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 Ă.ß.ĂWĂŇ 2 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 Ă.ß.ĂWĂŇ 3 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”. Ă.ß.ĂWĂŇ 4 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 5 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 Ă.ß.ĂWĂŇ 6 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 Ă.ß.ĂWĂŇ 7 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 Ă.ß.ĂWĂŇ 8 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 Ă.ß.ĂWĂŇ 9 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”.