Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR, JUDICIAL DEPARTMENT.

JUDGMENT

W.P. No. 2874/2009. Date of hearing 29.04.2015 Yousaf Ayub Khan etc versus Government through Chief Secretary, Civil Secretariat, Peshawar and others.

Petitioner by Mr. Farhat Nawaz Lodhi, advocate. Respondents by Mr. Abdul Latif Yousaf Zai, Advocate General, Syed Muhammad Attique Shah Deputy Attorney General for Pakistan.

2015

IRSHAD QAISAR J-. Through this single judgment, this

Court shall dispose of W.P. No. 2874/2009, W.P. No.

1296/2012, W.P. No. 1022/2012 and 626/2012 as through these petitions the petitioners have challenged the vires of certain paragraphs and schedule of “Shariah Nizam-e-Adl

Regulation, 2009” (NWFP Regulation No. 1 of 2009.

2. The particulars of these writ petitions are as follows;-

i. W.P. No. 2874/2009 titled Yousaf Ayub Khan etc versus Government. ii. W.P. No. 1296/2012 titled Dr. Adnan Khan versus Government. iii. W.P. No. 1022-P/2012 titled Hazrat Usman versus Government. iv. W.P. No. 625-M/2012 titled Fahim Aftab versus Government of Khyber Pakhtunkhwa etc.

3. W.P. No. 2874/2009 has been filed by Yousaf Ayub

Khan President NWFP Local Councils Association and Zila

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Nazim, Haripur and W.P. No. No. 1022/2012 has been filed by Hazrat Usman, advocate Mingora Swat, whereby they are seeking the declaration (with the consequential relief’s) that paragraph 7, schedule III and other provisions of

“Shariah Nizam-e-Adl Regulation, 2009” providing for

“Executive Magistrate” including “District Magistrate” and interalia, entrusting them the judicial functions, are ultra-vires to Article 2-A, 175(3) and 203 of the Constitution of Islamic Republic of Pakistan, 1973, also seek the directions to the respondents for immediately taking necessary steps and measures, as deem fit and appropriate, to ensure the complete independence of

“Judiciary” from the “Executive”. They have also challenged paragraph 19(2) of the said Regulation and all the corresponding laws (Acts, Ordinances, Regulations,

Rules and Notifications), entrusting the Executive officers with Judicial powers of any nature being contrary to the

Constitution.

4. The petitioners have prayed for the following reliefs;-

“that this Hon’ble Court may be pleased to strike down all the laws (Acts, Ordinances, the Regulations, Rules and Notifications) issued there under, entrusting the Execution officer with Judicial powers of

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any nature not conforming with the Constitutional provisions, more particularly Articles 2-A, 175(3) and 203 and the Objective Regulation thereof”.

5. W.P. No. 1296/2012 filed by Doctor Adnan Khan a citizen, member of the Bar and a former Civil Judge challenged vires of paragraph 5(e), 7, schedule-III,

Paragraph 19(2) of Shariah Nizam-e-Adl Regulation, 2009, with the prayer that on acceptance of this petition the above provisions of law may be struck down and declared as nullity in the eyes of law. Similarly all the notifications issued in the light of above mentioned law for the appointment of Executive Magistrate and conferment of powers over them may be set aside

6. W.P. No. 625/2012 filed by Fahim Aftab (party to a complaint filed under section 133 Cr.P.C) asked for the following prayer;-

1. “To declare that Shariah Nizam-e-Adl Regulation, 2009, NWFP Regulation No. 1 of 2009 is discriminatory law and inconsistent with the fundamental rights as envisaged in Chapter-I of Part-II of the Constitution of Pakistan 1973”.

2. To issue direction to the Provincial Government to deploy Police force in the said area of Malakand as the law enforcing agency, conducting investigation in criminal cases according to Cr.P.C 1898”.

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7. The impugned Regulation No. 1 of 2009 sought to introduce executive magistracy in the Provincially

Administered Tribal Area of NWFP except the tribal areas adjoining Mansehra District and Former State of Amb and to entrust it with judicial powers to conduct trials and impose punishment. Paragraph 2 Clause (b), (c) and (g) defined Dar-ul-Dar-ul-Qaza, Dar-ul-Qaza and Qazi while paragraph 5 show types of Courts. Paragraph 6 deals with the appointment, powers and functions of Qazis while paragraph 7 create the concept of Executive Magistrate, and as a consequence vide paragraph 19(2) of the

Regulation, the code of Criminal Procedure (Amendment)

Ordinance 2001 (XXXVII of 2001) applied to the said area vide Notification No. 1/93-SOS-II (HD)/2001 dated

27.04.2002 was repealed.

