the competent authorities of the Armed Forces; f) to grant to all convicts in Pakistan a remission of three months in their sentences, whether awarded by the Military, other courts; g) to grant remissions from the dates of their imprisonment, to all persons convicted and sentenced by Military Courts to whom remissions have so far been denied; and h) to direct that in computing the total period of imprisonment to be undergone by prisoners convicted and sentenced by Military Courts, the period served as under trial prisoners be included". 2. Although the order impugned is silent as to the exercise of powers, but there is no other letter of law except Article 45 of the Constitution of Islamic Republic of Pakistan, under which, the said order could have been issued. Para (a) of the Order impugned relates to the commutation of death sentences awarded by the Military or other Courts before 6th of December, 1988 into imprisonment for life. This clause of the Order impugned was challenged in a number of writ petitions and the authority of the President of Pakistan was questioned to issue such general order by the complainant side. Such petitions were admitted by this Court and the Notices were issued subsequently to the beneficiary-convicts of the aforesaid order of the President of Pakistan. In a number of cases, wherein death sentences had been awarded by the Sessions Judges or the Additional Sessions Judges and the References had been made to this Court for their confirmation, and which had not been disposed of till the issuance of the questioned order by the President, it was argued that para (a) of the said order was not applicable in those cases, in asmuchas, if the death sentences awarded by the Sessions Judges or the Additional Sessions Judges are not final, and cannot be executed unless confirmed by this Court, and therefore, para (a) of the impugned order was not attracted to these cases. However, in cases of death sentence awarded by the Special Courts set up for speedy trial, the position emerging was different, because the death sentences awarded by these courts did not require^heir confirmation by two Judges of this Court as envisaged under section 374 Cr.P.C. 3. To consider this question of vital importance involving the interpretation of Article 45 of the Constitution of Islamic Republic of Pakistan and its scope in the light of Article 2-A of the Constitution, the present Full Bench was constituted by our Lord the Chief Justice. Accordingly, we heard the elaborate arguments by both the sides and after having done so, we propose to deliver this judgment. 4. In the first instance, it was argued before us that the order impugned issued by the President of Pakistan had not been considered properly by the President, therefore, it was a fake order. To ascertain the factual position, we issued notice to the learned Attorney General of Pakistan directing him to produce the original file and the correspondence between the President and the Prime Minister of Pakistan. To ascertain the legality of the aforesaid order, the Attorney General in response to the Notice produced the file before this Court, and argued that the legality of the-- Order could not be disputed, and in fact, the President of Pakistan had acted upon the advice of the then Prime Minister Benazir Bhutto. In this view of the matter this aspect of the case required no further elaboration. 5. On behalf of the convicts, it was vehemently argued that the powers of the President of Pakistan
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under Article 45 of the Constitution of Islamic Republic of Pakistan could not be questioned, because, as a Head of the State, he had been bestowed with such powers, and the exercise thereof could not be questioned. It was precisely argued that even this Court could not go behind the said order, because it was the absolute power of the President to exercise the aforesaid power in his discretion, and this Court was debarred to go into the jurisdictional aspect and also into the legality of the exercise of the aforesaid power. In this behalf, a number of judgments were cited delivered by the Indian Supreme Court as well as by the Supreme Court of Pakistan and the High Courts. There is no cavil with the proposition, but the precise question is; what is the effect of Article 227 read with Article 2(a) and the provisions and the dictates for the administration of criminal justice as envisaged by Islam on such powers of President of Pakistan. Precisely, the question of vital importance is whether in those cases, in which, death sentences have been awarded as Hadd, and whether the principles of Qisas are attracted when the President of Pakistan commuted such sentences of his own, because under the administration of criminal justice, a s envisaged by Islam it is only Walis of the deceased who can waive their right of Qisas and not the Head of the State. 