P L D 2008 Supreme Court 178

JUDGMENT

ABDUL HAMEED DOGAR, C.J.---The petitioners, by means of

these Constitutional? Petitions under Article 184(3) of the
Constitution, have called in question the validity of the
Proclamation of Emergency of the 3rd day of November
2007, the Provisional Constitution Order No. 1 2007 and the
Oath of Office (Judges) Order 2007. They have also sought a
direction that the deposed Judges of the superior Courts and
the Fundamental Rights be restored, the general elections to
the National Assembly and the Provincial Assemblies be held
within the period as provided by the Constitution, the
detenues held under preventive detention laws be released
forthwith and restrictions on the media be withdrawn.

2. On 3rd November 2007 General Pervez Musharraf, Chief

of Army Staff proclaimed emergency throughout Pakistan in
the circumstances set out in the Proclamation itself. The
same is reproduced below in extenso: -

PROCLAMATION OF EMERGENCY

Whereas there is visible ascendancy in the activities of

extremists and incidents of terrorist attacks, including
suicide bombings, IED explosions, rocket firing and
bomb explosions and the banding together of some
militant groups have taken such activities to an
unprecedented level of violent intensity posing a grave
threat to the life and property of the citizens of
Pakistan; Whereas there has also been a spate of
attacks on State infrastructure and on law
enforcement agencies;

Whereas some members of the judiciary are working

at cross purposes with the executive and legislature in
the fight against terrorism and extremism thereby
weakening the Government and the nation's resolve
and diluting the efficacy of its actions to control this
menace;

Whereas there has been increasing interference by

some members of the judiciary in government policy,
adversely affecting economic growth, in particular;

Whereas constant interference in executive functions,

including but not limited to the control of terrorist
activity, economic policy, price controls, downsizing of
corporations and urban planning, has weakened the
writ of the government; the police force has been
completely demoralized and is fast losing its efficacy to
fight terrorism and Intelligence Agencies have been
thwarted in their activities and prevented from
pursuing terrorists;

Whereas some hard core militants, extremists,

terrorists and suicide bombers, who were arrested and
being investigated were ordered to be released. The
persons so released have subsequently been involved
in heinous terrorist activities, resulting in loss of
human life and property. Militants across the country
have, thus, been encouraged while law enforcement
agencies subdued;

Whereas some judges by overstepping the limits of

judicial authority have taken over the executive and
legislative functions;

Whereas the Government is committed to the

independence of the judiciary and the rule of law and
holds the superior judiciary in high esteem, it is
nonetheless of paramount importance that the
honourable Judges confine the scope of their activity
to the judicial function and not assume charge of
administrations;

Whereas an important constitutional institution, the

Supreme Judicial Council, has been made entirely
irrelevant and non est by a recent order and judges
have, thus, made themselves immune from, inquiry
into their conduct and put themselves beyond
accountability.

Whereas the humiliating treatment meted to

government officials by some members of the judiciary
on a routine basis during court proceedings has
demoralized the civil bureaucracy and senior
government functionaries, to avoid being harassed,
prefer inaction;
 Whereas the law and order situation in the country as
well as the economy have been adversely affected and
trichotomy of powers eroded;

Whereas a situation has thus arisen where the

government of the country cannot be carried on in
accordance with the Constitution and as the
Constitution provides no solution for this situation,
there is no way out except through emergent and
extraordinary measures;

And whereas the situation has been reviewed in

meetings with the Prime Minister, Governors of all four
Provinces, and with Chairman Joint Chiefs of Staff
Committee, Chiefs of the Armed Forces, Vice Chief of
Army Staff and Corps Commanders of the Pakistan
Army;

Now, therefore, in pursuance of the deliberations and

decisions of the said meetings, I, General Pervez
Musharraf, Chief of the Army Staff, proclaim
emergency throughout Pakistan.

I hereby order and proclaim that the Constitution of

the Islamic Republic of Pakistan shall remain in
abeyance.

This Proclamation shall come into force at once.

3. In pursuance of the above Proclamation of Emergency,

the Chief of Army Staff promulgated the following
Provisional Constitution Order No. 1 of 2007: -

PROVISIONAL CONSTITUION ORDER NO. 1 OF 2007

In pursuance of the Proclamation of the 3rd day of

November, 2007, and in exercise of all powers enabling
him in that behalf, the Chief of Army Staff, under the
Proclamation of Emergency of the 3rd day of
November, 2007, is pleased to make and promulgate
the following Order:

1. (1) This Order may be called the Provisional

Constitution Order No 1 of 2007.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. (1) Notwithstanding the abeyance of the provisions

of the Constitution of the Islamic Republic of Pakistan,
hereinafter referred to as the Constitution, Pakistan
shall, subject to this Order and any other Order made
by the President, be governed, as nearly as may be, in
accordance with the Constitution:

Provided that the President may, from time to time, by

Order amend the Constitution, as is deemed
expedient:

Provided further that the Fundamental Rights under

Articles 9, 10, 15,16,17,19 and 25 shall remain
suspended.

(2) Notwithstanding anything contained in the

Proclamation of the 3rd day of November; 2007, or
this Order or any other law for the time being in force,
all provisions of the Constitution of the Islamic
Republic of Pakistan embodying Islamic injunctions
including Articles 2, 2A, 31, 203A to 203J, 227 to 231
and 260(3)(a) and (b) shall continue to be in force.

(3) Subject to clause (1) above and the Oath of Office

(Judges) Order, 2007, all courts in existence
immediately before the commencement of this Order
shall continue to function and to exercise their
respective powers and jurisdiction:

Provided that the Supreme Court or a High Court and

any other court shall not have the power to make any
order against the President or the Prime Minister or
any person exercising powers or jurisdiction under
their authority.

(4) All persons who immediately before the

commencement of this Order were in office as judges
of the Supreme Court, the Federal Shariat Court or a
High Court, shall be governed by and be subject to the
Oath of Office (Judges) Order, 2007, and such further
Orders as the President may pass.

(5) Subject to clause (1) above, the Majlis-i-Shoora

(Parliament) and the Provincial Assemblies shall
continue to function.

(6) All persons who, immediately before the

commencement of this Order, were holding any
service, post or office in connection with the affairs of
the Federation or of a Province, including an All
Pakistan Service, service in the Armed Forces and any
other service declared to be a Service of Pakistan by or
under Act of Majlis-i-Shoora (Parliament) or of a
Provincial Assembly, or Chief Election Commissioner or
Auditor General, shall continue in the said service on
the same terms and conditions and shall enjoy the
same privileges, if any, unless these are changed under
Orders of the President.

3. (1) No court, including the Supreme Court, the

Federal Shariat-Court, and the High Courts, and any
Tribunal or other authority, shall call or permit to be
called in question this Order, the Proclamation of
Emergency of the 3rd day of November, 2007, the
Oath of Office (Judges) Order, 2007, or any Order
made in pursuance thereof.

(2) No judgment, decree, writ, order or process

whatsoever shall be made or issued by any court or
Tribunal against the President or the Prime Minister or
any authority designated by the President.

4. (1) Notwithstanding the abeyance of the provisions

of the Constitution, but subject to the Orders of the
President, all laws other than the Constitution, all
 Ordinances, Orders, Rules, Bye-laws, Regulations,
Notifications and other legal instruments in force in
any part of Pakistan, whether made by the President or
the Governor of a Province., shall continue in force
until altered, or repealed by the President or any
authority designated by him.

5. (1) An Ordinance promulgated by the President or

by the Governor of a Province shall not be subject to
any limitations as to duration prescribed in the
Constitution.

(2) The provisions of clause (1) shall also apply to an

Ordinance issued by the President or by a Governor
which was in force ' immediately before the
commencement of the Proclamation of Emergency of
the 3rd day of November, 2007.

4. Simultaneously, the President issued the Oath of Office

(Judges) Order 2007 to the following effect:---

THE OATH OF OFFICE (JUDGES) ORDER, 2007

Whereas in pursuance of the Proclamation of Emergency of

the 3rd day or November, 2007, and the Provisional
Constitution Order No. 1 of 2007, the Constitution of the
Islamic Republic of Pakistan has been held in abeyance;

Whereas Pakistan is to be governed, as nearly as may

be, in accordance with the Constitution and the
President has, and shall be deemed always to have
had, the power to amend the Constitution;

Whereas all courts in existence immediately before the

commencement of this Order will continue to function
and to exercise their respective powers and
jurisdiction, subject to the Proclamation of Emergency
and the Provisional Constitution Order No. 1 of 2007;

And whereas to enable the judges of the Superior

Courts to discharge their functions, it is necessary that
they take Oath of their office,

Now, Therefore, in pursuance of the aforesaid

Proclamation and the Provisional Constitution Order
No.1 of 2007, and in exercise of all other powers
enabling him in that behalf, the President is pleased to
make and promulgate the following order:--

1. Short title and commencement.--(1) This Order may

be called the Oath of Office (Judges) Order, 2007.

It shall come into force at once.

2. Interpretation.--In this order, "Superior Court"

means the Supreme Court of Pakistan, the Federal
Shariat Court or a High Court and "Judge" includes
Chief Justice.

3. Oath of Judges.--(1) A person holding office

immediately before this. Order as a Judge of the
Supreme Court, the Federal Shariat Court or a High
Court shall cease to hold that office with immediate
effect:

Provided that a person who is given, and does make,

Oath in the form set out in the Schedule, before the
expiration of such time from such commencement as
the President may determine or within such further
time as may be allowed by the President shall be
deemed to continue to hold the office of a Judge of the
Supreme Court, the Federal Shariat Court or a High
Court, as the case may be.

(2) A Judge of a Superior Court appointed after the

commencement of this Order shall, before entering
upon office, make Oath in the form set out in the
Schedule.

(3) A person referred to in clauses (1) and (2) who has

made oath as required by these clauses shall be bound
by the provisions of this Order, the Proclamation of
Emergency of the 3rd day of November, 2007, the
Provisional Constitution Order No.1 of 2007, and,
notwithstanding any judgment of any court, shall not
call in question or permit to be called in question the
validity of any of the provisions thereof.

