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Petitioner: Syed SHARIFUDDIN PI RZADA VS Respondent: FEDERATION OF PAKISTAN AND ANOTHER
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Muhammad Haleem, Tufail Ali A. Rehman Title: Syed SHARIFUDDIN PI RZADA vs FEDERATION OF PAKISTAN AND ANOTHER Case No.:Constitutional Petition No. 296 of 1972 S. R. O. No. 630 (1)/71 S. R. O. No.
JUDGMENT
Reported As: PLD 1973 Karachi 132 Result: A. Judgment JUDGMENT TUFAIL A.I A. RAHMAN, C. J.-Since this petition raised questions as to the vies of the Interim Constitution of Islamic Republic of Pakistan or at least some of the provisions thereof and since there were pending, at the same time, in this Court three other matters in which similar contentions had been taken up, I directed all these to be heard together by a Full Beach of three Judges. The first of these matters was Constitution Petitions Nos. 40/72 and 270/72 filed by Mrs. Zarina Gauhar challenging the validity of the detention of her husband. Altaf Gauhar, Editor-in-Chief of the 'Dawn', a daily newspaper published from Karachi. The second was Constitution Petition No. 288/72, directed against the order of the Central Govern--ment, purporting to cancel the declaration made in respect of the daily 'Sun', another newspaper published from Karachi and forfeiting all copies of the issue of the said newspaper dated the 17th July 1972, as also the press from which such copies were printed, which in effect meant the press used for the purpose of printing the said newspaper. Finally there was Cr. Miscellaneous Application No. 97/72 (Wazir All v. The State), which sought an order, to quash the proceedings pending against the petitioner in a criminal Court subordinate to this high Court. When the hearing of these cases commenced before the Full Bench, as it did on the 7th of August 1972, we intimated to counsel on both sides that we desired to hear first arguments as to the validity of the Constitution or any part thereof and thereafter take up each matter separately and to hear arguments upon the questions involved in each of those cases. However, at that stage, Mr. Brohi, appearing for Altaf Gauhar, disclaimed any intention of attacking the validity of the Constitution or any part thereof and, therefore, stated that he would take no part in the debate on the common questions involved. Mr. Khalid Ishaque, appearing on behalf of Wazir
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A.I then requested that his case be adjourned on the ground that there was no particular urgency in it since his client was on bail and the proceeding pending against him in the criminal Court had been stayed by an order of this Court. Although we allowed the request, in order to safeguard the interests of his client and feeling that a decision by this Full Bench might possibly affect the case of Wazir A.I, we nevertheless heard Mr. Khalid Ishaque not strictly as counsel for Wazir A.I, whose case had been postponed, but more like an amicus curiae though we called upon him to address us because he was counsel for Wazir A.I. Again in the present case, Mr. Brohi made it plain that he would not attack the validity of the Constitution although he would of course canvass various provisions of the Constitution or their interpretation in order to attack the validity of the orders which he had challenged or the laws under which those orders purported to be made. On the common questions, therefore, Mr. A. A. Fazeel alone, appearing, in the Sun case and Mr. Khalid Ishaque, argued before us. Since it did not suit Mr. Brohi's personal convenience to attend this Court on Tuesday the 8th of August, at his request we agreed to take up this petition on Thursday the 10th and agreed also that we would interrupt arguments upon the common questions of law in order to enable him to finish his case as soon as possible. Accordingly when he appeared on the 10th although the debate upon the common questions of law was already over and Mr. Fazeel was addressing us upon the merits of the Sun case, with Mr. Fazeel's consent, we interrupted the hearing of that case and took up instead the present hearing which was concluded on the 11th. At the end of the arguments, conscious as we were of the urgency in this case since the impugned order was standing in tie way of the petitioner's travelling abroad to attend a Session of the Sub- Commission of Prevention of Discrimination and Protection of Minorities, due to commence in New York on the 14th of August and in view of the difficulty, even the practical y physical impossibility, of delivering a judgment In Wne for that purpose we invited Mr. Brohi's suggestion for the solution of the difficulty and intimated that, if he sc desired, we would depart from the normal practice and, after cotferring amongst ourselves, announce the decision leaving the r reasons to a recorded thereafter so that either party should be in a position, if it was so advised, to move the Supreme Court against our decision. We had already agreed to sit on the text day which was a Saturday so as to be able to conclude the hearing in the Sun Petition which also had its own features of urgency. Mr. Brohi, however, expressly refrained from making any such request and explained that the session in question at New York was only to commence on the 14th of August and not to conclude on that date and that besides it was only the first session to be held during a three --year term to which the petitioner had been elected. In the result, therefore this Judgment will govern Petition No. 296/72, only and we have decided to give judgment in the Scan Petition separately since there were no logger any questions of law involved fn the two matters In common. 