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SHARAF FARIDI and 3 others Versus The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another. P L D 1989 Karachi 404 Present: Ajmal Mian, C.J., Saeeduzzaman Siddiqui, Saleem Akhtar, Haider Ali Pirzada, Syed Abdur Rehman, Abdul Rasool Agha, and Manoon Kazi, JJ. ARTICLE-175 Constitution of Islamic Republic of Pakistan, 1973 • Establishment and jurisdiction of courts.— • (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. • (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. • (3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. • Art. 175--Establishment and jurisdiction of Courts---Separation of judiciary--- Requirement of Art.175 will be made if the Judiciary has effective say in formulation of its annual demands--Executive should place annual funds as per requirements at the disposal of the Judiciary for operating it without being interfered with by any agency of Executive. • Arts. 177, 182, 193, & 196---Appointments of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justice and Judges of High Court by the President---Consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court concerned by the President should be meaningful. • Samsher Singh v. State of Punjab and another AIR 1974 SC 2192; S. P. Gupta and others v. President of India and others AIR 1982 SC 149 and State of Kerala v. A. Lakshmikutty and others AIR 1987 SC 331 ref. • Art. 199---High Court, in its Constitutional jurisdiction cannot declare any of the Constitutional provisions as ultra vires. ARTICLE-203 Constitution of Islamic Republic of Pakistan, 1973 • High Court to superintendent subordinate courts.—Each High Court shall supervise and control all courts subordinate to it. • Art. 203---Supervisory jurisdiction of High Court-- -Provisions of Art. 203 relate more to administrative aspect than the judicial aspect. • The High Court exercises supervisory jurisdiction of two types i.e. judicial which is conferred on the High Court by virtue of Article 199 of the Constitution, provisions in the Civil Procedure Code, Criminal Procedure Code and the other relevant enactments either as an Appellate Court or Revisional Court and the second type of supervisory jurisdiction is administrative. • Article 203 relates more to administrative aspect than the Judicial aspect. • Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164 and Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169 ref. • Arts. 203, 175 & 2-A---Supervision and control over the subordinate Judiciary vested in the High Court under Art. 203, keeping in view Art. 175, is exclusive in nature, comprehensive in extent and effective in operation and comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers---Any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate Judiciary will be violative of Art. 203, Constitution of Pakistan and will militate against the concept of separation and independence of Judiciary as envisaged by Art. 175 of the Constitution and the Objectives Resolution. • Arts. 175, 203 & 199---High Court can issue a direction to the Federal and Provincial Governments to initiate legislative measures for bringing the existing laws in conformity with Arts. 175 & 203 of the Constitution---Directions issued accordingly. • There is a marked distinction between a direction to the legislature to legislate and a direction to the Executive to initiate legislative measures to bring the existing laws in conformity with provisions of the Constitution. The latter is permissible. • Art. 50---Parliament, in Constitution of Pakistan, does not enjoy the supreme status like the British Parliament. • Arts.9, 175, 196(b), 200(1)(4) & 203-C(4- B), (5)---Articles 196(b), 200(1)(4) & 203- C(4-B), (5) of the Constitution are not only in conflict with Art. 175 of the Constitution but they encroach upon the Fundamental Right which guarantees a fair and proper trial by an impartial and independent Judiciary---Denial and failure to establish independent Courts and Tribunals by separating them from Executive therefore negates Art. 9 of the Constitution. • Duty of Government to ensure compliance of the Constitutional provisions. Ziaur Rehman’s case PLD 1973 SC 49 REF. • Arts. 175, 199 & 9---Mandatory duty is cast upon the Executive and Legislature to separate the Judiciary from the Executive- --Executive having remained completely silent, dormant and unconcerned, such omission to exercise jurisdiction not only violates Art.175 but infringes Fundamental Rights as well---High Court, in such circumstances, can pass order and give direction in mandatory form to ensure enforcement of the provisions of the Constitution and to prevent breach of Fundamental Right. P R A Y E R The petitioners therefore pray as under:- a. That this Hon’ble Court be pleased to declare that the Sind Ordinance X of 1973, the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and the Notification dated 23.10.1973 are without lawful authority and of no legal effect and ultra vires of the Constitution to the extent of inconsistency with, contradiction to and in violation of Articles 4,14,175 and 203, of the Constitution ; and/or b. That this Hon’ble Court be pleased to restrain the Respondent from giving effect directly or indirectly to the provisions of the impugned Ordinance and Rules made and the Notification issued there under to the extent of inconsistency with, contradiction to and in violation of Articles 4, 14, 175 and 203 of the Constitution; and/or c. That this Hon’ble Court be pleased to award costs of the petition; d. That this Hon’ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case.” • Mr. Sharaf Faridi in furtherance of his above first submission that after the expiry of the period specified in Article 175 of the Constitution of the Islamic Republic of Pakistan, this Court is competent to enforce the provision of the above Article as to the separation of judiciary from the executive has invited our attention to Article 175 and has contended that sub-clauses (1) and (3) of the above Article are to be read in conjunction and, therefore, the superior as well as subordinate judiciary should have been progressively separated from the executive within 14 years period, which expired on 14.8.1987. ORDER OF THE COURT • Since 5 learned Judges have concurred with the judgment of Ajmal Mian,C.J. and , as there is no dissenting judgment, the petition is allowed in terms of the above majority judgment. .
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