(4) A Judge of the Supreme Court or Federal Shariat

Court shall make oath before the President or a person
nominated by him and a judge of the High Court shall
make oath before the Governor or a person nominated
by him.
5. On 15th November 2007, by the Provisional Constitution
(Amendment) Order, 2007 the Chief of Army Staff
authorized the President to revoke the Proclamation of
Emergency of the 3rd day of November, 2007 on such day as
he may deem fit.

6. On 20th of November 2007, by the Constitution

(Amendment) Order, 2007 (President's Order No. 5 of 2007)
following amendments were made in the Constitution of
1973:---

Amendment of Article 175 of the Constitution:--

In the Constitution of the Islamic Republic of Pakistan,

hereinafter referred to as the Constitution, in Article
175, in clause (1), after the word "Province" the words
"and a High Court for the Islamabad Capital Territory"
shall be inserted.

Explanation.--The words "Nigh Court" wherever

occurring in the Constitution shall include" the High
Court for Islamabad Capital Territory.

Amendment of Article 186A of the Constitution:

In the Constitution, Article 186A shall be renumbered

as clause (1) thereof and in clause (1) renumbered as
aforesaid, after the word "High Court" occurring at the
end the words "or withdraw any case, appeal or other
proceedings pending before a High Court to it and
dispose of the same" shall be added.

Amendment of Article 198 of the Constitution:

In the Constitution, in Article 198, after clause (1), the

following new clause shall be inserted, namely:--

"(1A) The High Court for Islamabad Capital Territory

shall have its Principal seat at Islamabad.

Amendment of Article 218 of the Constitution:--

In the Constitution, in Article 218, in clause (2), in sub-

clause (b), for the word "Four" the word "Five" shall be
substituted and after the word "Province" the words
"Islamabad Capital Territory" shall be inserted.

Addition of Article 270AAA to the Constitution.-

In the Constitution, after Article 270AA, the following

new Article shall be added, namely:-

"270AAA. Validation and affirmation of laws etc.--(1)

The Proclamation of Emergency of 3rd November,
2007, all President's Orders, Ordinances, Chief of Army
Staff Orders, including the Provisional Constitution
Order No.1 of 2007, the Oath of Office (Judges) Order,
2007, the amendments made in the constitution
through the Constitution (Amendment) Order, 2007
and all other laws made between the 3rd day of
November, 2007 and the date on which the
Proclamation of Emergency of the 3rd Day of
November, 2007, is revoked (both days inclusive), are
accordingly affirmed, adopted and declared to have
.been validly made by the competent authority and
notwithstanding anything contained in the
Constitution shall not be called in question in any court
or forum on any ground whatsoever.

(2) All orders made, proceedings taken, appointments

made, including secondments and deputations, and
acts done by any authority, or by any person, which
were made, taken or done, or purported to have been
made, taken or done, on or after the 3rd day of
November, 2007 in exercise of the powers derived
from any Proclamation, Provisional Constitution Order
No. 1 of 2007, President's Orders, Ordinances,
enactments, including amendments in the
Constitution, notifications, rules, orders, bye-laws, or
in execution of or in compliance with any orders made
or sentences passed by any authority in the exercise or
purported exercise of powers as aforesaid, shall,
notwithstanding anything contained in the
Constitution or any judgment of any court, be deemed
to be and always to have been validly made, taken or
done and shall not be called in, question in any court
or forum on any ground whatsoever.

(3) All proclamations, President's Orders, Ordinances,

Chief of Army Staff Orders, laws, regulations,
enactments, including amendments in the
Constitution, notifications, rules, orders or bye-laws in
 force immediately before the date on which the
Proclamation of Emergency of the 3rd day of
November, 2007 is revoked, shall continue in force
until altered, repealed or amended by the competent
authority.

Explanation. - In this clause, "competent authority"

means,-

(a) in respect of President's Orders, Ordinances, Chief

of Army Staff Orders and enactments, including
amendments in the Constitution, the appropriate
Legislature; and

(b) in respect of notifications, rules, orders and bye-

laws, the authority in which the power to make, alter,
repeal or amend the same vests under the law.

(4) No prosecution or any other legal proceedings,

including but not limited to suits, constitutional
petitions or complaints, shall, notwithstanding
anything contained in the Constitution or any other
law for the time being in force, lie in any court, forum
or authority against any person or authority on
account of or in respect of issuance 'of the legal
instruments referred to in clause (1) and on account of
or in respect of any action taken by the Chief of Army
Staff, the President or any other in exercise or
purported exercise of the powers referred to in clause
(2).
 (5) For purpose of clauses (1), (2) and (4) all orders
made, proceeding taken, appointments made,
including secondments and deputation, acts done or
purporting to be made, taken or done by any authority
or person shall be deemed to have been made, taken
in good faith and for the purpose intended to be
served thereby.

Amendment of Article 270B of the Constitution:--

In the Constitution; in Article 270B after the word

"Assemblies" occurring for the second time, the
comma, words and figure ", and the General Elections
2008 to the National Assembly and Provincial
Assemblies" shall be inserted.

Amendment of Article 270C of the Constitution:--

In the Constitution, in Article 270C after the brackets,

figures and word "(1 of 2000) the words, brackets,
figure and comma "or the Oath of Office (Judges)
Order, 2007" shall be inserted and for the words "that
Order" the words "the said Orders" shall be
substituted.
?
7. Mr. Irfan Qadir, ASC, the learned counsel for the
petitioner (in Constitutional Petition No.87 of 2007)
contended as under:--

(a) Under Article 245 of the Constitution, the Armed

Forces may be required to act, in aid of civil power but
they have no power to impose emergency in the
country. The present Proclamation of Emergency is
tantamount to superseding relevant constitutional
functionaries. In fact, the Armed Forces have taken
over the civil administration of the country. In Liaquat
Hussain v. Federation of Pakistan (PLD 1999 SC 504) it
is laid down that under the 1973 Constitution the
Armed Forces can only be called in aid of the civil
power and have a limited role to play. There is nothing
in the Constitution which makes the Armed Forces
supreme authority. Under the present circumstances,
the Constitution could not be held in abeyance on any
ground including the law of State necessity.

(b) The Provisional Constitution Order No.1 of 2007 is

an extra constitutional measure and is violative of the
Constitution, particularly Articles 4, 8, 9, 10, 15, 16, 17,
19, 25, 47, 48, 90, 91, 209, 243, 244 and 245 thereof.

(c) The military takeover in October 1999 was validated

by this Court in Zafar Ali Shah v. Pervez Musharraf,
Chief Executive of Pakistan (PLD 2000 SC 869) under
the principle of State necessity on account of
widespread corruption, collapse of economy and one-
man rule. After the 13th Amendment to the
Constitution, the Prime Minister had become all
powerful. Thus, a situation had arisen in which it had
become impossible to run the country in accordance
with the Constitution. The emergency in Zafar Ali
Shah's case continued for three years. However, in the
present case it is of temporary nature as general
elections to the National Assembly and the Provincial
Assemblies have been announced to be held on time.

(d) While validating the extra-constitutional measures

this Court, in Zafar Ali Shah's case desired that the rule
laid down therein was limited to the controversies
involved therein and the Court did not want that it
should be followed subsequently. It was a judgment in
personam and not in rem.

(e) Assuming that the judgment in Zafar Ali Shah's case

applies to the facts and circumstances of the present
case and the law of necessity can be invoked, it can be
done only if this Court comes to the conclusion that
the welfare of the people necessitated the taking of
extra-constitutional measures.

(f) In no other country emergency is imposed whatever

the situation of law and order and terrorism may be.
Even the United States did not impose emergency
despite the tragic incident of 9/11.

(g) The letter of 3rd November 2007 of the Prime

Minister showing concern over the security situation
prevailing in the country was addressed to the
President and not to the Chief of Army Staff.

(h) As to the ground of erosion of trichotomy of

powers mentioned in the Proclamation of Emergency,
the same suggests that for saving a limb the very life
has been taken as the whole of the Constitution has
 been suspended. The Provisional Constitution Order
does not serve to preserve the trichotomy of powers.

(j) Although the Constitution has been held in

abeyance, yet unbridled powers, including the power
to amend the Constitution have been given to the
President. The action of 3rd November 2007 raises a
further question whether the constitutional machinery
was not sufficient to handle the situation.

(k) It is a well settled proposition that the fundamental

rights cannot be suspended. Therefore, the action
taken against lawyers' community, the media and the
press is liable to be struck down as being
unconstitutional.

8. Barrister Zafar Ullah Khan, ASC in Constitutional Petition

No. 88/2007 made the following submissions:--

(a) Notwithstanding the ouster of jurisdiction of the

Courts by the provisions of the Provisional Constitution
Order No. 1 of 2007, this Court would continue to
exercise power of judicial review where the action or
order is found to be mala fide, without jurisdiction and
coram non judice. There can be no impediment for
the Courts to do justice. The judges of superior Courts
are the judges of their own jurisdiction who are quite
competent to determine the limits and the extent of
the ouster clauses contained in statutes.

(b) The situation prevailing on 3rd November 2007 was

not akin to the one which existed at the time of Army
takeover on 12th October 1999. The respondent No.2
had assumed the office of the President of the Islamic
Republic of Pakistan under the Constitution by virtue
of the 17th Amendment. Therefore, he could neither
act in his own interest nor in breach of the oath of
office. The President to Hold another Office Act, 2004,
is an Act of Parliament which stands on a pedestal
lower than a constitutional provision. The respondent
No. 2 is just a ceremonial Chief of Army Staff but
without the powers which he enjoyed in 1999. In his
capacity as President, he is bound by the oath of that
office. The Chief of Army Staff cannot delegate power
to the President either to issue the Oath of Office
(Judges) Order, 2007 or to amend the Constitution.
Here it seems that the Chief of Army Staff is above the
President, which is a ' paradoxical situation.

(c) Nowhere in the world is the Constitution held in

abeyance, though Fundamental Rights can be
suspended.

