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In the Supreme Court of Pakistan

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In the Supreme Court of Pakistan IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: Mr.Justice Sh.Riaz Ahmed, HCJ Mr.Justice Munir A.Sheikh Mr.Justice Iftikhar Muhammad Chaudhry Mr.Justice Qazi Muhammad Farooq Mr.Justice Mian Muhammad Ajmal Mr.Justice Syed Deedar Hussain Shah Mr.Justice Hamid Ali Mirza Mr.Justice Abdul Hameed Dogar Mr.Justice Muhammad Nawaz Abbasi CONSTITUTION PETITION NO.15 OF 2002 Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan Mansoora, Multan Road, Lahore … PETITIONER VERSUS General Pervez Musharraf, Chief Executive & another … RESPONDENTS CONSTITUTION PETITION NO.17 OF 2002 High Court Bar Association Rawalpindi … PETITIONER VERSUS General Pervez Musharraf, Chief Executive & others … RESPONDENTS CONSTITUTION PETITION NO.18 OF 2002 Supreme Court Bar Association of Pakistan … PETITIONER VERSUS General Pervez Musharraf, Chief of the Army Staff & Chief Executive & others … RESPONDENTS CONSTITUTION PETITION NO.19 OF 2002 Nawabzada Nasrullah Khan, President, Alliance for Restoration of Democracy … PETITIONER VERSUS The Federation of Pakistan through Secretary to the Government of Pakistan Establishment Division, Islamabad & others … RESPONDENTS CONSTITUTION PETITION NO.20 OF 2002 Shahid Orakzai … PETITIONER VERSUS General Pervez Musharraf, President of Pakistan & others … RESPONDENTS CONSTITUTION PETITION NO.21 OF 2002 Adal Trust through its Managing Trustee Shaikh Mushtaq Ali, Advocate & another … PETITIONERS VERSUS General Pervez Musharraf, Chief Executive of Pakistan & others … RESPONDENTS CONSTITUTION PETITION NO.22 OF 2002 Syed Zafar Ali Shah … PETITIONER VERSUS General Pervez Musharraf, Chief Executive & others … RESPONDENTS CONSTITUTION PETITION NO.23 OF 2002 Engr. Muhammad Saleem Ullah Khan President, Jamiat Ulema-e-Pakistan (Nifaze Shariat) Lahore. … PETITIONER VERSUS Federation of Pakistan through Secretary Establishment Division, Islamabad & others … RESPONDENTS CONSTITUTION PETITION NO.24 OF 2002 Wasim Rehan … PETITIONER VERSUS General Pervez Musharraf, Chief Executive of Pakistan … RESPONDENT CIVIL PETITION NO.512 OF 2002 Awami Himayat Tehrik (Pakistan) Through its Founder Chairman Moulvie Syed Iqbal Haider … PETITIONER VERSUS Federation of Pakistan through Secretary Ministry of Law, Justice and H.R. Division Govt. of Pakistan, Islamabad … RESPONDENT For the petitioner : Dr.Farooq Hasan, Sr.ASC (CP 15/2002) Rai Muhammad Nawaz Kharal, ASC Mr.Ejaz Muhammad Khan, AOR For the petitioner : Mr.Muhammad Ikram Ch., ASC (CP 17/2002) Ch.Muhammad Akram, AOR For the petitioner : Mr.Hamid Khan, ASC (CP 18/2002) Mr.Ejaz Ahmed Khan, AOR (absent) For the petitioner : Syed Sharif Hussain Bokhari, ASC (CP 19/2002) Syed Abul Aasim Jafri, AOR (absent) For the petitioner : In person (CP 20/2002) For the petitioner : In person (CP 21/2002) For the petitioner : Mr.A.K.Dogar, ASC (CP 22/2002) Mr.Ejaz Muhammad Khan, AOR For the petitioner : Mr.Hashmat Ali Habib, ASC (CP 23/2002) Mr.M.S.Khattak, AOR For the petitioner : In person (CP 24/2002) For the petitioner : In person (CP 512/02) On Court notice : Mr.Makhdoom Ali Khan, Attorney General for Pakistan Mr.Amir Hani Muslim, DAG Mr.Muhammad Ashraf Tanoli, Advocate General, Balochistan For respondents/ Syed Sharifuddin Pirzada, Sr.ASC Federation Mr.Maqbool Ellahi Malik, Sr.ASC (In CP 15/02) Ch.Naseer Ahmed, ASC Rana Waqar Ahmed, Advocate with Mr.Mehr Khan Malik, AOR For respondents/ Mr.Maqbool Ellahi Malik, Sr.ASC Federation Mr.Mehr Khan Malik, AOR (In CP 17, 21, 23 24 & 512/02) For respondents/ Syed Iftikhar Hussain Gillani, ASC Federation assisted by Mr.Muneeb Zia, Adv. (In CP 18/02) Mr.Mehr Khan Malik, AOR For respondents/ Mr.Abdul Hafeez Pirzada, Sr.ASC Federation assisted by (In CP 19 & 22/02) M/S Miangul Hassan Aurangzeb, Mian Feroze Jamal Shah Kakakhell & Sardar Qasim Ahmad Ali Advocates High Court & Mr.Mehr Khan Malik, AOR For respondents/ Mr.Mehr Khan Malik, AOR Federation (In CP 20/02) Date of hearing : 22-4-2002 to 27-4-2002 JUDGMENT SH. RIAZ AHMED, C. J. - The above petitions were disposed of on 27th April, 2002 through a Short Order. The concluding portion of the Short Order is worded thus: - “8. The above Constitution Petitions have been filed in this Court under Article 184 (3) of the Constitution challenging the legality and vires of the Referendum Order on the constitutional plane as well as on the touchstone of the verdict of this Court in Syed Zafar Ali Shah's case. Dr. Farooq Hasan, learned ASC appearing in support of Constitution Petition No. 15/2002 vehemently contended that despite the validation of the Proclamation of Emergency and the Provisional Constitution Order No. 1 of 1999, the 1973 Constitution still remains the supreme law of the land as laid down