2. The facts which have led up to the present petition are almost entirely admitted slid Indeed are not capable of any serious dispute ; even upon the slight variance between the parties the controversy is not really one of fact so much as of inference from undisputed facto. The petitioner is a senior Advocate of this Court as also of the supreme Court of Pakistan sod has held the office of Foreign Ministry in the Government of Pakistan and twice that of Attorney-General of Pakistan. The period of his second tenure in the latter office terminated on the 21st of December 1971, and this particular date has some significance as will appear later in this Judgment. Sometimes before the 4th of April 1912, a seat on the Sub-Commission of Prevention of Discrimination and Protection of Minorities fell vacant. This Sub-Commission, we are informed, has been constituted by the Commission of Human Rights of the United Nations of which latter Organisation Pakistan is of course a member-country. Until the, vacancy arose, the seat in question had been held by a Pakistani, namely, Mr. Justice A. R. Cornelius, a firmer Chief Justice of the Supreme Court of Pakistan. The petitioner candidature for this seat was sponsored by the Government of Pakistan and he was in due course elected a member. Now although the petitioner admits that he was
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sponsored by the Government of Pakistan and indeed that, without sponsorship of the country which was a member of the membership of the Sub-Commission much less could he have been electric as a member, he claims that, once elected, he was no longer a representative of the Government of Pakistan but a member in his own right. The respondents on the other side claim that in the United Nations and In the Commission, it Is only nations who are represented and not individuals or voluntary organizations. They further claim that not only did the Government of Pakistan sponsor the petitioner's candidature but they submitted the nomination of the petitioner as its candidate to the Secretary-General of the United Nations and instructed its own Ambassador and permanent Representative to the United Nations in New York to canvass support for the petitioner without which, they imply, it would have been virtually impossible for the petitioner to have been elected. These facts the petitioner does not deny but insists nevertheless that, once elected, he was no longer the representative of Pakistan on the Sub-Commission and that neither would he be bound by any instructions given to him by Pakistan nor would he vacate his seat simply because the Government of Pakistan, at any time thereafter, chose to disown him as its own representative. This is that part of the controversy of facts to which I earlier alluded as being more in the nature of a controversy as to the inference from some facts than a real dispute on the facts themselves. The respondents have indeed alleged that they have received certain information recently of a serious nature in regard to the petitioner which information is being investigated by them. In the face of this information, even though not fully investigated and found to be true, it is the case of the respondents that they have now no confidence fn the petitioner and that in these circumstances they do not consider the petitioner's participation as a member sponsored by the Government of Pakistan in the Sub-Commission to be in the interest of this country. I shall of course deal with this contention at its proper place. 3. To revert to the narration of the facts, by a letter dated the 20th of April 1972, the Director, Division of Human Rights, informed the petitioner on behalf of the Secretary-General of the United Nations that he had been elected a member of the Sub-Commission and also conveyed the information that a session of the Sub-Commission would be held at New York from the 14th of August, till the Ist of September 1972; the petitioner in return duly conveyed to the Director that he would be glad to serve on the Sub-Commission. By a letter dated the 22nd of June 1972, Pakistan International Airlines Corpora--petition informed the petitioner that their New York Office had received payment for the petitioner's travel by Ist Class from Karachi to New York and back in connection with the session