(d) The present dispensation is contradiction in terms.

Through the Proclamation of Emergency and the
Provisional Constitution Order the Constitution has
been held in abeyance and the Fundamental Rights
have been suspended. However, it is provided in the
Provisional Constitution Order that notwithstanding
the abeyance of the provisions of the Constitution,
Pakistan shall be governed, as nearly as may be, in
accordance with the Constitution.
(e) Under Article 89 of the Constitution an Ordinance
promulgated by the President ceases to have effect
after the expiry of four months unless it is disapproved
by the Assembly or is withdrawn by the President
earlier. However, an Ordinance in force on 3rd
November, 2007 or issued by the President in
pursuance of the Provisional Constitution Order No. 1
of 2007 is in the nature .of a permanent statute, which
is not required to be laid before the Parliament. Such a
power of the President is alien to the Constitution.

(f) The grounds for the military takeover in October

1999 were the collapse of economy, humiliation of the
institution of judiciary etc. This time, by taking a
different position, the respondent No.2 says that the
economy of the country is flourishing, huge foreign
investments are coming in Pakistan, refineries are
being established, mega projects such as Gwadar Port
etc. are going on. On 12th October, 1999, the
respondent was the Chief of Army Staff and became
the Chief Executive. After taking oath as the President
of Pakistan under the Constitution, he is holding only a
titular position of Chief of Army Staff. The oath that he
took as a member of the Armed Forces is different
from the oath he has taken as the President of
Pakistan. He cannot take orders from the Chief of Army
Staff.

(g) The Proclamation of Emergency and the Provisional

Constitution Order 2007 are ultra vires and mala fide.
The Parliament (National Assembly and Senate), the
Provincial Assemblies, the Federal and the Provincial
Governments are still functioning under the
Constitution, whereas the same had been
dissolved/dismissed in October 1999. If the respondent
No.2 wanted to act according to the Constitution, the
proper course for him was to approach the Parliament
for additional powers to him through an amendment
of the Constitution. Instead, he took shelter under the
umbrella of the office of Chief of Army Staff for taking
extra-constitutional steps.

(h) The actions of the respondent No.2 such as the

Proclamation of Emergency and the Provisional
Constitution Order neither show loyalty to the State
nor obedience to the Constitution and the law as
required by Article 5 of the Constitution.

(i) Under the Constitution, one institution cannot

encroach upon the powers or functions of any other
institution. In the present case, the measures provided
by the Constitution have not been adopted to deal
with the situation. In order to combat terrorism,
Armed Forces should have been called in aid of the
civil power.

For other matters the legislature should have played its

role. If emergency was to be proclaimed, it could have
been done by the National Assembly/President under
Article 232 of the Constitution and not by the Chief of
Army Staff.
 (j) In the present circumstances, emergency could not
be proclaimed throughout Pakistan. If cities like
Karachi, Sargodha or Islamabad and certain parts of N.-
W.F.P. were stricken by terrorist activities, emergency
could be proclaimed for those areas alone and the
Constitution should not have been suspended by just
one stroke- of pen. The action is illegal, without
jurisdiction and quoram non judice. In the case of
Muhammad Umar Khan v. Crown (PLD 1953 Lahore
528) local martial law imposed in Lahore City was
upheld.

(k) Things have been done hurriedly and a lot of

problems have been created. The President was
required to apply his mind to determine whether in
view of the given facts and circumstances emergency
ought to have been proclaimed. In the instant case, the
Prime Minister addressed a letter to the President on
3rd November 2007 and the Proclamation of
Emergency was issued by the Chief of Army Staff the
same day. The situation was similar to the emergency
imposed in 1973 when within four hours of signing of
the 1973 Constitution, the then Prime Minister pulled
a paper (emergency order) from his pocket and placed
the same before the President, who signed it.

9. Syed Sharifuddin Pirzada, Sr. ASC appearing on behalf of

the President of Pakistan/Chief of Army Staff stated that in a
similar situation the action of the Armed. Forces both in July
1977 as well as October 1999 was validated by this Court on
the touchstone of State necessity, and later by the
Parliament; the present emergency was temporary in
character; the Government had announced the holding of
general elections; whole of the country was already in a grip
of terrorism, extremism and suicide attacks as a result
whereof the image of Pakistan was being tarnished across
the globe; Government's efforts to contain terrorism on the
civil side bore no fruit; due to increased interference by
some of the former Judges of the superior Courts,
particularly, the former Chief Justice of Pakistan it had
become impossible to run the affairs of the country in
accordance with the provisions of the Constitution and
resort to extra-constitutional measures had become
imperative and last but not the least, indirectly not only the
Constitution provided for emergencies but it also recognized
emergencies in martial law times which was apparent from
the provisions of Article 280 of the Constitution. The learned
counsel closed his arguments with the prayer that the facts
and circumstances of the case warranted the passing of an
order analogous to paragraphs 6 to 18 (except the direction
regarding holding of election within three years) of the Short
Order passed in Zafar Ali Shah's case so as to validate the
actions of 3rd November 2007 accordingly.

10. Malik Muhammad Qayyum, learned Attorney General

for Pakistan appeared on Court notice and made lengthy
submissions. The points covered by him, succinctly stated,
are that the Proclamation of Emergency of 3rd November
2007, the Provisional Constitution Order No.1 of 2007, as
amended and the Oath of Office (Judges) Order; 2007 are
extra-constitutional measures taken by the Chief of Army
Staff/President of Pakistan in the larger interest of the state
necessity and for the welfare of the people and to save the
country from chaos and anarchy after having been satisfied
that the state institutions were not working within the
parameters of the Constitution and that the acts of
terrorism had increased beyond the control of the
Government; in contrast to the previous two occasions this
time minimum deviation from the Constitution was made
inasmuch as both the executive and legislative branches of
the government continued to function as before and only
inevitable action vis-a-vis judiciary was taken; and finally the
taking of oath by the Judges under the Provisional
Constitution Order No.1 of 2007 and the Oath of Judges
(Office) Order, 2007 would not preclude the Judges from
doing justice as held by this Court in Zafar Ali Shah's case.

11. In rebuttal, Mr. Irfan Qadir, ASC, learned counsel for the
petitioner (in Constitutional Petition No.87 of 2007) made
the following submissions:--

(a) Issue of extra-constitutional steps has been

conceded by the respondents' side. It is also admitted
that this is not a martial law, the present emergency is
a temporary measure and it will be lifted very soon.
Though jurisdiction of the superior Courts is ousted
under the Provisional Constitution Order but in view of
the case law, both Syed Sharifuddin Pirzada, learned
Sr. ASC and Malik Muhammad Qayyum, learned
Attorney General for Pakistan conceded that
jurisdiction of the superior Courts had not been
completely ousted. As for the doctrines of salus populi
est supema lex and the state necessity, the correct
legal position is that the Courts in Pakistan have
validated extra-constitutional measures under the
above doctrines, which are even otherwise recognized
all over the world.

(b) The case boils down to one single question whether

the Constitution provided any solution qua the facts
and circumstances necessitating extra-constitutional
measures. The answer to the above question is in the
affirmative, in that, as far as the acts of terrorism are
concerned, the Constitution provides a remedy in the
form of action contemplated under Article 232 read
with Article 245 of the Constitution. The Armed Forces
can always be called in aid of the civil power to fight
terrorism. The plea that the Provincial Government of
NWFP was not willing to call the Armed Forces is not
tenable, in that, the President could have done so or at
the most limited emergency could have been imposed
in the relevant areas and not throughout Pakistan.
There is hardly any reason for such a drastic measure.
Furthermore, emergency should have nexus with the
object, which is sought to be achieved.

(c) In the sphere of trichotomy of powers, if one organ

of the State is impinging upon the domain of another,
it is the Parliament which can take notice of it. In the
present case, however, the Parliament has passed a
resolution endorsing the Proclamation of Emergency.

(d) The main reason given in the Proclamation of

 Emergency is that the Government of the country was
not being run in accordance with the Constitution. It
may be noted that the Government has also the power
to legislate under Article 233 of the Constitution and
the law so made is deemed to have been repealed on
the expiry of the Proclamation of Emergency but such
repeal does not revive anything not in force or existing
at the time at which the repeal takes place. It is well
settled that if a law provides that a certain thing should
be done in a certain way, it has to be done in that way
alone or not at all. The doctrine of past and closed
transaction is also attracted in such situations.

(e) The oath of the office of President requires the

incumbent, inter alia, to bear true faith and allegiance
to Pakistan, which means that the President must take
steps, including extra-constitutional measures in the
best interests of Pakistan, whereas the oath of the
members of the Armed Forces binds them to preserve
and protect the Constitution. Of course, the President
can take extra-constitutional measures in the interest
of the State necessity and for the welfare of the
people.

12. We have heard the learned counsel for the parties as

well as the learned Attorney General for Pakistan at great
length and have carefully considered the controversies
involved in these petitions.

13. In their concise statement, the respondents raised

preliminary objection as to the maintainability of these
petitions on the ground that the original jurisdiction of this
Court under Article 184(3) of the Constitution was explicitly
barred. It was stated therein that Article 3 of the Provisional
Constitution Order No. 1 of 2007 provided that no Court
including the Supreme Court, the Federal Shariat Court and
the High Courts and any Tribunal or other authority was
empowered to call or permit to be called in question the
Proclamation of Emergency of 3rd November 2007, the
Provisional Constitution Order No.1 of 2007 and the Oath of
Office (Judges) Order, 2007 or any order made in pursuance
thereof. A further plea was taken that since the
Fundamental Rights contained in Articles 9, 10, 15, 16, 17,
19 & 25 of the Constitution had been suspended, therefore,
the same were no more enforceable by this Court under
Article 184(3). However, at the hearing of the petitions both
Syed Sharifuddin Pirzada, Sr. ASC as well as Malik
Muhammad Qayyum, learned Attorney General for Pakistan
candidly conceded that in view of the law laid down in
Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Zafar Ali
Shah's case (PLD 2000 SC 869), this Court would continue to
exercise the power of judicial review to judge the validity of
the Proclamation of Emergency and the other Orders issued
by the President/Chief of Army Staff despite the non
obstante clauses contained in the Provisional Constitution
Order No. 1 of 2007. We have ourselves considered the
question of ouster of jurisdiction of this Court. A somewhat
similar objection was dealt with in the case of Zafar Ali Shah
(supra) in which the following observations were made:---

"220. It seems quite clear that the Army takeover of

12th October 1999 was extra-constitutional. The
 superior Courts of Pakistan have laid down that they
retain the power of judicial review despite the ouster
of jurisdiction which came either from within the
Constitution, or by virtue of Martial Law Orders or by
legislation. Even non obstante clauses in these cases
had failed to prevent such objectives of the incumbent
administrations.