6. To resolve this controversy, we have to examine the provisions of Islam in brief as envisaged by Article 227, 2(a) and Part VII Chapter 3-A of the Constitution read with Qisas and Diyat Ordinance and the judgments delivered by the Supreme Court of Pakistan as well as the judgments of the High Courts of Pakistan. Under Article 227 of the Constitution, it was laid down that the existing laws shall be brought in conformity with the Injunctions of Islam as provided by the Holy Quran and Sunnah referred to as Injunctions of Islam, and no law can be enacted which is repugnant to such injunctions. In fact, Article 227 and 230(a) of the Constitution deal with the Islamic provisions. Under Article 228, the Islamic Ideology Council was created. Under Article 229 a Reference by Parliament could be made to such Council for advice as to whether any provisions of law was repugnant to the Injunctions of Islam. Under Article 230 various functions of the Islamic Ideology were laid down, By virtue of Presidential Order 1/80, a New Chapter 3-A for the appointment of Federal Shariat Court was drafted in Part-VII of the Constitution of 1973. In this order, the Court called the Federal Shariat Court was established which was empowered to examine and decide the question whether or not any law enforced in Pakistan was repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (May peace be upon him), and in case if the Federal Shariat Court decides any law or provision of that law to be repugnant to the Injunctions of Islam, it shall set out in its decision the reasons for its holding that opinion, and the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect. Article 203-A further provides that on such pronouncement, the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam. 7. It is pertinent to mention that within six months of the death of the Founder of the Nation late Quaid-e-Azam Muhammad Ali Jinnah, the First Constituent Assembly of Pakistan passed in March, 1949 a Resolution Clause which became the Objectives Resolution, and then this Resolution had appeared as a preamble of the Constitutions of 1956, 1962, the Interim Constitution of April 1972 and the present Constitution of 1973. In the case reported as Zia ur Rehman Versus the State PLD-1986- Lahore 428, it was argued before the Supreme Court that the Objectives Resolution was the ground norm of Pakistan and was a supra constitutional instrument, but this view was rejected, and was laid down that the power under the same Statute or Authority is the operative part of the Constitution itself unless it is incorporated therein and included in its substantive part. In the constitutional history of Pakistan, the provisions of this Resolution were implemented from time to
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time by the State to bring the legality or otherwise of the actions taken by the Executive or the other Forces, and despite the fact that the Resolution was described as a corner stone of the Pakistan's legal edifice in Asma Jillani Versus The Government of Punjab PLD 1972 SC 139 represented the ideology, aim and the final object of the country and the nation. In the case reported as Hussain Naai Versus The District Magistrate Lahore PLD 1973 Lahore 164, it was not accepted as the supra constitutional instrument, as referred to above, and was held to be unjusticiable and pre- ambulatory provision. In the case of Zia-ur-Rehman Vs. The State PLD 1986 Lahore 428, precisely to quote the words of late Hamood ur Rehman, the Chief Justice it was observed as under :- " Therefore, in my view, however solemn or sacrosanct document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate the Courts created under the Constitution will not have the power to. Declare any provision of the Constitution itself as being in violation of such a document. It follows from this that under our own system too the Objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it. If it appears only as a preamble to the Constitution then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof'. 8. Pakistan was intended to be an Islamic State. The history bears testimony to the fact that the entire struggle for achieving this homeland was initiated and carried on in the name of Islam, The only slogan which persuaded the people to support this movement and carried them along was "Pakistan Ka Matlab Kia. Laa Ilah Ilallah". The Quaid-e-Azam made this fact clear before the birth of Pakistan and thereafter, He made it clear before the Bar Association Karachi on 25th January, 1948 when he said that he could not understand a section of the people, who deliberately wanted to create mischief and made propaganda that the Constitution of Pakistan would not be made on the basis of Shariat. He went on to say "Islam and its idealism have taught democracy, Islam has taught equality, justice and fairplay to everybody. What reason is there for anyone to fear democracy, equality, freedom on the highest standard of integrity and on the basis of fairplay and justice for everybody, Let us make it the future Constitution of Pakistan" ......... " Islam is not only a set of pitfals, traditions and spiritual doctrines. Islam is also a code for every Muslim which regulates his life and his conduct in even politics and economics and the like. It is based on the highest principles of honour, integrity, fairplay and justice for all........................ ". "In Islam there is not difference between man and man. The qualities of equality, liberty and fraternity are the fundamental principles of Islam." The Quaid added that the Holy Prophet laid the foundation of democracy thirteen hundred years ago. 9. The speech made by the Quaid-i-Millat in the Constituent Assembly which tabling the Objectives Resolution is also clear on the point. A portion of the same may be reproduced with advantage:- "Sir, I consider this to be a most important occasion in the life of this country next in importance only to the achievement of independence, because by achieving independence, we only won an opportunity of building up a country and its polity in accordance with our ideals. I should like to remind the House that the Father of the Nation Quaid-e-Azam gave expression to his feelings on this matter on many an occasion, and his views were endorsed by the Nation in unmistakable