8. Since the interpretations of Provincial and Federal Law and Constitution were involved; therefore, this Court vide order dated 11.11.2009 issued notice to Attorney General of Pakistan and Advocate General with the direction to file parawise comments with the observation;- “to explain its position with regard to its Constitutional obligation with regard to the promulgation of the new laws/enactments creating parallel forums with powers to exercise judicial authority and whether it does not offends against Article 2-A and Ă.ß.ĂWĂŇ

the law laid down in the case of Government of Sindh versus Sharaf Farid (PLD 1994 SC 105)”. 9. The respondents No. 1 and 2 submitted their comments wherein they raised preliminary objection to the effect that petitioners have no locus standi to file petitions as they are not aggrieved party within the meaning of

Article 199 (1)(a) of the Constitution of Islamic Republic of

Pakistan, 1973. Therefore these petitions are not maintainable and liable to be dismissed. They have also given the reason for the promulgation of the Regulation No.

1 of 2009. In Para No. 8 of the comments it is contended that this arrangement in no way offend the separation of judiciary from executive as it was done in 1996 under the separation of Executive from Judiciary through an Ordinance & Magistracy functioned unobjected till 2001, when the posts of Deputy

Commissioner/ Assistant Commissioner/ Extra

Assistant Commissioner were abolished. As far the issue of amendments in Criminal Procedure Code is concerned prior to the passage of 18 th amendment the same was on the concurrent list as per Article 70(4) read with Fourth schedule of the Constitution. And the

Federal and Provincial Governments both were

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empowered to make amendments in the criminal procedure code. After the passage of 18 th amendment the Concurrent List has been done away, however, under amended Article 142(b), still the Parliament and the Provincial Assembly have powers to make laws with respect to Criminal Law, Criminal Procedure and

Evidence.

10. At the very out set of the arguments Mr. Abdul Latif

Yousafzai, learned Advocate General and Syed Atique

Shah, learned Additional Attorney General raised objection to the maintainability of the petitions on the grounds that the petitioners do not come with in the definition of aggrieved person under Article 199 of the Constitution of

Islamic Republic of Pakistan, 1973. It is contended that petitioners had not personally suffered as a consequences of the impugned law nor any case of the petitioners are pending as a consequence whereof they will be personally affected by its determination by Executive Magistrates instead of Judicial Magistrates. These objections were negated by learned counsel for the petitioners and contended that through these petitions the impugned laws have been assailed in the public interest. That one of the petitioner Fahim Aftab is a party in criminal complaint while

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the three petitioners are advocates and the guardian of the

Constitutional rights of the public. Now the question is that whether a person who is not personally aggrieved can assail a law enacted in contravention of fundamental rights?

11. In Pakistan we have written Constitution and it is incumbent on every one to comply there with. Article 8 of the Constitution stipulates that;-

1. “any law in so far as it is inconsistent with the rights conferred by this chapter (chapter-I Fundamental Rights), shall, to the extent of such inconsistency be void” 2. “The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void”.

5. Sub Article 5 of Article 8 further lays down;- “The right conferred by this Chapter shall not be suspended except as expressly provided by the Constitution”.

12. Article 199 (2) of the Constitution of Islamic Republic of Pakistan, 1973 also removes the barrier or obstruction

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that may be placed in the way of a person approaching the

High Court for enforcement of fundamental rights as the said provision stipulates that;-

“Subject to the Constitution, the right to move a High Court for enforcement of any of the Fundamental rights conferred by chapter I of the Part II shall not be abridged”. In this respect guidance is sought from case

Ardeshir Cowasjee versus Karachi Building Control

Authority 1999 SCMR 2883. The relevant paragraph 23 of the said judgment is reproduced.

“We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, interalia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage

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or curtailment of a privilege in liberty or franchise.”