of the said Sub-Commission. The Airlines asked the petitioner to produce among other things, what was described as a "No --Objection Certificate" from the Home Ministry, Government of Sind. In response to this letter the petitioner wrote to the Secretary, Ministry of Interior, Government of Pakistan to issue necessary instructions to all concerned, specially the Home Ministry of the Government of Sind to do the needful to enable the petitioner proceed abroad. Possibly even at this stage the petitioner had reason to fear that he would not be permitted by the Government to proceed to New York. But whether that be or be not the reason, this letter expressly says that the petitioner is advised that under law it is not necessary, to have 1975 any clearance and/or No-objection Certificate from the Central Ministry of Interior or the Sind Home Ministry specially for the purpose of participating in a session of the Sub-Commission of the United Nations. Accordingly the letter expressly says that in so approaching the Ministry of Interior he is acting without prejudice to his rights and remedies and by way of caution. The petitioner was then informed by a Deputy Secretary of the Ministry of Interior that his letter had been passed on to the Ministry of Minority Affairs for further action. Although this letter has not been placed before us, a subsequent letter dated the 3rd of July 1972 does bear out the statement inasmuch as it refers to the endorsement said to be made by the Interior Division on the 29th of June 1972: this letter goes on to refer to the invitation to the petitioner to attend the session of the Sub-Commission at New
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York and the letter of the Pakistan International Airlines Corporation to which I have earlier referred and finally requests that the necessary No-Objection Certificate may be issued to the petitioner directly under intimation to this Ministry, that is, the Ministry of Minority Affairs & Tourism. The petitioner, not having meanwhile received any further communication, on the 17th of July 1972 addresses a letter to the Home Secretary, Government of Sind asking for a `N. O. C.' and referring to the office memorandum of the Ministry of Minority Affairs & Tourism. Finally on the 28th of July 1972 gathering from the Home Ministry of the Government of Sind that the Government of Pakistan had issued instructions to the Government of Sind not to issue such a certificate. The sent a telegram to the Secretary, Ministry of Interior demanding the necessary clearance to be issued within twenty- court hours failing which he would file a writ petition for appropriate relief. No further action thereafter seems to have been taken and accordingly the petitioner filed the petition in this Court on the 31st of July 1972, under Article 201 of the Interim Constitution. 4. It is desirable, I think, to dispose of first the controversy as to the position of a person elected to the Sub-Commission, that is, whether he represents his country or acts in his purely personal capacity once elected. The stand of the parties upon this question I have already reproduced above and both side: have tried to maintain their position by referring to various circumstances. On the one hand the Government claims than since, as is admitted, the Sub-Commission is set up under the Commission of Human Rights of the United Nations and that, the latter is an organisation of which only countries can be members it must follow that an individual serving on the Sub Commission also is the representative of his country. On the other hand, Mr. Brohi appearing before us for the petitioner referred to us to a pamphlet entitled "United Nations Work for Human Rights" in which at page 23 appears a paragraph:- "In 1946, the Commission on Human Rights established Sub-Commission on Prevention of Discrimination and Protection of Minorities to make studies and recommendations. The Sub- Commission is composed of 14 persona selected by the Commission, subject to the consent of their government Members serve In their capacity as individuals and not as representatives of their govern meets." He also referred to us to a cutting from the issue of the 'Dawn' a daily newspaper published at Karachi, dated the 22nd of August 1970 in which a news report from New York was published in which Mr. A. R. Cornelius was quoted as having emphasised his capacity as an 'Individual Expert'. It would be recalled that Mr. Justice A. R. Cornelius was then a member of the Sub-Commission duly sponsored by the Government of Pakis--tan. Another passage in the news report is in the following words :- "Mr. Cornelius said it was wrong for the Indian observer to have identified him as Pakistan Minister. He emphasised that he was attending in Lis personal capacity. In fact, he added, after he became Minister last year he had asked the United Nations Secretariat whether he should continue as Sub- Commission member. He lead teen told that his membership would continue to be in his personal capacity." 