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terms. Pakistan was founded because the Muslims of this subcontinent wanted to build up their lives in accordance with the teachings and traditions of Islam. Because they wanted to demonstrate to the world that Islam provides a panacea to many diseases which have crept into the life of human body...................... "We as Pakistanis are not ashamed of the fact that we are overwhelmingly Muslim and we believe that it is by adhering to our faith and ideals that we can make genuine contribution to the welfare of the world. Therefore, Sir, you would notice that the preamble of the Resolution deals with the frank and unequivocal recognition of the fact that all authority must be subservient to God"...................................... "But we the people of Pakistan, have the courage to believe firmly that all authority should be exercised in accordance with the standards laid down by Islam so that it may not be misused. All authority is a sacred trust, entrusted to us by God for the purpose of being exercised in the service of man so that it does not become an agency for tyranny or selfishness " It may also be noted here that the Objectives Resolution had its own preamble and was neither proposed as a Preamble nor was tabled as such in March, 1949. In fact, it was tabled and debated even much before the drafting of the proposed Constitution, which came about years later. The Preamble however is considered "when all the clauses and schedules have been agreed to and any clauses or schedules added". It is then that the Chairman puts the question, "That this be the preamble of the bill". See May's Parliamentary Practice 19th edition page 531. The same is the procedure given for Lords at page 478. The record of the Constituent Assembly further shows that there were debates and more particularly, the Non-Muslim members criticised it. 10. It may also be of interest to note that before this Resolution was drafted a Team of the most learned of the Ulema of all the sects and the schools of thought were constituted to consider- and propose jointly the agreed guidelines on which the Constitution for this Isalmic State be based. It was thereafter that the Objectives Resolution was prepared on the basis of the guidelines mentioned above. Even the wording of the Preamble shows that it was a mandate given by the people to its representatives to frame a Constitution in the light of the guidelines supplied. It says:- "Whereas sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust: And whereas, it is the will of the people of Pakistan to establish an order:" "Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, shall be fully observed;" "Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and Sunnah:" " 11. It will be appreciated that such has never been the language and tenor of a preamble. The difference is that the preamble gives the objects of the bill as conceived by the author and is put up to the House after the Clauses etc., have been considered. Thereafter, the Preamble may be amended if the objects given therein do not correspond with the amended clauses etc. It is stated in the May's Parliamentary Practice page 520 that" Amendments to the Preamble and title are also admissible where amendments have been made to the bill which render them necessary". On the other hand, the tenor of the Resolution is that it is an acknowledge command of the people, directed against their representatives to act in the manner given therein. Unfortunately, this distinction was never brought to the notice of the courts and explained. They took it as a Preamble and interpreted it the way the English precedent allowed. 12. The importance of the Preamble can be judged from the fact that it formed part of each one of
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the four Constitutions Pakistan had. It was held as the Grund Norm of Pakistan by all the Judges who sat to decide Asma Jillani case (PLD 1972 SC 139). It may be useful to reproduce a few lines at page 182 from the judgment of Mr. Justice Hamood ur Rehman, the then Chief Justice:- " In any event, if a grund norm is necessary for us, I do not have to look to the western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty .Over the entire universe belongs to Almighty Allah alone, and the authority exercisable 'by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949"................................................ The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. 13. A few other observations in the same regard from another judgment of the Supreme Court in Benazir Bhutto's case PLD 1988 SC 416 at page 522) may be quoted with advantage:- The learned Judge further relied on the Preambles of the four Constitutions which were an eloquent testimony of the affirmation of Pakistan ideology, therefore, there cannot be any doubt that the ideology of Pakistan is based on Muslim nationhood and includes Islamic ideology which in dear terms in the Constitution means Injunctions of Holy Quran and Sunnah, and was the principal factor in the concept of Muslim nationhood" ...... "This is in my view an affirmation of a two nation theory. The concept of Islamic ideology is interwoven with the ideology of Pakistan and is inseparable as it is the foundation of two nation theory. Therefore, "integrity of Pakistan" not only includes ideology of Pakistan but also Islamic ideology. Any invasion of integrity of Pakistan will inevitably lead to an invasion of its sovereignty and vice versa". 