Reference may also be made to Balochistan Bar Association versus Government of Balochistan PLD 1991 Quetta 7 wherein it is held that “the High Court is empowered to examine the vires of civil/criminal law on the touch stone of Constitution”. Reference may be made to a case Human Rights Commission of Pakistan versus Government of Pakistan, PLD 2009 SC 507 wherein it is held; “It needs to be kept in view that apart from the jurisdiction vested in High Court by virtue of clauses (a) and (b) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a special jurisdiction is conferred by clause (c) which a High Court shares with the original jurisdiction of this Court under Article 184(3)”, “The power to enforce fundamental rights has been conferred upon the superior Courts through Articles 199(1)(c) and 183(3); it may be seen that under Article 4 every body has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void”.

13. Neither the learned Advocate General nor Additional

Attorney General has attributed any ulterior motive to the petitioners. From the careful perusal of the contents of Ă.ß.ĂWĂŇ

petitions it reveals that they have knocked the door of

Constitutional Court to assist their fellow citizens in leading their lives in the glow of Constitution and to enjoy the rights provided therein. It is settled law that if a person, who has no personal interest and in the larger interest comes forward and question such lacunas the doors of the Court should not be shut for him, but rather kept open for him.

Thus the objection taken to the maintainability of the petitions on the ground that they are not aggrieved person and therefore cannot approached this Court under Article

199 of the Constitution of Islamic Republic of Pakistan,

1973, are not tenable for the reasons stated above and thus rejected. Moreover three petitioners are advocates and one is effectee and they have the right to challenge the vires of law as the custodian of law as well as the effectee.

14. Through the present petitions the petitioners have challenged the Constitutional Validity of Paragraph 5(e), 7,

19(2) and Schedule 3 of Shariah Nizam-e-Adl Regulation,

2009, Repeal of Code of Criminal Procedure Amendment

Ordinance 2001, Notifications relating to establishment of

Court of Executive Magistrate in PATA on the grounds that these are against the spirit of Provision of Article 2-A,

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175(3) and 203 of the Constitution of Islamic Republic of

Pakistan 1973.

15. Learned counsel for the petitioners contended that

Executive Magistrates including District Magistrates and inter-alia entrusting them the judicial and trial function are ultra vires to Article-2-A, 175(3) and 203 of the Constitution and are totally against the independence of judiciary from the executive. That entrusting the Executive Officers with the judicial powers of any nature is being contrary to the

Constitution. That through the cover of paragraph 7 of the

Regulation, the institution of Executive Magistrate with judicial powers have been illegally revived inspite of the fact that the institution of Executive Magistrate has already been abolished through Code of Criminal Procedure

(Amendment) Ordinance 2001. That the revival of this

Executive Magistrate system is without lawful authority.

That introduction of Executive Magistrate contravenes

Article 175 (3) of the Constitution, which provide that,”Judiciary shall be separate progressively from the executive within 14 years from the commencement day,” i.e. from August 14, 1973, which period of 14 years came to an end on 18.08.1987 and the impugned law is in

Contravention of Article 175(3) of the Constitution of

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Islamic Republic of Pakistan 1973. That Constitution envisages independent of “Judiciary” and any forum created with an “Executive” as adjudicator of civil/criminal or fiscal cases/issues is clearly in conflict with the

Provisions of Articles 4, 8, 9, 25 and 175 thereof. That

Article 25 of the Constitution envisages equality before law, including process of law, hence subjecting the citizen to two set of judicial system is but discriminatory, as well.

That the Constitution is based on the principle of trichotomy of powers, in which “Executive”, “Legislative” “Judiciary” have their own functions independent from each other.

That the function of the Executive Officers as Judges cannot reflect fairness and impartiality. That non fixation of the tenure of such Executive Officers also undermines their independence and fairness. It is further contended that by way of ordinary legislation, the powers and jurisdiction of the Constitutional Courts cannot be restricted, as has been done through this Regulation. Hence same is also violative of Provisions of Articles 203 of the Constitution. That provisions of the Regulation have been enforced within the ambit of Article 247 of the Constitution. But the very commendable act of enforcing the “Shariah Laws” has been done in an unlawful manner as para No. 7 of the

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Regulation is inconsistent with the Constitution. No legal requirement has been imbedded in the Regulation as to the qualification/knowledge of Executive Magistrate with reference to Shariah laws. That para 7(3) is in conflict with the Provisions of Article 228 of the Constitution. That vide para No.19 (2) of the Regulation, by way of mere repealing

Ordinance No. XXXVII of 2001, the provisions relating to powers and procedure to be followed by the Executive