Thus visualized, the purported ouster in the

Proclamation and the PCO 1 of 1999 of the jurisdiction
of the superior courts is an exercise in futility and the
power of judicial review remains intact. Both under
Islamic doctrines as well as under its
constitutional/juridical personality, the superior courts
would continue to exercise this power."

The relevant portion from the Short Order Zafar Ali Shah's
case is reproduced below: -

"Notwithstanding anything contained in the

Proclamation of Emergency of the Fourteenth day of
October 1999, the Provisional Constitution Order No. 1
of 1999, as amended and the Oath of Office (Judges)
Order No. 1 of 2000, all of which purportedly
restrained this Court from calling in question or
permitting to call in question the validity of any of the
provisions thereof, this Court, in the exercise of its
inherent powers of judicial review has the right to
examine the validity of the aforesaid instruments.
Additionally, submission of the Federation in response
to the Court's notice concerning its own legitimacy also
 suggests that this Court has an inherent authority,
arising from the submission of both the parties to its
jurisdiction, notwithstanding the preliminary objection
raised in the written statement as to the
maintainability of the above petitions. In the exercise
of its right to interpret the law, this Court has to decide
the precise nature of the ouster clause in the above
instruments and the extent to which the jurisdiction of
the Courts has been ousted, in conformity with the
well-established principles that the provisions seeking
to oust the jurisdiction of the superior courts are to be
construed strictly with a pronounced leaning against
ouster. The Constitutional Petitions filed by the
petitioners under Article 184(3) of the Constitution
are, therefore, maintainable."

14. We would like to reaffirm the view taken by this Court in

the aforesaid case of Zafar Ali Shah. This Court is competent
to examine the vires of the Proclamation of Emergency of
3rd November 2007, the Provisional Constitution Order No.
1 of 2007 and the Oath of Office (Judges) Order, 2007 until
these measures are protected by making an amendment in
the Constitution. These petitions are, therefore, held
maintainable under Article 184(3) of the Constitution.

15. The Proclamation of Emergency is essentially founded on

two main grounds, viz., the security situation prevalent in
the country and the erosion of trichotomy of powers in
consequence of increased interference in the Government
policies by some former Judges of the superior Courts,
particularly the former Chief Justice of Pakistan, which
adversely affected the economic growth and the law and
order situation in the country. By letter of 3rd November,
2007, on the subject of "national security situation", the
Prime Minister apprised the President of Pakistan as to the
magnitude of extremism, militancy and terrorism, which
were going on in the country and the widespread perception
of overstepping the limits of judicial authority and taking
over of executive functions. Along with the letter, the Prime
Minister enclosed details of law and order incidents during
the period from April to October 2007 posing grave threat to
internal security of the country. For proper understanding of
the situation prevailing on 3rd November 2007, it is
advantageous to reproduce the letter of the Prime Minister
in toto:-

"SUBJECT: NATIONAL SECURITY SITUATION

I am writing to you to share my thoughts on the

current national security situation and the risks that it
represents for the future of Pakistan.

2. The Government has made serious and sincere

efforts to revive the economy, maintain law and order
and to curb extremism and terrorism in the country. In
the last few months, however, militancy, extremism
and terrorist activities have been in ascendance,
particularly in some districts of NWFP where the writ
of the government is being eroded and on-State
militants are apparently gaining control. There have
been a number of bomb blasts and suicide attacks in
other parts of the country including the recent suicide
attack on a political rally in Karachi on 18th October,
2007. During the last ten months, 1322 precious lives
have been lost and 3183 persons have been injured.
Details of such incidents between April - October, 2007
are enclosed. The executive measures taken against
extremist elements to contain militancy and terrorist
activities have, on a number of occasions, been called
into question by some members of the judiciary
making effective action impossible.

3. There has been increasing interference by some

members of the judiciary in government policy,
adversely affecting economic growth, in particular. The
corner stone of the economic policies of the
government is privatization, liberalization and
deregulation which create economic growth and
investment. Both local and foreign investment has
been negatively affected.

4. It cannot be disputed that the legality of executive

measures is open to judicial scrutiny. The wisdom or
necessity of a policy or a measure is an executive
function and not open to judicial review, however, in
the recent past, some members of the judiciary have,
nevertheless, departed from these norms. While we all
are committed to the independency of the judiciary
and the rule of law and hold the superior judiciary in
high esteem, it is nonetheless of paramount
importance that the Honourable Judges confine the
scope of their activity to the judicial function. While
judges must adjudicate they must neither legislate nor
assume the charge of administration.

5. Most importantly, constant interference in executive

functions, including but not limited to the control of
terrorist activity, economic policy, price controls,
downsizing of corporations and urban planning, has
weakened the writ of the government. This has
increased the incidents of terrorist attacks thereby
posing grave threat to the life and property of the
citizens of Pakistan and negatively impacting the
economy.

Wide-ranging suo motu actions of the courts negate

the fundamentals of an adversarial system of justice.
The police force has been completely demoralized and
is fast losing its efficacy to fight terrorism. Intelligence
Agencies have been thwarted in their activities and
prevented from pursuing terrorists.

6. A large number of hard core militants, extremists,

terrorists and suicide bombers, who were arrested and
being investigated have been released. The persons so
released are reported to be involved in heinous
terrorist activities, resulting in loss of human life and
property. Militants across the country have, thus, been
encouraged while law enforcement agencies subdued.

7. There is a widespread perception of overstepping

the limits of judicial authority and taking over of
executive functions. Privatization is at a standstill while
domestic and foreign investors are being compelled to
reconsider investment plans thus adversely affecting
the economy.

8. On the other hand, an important constitutional

institution, the Supreme Judicial Council, has been
made entirely irrelevant by a recent order. Detailed
reasons for this order are still awaited despite a lapse
of three months. Judges have, thus, made themselves
immune from inquiry into their conduct and are now
beyond accountability.

9. The law and order condition in the country as well as

the economy have been adversely affected and
trichotomy of powers eroded. A situation has thus
arisen where the routine and smooth functioning of
government machinery is becoming increasingly
difficult and causing grave concern among ordinary
citizens about their security. As evident from the
attached list, there has been an unusual increase in
security related incidents highlighting the gravity of the
situation.

10. Mr. President, the contents of this letter reflect my

views and public opinion about the current scenario.
For any State to function, all the three pillars of State
must act in harmony in the best national interest.
Pakistan is a country that achieved independence after
immense sacrifices and has tremendous potential to
develop. Prosper and be recognized among the comity
of nations as a country with an exciting future.
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM
1ST APRIL TO 30TH APRIL, 2007

1st April -------

2007
2nd April, 9 persons killed and 11 injured in clash
2007 between tribal lashkars in Bara.
3rd April, An employee of WAPDA killed in land-mine
2007 explosion in Sibi
4th April, 1 person killed in mine blast near Sui.
2007
7 Army officials and a civilian were injured due
to exchange of fire between militants and LEAs
in South Waziristan.
5th April, 45 foreigners and 7 locals killed and four LEAs
2007 and four civilians were injured during clash
between militants and LEAs in South
Waziristan.
One person killed in land mine explosion in Sui.
6th April, 28 persons killed, 24 injured during sectarian
2007 clashes in Kurram Agency.
7th April, 1 killed and 3 injured in IED (Improvised
2007 Explosive Device) explosion at Landi Kotal.
8 killed during sectarian clash in Kurram
Agency.
8th April, Death toll rises to 38 persons killed and nearly
2007 90 injured in a sectarian clash at Kurram
Agency.
2 LEAs officials injured in IED explosion at Tank
9th April, Death toll rises to 45/46 persons in Kurram
2007 Agency.
10th April 3 persons injured in mine explosion at Sui.
2007
4 LEAs personnel killed and two injured in
mine explosion in Sibi.
4 personnel killed and 2 injured when a
landmine hit a vehicle at Kohlu.
11th April ----------
2007
12th April 1 woman killed in sectarian violence in Kurram
2007 Agency.
13th April 1 killed in IED explosion at Bannu.
2007
3 LEAs officials killed in mine blast near Kohlu.
14th April ?-------
2007
15th April ?-------
2007
15th April ?-------
2007
16th April 2 persons killed and 5 injured in a bomb
2007 explosion in Peshawar.
In a separate incident one police official was
killed.
17th April 2 WAPDA officials shot and injured at Quetta
2007
18th April -------
2007
19th April 1 official injured in an explosion in Sibi.
2007
20th April 1 person killed and one injured in mine
2007 explosion in Dera Bugti.
21st April ?-------
2007
22nd April 3 persons killed in IED explosion in Mastung.
2007
11 persons injured in violent protest of
militants in Bara.
23rd April 4 killed and 10 injured in militants LEAs clash
2007 at Bara.
3 children killed when a hand grenade was
lobbed at a house at Mastung.
24th April 2 persons injured in an explosion took place in
2007 main bazaar at Upper Dir.
25th April 2 persons killed in sectarian violence in D. I.
2007 Khan.
26th April ?-------
2007
27th. April ?-------
2007
28th April 27 persons reported killed and 39 injured in a
2007 suicide bombing in Charsadda.
29th April ?-------
2007
3.0th April ?1 person killed in Dera Murad Jamali and 1
2007 injured in Sui in mine explosions.

DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST MAY

TO 31ST MAY, 2007

1st May ?-------

2007
2nd May One FC official shot and killed by unknown
2007 culprits in Orakzai Agency.
3rd May Two persons injured in IED explosion in Quetta
2007
4th May Seven Army officials injured in a grenade
2007 attack on their vehicle in North Waziristan.
One Government official killed in an attack in
Miranshah.
5th May Three persons killed and one injured in two
2007 separate incidents of sectarian violence in
Layyah and D.I. Khan.
One FC official injured in an attack by unknown
miscreants in Dera Bugti.
6th May ?Five LEA personnel including two officers
2007 injured in a rocket attack in Kohlu.
Ammunition Depot of Police LinesKohat
destroyed in a powerful explosion.
PPPP Leader Qamar Abbas killed along with his
companion in an attack in Peshawar.
7th May Two FC officials injured in a landmine
2007 explosion in Dera Bugti.
8th May Eight oil tankers destroyed in an explosion in
2007 Khyber Agency
9th May Two Police officials killed in an attack by
2007 unidentified miscreants in Karachi.
10th May Two IED explosions took place in Sui and
2007 Khuzdar and a rocket attack on F
C post in Dera Bugti with one person injured in
Sui.
11th May ?-------
2007
12th May ?27 persons initially reported killed and 140
2007 injured during CJP's visit to Karachi.
13th May Death toll in the Karachi violence reported as
2007 having risen to 38.
14th May Two dead bodies with gunshot wounds
2007 recovered from Karachi.
Two LEA officials injured in incidents of
violence in Karachi.
Two persons killed and 15 including 4 LEA
officials injured in grenade attacks in Tank.
15th May 26 persons killed and 24 injured in a suicide
2007 attack in a restaurant in Peshawar.
16th May Seven persons killed and 18 including 4 LEA
2007 officials injured in a grenade attack/exchange
of fire in Tank.
Three persons killed and 10 injured in
operation in Jungle Pir Alizai Afghan refugee
camp in Chaman.
17th May One FC official killed in an attack on FC post in
2007 Zhob.
Three FC officials injured in a landmine
explosion in Kohlu.
18th May One person injured in IED explosion in Quetta.
2007.
19th May Nine Government officials abducted in North
2007 Waziristan.
Eight persons injured in sectarian violence in
Kashmore.
?20th May Five persons killed and one FC official injured
2007 in a clash between two militant groups in Bara.
Four persons injured in a landmine explosion
 in Bajaur Agency.
21st May Two FC officials injured in grenade/rocket
2007 attack in Tank.
22nd May Four militagts killed in a LEA operation in
2007 North Waziristan.
?23rd May Two persons killed and two injured in an
2007 explosion near GEO TV office in Hub.
Four persons including an LEA official abducted
in Bannu.
24th May
2007
25th May
2007
?26th May ?Two Army officials killed and seven injured in
2007 a remote controlled bomb explosion in Tank.
Two Government doctors kidnapped in Lakki
Marwat.
3 dead bodies found in Karachi.
27th May One person died and one injured in an IED
2007 explosion in Quetta.
28th May Three LEA officials killed and, three injured in
2007 attack in Tank.
Four miscreants killed and four including three
Police officials killed in a clash in Bannu.
29th May One person killed and five injured in IED
2007 explosion in Peshawar.
Four persons killed in a clash between Bugti
tribesmen and LEAs in Dera Allahyar.
30th May Four killed and six including three LEA officials
2007 injured in a clash between tribesmen and LEAs
in Jaffarabad.
31st May 13 persons killed and two injured in an attack
2007 on the house of the Political Agent, Khyber
Agency.
11 persons killed and two injured in an attack
on the house of SDO, C&W Deptt. in Tank.

DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JUNE

TO 30TH JUNE, 2007

1st June Assistant Manager, ZTBL, Serai Naurang got

2007 injured as a result of an IED explosion in his car
on Bannu, DI Khan Road, Bannu.
A bomb exploded in the car of a Mobile Credit
Officer, ADB in front of Agriculture University,
injuring him and damaging the vehicle in
Bannu.
2nd June 5 persons including the Tehsildar, a local
2007 journalist and a Levies official killed in IED
explosion in Bajaur Agency.
Two persons including one Sunni Tehrik
worker killed in Karachi
Marri miscreants fired 2 rockets on FC post
injuring one FC personnel in Kahan.
3rd June ------------
2007
4th June ------------
2007?
5th June Unidentified culprits shot dead Syed Mehdi
2007 Hussain (Director, Information Department,
NWFP) in Jhanda Bazaar area in Peshawar
6th June Unidentified motor-cyclists shot dead Aftab
2007 Farooqi (clerk, Education Department) in Basti
Ustrana area in DI Khan
7th June Miscreants fired two rockets towards the city
2007 causing injuries to seven persons in Bannu.
9th June An explosion took place in front of Juma Khan
2007 Hotel Main RCD highway/Hub, killing three
persons and injuring six others in Lasbella.
10th June Unidentified persons shot/killed four persons
2007 and injured five other during marriage
function of any army officer in Mianwali.
11th June Miscreants fired three rockets which landed
2007 near a hotel, resulting in injuries to five
persons in Shikarpur.
12th June ?
2007
13th June ?Motorcyclist shot and killed Wasif Aziz
2007 (President, Muttahida Tulaba Mohaz/active
worker of IJT, Karachi).
Miscreants lobbed hand grenade near a shop
at Sariab Road resulted into injuries to four
persons including two policemen in Quetta
Unidentified assailants shot and injured Rana
Javed Iqbal (DSP Security, CCPO) at Killi Shabo,
Quetta.
Miscreants hurled hand grenade at Golimar
Chowk, which exploded causing injuries , to
five persons including two PCs.
14th June Miscreants opened fire on a vehicle on
2007 Zargoon Road Quetta which resulting into
killing of 9 and injuring 4 persons. The dead
 persons include 7 soldiers, 1 police constable.
15th June An IED explosion took place in a CD shop at
2007 Badaber area, Peshawar which resulted into
injuring of two persons.
One Nawab Khan fired/killed Police Constable
Zubair Khan
16th June An explosion took place in an internet Cage on
2007 Kohat Road, Peshawar near Speen Jumat,
injuring two persons.
17th June ?------------
2007
18th June ?A remote controlled explosive device went
2007 off near Levies vehile at Barkalay Khur which
resulted into injuries to three persons
including two Levies personnel in Bajaur
Agency.
19th June ?Miscreants lobbed a hand grenade on Police
2007 post in areas PS Urmar in Peshawar which
resulted into injuries to two persons including
a police constable.
On 18th June, miscreants exploded a remote
controlled bomb near official vehicle of
Political Agent, injuring three officials in Bajaur
Agency.
A jet place dropped two bombs on suspected
Mujahideen Training Camp at Saliri located in
Tehsil Datta Khel in N.W. Agency. Resultantly,
17 persons were killed and ten injured.
20th June On June 19, one police constable and a
2007 watchman of a nearby market sustained
injuries when unknown culprits hurled a hand
 grenade at Police check-post Shamshatu, in
Peshawar.
21st June Three persons were killed when their tractor
2007 ran over an anti tank mine near an FC check
post in Khapyanga area in Lower Kurram
Agency.
One Abdul Munan lobbed a hand-grenade
towards a religious congregation being held at
Tableeghi Markaz on Bannu Miranshah Road,
in Bannu killing one and injuring 20 persons.
Three sunnis were killed in a bomb blast, at
village Khapyanga/Alizai, Khurram Agency.
22nd June Two motorcyclists lobbed a hand grenade in a
2007 barber shop which resulted into killing of one
person and injuries to four others in Quetta.
An IED explosion took place in Ganji Mandi,
which resulted in injuries to one person in
Chaman.
One Shakir Muhammad hurled a hand grenade
at Tableeghi Markaz which exploded, killing
two persons including culprit and injured 19
others in Bannu.
Beheaded body of an Afghan refugee was
recovered in Bajaur Agency.
23rd June Detonation of remote control IED targeting a
2007 vehicle conveying FC men, resulted in death of
three and injuries to two officials in Mirali.
24th June On 23 June, six persons were killed and three
2007 injured as a result of armed clashes between
militant groups.
25th June Police recovered dead body of Ghulam Rasool
2007 (ASI) near Jamrao canal and Syed Ghulab Shah
(ASI) near Delipota Mainer, in Mirpur
Khas/Naushero Feroze.
26 June Two persons killed and four injured in an
2007 armed clash between militants in Tirah.
Two shot dead in an attack in Quetta.
27 June An IED explosion near Ghulam Jan Phatak
2007 resulted into killing of one child and injuries to
another two in Parachanar.
28th June -------------
2007
29th June ?Culprits slaughtered one Tamash Khan
2007 (Afghan Refugee) and left a chit with the dead
body declaring him a US Spy in Mohmand
Agency.
One person got injured due to explosion of
anti-personnel mine in Bajaur Agency.
An explosion occurred in parked oil tanker
near gasoline pump at Landikoktal which
engulfed nearby 14 oil tankers completely
destroying all of them.
30th June -------------
2007

???????????
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JULY
TO 31ST JULY, 2007