14. The protection to the laws made or to be made, from being struck down, as having been repugnant to the Injunctions of Islam was removed by the enactment of Chapter 3A of the Constitution (P.O.3 of 1979) with effect from 7th of February, 1979 by creating Sharia Benches in the High Courts. They were however repealed late by new court namely Federal Shariat Court which was created in 1980 vide P.O.I of 1980. Both the Courts were empowered to strike down any law, as defined, and declare it inoperative from a given date, if it was repugnant to the Injunctions of Islam as contained in the Holy Quran and Sunnah of the Holy Prophet. The only limitation placed was that a- few laws were exempted from the jurisdiction of this new court. This Court has been exercising its jurisdiction and has in fact struck down numerous laws. In any case, the reason that the Articles 30(2) and 227(2) make the law immune and that no court can declare them void is no longer there, despite the fact that those two articles have not been repealed and are till intact, as before. 15. This fact should amply demonstrate that if some other suitable constitutional step was taken with regard to the exempted laws also, they could also be dealt with in accord with amended provision. This was factually done on 2nd March, 1985 (P.O. 14 of 1985) when Article 2-A was inserted in the Constitution, it reads as follows:- The principles and provisions set out in the Objectives Resolution reproduced in the Annx are hereby made substantive part of the Constitution, and shall have effect accordingly."
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16. This Article was later passed in the 8th Amendment also. The result is that the Objectives Resolution is no longer a mere preamble and has been incorporated in the Constitution and made an effective part of it, exactly in the same words, as suggested in the case of Zia ur-Rehman referred to above. In this situation, apparently if any court denied that it was in control of the Constitution, what to speak of the control or ordinary laws, it may have defied the mandate of the Supreme Court in Zia ur Rehman case and also violated the Constitution. However, there has been serious difference of opinion in various Benches of High Courts and the Supreme Court did not give its final verdict on any one of these cases. There, thus prevailed an atmosphere of uncertainty, which must be set at rest. 17. We are aware that some learned Judge have taken the view, that Article 2A is not self operative and self executory and when functions in respect of the Islamisation of Law in Pakistan have been expressly restricted by the Constitution to the Councils of Islamic Ideology Art: 227(2) or the Federal Shariat Court (Art: 203-B) cannot be invoked. Can one Article of the Constitution be superior to another? 18. Before going into the above reasons, it must be borne in mind that Constitution is thouht of as an instrument by which a Government can be run and controlled. It generally embodies the fundamental principles upon which the Government should be established and conducted. There is no set pattern or form provided and it may take variety of forms. Of late, a practice has grown up of incorporating within the Constitution itself a declaration of fundamental rights and even basic principles of State policy. However, one thing is common in all the written Constitutions that it is conceived of as a fundamental or an organic or a supreme law standing in a somewhat higher position that the other laws of the country, Even non-Constitutional provisions, if incorporated in a Constitution acquire a highly sanctity and stand on the same footing as strictly constitutional provisions. Anyway, this higher position may make it touchstone for other provisions or laws which may be annulled partially or totally or declared ultra vires of the Constitution or made ineffective. Reference may be made to the case of State Vs Zia-ur-Rehman (PLD 1972 SC 49) at pages 66-67. 19. Further a Constitution does not normally provide executing machinary separately for every provision. It generally provides only one fully equipped remedy dispensing unit to take care of every defect. Reference may be. Made to Article 199 in our 1973 Constitution. It is also the duty of every court together the intention of the Legislature and give meaning and import to every word and provision of the constitutional and let not any word and provision get redundant or superfluous. All this having been said let us find out the intention of the Legislature behind the Objectives Resolution. It has been said above that it was meant to fulfil the promise made by the Quaid-e- Azam to the Nation. The Quaid-e-Millat made that amply clear in his speech before the Constituent Assembly, the relevant provisions of which have also been reproduced. The wording of the Resolution, it has been shown above, is indicative of the fact that it was accepted as the mandate of the people to its representatives. 20. The courts of the country, however, could not accept that position as its heading marked was 'preamble' and…
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