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Judgment Sheet

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JJUUDDIICCIIAALL DDEEPPAARRTTMMEENNTT..

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

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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 18th 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 18th 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

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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 18th 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

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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

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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 norms to be adhered to in the appointment

process for the district judiciary.

Similar view was taken by Supreme Court in Benazir

Bhutto’s case PLD 1989 SC 416 the SC.

24. The terms “access to justice to all” mentioned in

Article 4 of the Constitution include the doctrine of due

process of law, the tribunal or the Court before which the

rights of parties are adjudicated is so constituted which

gives reasonable assurance of the honesty and impartiality

of its judges that it is a Court of competent jurisdiction.

25. The Universally adopted and recognized basic

principle of the independence of judiciary requires that;-

“The judiciary shall have jurisdiction

over all issues of a judicial nature”

and that “Everyone shall have the

right to be treated by ordinary

Courts or Tribunals using

established legal procedure”.

Condition of service and tenure of Judges were also

recognized to be important.

26. Our Constitution is based on the principle of trichotomy

of powers in which Executive, Legislative and Judiciary

have their own defined functions independent from each

other and the executive cannot be given judicial powers as

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it would encroach upon the defined domain of the judiciary.

The Objective Regulation, which is a substantive part of

Constitution (Article 2-A) provides for the independence of

the judiciary but this provision would be negated and

rendered null and void if a person is tried by an executive

officer over whom the judiciary has no control as envisage

by Article 203 of the Constitution, 1973, i.e. each High

Court shall supervise and control all Courts subordinate to

it. Our Constitutional Courts have consistently held that the

process of appointment to the judiciary must be carefully

scrutinized through the lens of Constitutional principles

such as the principles of separation of powers.

27. The august Supreme Court gave a well defined

meaning and outlined the scope of the separation of

powers and judicial independence as mentioned in our

Constitution. It is in the backdrop of the judicial

pronouncement referred to above, and the interpretation of

the Constitution made therein, that Rules for recruitment of

judicial officers were framed in different provinces and in

our province “the North West Frontier Province Judicial

Service Rules 2001” were promulgated. In Rule 3 of the

above Rules the detail of Constitution of judicial service is

described. Which is comprised of;-

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a. District and Session Judge/Zilla Qazi.

b. Additional District and Sessions Judge/Izafi Zilla Qazi.

c. Senior Civil Judge-cum Magistrate, empowered under section 30 Cr.P.C/Aala Alaqa Qazi;

d. Civil Judge cum Judicial Magistrate/Alaqa Qazi.

Note. The designation of Zilla Qazi, Izafi Zilla Qazi, Aala Alaqa Qazi and Alaqa Qazi wherever used in these Rules, shall be deemed to be relevant only to the Provincially Administered Tribal Areas of the North West Frontier Province”.

In Rule 4 it is emphasis that the appointment to a

post shall be made by the High Court.

“In Rule 5 method of Recruitment was also given…

Appointment to Service shall be made in the following

manner;-

a. appointment to a post of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi shall be made by initial recruitment;

b. appointment to a post of Senior Civil Judge cum Judicial Magistrate empowered under section 30 Cr.P.C/Aala Alaqa Qazi shall be made on seniority cum-fitness basis from amongst the Civil Judge-cum-Judicial Magistrate/Alaqa Qazi on the recommendation of Department Promotion Committee.

c. Appointment to a post of Additional District and Sessions Judge/Izafi Zilla Qazi shall be made to the extent of;-

i. Not less than two-third by

promotion, on the

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recommendation of Departmental promotion Committee from amongst the holders of the post of Senior Civil Judge-cum-Magistrate, empowered under section 30 Cr.P.C/Aala Alaqa Qazi, and;

ii. Not more than one-third by initial recruitment from amongst the members of the Bar. Public Prosecutors/Government Pleaders and Additional Public Prosecutors/Additional Government Pleaders;

d. appointment to a post of District &

Sessions Judge/Zilla Qazi shall be made by promotion on the recommendation of the Departmental promotion committee, on the basis of seniority-cum-fitness, from amongst the holders of the post of Additional District & Sessions Judge,/Izafi Zilla Qazi;

e. appointment by initial recruitment to a post of Civil Judge-cum-Judicial Magistrate/Alaqa Qazi shall be made on recommendations of the commission based on the result of a competitive examination to be conducted by it in the subjects specified in the Appendix to these Rules.