1st July Two Afghan refugees killed when an explosive

2007 device was detonated in Peshawar.
In a separate incident, three persons were
 injured when an explosion took place in a
parked bus in Peshawar.
Two persons killed in exchange of heavy fire
between two groups in Khyber Agency.
2nd July
2007?
3rd July Nine persons including one Rangers official
2007 killed 136 injured in Lal Masjid incident-in
Islamabad
Four FC officials injured in mine-blast in Dera
Bugti
An activist of MQM-H killed in Karachi.
4th July Eight persons including six LEA officials killed
2007 and 12 including eight LEA officials injured in a
suicide attack in North Waziristan.
5th July Four Police officials killed and two injured
2007 when their police mobile was fired upon by
unknown culprits in Peshawar.
Three locals killed and SSP Swat and his driver
sustained injuries in a bomb blast in Mingora.
One police official killed after being attacked
by miscreants in Swat.
6th July ?Four Army personnel killed in a remote
2007 controlled explosion in Malakand Agency.
One Police official killed and five others
including two Police officials injured when an
IED fitted bicycle exploded in Jaffarabad.
7th July ?Unknown culprits fired anti-aircraft shell on
2007 VVIP airplane.
Three Police officials including a DSP injured
when their mobile was fired upon in Swat.
 Two locals and four kidnappers were killed and
four persons were injured in an attempt to
kidnap an Army Captain in Nurth Waziristan
8th July An Army officer killed and two Rangers
2007 personnel injured in Lal Masjid operation in
Islamabad.
Three Chinese businessmen killed and one
injured in Peshawar.
One levies official killed and seven injured as a
result of remote controlled explosion in Bajaur
Agency:
Four Levies personnel kidnapped in Bajaur
Agency.
9th July One Police official killed land three injured in
2007 an ambush in Bannu.
10th July 68 persons initially reported killed and 32
2007 injured in the Lal Masjid incident in Islamabad.
10 persons injured in two IED explosions in
Lower Dir.
Five persons injured in IED explosion in Bajaur
11th July An army jawan killed in a grenade attack in
2007 Kohat.
12th July Four persons including three police officials
2007 killed in a car explosion in Swat.
Three Government officials killed and three
persons including two government officials
killed in a suicide attack in Miranshah.
Nine FC Scouts injured when 20-22 rockets
were fired on Bajaur Scouts HQs in Bajaur.
13th July Three police officials and two suicide attackers
2007 killed when an explosive fitted car was
 searched.
Three Government officials killed and three
injured in a suicide attack while a dead body
was recovered in North Waziristan.
14th July 24 LEA personnel killed and 26 injured in a
2007 suicide attack in North Waziristan.
15th July 30 persons including 17 Police officials and one
2007? FC person killed and 52 injured in a suicide
attack in DI Khan.
15 LEA personnel including 4 civil employees
killed and 47 injured in suicide attacks in Swat.
One FC personnel killed and five injured when
fired upon by miscreants in Turbat.
16th July -------
2007
17th July Three LEA personnel killed and three injured in
2007 suicide attack in North Waziristan
18th July 17 LEA personnel killed and 18 injured in
2007 incidents of firing and explosion in Miranshah.
17 persons killed and 72 injured in suicide
attack in Islamabad.
19th July 2007 18 persons killed and 32 injured
in a suicide attack in a mosque in Kohat.
7 persons killed and 26 injured in a suicide
attack on Police Training College in Hangu.
29 killed, 30 injured in a suicide attack on
Chinese engineers in Hub.
20th July Two persons including one LEA person killed
2007 and five injured in a suicide attack in
Miranshah.
21st July Four persons including two LEA personnel
2007 injured in mortar fire in Swat.
22nd July Nine LEA personnel injured in two incidents of
2007 IED explosions in North Waziristan.
23rd July Seven LEA personnel injured in separate
2007 incidents of firing and explosions by
miscreants in North Waziristan
24th July Two LEA officials kidnapped and later killed in
2007 Bajaur Agency.
Two LEA personnel killed and eight injured in
armed attack in North Waziristan.
A Police official killed by unidentified
miscreants in Lower Dir.
Abdullah Mahsud killed in an LEA operation
Zhob.
25th July Eight persons killed and 41 including seven
2007 Police officials injured in a rocket attack on
Bannu city by unknown assailants.
26th July 11 persons including 8 police officials injured
2007 in IED explosion
27th July 14 persons including 7 Police officials died and
2007 55 injured in a suicide attack in Islamabad.
Mr. Raziq Bugti, spokesman for Government of
Balochistan killed in a tiring incident in Quetta.
Three FC officials injured when their vehicle
was hit by a remote controlled explosive
device in Bajaur Agency.
28th July Unknown motorcyclists hurled a hand-grenade
2007 into a house, which exploded killing daughter
of one Habbar (settler) at Khuzdar.
An anti personnel mine planted on Single Road
went off killing one Sunni and injuring two
 other at Kurram Agency.
Unidentified miscreants carried out small arms
firing on police killing one police constable at
Kohat.
29th July Two motorcylists were injured in a landmine
2007 explosion at Killi Wadera at Kohlu.
Four unidentified culprits shot/killed Police
Constable on duty and fled away at Kohat.
?30th July Unknown culprits fired two missiles on Tochi
2007 Scouts Fort, injuring four army sepoys at North
Waziristan.
An IED exploded near Thall picket causing
injuries to seven para-military soldiers. 3
personnel of Tochi Scouts were martyred in an
IED explosion in Tehsil Miranshah at North
Waziristan.
31st July Assailants targeted FC vehicle with a remote-
2007 control bomb resultantly 06 fix personnel
sustained injuries at Tank.
04 FC personnel were kidnapped/taken by
unidentified miscreants Later 01 abductee was
killed at Bannu.
Unidentified miscreants attacked a police
mobile vehicle with a remote controlled
explosive device causing injuries to 04
policemen including a Sub-Inspector at Swat.

DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST

AUGUST TO 31ST AUGUST, 2007
1st August A remote control bomb exploded near a
2007 police mobile. Resultantly, four police
officials including SHO were injured and
vehicle was damaged at Swat.
2nd August 1 killed and 5 injured in suicide attack at
2007 Swat.
Suicide bomber and an ASI were killed while
a constable sustained injuries in Police
Training School, Sargodha.
5 police officials suffer injuries in an IED
explosion at Gujranwala
3rd August -----------
2007
4th August A suicide bombe rams his car into taxi stand
2007 at Parachinar, claiming 09 lives and injuring
40 others.
4 para-military soldiers martyred in NWA
5th August -----------
2007
6th August An IED went off when a PAF bus (carrying
2007 staff) in Peshawar was passing near it. 3
personnel were injured.
7th August Miscreants killed 1' and injured another FC
2007 official at Kohat.
8th August 1 soldier was martyred due to an IED
2007 explosion near Banda post/Miranshah.
9th August -----------
2007
10th August 16 FC personnel unaccounted for in South
2007 Waziristan.
Assailants attacked convoy of Pak Army while
 it was on its way from Miranshah to
Gharlamai/Datta Khel. 5 soldiers sustained
injuries.
11th August Miscreants fired on police patrolling party on
2007 Hangu-Thall road. 3 police personnel were
killed while 2 civilians were injured.
An IED exploded injuring a sepoy. 2 civilians
were killed and 4 other wounded.
Militants opened fire on Gora Qabristan FC
check post, injuring Lance Naik of Thall Scouts
in NW.
12th August -----------
2007
13th August Unidentified culprits lobbed a hand grenade
2007 on police patrolling party causing injuries to 3
persons including 2 police officials in Quetta.
A bomb blast in vehicle near Kalam.
killing/injuring several persons.
14th August 4 injured in two 1ED explosions at DG Khan
2007
Beheaded body of a captive FC soldier
recovered near SWS fort/Jandola, FR Tank
3 Thall Scouts sustained injuries at Gora
Qabristan post.
15th August Small arms firing on LEAs kill 2 personnel at
2007 Sui.
16th August 2 LEAs personnel killed in mine explosion at
2007 SWA.
A joint convoy of Pak army and Thall Scouts
was targeted by miscreants with an IED. 2
para-military soldiers were martyred and 1
 injured in NWA
th
17 August Assailants ambush security forces in different
2007 parts of South Waziristan/12 soldiers
martyred.
18th August 1 policeman killed, 4 injured in grenade
2007 attack at Bannu. Unidentified miscreants
lobbed hand grenade at police post in
Mandan area and escaped. I police constable
was killed while four other got injured.
19th August Assailants martyr 2 LEAs personnel in North
2007 Waziristan
20th August 3 LEAs personnel killed and 17 injured in
2007 suicide attack at Thall.
21st August ?
2007
22nd August 5 persons injured in grenade attacks on
2007 houses/shop of 3 settlers in Quetta.
3 Frontier Constabulary personnel lay down
their lives at Bannu.
Army helicopter (MI-17) targeted by
miscreants at South Waziristan/ 1 solider
martyred in cross fire.
23rd August 1 miscreant killed, 3 FC troops injured at
2007 Hangu.
11 persons injured in an IED explosion in a
shop at Quetta.
19 injured in two grenade attacks at Quetta.
Unknown armed militants (200/250) attacked
FC Fort at Navi Dhand 3 FC personnel
sustained injuries at Hangu.
24th August 2 persons injured in IED explosion at Bajaur
2007 Agency.
Suicide attack on a military convoy claims
lives of 5 LEAs personnel/injures 29 at
Mirali/North Waziristan.
25th August 3 LEAs persons injured due to firing of
2007 miscreants at Sibi.
Lt. Col. Shahid, Subedar Younus Afridi and
Sepoy Jehanzeb of Bajaur Scouts while
coming from Tehsil compound to Scouts Fort,
Laddah went missing in SWA.
26th August 4 policemen killed, 2 injured in suicide attack
2007 at Swat.
1 soldier was martyred and 3 others
sustained injuries in NWA
27th August ?
2007
28th August 2 persons injured in mine explosion at Kohlu.
2007
29th August 2 persons injured in rocket attack at
2007 Peshawar.
1 person killed another injured in mine
explosions at Dera Bugti and Bagh.
30th August ?
2007
31st August 3 persons including 2 policemen injured in
2007 IED explosion at Charsada.
2 FC personnel killed, 6 injured in miscreants
attack at Malakand Agency.
1 person killed, a constable injured in IED
explosion at Malakand Agency.
211 army/FC personnel surrender to
 Taliban/militants without putting up a fight in
South Waziristan.

DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST

SEPTEMBER TO 30TH SEPTEMBER, 2007

1st Sep 2007 5 persons including 3 FC personnel killed, 6

injured in suicide attack at Bajaur Agency.
1 FC person killed, 4 injured in mine blast at
Sui.
A bridge collapsed near Sher Shah, Karachi
resulting in death of five persons.
2nd Sep 10 personnel of Mohmand Rifles go missing
2007 at Tehsil Safi, Mohmand Agency.
3rd Sep 2007 -------
4th Sep 2007 Unidentified miscreants detonated an IED
near a police post which resulted into injuries
to a police constable in Dir.
2 bomb explosions at Rawalpindi claim 25
lives.
5th Sep 2007 Miscreants kill 3 persons including 2 FC men
at Quetta.
6th Sep 2007 -------
7th Sep 2007 48 shops damaged in IED explosion at Swat.
A bomb explosion in Karachi injures 10
persons.
8th Sep 2007 24 persons injured in IED explosion at
Peshawar.
2 persons at LEAS killed, 3 injured in firing by
miscreants at Kohistan.
 Car bomb explosion at Peshawar leaves 12
persons injured.
Unidentified assailants fired three rockets on
Sar Lara post of Bajaur Levies, Tehsil Khar.
Two sepoys sustained injuries.
9th Sep 2007 Four army soldiers martyred in an ambush by
militants at Kohistan.
10th Sep Armed culprits gun down a lawyer and injure
2007 an Inspector Rangers at Karachi.
Subversive activities of Taliban/ militants
continued in Waziristan and Malakand
Agencies/13 soldiers injured, one martyred.
11th Sep 18 persons killed while 20 injured in suicide
2007 attack at Bannu.
Suicide attack claims 17 lives/ leaves 12
injured at D.I. Khan.
Skirmishes continue between LEAs and
Taliban in tribal area/02 Shawal Rifles jawans
kidnapped from NWA.
12th Sep Miscreants attack a post/kidnap 12 persons
2007 of LEAs at Bannu.
Two LEAs personnel injured in an ambush by.
Taliban while 12 others go missing/feared
abducted at Bannu.
A police sub-inspector mercilessly shot/killed
in Swat.
Unknown culprits targeted Thall Scouts/Pak.
Army convoy with and IED injuring 2 sepoy.
13 Sep 2007 15 persons killed, 30 injured in explosion at
Tarbela.
7 persons killed, 7 injured by miscreants firing
 on a bus at Karachi.
3 civilians killed in a landmine explosion at
Sui/Dera Bugti.
Military operation continues in Makeen, SW.
Agency/militants suffers heavy losses/10
Scouts also martyred.
14th Sep -------
2007
15th Sep 2 persons killed, 2 injured in IED explosion at
2007 Bajaur Agency.
16th Sep 1 killed in mine explosion at Dear Bugti.
2007
17th Sep Miscreants kill 2 FC personnel near Sibi.
2007
20 soldiers massacred by militants in Tehsil
Shawal, N.W. Agency.
18th Sep -------
2007
19th Sep 7 FC personnel kidnapped by miscreants at
2007 Hangu.
6 FC personnel injured in mine blast at Dera
Bugti.
20th Sep -------
2007
21st Sep -------
2007?
22nd Sep 2 killed and 9 injured in attacks on LEAs in
2007 Bajaur Agency.
Supporters of Maulana Fazalullah ransack a
police post at Swat, killing a PC and interning
02 others.
23rd Sep -------
2007
24th Sep -------
2007
25th Sep 3 persons injured in mine explosion at Bajaur
2007 Agency.
IED explosions at Tank and Thal (2 killed, one
injured).
26th Sep -------
2007
27th Sep SP along with two security guards shot dead
2007 at Quetta.
28th Sep A soldier martyred and 13 others injured in
2007 an attack on army convoy at Tan.?
29th Sep 53 persons injured during protests at
2007 Islamabad.
30th Sep -------
2007
???????????
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM
1ST OCTOBER TO 28TH OCTOBER, 2007

1st Oct 2007 15 persons killed and 31 injured in suicide

bombing at Bannu.
02 persons killed and 10 injured in IED
explosion at Kurram Agency
2nd Oct 06 LEAs officials injured in attack on FC camp
2007 at Malakand
03 LEAs personnel killed and 02 injured in
attack at Hangu
32 FC personnel kidnapped by armed Taliban
 from a picket in Bannu
Militants fired rockets and mortar shells on
Goosh picket of security forces from village
Spalga at Miranshah. Security forces
retaliated, killing 01 girl and injuring 02 boys
as a shell landed in a house.
3rd Oct 2007 02 FC personnel killed and 04 injured in
miscreants attack at NWA.
02 Army personnel martyred in a rocket
attack at Dandi Kach post NWA
11 persons killed and 08 injured in IED
explosion at NWA
02 policemen killed and 02 injured in attack
on police post at Kotki/Hangu.
4th Oct 2007 13 tribesmen killed in an IED explosion at
Touda Cheena Bridge, NWA.
SHO PS Ghazni Khel killed by unidentified
miscreants' at Lakki Marwat
5th Oct 2007 02 persons were injured due to IED explosion
in Dinari Pat areas, at Sui.
6th Oct 2007 02 persons were killed by unidentified
culprits by opening fire on a vehicle near
Tablighi Markaz at Hangu.
0 1 JCO and 19 officials of security forces were
martyred in a unknown miscreants attack on
a convoy at The Datta & Miranshah, NWA
7th Oct 2007 07 soldiers killed in an attack on Pak Army
convoy in NWA by assailants and injuring
several others.
8th Oct 2007 ?01 FC personnel injured in a mine explosion
in Kahan areas at Kohlu.
 45 personnel of LEAs were martyred and 51
sustained injuries whereas 33 jawans were
reportedly unaccounted for, in Khushali Tori
Khel in NWA.
9th Oct
2007?
10th Oct Ex-Naib Nazim Kohlu killed by unknown
2007 motorcyclists at Quetta.
22 persons were injured due to a local made
bomb blast at King Video Centre,
Nishtarabad, Peshawar.
03 police officials sustained serious injuries
when assailants exploded remote-control
bomb near police van at Building Chowk,
Kohat.
Gunship helicopter bombed Tehsil Mirali
areas, killed 30/35 assailants including
foreigners and 20 civilians injured at NWA
01 army officer and a soldier killed while 04
sustained injuries in an IED explosion by
unknown assailants at NWA.
11th Oct 01 person injured in IED attack on CD shop in
2007 Karak.
01 levies man killed and 01 miscreant
arrested in injured condition in cross-fire with
miscreants at Malakand.
Dead body of personnel of security forces
was retrieved from battle zone while 02
missing jawans reached Mirali Fort safely.
Number of martyred security personnel has
risen to 58 while 03 jawans are still missing at
 NWA.
A Naib Subedar injured and partial damage to
Levies picket, Inayat Killi/The Khar by
miscreants at Bajaur Agency:
12th Oct Unknown culprits blew up tractor-water
2007 tanker of OGDCL with remote-control IED
near Pirkoh, injuring a boy at Dera Bugti.
13th Oct 06 captives beheaded by masked Taliban in
2007 open ground in front of several spectators in
Mohmand Agency.
14th Oct ?
2007
15th Oct Beheaded body of a Constable Zartalah of
2007 Mohmand Rifles was (kidnapped on 07)
found in Pir Killi, The Miranshah by Political
Administration
16th Oct
2007?
17th Oct
2007?
18th Oct 02 bomb blasts on Mohtarma Benazir
2007 Bhutto's rally: 143 dead and about 350
injured in Karachi.
19th Oct 01 FC constable and 02 passersby sustained
2007 injuries when explosive material fitted with a
bicycle went off near IB Zonal Office at D.I.
Khan,
An IED explosion took place in a car which
resulted into injuries to one and caused
damage to the vehicle at Peshawar
20th Oct Three masked motorcyclist stopped a vehicle
2007 carrying passengers at Tehsil Khar
dismounted one Malik Akhunzada, opened
fire on him who succumbed to injuries, at
Bajaur Agency.
Unknown masked men gunned down Maulvi
Gul Sher (Agency Councillor) near Billot
Khowar at Bajaur Agency.
05 persons killed and 26 got injured in an IED
explosion at Dera Bugti.
21st Oct 01 culprit killed and 02 injured due to IED
2007 during its planting at Karak.
Child injured in mine explosion at Bajaur
Agency.
?22nd Oct Unknown assailants attacked FC Thal picket
2007 at Esha-Razmak road The Miranshah and
killed FC official of Mohmand rifle at NWA.
Said Muhammad (Head Constable) shot dead
by unknown miscreants at Gulshan Chowk,
Mingora Swat.
?23rd Oct Unknown armed men injured a police
2007 constable by opening fire on police mobile at
Gujrat (Mardan).
01 army solider martyred and 02 sustained
injuries due to an IED exploded at
Norak/Tehsil Mirali while Pak army/FC
convoy was on its way from Bannu to
Miranshah. The convoy was again targeted
with an IED near Chashma Pull/Miranshah,
resultantly conductor sustained injuries.
02 Iranian guards/sepoys and 02 injured by
unknown persons attack on Iranian border
 post Nobandian, at Gawadar.
Unidentified miscreants targeted a military
truck at Chadara near village Thanda which
resulted into injuries to 05 personnel at
Malakand Agency.
24th Oct A tractor trolly carrying farmers ran over a
2007 landmine at Talli Matt/Tehsil Sui, causing
injuries to seven persons Dera Bugti.
Explosive material planted by culprits near
Population Planning & Welfare centre at
Doggar went office, injuring 02 persons at
Buner.
05 FC personnel sustained injuries when an
IED planted by unknown miscreants went off
at Chakdarra at Lower Dir.
01 Khasadar was injured when unknown
Taliban of Jani Khel Wazir opened fire on
Khasadar check post.
A Pak army convoy was hit by an IED at
Boya/Datta Khel, resultantly 02 soldiers
martyred and 03 sustained injuries.
01 person was killed and his motor-cycle was
destroyed when it hit a mine in areas Saghari
at Sui.
25th Oct 18 persons including some FC personnel were
2007 killed while 34 others, 24 of them FC
personnel sustained injuries in a powerful
explosion in a FC truck carrying ammunition
near Police Line Mingora, Swat.
A woman got injured due to detonation of a
toy bomb in Killi Almas at Quetta.
26th Oct 01 miscreant and a civilian were killed while
2007 03 miscreants got injured in exchange of
intense firing between LEAs and miscreants
at Fizaghat heights and Imam Dehri areas
after firing on an army helicopter at Swat.
Shaheen Force of Maulana Fazal Ullah
Kidnapped 03 FC personnel at Bareem Chowk
at Matta. They also kidnapped a police official
qt Choprial, beheaded
4 persons out of whom 01 was retired army
official while the other 03 civilians were killed
on the charges of spying
27th Oct Miscreants abducted 03 police personnel
2007 along with 03 SMGs from Tor Pul Check Post
/PS Thall at Hangu.
01 Muhammad Qareeb displayed head of
beheaded security personnel and warned
that all spies would be treated in same
manner at Swat.
02 Jawans of Pak Army were injured when
miscreants attacked PTCL post of. Miranshah,
NWA.
02 women got injured due to detonation of
anti-personnel mine in front of their
residence in Tehsil Mohmand at Bajaur
Agency.
Miscreants beheaded 05 policemen including
ASI Irshad and burnt the house of Jamal Nasir
at Swat.
Unidentified armed culprits kidnapped
03 police officials along with their official
 weapons from Torpull Check Post, Thall at
Kohat.
28th Oct As a result of firing by personnel of an army
2007 convoy on its way from Bannu to Miranshah
at Mandi Pakahel area to keep away suicide
bombers a civilian was killed.
Relatives of slaughtered LEAs personnel
received 5dead bodies of their relatives. 02
civilians also died due to bullet injures.
Unknown miscreants detonated explosive
material at village Laghari injuring 03 family
members.
At Kabal Bazar (Swat) miscreants kidnapped
02 FC personnel.