5. I am at least doubtful whether we could take judicial notice of the first of these documents: they certainly do not come under any of the various clauses of section 57 which enumerates the matters of which judicial notice is taken by our Courts. It is true that the pamphlet purports to be a publication of the United Nations but, though we are cognisant of the fact that that organi--sation is one set up by the governments of various countries which form for the greater part of the world, I do not think that what is after all merely a pamphlet, issued by the office of the public information of that organisation can be said to be an appropriate book or document of reference in relation to a matter of public history of which we may under section 57 take judicial notice. 6. As to that cutting from the "Dawn" I am even clearer in my mind shat we can take no notice, whatever, of it. Argument is hardly needed much less authority, for the proposition that newspaper
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report is no evidence at all of the facts which it seeks g to report. But even if the newspaper report can be used for such a purpose it only purports to report what Mr. Justice Cornelius said and that would at best be evidence of his opinion on the matter. Since he was a member of the Sub- Commission in question his view would no doubt be entitled to great respect more particularly because he 9s a former Chief Justice of the Supreme Court of this country. Even so that could hardly con--clude the master. Even his statement that he had been told that he would continue to be a member in his personal capacity although he had ceased to be a minister in the Government of Pakistan is evidence, if it is evidence at all, at second hand of the opinion of what has been described as the United Nations Secretariat, no particular person having been named. Besides the word 'personal' must be here understood in the context in which it appears; it underlines the fact be had ceased to hold an official position of the Government of Pakistan which he did when elected and not that he had ceased to be a representative of the Government of Pakistan. The petitioners in contrast, held no official position even when his candidature was sponsored or at any time thereafter. Clearly, therefore, it would have been difficult, if not impossible, to arrive at a finding on this issue on the evidence put forward by the two sides. I should have thought that it would be comparatively a simple matter for either of the parties to have produced before us a charter or official resolution creating the Sub-Commission which would resolve this controversy authoritatively and simply. I am particularly surprised that neither side was able to do so in view of the experience of learned counsel on both sides. Mr. Brohi has been a delegate to the United Nations and has a great deal of experience of international conferences while the Attorney- General, apart from the fact that he represents the Government also his been a delegate and has hid similar experience. The petitioner himself is a former Foreign Minister and Attorney-General and has attended a number of International conferences. 7. After the hearing of this case was ended and indeed, even after I had dictated this judgement though it had not yet been pronounced, on the 19th August, Mr. Zari, who had appeared with the Attorney-General, sent in to my Chambers a copy of the charter of the Unit-d Nations and the Statute of the Interna--tional Court of Justice. I do not know upon what particular chapter or article reliance is sought to be placed but can myself find nothing in the chapter relevant to the present purpose. It of course bears out the contention that countries alone can be memebers of the United Nations but this is, in any event, admitted. Neither the Sub-Commission nor its present body, the Commission on Human Rights appears, in terms, to be mentioned. Para. 2 of Article 7 in Chapter III does indeed provide for the establishment of "such subsidiary organs as may be found necessary". What the membership of these organs is to be is a question on which the charter gives no guidance. No doubt there must be resolu--tions or other authoritative decisions upon the basis of which the Commission and the Sub-Commission are constituted but on these matters, as I have already said, no information. 8. Indeed if the issue had been so vital to this case that it was not possible to pronounce judgment without first deciding this issue also we should have been driven to the necessity of determining it on the principle that that party must fail upon whom the onus of proving a given fact lies. Clearly in this case, that party would be the petitioner and it would then have been our duty to find against the petitioner. Technically correct though this might have been, I confess it should have been a most unsatisfactory manner of dealing with this case. Happily, T think, it is quite possible to decide this case without coming to a conclusion upon this particular issue. 9. The main attack of learned counsel for the petitioner, Mr. A. K. Brohi, was upon the validity of an order purporting to be made under rule 31 of the Defence of Pakistan Rules. Even In the prayer clause of the petition the relief sought is not pri--marily that a "No-Objection Certificate" be ordered to be given to the petitioner but that the respond onto be restrained froze preventing the petitioner from going abroad and only in the alternative is it prayed that the respondents be