Magistrate have not been revived, by virtue of Section 6-A and 7 of the General Clauses Act 1897 (X of 1897). That para No.7 is also void in view of Article 143 of the

Constitution, dealing with the inconsistency between

Federal and Provincial law. That the exercise of powers by

Government under Articles 247(3) of the Constitution is void. That Malakand Levies registered the cases under section 154 Cr.P.C, carry out investigation and after completion of investigation submit challan under section

173 Cr.P.C. They are untrained and are not authorized by

Provincial Government to conduct investigation and submit challan. That illiterate and untrained persons supervise investigation while under Cr.P.C only Police is authorized to conduct investigation in criminal cases. This practice of

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investigation is contrary to the basic principle of equal treatment and due process of law.

16. These arguments were rebutted by Advocate

General and Additional Attorney General and stated that

Executive Magistrate has been revived in PATA through promulgation of Shariah Nizam-e-Adl Regulation, 2009, in accordance to the provision of Article 247 of the

Constitution of Islamic Republic of Pakistan, 1973. That before the 18 th Amendment the criminal law was on the

Concurrent Legislative List of the Fourth Schedule of the

Constitution and the Provincial Government was also empowered to do legislation on it and even now Provincial

Government is still empowered to legislate on the subject under amended Article 142(b) of the Constitution. It is further contended that Executive Magistrate was revived to save the writ of the State in the area.

17. Under the Constitution the fundamental rights are entrenched for every citizen and they are guaranteed against the excesses of all branches of Government including the legislature, be it the Federal Government or the Provincial Government. Now it is to be seen whether the impugned paragraphs of Regulation No. 1 are in violation of the Constitution and they should be struck of

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from the Regulation which is meant for the establishment of

Nizam-e-Sharia in the area? The Constitution provides for independence of judiciary and its separation from

Executive as specifically mentioned in Article 175(3), within fourteen years, from the commencement day (President’s

Order No. XIV of 1985), but even then it was not done after the lapse of 14 years. Thus the citizen were compelled to knock the doors of Superior Courts for the independence of judiciary from executive. The superior judiciary after a long historical contemplation and endows discussed the principle of separation of executive from the judiciary, fundamental rights on the subject of trial, Article

2-A, 142, 143, 175, 202 and 203 and other questions and issues raised in those petitions are similar to the present petitions.

18. For the proper appreciation of the background of independence/separation of judiciary reference may be made to Hamood-ur-Rehman’s report in connection with the Law Reforms Commission 1967-70. In Sharaf Faridi’s case known as “Judicial Case” Hon’ble Judge of Sindh

High Court Mr. Justice Ajmal Mian discussed this report in detail. It would be useful to get the guidance from the strenuous efforts made by Superior Courts as many of the

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questions raised herein have already been determined and settled in case of Sharaf Faridi versus Federation of

Islamic Republic of Pakistan, PLD 1989 Karachi 404 matter of separation of the Judiciary from the Executive and the subject of independence of the judiciary were dilated upon. Wherein it is held;-

“It contemplated trichotomy of powers between the three organs of the State, namely the Legislature, the Executive and the Judiciary. Each organ of the State was to function/operate within the bounds specified in the Constitution. The judiciary was assigned very important role to play, mainly to act as the watch dog and to ensure that none of the organ of the Government functionaries acts in violation of any of the provisions of Constitution or any other law . . . . . the supervision and control over the subordinate judiciary vested in High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate Judicial Officers. In this view of the matter, any provision in an Act or any Rule or a Notification empowering any Ă.ß.ĂWĂŇ

executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of Article 203 of Constitution, besides, it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objective Regulation”. In this judgment the Hon’ble Judges set out the concept of the trichotomy of powers prevailing in the

Constitution, the special role of judiciary and stressed that

Parliament could not encroach upon the judicial domain. In the judgment it is further held that;-

“The denial and failure to establish independent Courts and Tribunals by separating them from executive, negates Article 9 of the Constitution of Islamic Republic of Pakistan 1973. That a mandatory duty has been cast upon the executive and legislative to separate the judiciary from executive but they have remained completely silent, dormant and unconcerned. Such omission to exercise jurisdiction not only violates Article 175 but infringes fundamental rights as well. In such circumstances necessary orders can be passed and directions in mandatory form can be issued to ensure enforcement

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of provisions of the Constitution and to prevent the breach of fundamental right”. When against this judgment of Sindh High Court the

Government of Sindh filed an appeal in Supreme Court it was dismissed vide judgment Government of Sindh versus Sharaf Faridi PLD 1994 SC 105 and held that

“the independence of judiciary means;-

a. “that every judge is free to decide matters before him in accordance with assessment of the facts and his understanding of law without improper influence, inducement or pressures, direct or indirect, from any quarter or for any reason, and

(b) that the judiciary is independent of the executive and legislature and has jurisdiction, directly or by way of review, over all the issues of a judicial nature”.