In the impugned Regulation Qazi has been defined

in paragraph 2(1)(g) which is as follows;-

“Qazi means a duly appointed Judicial Officer as

specific and designated in column No. 3 of Schedule II

which consists of;- “Schedule II”.

i. District and Sessions Judge/Zilla Qazi; ii. Additional District & Sessions Judge/Izafi

Zilla Qazi;

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27

iii. Senior Civil Judge/Judicial Magistrate under section 30 of Cr.P.C 1898 in Aala Alaqa Qazi;

iv. Civil Judge/Judicial Magistrate/Aalqa Qazi.

These are the same Judicial Officers, the detail of

which have been given in Rule 3 of the Judicial Services

Rules 2001. In para No. 5 of the Regulation the detail of

these Court have been given in clause ‘a’, ‘b’, ‘c’ and ‘d’

i.e. Court of Zilla Qazi, Court of Izafi Zilla Qazi, Court of

Aala Alaqa Qazi and Court of Aalqa Qazi.

28. In paragraph 6 under the heading of “Qazis and

their powers and function” certain conditions were

imposed for their appointment. In sub para No.1 of

paragraph 6 it is specifically stated;-

“Any person to be appointed as Ilaqa Qazi

in the said area shall be a person who is

duly appointed Judicial Officer in the

NWFP. Preference shall be given to those

judicial officers who have completed

Shariah course from a recognized

institution”.

29. Beside the above noted Courts of Qazi in column

No. ‘E’ of para No. 5 Court of Executive Magistrate was

also introduced and constituted. In the impugned

paragraph 7 the powers and functions of Executive

Magistrate are given which is reproduced as under;-

(7). Executive Magistrate.

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28

1. In each district or protected area, there shall be a District Magistrate, Additional District Magistrate, Sub Divisional Magistrates and other Executive Magistrates as the Government may deem necessary to appoint.

2. The District Magistrate and all other Executive Magistrates shall discharge their functions, responsibilities and exercise their powers according to the established principles of Shariah and other laws for the time being in force in the said area.

3. Keeping peace, maintaining order, enforcing the executive authority of the Government and “Sadd-e-Zara-e-Jinayat” shall be the duty, responsibility and power of the District Magistrate. For this purpose he may take action against an individual under the established principles of Shariah.

4. The cases included in schedule III to this Regulation shall be exclusively triable by Executive Magistrates.

Explanation… The expression “Sadd-e-Zara-e-Jinayat” means and includes all actions and steps taken under the Shariah laws and any other law in force for the time being for the control of crimes.

30. Neither any criteria for the appointment of those

Executive Magistrates nor the terms and conditions of their

service has been described. The impugned Regulation

does not require that the Executive Magistrates have any

legal education and training and instead of their

appointments by High Court as required under Article 203

of Constitution, it empowered the Government to appoint

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29

them as it may deem necessary and theoretically an

illiterate person could be appointed as an Executive

Magistrate. Even if it be presumed that the Government will

only appoint Government Servants as Executive

Magistrate, they would have no legal training, nor are they

required to acquire any training before being granted

judicial power. While against them the Qazis/Judicial

members are required to acquire a legal decree after

studying law for many years and they are appointed,

provided they pass the prescribed test and interview as

required in Rule 5 of the Judicial Service Rules 2001 and

paragraph 6 of this Regulation 2009. While the Executive

Magistrate envisaged under the impugned Regulation

would be not better then layman. Neither they were made

under the supervision of High court nor were they

appointed by High Court. Rather this prerogative was given

to Government and vide notification No. SO (FATA)/HD/1-

60/NRA-09 dated 02.10.2009 the Additional Chief

Secretary (Home) Government of NWFP, appointed

different government officers as District Magistrates, Sub-

Divisional Magistrates and Executive Magistrates and

entrusted them with the powers of First Class Magistrates.

