Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: JUSTICE HASNAT AHMED KHAN and others VS Respondent: FEDERATION OF PAKISTAN/STATE
Court Name: Supreme Court of Pakistan Judge(s):Iftikhar Muhammad Chaudhry, Javaid Iqbal, Sarmad Jalal Osmany, Amir
Hani Muslim, Tasaddaq Hussain Jillani, Shakirullah Jan Title:JUSTICE HASNAT AHMED KHAN and others vs FEDERATION OF PAKISTAN/STATE Case No.:Intra Court Suo Motu Case No. 1 of 2007Suo Motu Case No.1 of 2007Appeals Nos.3, 4, 6 to 8 and 11 of 2011 Date of Judgment:2011-03-18 Reported As: PLD 2011 Supreme Court 680 Result: Order accordingly Judgment ORDER ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---Listed Intra Court Appeals are directed against the order dated 2-2-2011 passed by a 4-Member Bench of this Court in Criminal Original Petitions Nos.93 to 98, 100 and 104 of 2009 and 2, 3 and 4 of 2011. 2. The facts in brief are that on 3-11-2007, the then Chief of Army Staff, General Pervez Musharraf (Retd.) issued a Proclamation of Emergency and two other instruments, namely, Provisional Constitution Order No. 1 of 2007 [hereinafter referred to as "the PCO, 2007"] and the Oath of Office (Judges) Order, 2007 hereinafter referred to as "the Oath Order, 2007"] whereby he held the Constitution of Pakistan in abeyance and declared that the Judges of Superior Courts had ceased to hold office and only such Judges would continue to hold office who would make oath of office under those instruments. Paragraph No.3 of the PCO, 2007 is reproduced hereinbelow:- "(3) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction. ' Provided that the Supreme Court or a High Court and 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. ' As per the Oath Order, 2007 a person holding office immediately before that Order as Judge of the Supreme Court, the Federal Shariat Court, or a High Court would cease to hold that office with
---
## Page 2
immediate effect; provided that a person who was given and did make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President would be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be. On this, in view of afore noted position, a 7-Member Bench of this Court passed a restraint order in the case of Justice (Rtd.) Wajihuddin Ahmad v. Chief Election Commissioner wherein, it was, inter alia, directed as under:-- "(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan, are restrained from undertaking any such action, which is contrary to Independence of Judiciary; (ii) No judge of the Supreme Court or the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-Constitutional step; (iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts; (iv) they are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces, under new development shall be unlawful and without jurisdiction; (v) Put up before full Court on 5th November 2007." ' It may be mentioned here that above restraint order was widely covered by the electronic media, thus few Judges of the Superior Courts including appellants made oath under the new dispensation, whereas, majority of the Judges of superior Courts declined to make oath obviously for their commitment with the Constitution of 1973 and in deference to above judicial order. It is noteworthy that appellants and some other Judges who had made oath under the Oath Order, 2007, instead of showing allegiance and upholding the Constitution, under which their appointment had taken place, accepted fresh appointments as Judges of superior Courts under the instruments i.e. PCO and Oath Order, 2007, thus, they ceased to hold office under the Constitution. Mr.Justice (R) Abdul Hameed Dogar, a Judge of this Court made oath of office of Chief Justice of Pakistan in pursuance of the Oath Order, 2007 read with PCO, 2007. Besides him, four other Judges of the Supreme Court also made similar oaths. 3. In the history of the country it is not for the first time that Judges of the superior Courts had made oath under instrument other than the Constitution and on revival of Constitution the ultra- constitutional action had been legitimized by the parliament as it had happened in 1977 when the extra-constitutional acts of dictator were validated by the Eighth Constitutional Amendment. Likewise, such actions of 12-10-1999 were also legitimized/validated by means of Seventeenth Constitutional Amendment. It is noteworthy that the Judges who made oath under PCO and Oath Order, 2007 were under the impression that the action of dictator, violating the Constitution on 3-11- 2007 would also be validated but it was not done by the Parliament existing at the time when the Constitution was held in abeyance and continued till 15-11-2007, and the new Parliament which came into existence on 18-2-2008 as a result of fresh elections held in the country under the Constitution. This aspect of the case shall, however, be discussed in detail at later stage. 4. It is essential to note at this stage that after the unconstitutional actions of 3-11-2007, two petitions bearing Constitutional Petitions Nos.87 and 88 of 2007 were filed by Tikka Iqbal Muhammad Khan and Zafarullah Khan on 10th and 12th November, 2007 respectively, wherein the instruments and measures of 3-11-2007 were challenged. The Constitutional Petitions were disposed of by the Judges of the Court who had made oath in violation of the order dated 3-11- 2007 passed by a 7-Members Bench and it was held, inter alia, that the actions of 3-11-2007 were
---
## Page 3
taken by General Pervez Musharraf (Retd.) in a situation for which the Constitution provided no solution. Consequently, the same were declared to have been validly made by him under the principles of State necessity and Salus populi est suprema lex i.e. The welfare of the people is the supreme law. [Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 178)1. Review petitions filed against the said judgment were dismissed [Tikka lqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 615). j 5. The lawyers, civil society, and the general public agitated against actions of the then Chief of Army Staff and launched struggle for the restoration of judiciary, which was sacked unconstitutionally. Thus, ultimately vide notification dated 17-3-2009, the Chief Justice of Pakistan was restored to the position he was holding immediately before 3-11-2007. Similarly vide different notifications, the Judges of Supreme Court and High Courts, who were declared to have ceased to hold office on or after 3-11-2007, were restored to the position they were holding prior to 3-11-2007. 