19. Agitation against law similar to Regulation No. 1 of

2009 had been continuing since long. These have been challenged in the Supreme Court from time to time. There are chain of authorities where the Supreme Court has assumed jurisdiction of judicial review, which even otherwise is the final arbiter of dispute in order to maintain

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check and balance. For these reasons, the independence of the judiciary has been guaranteed and secured.

20. In the case “Dr Mubasher Hussan versus

Federation of Pakistan” (PLD 2012 SC 265) the august

Supreme Court had declared the NRO to be illegal, un-

Constitutional and void ab-initio.

21. In the Al-Jehad Trust case “PLD 1996 SC 324, 429” although the august Supreme Court stated with reference to the appointment of Judges of superior judiciary but the principles applies with equal force to all judicial appointments including those of in the District Judiciary.

The dictum laid down in Al-Jehad case was soon reaffirmed by Supreme Court in case of Mehram Ali and others versus Federation of Pakistan” (PLD 1998 SC

1445-1474) and “Sheikh Liaqat Hussain versus

Federation of Pakistan” (PLD 1999 SC 504, 658). This dictum has also been reiterated in Sindh High Court Bar

Association versus Federation of Pakistan PLD 2010

SC 879, 1182 Munir Hussain Bhatti versus Federation of Pakistan PLD 2011 SC 407 .

In the case of Mehram Ali and other versus Federation of Pakistan and others (PLD 1998 SC 1445 the august Supreme Court after considering

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the relevant Constitutional Provisions and precedents laid down guiding principles, some of these are as follows;-

i. That Articles 175, 202 and 203 of the Constitution provide a frame work of judiciary i.e. Supreme Court, a High Court for each province and such other Courts as may be established by law.

ii. That the word “such other Courts as may be established by law” employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.

iii. That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Court, which is the exclusive in nature, comprehensive in extent and effective in operation.

iv. Any Court which is not under the administrative control of High Court and/or the Supreme Court does not fit in within the judicial frame work of the Constitution. v. That the independent of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions”.

In the case of “Muhammad Irshad versus Assistant Commissioner Swat and others” (PLD 1990 Peshawar 51), this Court held “Provisions of Regulation laying down procedure for trial of offences mentioned there in and remedies provided thereto are violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973”. In the case of Government of Balochistan through Additional Chief Secretary versus Ă.ß.ĂWĂŇ

Aziz Ullah Memon and 16 others (PLD 1993 SC 341) it is held;-

“Article 25- - - Any law made or action taken in violation of principles contained in Article 25 is liable to be struck down ……… “where the statutory functionary acts malafide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution……… separation of judiciary from executive being the cornerstone of independence of judiciary, unless it was independent, the fundamental right of access of justice could not be guaranteed”.

22. In case Accountant General Sindh versus Ahmad Ali U.

Qureshi PLD 2009 SC 522 it is held;-

“In broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all the matters including pay and pension which is an essential component of independence of judiciary”.

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23. The above said dictum has also been reiterated in

Sindh High Court Bar association Vs Federal of

Pakistan (PLD 2010 SC 879, 1182) and Munir Hussain

Bhatti Vs Federation of Pakistan (PLD 2011 SC 407). In the latter case at page 467 the Supreme Court, after examining the case law, recorded that;-

“It is an undisputed trend of our Constitutional system that in matter of appointment, security of tenure and removal of Judges the independent of judiciary should remain fully secured.” In the above judgment and particularly in Sharaf

Faridi case it is held that;-

“the supervision and control over the judiciary vested in the High Court under Article 203 of Constitution, keeping in view Article 175, is exclusive in nature and any notification empowering any executive functionary to have control over the subordinate judiciary will be violation of above Article 203 of the Constitution. Beside it would militate against the concept of operation of powers and independence of judiciary”.

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These pronouncements were unambiguous and provide the norm