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30

31. Article 202 of the Constitution, authorizes High Court

to make “Rules Regulating the practice and procedure

of the Court or any Court subordinate to it”. But the

High Court has no power to make Rules regulating the

practice and procedure of the Executive Magistrates. The

Executive Magistrates who do not have to be law

graduates nor required to possess any legal training can

hardly be expected to decide cases in accordance with

laws. It has rightly being held by the Superior Courts;-

“That they would be nothing but Kangaroo

Courts or Mock Courts in which the

principles of law and justice are

disregarded or perverted”.

32. If one takes a deep scrutiny of the provisions of

impugned law, it will be clear that Government conferred

unrestricted and unfettered power in the executive to

administer criminal justice, when regular Courts, consisting

of Civil Judges/Judicial Magistrates having qualification as

required by the said Regulation and Subordinate Judicial

Service Rules 2001, have been established in the area to

adjudicate civil and criminal disputes. It is complete

negation of the fundamental rights which guarantee equal

protection of law, equality before law and right of access to

justice unhindered and unfettered as provided by the

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31

Constitution and the injunctions of Islam. From the

cognizance of the schedule offences as provided in

schedule I the Executive Magistrates came into the power.

They are the dominating figure in the extra trial. Since our

Constitution is based on the principle of trichotomy;

therefore, to impose executive Magistrates, without control

of High Court the Government creates discrimination in the

area and negates the very concept of justice and violates

fundamental rights. These impugned paragraphs thus

create a bar against the right of citizen to approach the

established Courts of law and to be governed by the

general criminal law and procedure applicable in the entire

country. In the presence of normal Courts the addition of

Executive Magistrate in the area is not based on any

rational classification or intelligible differentia. Moreover by

these provisions the rights of access to Courts and justice

has been denied, which is by itself an infringement of

fundamental rights which provides that every citizen shall

be entitled to equal protection of law and will not be

deprived of life and liberty save in accordance with law.

The provisions of Articles 4, 8, 9, 10-A and 25 do not

permit the legislature to frame such law which may offend

the fundamental rights. Since the Constitution envisages

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32

independent judiciary, separated from the executive and in

the present case the Government Officers having no

required knowledge, degree and training have been

appointed by Government, therefore the Executive

Magistrates created under the paragraphs 5(e) and 7 under

the control and superintendence of executive for

adjudication of criminal cases as given in Schedule III of

the Regulation will be in a complete conflict with Articles 4,

8, 9, 10-A, 25, 175 and 203.

33. It is settled that the mandate and commencement of

Article 175 must be obeyed and implemented; any laxity in

this regard will amount to violation of Constitutional

provisions. It is also admitted principle of law that a fair trial

is deemed to be vitiated if judicial functions are given to the

executive and its officer and the independence of the

judiciary cannot be secured if the executive is made a part

of judiciary. In similar nature of case the Balochistan High

Court in case Muhammad Kamran Mullahkhail And Others

Versus Government Of Balochistan through Chief Secretary

And Others (PLD 2012 Balochistan 57) has held;-

“(1) Article 175(3) of the Constitution brought an end to executive magistracy, and to revive or reenact it, as done by the impugned laws, runs contrary to the provisions of Article

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33

175 of the Constitution;

(2) "Such other Courts as may be established by law" mentioned in clause (1) of Article 175 of the Constitution relate to the subordinate Courts referred to in Article 203 thereof and not `courts' manned by executive magistrates, which are alien to the Constitution;

(3) The Constitution envisages tracheotomy of powers between the three organs of the State, namely, the Legislature, the Executive and the Judiciary and the impugned laws in setting up ‘Courts' of Executive Magistrates encroach upon the judicial domain, which the Constitution does not permit;

(4) The Constitution guarantees an independent judiciary and the Executive Magistrates established under the impugned laws negate the concept of an independent judiciary;

(5) ……………;

(6) …………...;

(7)…………...;

(8) ………...…;

(9) ……………;

(10) ………….;

(11) ……….…;

(12) ……..….;

(13) ………....;

(14) ………....;

(15) The impugned laws are repugnant to the Federal law on the subject therefore the same are void in terms of Article 143 of the Constitution”.