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directed to issue a "No Objection Certificate" to the petitioner in order to enable him to travel abroad. Government have purported to restrain the petitioner from going abroad by reasons of powers conferred under an order of the Central Government dated the 23rd of December 1971 which was duly notified in the official Gazette and which may, with advantage be reproduced: "S. R. O. No. 630 (I)/71.-In exercise of the power's referred by sub-rule (1) of rule 31 of the Defence of Pakistan Rules, and in supersession of this Ministry's Order No. 1/5/71-Pass (Int) II, dated 21st December 1971 the Central Government is pleas--ed to order that except the persons belonging to any of the categories mentioned below, no citizen of Pakistan or a person of Pakistan origin who holds British passport and is for the time being in Pakistan, shall proceed from Pakistan to any country, and that to India under any circumstances :- (1) Members of official delegations. (2) Students who are permitted to go abroad for education under usual conditions. (3) Persons who have been successful in the ballot to go for Hajj. (4) Persons who are settled or working abroad and their dependants who have come to Pakistan temporarily and arc going back to join their posts or duties abroad. (5) Families of Returning residents holding clearance from the U. K. High Commission etc. (6) Hajj pilgrims payment for whose tickets has been received from abroad in foreignexchange. (7) Students joining their parents abroad. (8) Government servants, including employees of Pakistan Missions, proceeding abroad on duty and their families. (9) Families of Government servants, including employees of Pakistan Missions, posted abroad. (12) Persons who are permitted to go abroad for the first time for employment. (13) Families of persons employed abroad going for the first time to join their husbands or relatives. (14) Drivers and members of the crew of the road transport engaged in transit and border trade between Pakistan and Afghanistan. (15) Persons going abroad on business connected with expert with the approval of the Export Promotion Bureau. (16) Persons going to Middle East countries for ziarat, pro--vided they are granted Exit Permit by the Homo Department Of the Province in which they resido." It will be seen that this order purports to be made under Rule 31(1) of the Defence of Pakistan Rules; the entire rule is reproduced below: "Leaving Pakistan.-(1) The Central Government may, by order, make provision for securing that, subject to such exemp--tions as may be provided for in the order, any person for the time being in Pakistan or any class of such persons, shall not- (a) proceed from Pakistan to a destination outside Pakistan except under the authority of a written permit granted in such form and manner and by such authority or person as may be specified in the order; (b) for the purpose of proceeding to a destination outside Pakistan leave Pakistan elsewhere than at such place as may be specified in the order. (2) Where any police officer not below the rang of Inspector, or any other public servant authorised in this behalf by the Central Government, has reason to suspect that any person who is about to depart from Pakistan is attempting so to depart for purposes prejudicial to the defence or security of Pakistan, he may, notwithstanding the fact that such departure does not contravene any order made under sub-rule (1) prevent the departure of that person. (3) Any police officer or other public servant who prevents the departure of any person under sub- rule (2) shall forthwith report the fact of such prevention to the Central Government, and the Central Government may, if it thinks fit, by order, prohibit such person at any tine subsequently from leaving Pakistan so long as the order is in force.
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(4) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (5) The master of any vessel or the pilot of any aircraft by means of which any person leaves Pakistan in contravention of any order made under this rule shall, unless he proves that he exercised all due diligence to prevent the said contravention, be deemed to have abetted the contravention." 10. The rule itself in turn is made under the authority of section 3 of the Defence of Pakistan Ordinance. As I have said before, Mr. Brohi made it plain at the outset that he would not attack the validity of the…
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