6. In the above background, on the restoration of Judiciary, Constitutional Petitions were filed by Sindh High Court Bar Association and Nadeem Ahmad Advocate, wherein the constitutionality of the actions of 3-11-2007 and validity of the judgment in the case of Tikka Iqbal Muhammad Khan's case (PLD 2008 SC 178) were questioned. This Court vide judgment dated 31-7-2009, in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) made the following observations:-- "18. From above, the conclusions drawn are that:- (i) The General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences; (ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3-11-2007 passed by a 7 member Bench headed by de jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rid.), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant; (iii) Also, the Judges who were either retired or were not holding any judicial office, besides those in High Courts took fresh oath on their appointment on and after 3-11-2007 till 15-12-2007 in Supreme Court where the full strength of Judges along with an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, 'many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3-11-2007 passed by 7 member Bench headed by de jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd.); (iv) the Petition No.73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd.) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise; (v) the decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incuriam, coram-non judice, without any legal basis hence, of no legal consequences; (vi) the amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1 + 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;
---
## Page 4
(vii)Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd.) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and (viii) The present representatives of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the de jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd.) taken from 3-11-2007 to 15-12-2007 during which the Constitution remained suspended. 21. The Proclamation of Emergency issued by General Pervez Musharraf as the, Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No. 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; the Provisional Constitution (Amendment) Order, 2007 issued by him like- wise on 15-11-2007; the Constitution (Amendment) Order, 2007 being President's Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being. President's Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be un-constitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect. 22. As a consequence thereof:-- (i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore-mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration; (ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was unconstitutional; void ab initio and of no legal effect: Provided that subject to whatever is contained hereinafter, the said un-constitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office; (iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Court's made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3-11-2007 to 22-3-2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith: ' Provided that the Judges so un-constitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and like-wise, the Judges of the High Courts, who
---
## Page 5
were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation; (iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3-11-2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in C.M.A. No.2869 of 2007 in Constitutional Petition No. 73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly: ' Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3-11-2007 to 22-3-2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan; (v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in MALIK ASAD ALl'S CASE (PLD 1998 SC 161); (vi) since the Constitution (Amendment) Order, 2007 being the President's Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall . Cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High Court, subject again to their age of superannuation; ' We would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an un-constitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law; (vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3-11-2007 and 15-12-2007 (both days inclusive) which were also, likewise given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the afore-mentioned judgment delivered in Tikka Iqbal Muhammad Khan's case, stand shorn of their purported permanence on account of our aforementioned declarations. Since on account of the said judgment in Tikka lqbal Muhammad Khan's case purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the
---
## Page 6
Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place, the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law; (viii) since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain, sixteen; (ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution; (x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26-8-2008 and the notification dated 15-9-2008 extending the term of office of Mr. Justice Abdur Rasheed Kalwar and of Mr. Justice Zafar Ahmed Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be unconstitutional and of no legal effect; (xi) that the court acknowledges and respects the mandate given by the sovereign authority i.e. Electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. The President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus populi est supremo lex reflected in PLD 1972 SC 139; (xii) Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia. Mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ....Wherein the independence of judiciary shall be fully secured." While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths." 7. In the detailed reasons, passed in the Sindh High Court Bar Association's case, it was held that the Judges, whether they were in this Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of 3- 11-2007. Relevant portion from the said judgment is reproduced hereinbelow:- 121. Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se having been found to be unconstitutional, illegal and ultra vires, the next limb of the contention of Mr. Hamid Khan, Sr. ASC was that all the acts based upon, or flowing from, the actions of 3rd November, 2007 were too,
---
## Page 7
unconstitutional, illegal and ultra vires, therefore, all such acts including the appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan, the oath made by other Judges of the Supreme Court and High Courts, including Chief Justices, etc., and the appointment of Judges of the Supreme Court and High Courts in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of this Court in Wajihuddin Ahmed's case and the appointments made in consultation with Abdul Hameed Dogar, J, were a nullity in the eye of law and of no legal effect and were liable to be so declared by this Court and such Judges had also rendered themselves liable for action under and in accordance with the Constitution and the law including action for contempt of Court. 122. Thus, on 3rd November, 2007 certainly it was the first time in the history of Pakistan that 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. A seven- member Bench of this 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 November, 2007 on the one hand and those of 12th October, 1999; 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior courts rejected the actions of 3rd November, 2007 and did not make oath in pursuance with the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.