in Syed Zafar Ali Shah's case and the powers of the present government are strictly circumscribed in the aforesaid case. According to the learned counsel, at present the grund norm of the country being the 1973 Constitution and the judgment of this Court in Syed Zafar Ali Shah's case, the vires of the Referendum Order have to be examined on the touchstone of the relevant provisions of the Constitution as well as the law laid down in Syed Zafar Ali Shah's case. In all these petitions, a common prayer has been made that the Referendum Order be declared illegal, ultra vires the Constitution and violative of the law laid down in Syed Zafar Ali Shah's case. 9. In Constitution Petition No. 15/2002 filed by Qazi Hussain Ahmed, Amir Jamaat-i-Islami and Constitution Petition No. 22/2002 filed by Syed Zafar Ali Shah, a composite declaration has been sought to the effect: - That the Chief Executive has unlawfully occupied and taken over the position of the President of the Islamic Republic of Pakistan in violation of the judgment of this Court in Syed Zafar Ali Shah's case; That Mr. Muhammad Rafiq Tarar still continues to be the President notwithstanding the Chief Executive’s Order 3 of 2001; That writ in the nature of quo warranto be issued against the Chief Executive; and That the holding of referendum for election to the office of the President be declared illegal, unconstitutional and violative of the judgment of this Court in Syed Zafar Ali Shah's case. 10. Syed Sharifuddin Pirzada, Sr. ASC, Mr. Abdul Hafeez Pirzada, Sr. ASC and Syed Iftikhar Hussain Gillani, ASC, learned counsel appearing on behalf of the Federation and Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan appearing on Court’s notice, have urged the following points: - (i) The controversy raised in these petitions has to be looked into with reference to a long history of the constitutional crises Pakistan has been going through ever since its coming into existence and the ground realities prevailing in the country particularly in the aftermath of the events of 12th October 1999, as recognized and validated by this Court in Syed Zafar Ali Shah's case; (ii) General Pervez Musharraf is firmly committed to and bound by the direction of this Court given in Syed Zafar Ali Shah's case regarding holding of elections in October 2002, which is clearly established not only from his statements within and outside the country, but also from the provisions of Article 4 (2) of the Referendum Order; (iii) The holding of elections in October 2002 as promised and reiterated before this Court by the learned counsel for the Federation and the learned Attorney General for Pakistan is a step in aid of the transition or the transformation as it would lead to the road towards democracy and rebuilding the institutions of the State, which is a great need of the hour; (iv) Transition and transformation of an extra- constitutional set up into a democratic dispensation is the most troubled path and the gap cannot just be covered with one jump; (v) General Pervez Musharraf, ever since the assumption of power, has been performing his functions and duties in accordance with the mandate given to him by this Court in Syed Zafar Ali Shah's case and has been striving to transform the Army rule into a democratic set up as envisaged in the aforesaid case; (vi) It has been explicitly stated in the Preamble to the Referendum Order that it has been made and promulgated in pursuance of the Proclamation of Emergency of the 14th day of October 1999 and the PCO No. 1 of 1999 and in exercise of all other powers enabling the Chief Executive and President of the Islamic Republic of Pakistan in that behalf.; (vii) In the peculiar constitutional history of Pakistan, referendum is a valid means of election to the office of President in Pakistan. It has also been resorted to in various other countries for the purpose. Referendum is nothing but an appeal to the people of Pakistan, who are the political sovereign of the country; (viii) Nexus between the law, i.e. the Referendum Order and the objects intended to be achieved through it, i.e. the declared objectives of the Chief Executives and transition and transformation to the democratic set up is clearly established in the present case. The Preamble to the Referendum Order, inter alia, provides as under: - AND WHEREAS, since at that juncture the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded, the Chief Executive of Pakistan announced a 7 - Point Agenda on 17th October 1999, stating his objectives to rebuild national confidence and morale; strengthen the Federation, remove inter- provincial disharmony and restore national cohesion; revive the economy and restore investor confidence; ensure law and order and dispense speedy justice; depoliticize state institution;
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