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PLD 1999 Supreme Court 504 Present P L D 1999 Supreme Court 504 Present: Ajmal Mian, C. J., Saiduzzaman Siddiqui, Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid, Munawar Ahmed Mirza, Mamoon Kazi and Abdur Rehman Khan, JJ Sh. LIAQUAT HUSSAIN and others---Petitioners versus FEDERATION OF PAKISTAN through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others---Respondents Constitutional Petitions Nos.37, 38, 42 and 43 of 1998 and No.4 of 1999 alongwith Civil Review Petitions Nos.l to 5 of 1999, decided on 22nd February, 1999. (a) Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998)--- ----S. 6 & Sched.---Anti-Terrorism Act (XXVII of 1997), Preamble--Constitution of Pakistan (1973), Art. 184(3)---Vires of Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998---Constitutional petition before Supreme Court under Art.184(3) of the Constitution--- -Provisions of Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998, in so far as these allow the establishment of Military Courts for trial of civilians charged with the offences mentioned in S.6 and Schedule to the said Ordinance, are unconstitutional, without lawful authority and of no legal effect---Cases wherein sentences have already been awarded but the same have not yet been executed, shall stand set aside and the cases stand transferred to the AntiTerrorist Courts already in existence or which may be created in terms of guidelines provided by the Supreme Court which may contribute towards the achievement of the objective---Evidence already recorded in such cases and the pending cases shall be read as evidence in the cases, provided that same shall not affect any of the powers of the Presiding Officers of Anti-Terrorist Courts in that regard as is available under the law---Sentences and punishments already awarded and executed in the cases will be treated as past and closed transactions and will not be affected by the decision of the Supreme Court. Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 as amended uptodate, in so far as it allows the establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6 and the Schedule to the said Ordinance, are declared unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti- Terrorist Courts already in existence or which may hereinafter be created in terms of the guidelines provided by Supreme Court for disposal in accordance with the law. The evidence already recorded in the said cases and the pending cases shall be read as evidence in the cases provided that it shall not affect any of the powers of the Presiding Officer in this regard as is available under the law. The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions. The following guidelines were provided by the Supreme Court in exercise of its Constitutional jurisdiction under Article 184 (3) of the Constitution to achieve the required objective: (i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti- Terrorism Act, 1997 or under any law in terms of the judgment of Supreme Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445); (ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it; (iii) The concerned Special Court should proceed with the case entrusted to it on day-to-day basis and pronounce judgment within a period of 7 days as already provided in Anti-Terrorism Act, 1997 or as may be provided in any other law; (iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court; (v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal; (vi) Any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable; (vii) The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines; (viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court; (ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the Anti-Terrorism Act, 1997, the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence. Per Ajmal Mian, C.J., Saiduzzaman Siddiqui, Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid, Munawar Ahmed Mirza, Mamoon Kazi and Abdur Rehman Khan, JJ. agreeing- (b) Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998)--- ---Preamble -Salient features of the Ordinance stated. (c) Constitution of Pakistan (1973)- ----Arts. 175 & 203---Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998), S.3---Establishment and jurisdiction of Courts---High Court to superintend subordinate Courts---Military Courts convened under S.3, Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 to try civilians for civil offences---Validity---Such Courts do not fall within the category of the Courts referred to in Arts. 175 & 203 of the Constitution --Neither said Military Courts nor the personnel to man the Courts qualify the other requirements spelled out in the case of Mehram Ali PLD 1998 SC 1445--Constitution recognises only such specific Tribunals to share judicial power with the "Court" referred to in Arts.175 & 203, which have been specifically provided by the Constitution itself. Constitution recognises only such specific Tribunals to share judicial power with the Court referred to in Articles 175 and 203, which have been specifically provided by the Constitution itself, like Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225) and that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. The Military Courts to be convened under section 3 of Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 do not fall within the category of the Courts referred to in the above Articles. Neither the said Military Courts nor the personnel to man the same qualify the other requirements spelled out in the case of Mehram Ali PLD 1998 SC 1445. Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 145 fol. Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar. 604 and Darwesh M. - Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206 ref. (d) Constitution of Pakistan (1973)--- ----Art. 245---Provision of Art. 245 of the Constitution of Pakistan analysed. (e) Constitution of Pakistan (1973)--- ----Art. 245---Scope and purpose of Art.245 of the Constitution outlined. (i) The scope and purpose of Article 245 is restricted, namely, it is called in aid of civil power subject to law and -its scope may further be limited or controlled by law but cannot be increased by any subsidiary law beyond the purview of Article 245; a , (ii) the words "act in aid" have their own connotation, namely, to come to help or assistance of the civil power for maintaining law. and, order and security; (iii) the words "act in aid" employed in clause (1) of Article 245 dispel all doubts about the scope of Article 245 inasmuch as it presupposes that the civil power is still there while the Armed Forces act in aid of civil power; (iv) in case of invocation of Article 245 of the Constitution the civil power is neither supplanted nor effaced out but it is preserved and invigorated through the instrumentality of the Armed Forces; (v) since the scope and sphere of action of Army under Article 245 is strictly limited to aiding a civil power, it disqualifies the Army to act in supersession of the Civil Courts and even an Act of Parliament cannot enable them to perform such judicial functions; (vi) the language employed in Article 190 that "all Executive and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court" reinforces the conclusion that the civil power is neither to be supplanted nor to be effaced out; (vii) the use of Armed Forces in aid of civil power in case of failure of the machinery of civil power may be needed by the Civil Courts themselves for the purpose of performing their own functions; (viii) the quantum of aid to be given and the manner in which
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