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34

34. Keeping in view the above discussion and the ratio

of the cited judgments, we are inclined to hold that under

Article 203 of the Constitution supervision and control over

the subordinate judiciary vest in the High Court and any

Court created under any law which is not subject to the

judicial supervision of High Court would be violative of the

Article ibid.

35. In such view of the matter we have no hesitation to

say that the provisions of the Regulation empowering the

Executive Magistrates to exercise judicial functions are

contrary to the provision of the Constitution and also in

negation of the judgment of the superior Courts referred to

above. The Government has no authority whatsoever, to

appoint Government Officers to perform the judicial

function.

36. The next question which needs consideration is the vires

of paragraph 19(2) of the Regulation vide which the Criminal

Procedure Code (Amendment) Ordinance 2001 (XXXVII of

2001), applied to PATA vide Home and Tribal Affairs

Department’s Notification No. 1/93-SOS-II(HD)/2001 dated

27.04.2002 was repealed. Now it is to be seen whether the

Governor was competent to repeal the Ordinance No. XXXVII

of 2001 (Federal Law) and to legislate in respect of criminal

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35

law and criminal procedure through the impugned provision

of the Regulation where the same has already been legislated

by the Parliament and whether it is not against the

provisions of Article 143 of the Constitution?

37. The impugned paragraph 19(2) sought to revive the

relevant sections of Cr.P.C in respect of which the

Federation had already legislated and interalia undo the

changes made to the code of criminal procedure through

(Amendment) Ordinance XXXVII of 2001 which came in to

force on 14.08.2001, removed the Executive Magistrates

from the code. Before discussing the legal impact and

validity of these amendments we deem it appropriate to

reproduce the relevant sections of law before and after

Amendments vide Ordinance No. XXXVII of 2001 which

are as under;-

After amendment section 4 “ma” was inserted.

“Magistrate” means Judicial Magistrate and

includes a Special Magistrate appointed under

section 12 and 14.

Sub section (2) of section 6 before

amendment. There shall be the following classes of

Magistrates, namely;-

(i) Judicial Magistrates.

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36

a. Magistrates of the first class. b. Magistrates of the second class. c. Magistrates of the third class. d. Special Judicial Magistrates.

(ii) Executive Magistrates.

a. District Magistrates. b. Additional District Magistrates. c. Sub-Divisional Magistrates. d. Special Executive Magistrate. e. Magistrates of the First Class. f. Magistrates of the Second Class. g. Magistrates of the Third Class.

Sub section 2(6) after amendments.

There shall be following classes of Magistrate.

a. Magistrates of First Class. b. Magistrates of second class and c. Magistrates of the third class.

Section 8(2) has been omitted. Section 10, 11

and 13 in respect of appointment of District

Magistrate, Executive Magistrate, and their powers

by Provincial Government have also been omitted.

Sub section 2, 3 and 4 of section 14 were

omitted and in sub section I the word Executive

Magistrate was also omitted.

38. Apart from above amendment, in the whole Cr.P.C

wherever the word Executive and District Magistrate

appeared these were amended and their powers were

given either to Judicial Magistrate or Sessions Judge. In

the Amended Ordinance XXXVII 2001 directions were

issued to the Provincial Government to exercise their

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37

powers in respect of grant and withdrawal of powers of

Magistrate etc with the recommendation of the High Court.

39. Vide impugned paragraph the Federal statute has

been repealed without observing the relevant provision of

law and Constitution and sought to specifically undo the

changes made to the Code by the Federation which was in

complete contravention of Article 143 of the Constitution.

The said Article is reproduced as under;-

143. Inconsistency between Federal and

Provincial Laws. - - - If any provision of an

Act of a Provincial Assembly is repugnant

to any provision of an Act of [[Majlis-e-

Shoora (Parliament)] which [[Majlis-e-

Shoora (Parliament) is competent to enact,

or to any provision of any existing law with

respect to any of the matters enumerated

in the Concurrent Legislative List, then the

Act of [[Majlis-e-Shoora (Parliament)],

whether passed before or after the Act of

the Provincial Assembly, or, as the case

may be, the existing law, shall prevail and

the Act of the Provincial Assembly shall,

to the extent of the repugnancy, be void.

In Wattan Party versus Federation of Pakistan

PLD 2008 SC 697, the Supreme Court held that the Court

can exercise its powers under Article 8 to strike down a

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38

Provincial Law, if it offends a Federal Law as stipulated in

Article 143. The relevant para is reproduced as under;-

"Article 8 of the Constitution grants the

power of judicial review of legislation

according to which this Court is

empowered to declare a law void if it is

inconsistent with or in derogation to

the fundamental rights. However, at the

same time this Court is empowered to

declare any legislation contrary to the

provisions of Constitution under some

of the identical provisions of the

Constitution as under Article 143 of the

Constitution on having noticed

inconsistencies between the Federal

and Provincial laws the Court is

empowered to declare that which out

of the two laws is in accordance with

the Constitution. Besides it is an

accepted principle of the Constitutional

jurisprudence that a Constitution being

a basic document is always treated to

be higher than other statutes and

whenever a document in the shape of

law given by the Parliament or other

competent authority is in conflict with

the Constitution or is inconsistent then

to that extent the same is liable to be

declared un-Constitutional. This is not

for the first time that a law like

Ordinance, 2000 has come for

examination before the Court as in the

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39

past a number of laws were examined

and when found against the

Constitution the same were declared

void and of no legal effect. Reference

may be made to the case of Syed Zafar

Ali Shah v. Gen. Pervez Musharaf Chief

Executive of Pakistan (PLD 2000 SC

869) wherein it was held that judicial

power means that the superior courts

can strike down a law on the

touchstone of the Constitution. The

nature of judicial power and its relation

to jurisdiction are all allied concepts

and the same cannot be taken away. It

is inherent in the nature of judicial

power that the Constitution is regarded

as a supreme law and any law contrary

to it or its provisions is to be struck

down by the Court, as the duty and the

function of the Court is to enforce the

Constitution."

40. Since this Regulation was promulgated in 2009;

therefore, there is no need to discuss the Constitution 18th

Amendment Act which came into force on 19.04.2010

which has also amended Article 142 and 143 and thereby

omitted Concurrent Legislative List but has retain the

matter in respect of criminal law, criminal procedure and

evidence in Article 142(b) empowering both Parliament and

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40

Provincial assembly to legislate on these subject but the

clog of Article 143 is still there.

41. Since Constitution is not merely an imprisonment of

the past but is also alive to the unfolding of future,

Constitution is the supreme law of all the laws; therefore,

care should have been taken not to transgress the limits

prescribed by the Constitution. But in the present case by

adding paragraph 19(2) in the Regulation the provisions of

Article 143 of the Constitution have been violated as it was

in complete contravention of this Article.

42. It is also important to add that though the Regulation

has been promulgated by Governor under Article 247 of

the Constitution of Islamic Republic of Pakistan, 1973, but

the definition of state as given in Article 7 of the

Constitution is fairly wide and encompasses all authorities

which performs Executive and Legislative functions in any

part of the country. The President and Governor while

exercising their powers under Article 247 of the

Constitution of Islamic Republic of Pakistan, 1973;

therefore, cannot be excluded from the definition of “State”

as far as the tribal areas are concerned. In this respect

reference is made to PLD 1995 SC 281 in the case of

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41

“Government of NWFP versus Muhammad Irshad”

wherein it is held;-

“Extraordinary Power, that has been

vested in the President and the Governor

has to be exercised in a manner that would

facilitate the introduction of representative

administration in tribal area and thus bring

that at par with the other parts of Pakistan.

Any legislative and administrative

measures which obstruct or delay such

ultimate goal is beyond the boundary of

power vested in the President and the

Governor. When the President or the

Governor makes a law for the Tribal Areas

which is different from that prevailing in

the rest of the country it must be

accompanied by good reasons- - -

Omission in this regard would lay the

President and the Governor open to

charge of arbitrariness and on that

account compromise the validity of their

action whether it is in the legislative field

or it relates to a purely administrative act”.

43. In the sacred Nifaz-e-Nizam-e-Shariah, implemented

through “The Shariah Nizam-e-Adl Regulation 2009”, the

Executive Magistracy has been wrapped, which is the

memorial of the era of colonialism. It is not understood that

even after 68 years of independence a few people still

Ă.ß.ĂWĂŇ

42

desire and even try to clamp the people into shackles of

slavery. Constitution of our country is a collective public

desire which declares independence of Judiciary and its

separation from Executives. But there are few people who

for their motives, and whims seek illegal and

unconstitutional power to revive the Executive Magistracy,

which is one of the remnants of colonial era.

44. In view of what has been stated above it is difficult to

regard the impugned provisions in question as measures

conducive to the peace and good governance of the area

as the Courts of Judicial Magistrates are working there and

the ordinary judicial system, which is in force in the other

parts of Pakistan are working properly. But with out any

apparent justification they have introduced a setup which is

repealed and which is condemned by the residents of the

area. They can therefore hardly be regarded as legitimate

exercise of the extraordinary power which the President

and Governor are enforcing in reference to the area under

Article 247 of the Constitution of Islamic Republic of

Pakistan, 1973. Therefore, we have no hesitation to say

that by creating the posts of Executive Magistrates efforts

have been made to bring back the Constitutionally and

Judicially withdrawn and condemned Executive Magistracy

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43

and there by to defeat the Constitutional mandate and

dictum of the Superior Courts.

45. In these circumstances and for above stated

reasons, this and the connected petitions are disposed of

in following terms;-

a. Paragraph 5(e), 7, 19(2) Schedule III and

other relevant paras in respect of

function of Executive Magistrate of

Shariah Nizam-e-Adl Regulation 2009,

(NWFP Regulation No. 01 of 2009),

Notification No. SO(FATA)/HD/1-

60/NAR/09 dated 02.10.2009 and other

Notifications entrusting the Executive

Officers with Judicial powers of any

nature are hereby struck down being

ultra vires of the Constitution as

violates the requirement of

Constitution and relevant trite law.

b. That any Rule, Notification and any

order issued, declaring or appointing

any person as Executive Magistrate

and authorizing such persons of

exercising powers to conduct trials and

any other powers pursuant to invalid

law as mentioned in Para (a) above, are

also declared as void and of no legal

effect.

c. However, the conviction made and

proceeding conducted by the Executive

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44

Magistrate, in pursuance of the above

law are hereby saved and protected

under the doctrine of past and closed

transactions.

d. Consequently all pending proceedings

before the aforementioned invalidated

Executive Magistrates, appointed

pursuant to the aforementioned

invalidated Law, to be transferred to

the concerned Judicial Magistrates

(Ilaqa Qazis) or to the Sessions Judges

(Zilla Qazis) of the concerned District,

who after receiving such cases shall

proceed therewith in accordance with

Law.

e. The respondents are directed to take

appropriate measures to bring the

Regulation in conformity with the

Constitution and dictas of the Superior

Courts within a period not exceeding

six months. Any step to be taken,

which relates to the conferment of

judicial powers, in the area shall be

made in consultation with the High

Court.

J U D G E.

J U D G E.

ANNOUNCED. 29.04.2015