16. The circumstances leading to the Proclamation of

Emergency and the other Orders issued pursuant thereto
are also explained in the speech of the President of
Pakistan/Chief of Army Staff delivered to the nation on 3rd
November 2007. The same is also reproduced below:---

"Bismillah-ir-Rehman-i-Raheem
Dear Pakistani brothers and sisters,
Assalam o Alaikum!

Today as I address you, Pakistan is at the brink of a

very dangerous situation. It is facing an internal crisis
and whatever is happening now has a direct link with
the internal situation. During such moments, for the
nations, a time comes when difficult decisions have to
be taken. For Pakistan too, we will have to take certain
important and painful decisions. And if we do not take
timely actions, then God forbid it could have an impact
on Pakistan's sovereignty.

Before speaking something else I would like to promise

one thing to the nation that whatever I will do and the
decision that I have taken is on the basis of "Pakistan
First", and this will always remain my guiding principle
"Pakistan First".

By rising above personal considerations and personal

interests, Pakistan First: And I have similar hopes that
the nation too will work on similar lines.

My dear brothers and sisters!

In the past few months, the situation in Pakistan has

been changing swiftly and I would like to talk about it
very frankly. The first thing is that extremism and
terrorism are at their peaks. At this time, suicide
bombings are happening all over the country.
Whatever happened in Karachi, followed by the
incidents in Rawalpindi, Sargodha, their intensity has
increased all over the country.

Extremists are roaming freely in the country, and are

not afraid of the law enforcing agencies. They are very
confident. In the Frontier Province, a lot was already
going on and we have been dealing with it. Its impact
has also reached settled areas and now we will also
have to tackle with the situation in the southern
districts. But it is .a sad matter that in Islamabad, the
heart of Pakistan, the capital of Pakistan, extremism
has spread causing anguish among the people. These
extremists are taking the writ of the State in their
hands and want to run their own government. And the
biggest thing is that they have an obscurantist view
about their religion Islam, that they wish to forcefully
impose on moderate people. In my view, it is a direct
challenge on Pakistan's sovereignty. This is a very
critical situation pertaining to extremism and
terrorism.

Now on the other hand the system of governance

today stands paralyzed. All senior functionaries of the
government have to frequent the courts, they are
being sentenced, they are subjected to humiliation in
the courts, which they do not want to give a decision.
Around 100 suo motu cases are being processed in the
Supreme Court and I have been told that there are
thousands of applications. And all these suo motu
cases are concerned with government departments. So
now the system of governance stands paralyzed.

Let's look at the law enforcing agencies, these are

demoralized, particularly in Islamabad. They are
hopeless and have no courage as their officers are
being punished and they have to visit the courts
regularly. Their officers, including two IGs have been
convicted. This has demoralized the force, with low
morale, they do not want to do anything and just want
to sit idle.

Apart from that, let's take a look at the democratic

system Hurdles are being created in it. In 1999, when
our government came into power, I prepared a three-
phased strategy to transition to take the country
towards democracy. As in 1999, the country was a
defaulted State, the system of government was
shattered and no government was completing its term.
It was a sham democracy. In 2002, under the same
strategy, I had total control, and I ran the affairs of the
government. In stage two that was from 2002 to 2007.
It was a democratic system, with an elected national
assembly, senate, provincial assemblies, local
governments, a system of elected governments as part
of a democracy. During this period I oversaw the affairs
of the State. But the government functioned on its
own and I remained the President and Army Chief.
There were some problems, but we created a record,
where the Senate, National assembly, local
governments, provincial assemblies completed their
term.

Now we are in the final stage of this transition. Now I

had hope that after the assemblies, that are
completing their term by November 15, there would
be a Presidential election, and whoever the candidates
for this post, followed by the general election and an
elected government, whoever wins, as part of political
reconciliation, a new phase of full democracy moves
ahead. This transition to complete democracy was
intentionally introduced and we wanted to implement
it, but in my view, and I am saddened to note that
some elements are creating obstacles in this process
and are not allowing it. Now since the time has come
and in next three months we were about to complete
this third phase, hurdles are being created.

I think that it is by design, for personal and political

gains and for the detriment of Pakistan, a chaos is
being created. All these things that I have mentioned,
terrorism, extremism,' paralysis, demoralized law
enforcement agencies, interference in the democratic
system, have unfortunately had an impact on the
economic situation of the country and there has been
a change in our move forward towards prosperity and
now God forbid there are indications that it might
show some downturn, though it has not yet done so,
provided we are able to stop it in time.

I can also see that all investors that were coming to

Pakistan, and I can see with great pain that it all is
moving down, and now they have stopped whatever
the investment that was coming to Pakistan and they
are now seeing what is happening in Pakistan, whether
it will continue to move forward in a stable manner or
we stop investing our money here and invest it
somewhere else. I fear that our efforts of the past
seven years do not get wasted as during this period,
the economic condition of the people witnessed a
great change. There was infrastructure development,
roads, airports, railway mobile telephones, land lines,
rural communication, building and construction, there
is a construction boom all over the country. Hundreds
of new industries are being set up, irrigation system,
new dams, canals, brick lining of water courses, all
levels of education and primary and secondary level of
health care and all these areas that signified a growing
and prosperous Pakistan. But I fear that all this may
not go in waste. And I feel very strongly about it as I
have been involved with the entire process and all
these development projects and cannot bear to see all
this go down.

Overall due to all these reasons, the entire nation is a

victim of uncertainty and I am getting telephone calls
from all over, from within the country and abroad, who
want to know what is happening and some even
question my decision making ability and ask that why I
am not taking some decision. I have been listening to
all these pleadings and have been witnessing whatever
has been going on with a state of disbelief. I had hope
that the judiciary and the government institutions will
be able to tackle these issues. That maybe, they are
able to deal with the situation and the situation
improves.

But it could not happen, and the situation continues to

go from bad to worse and Pakistan is fast moving
towards a negative side. And I would also like to say
that the media. I would say some channels did not play
their role in averting this downslide, this negativism,
negative thinking, negative projection, and rather
enhanced this atmosphere of uncertainty.

I also feel very sorry for that, just because that it is the
same media that in 1999 was only the PTV and there
was no independence. It is the same media that got
independence from me, from my government, as I
believed that media should be independent as I believe
that it was the way forward in civilized societies. I have
said several times to go towards positivism and stop
negativism.

The media must be independent, but it should come

with responsibility and I am sad to point that some
channels did show such tendency. I would like to ask
from the nation, why is that? For me, it is judicial
activism and it's clash with the other two pillars. And a
clash with the other two pillars that are legislative and
executive pillars, and interference in their affairs.
Because of this, both the law enforcement institutions,
as there writ is being challenged, and the
government's functions are paralyzed in all spheres, in
all manners.

This is the basic issue and began from March 9 when a

reference against the Chief Justice, on
recommendation of the Prime-Minister, was sent to
the Supreme Judicial Council. This was a fully
constitutional and according to all legal requirements.
There was nothing personal in it. There were serious
allegations and I took a constitutional step. Now let's
leave it aside. But the situation that developed later
turned worse. There was breakdown of law and order,
and some political elements joined their force, that
further deteriorated the situation. I would not like to
go in its details. All I would like to say is that if a
mistake was committed by an official of the law
enforcement agency, it does not mean that as a result
the entire country is destabilized. The other thing is
that this reference, following serious complaints, was
referred to Supreme Judicial Council, and whatever
transpired, its judgment, whether I agree with it or not,
because in my view that the reference with serious
allegations was not examined and a verdict was given.
This decision was fully accepted by me in complete
good faith as it was a. decision by the Supreme Court
and I accepted it, and showed an attitude of
reconciliation, so that the differences disappear while
rising above self interest and to work for Pakistan's
stability and 'in the country's favour. However,
unfortunately, the issue could not resolve, despite best
and sincere efforts. This was reference and the judicial
issue.

Then in Islamabad, we saw that the Lal Masjid issue

cropped up, where extremists challenged the writ of
the government in the heart of Pakistan, in capital city
of Pakistan, and caused great embarrassment for the
country, all over the world, and only I know how much
bad name we earned. That we despite being such a big
power could not protect our capital where they had
created a state within a state. Our image, our standing,
our stature suffered a great deal. These people
resorted to whatever they could do. They martyred
police personnel, they held them hostage, they set on
fire shops, they abducted Chinese, our great friends,
held them hostage and beat them up. This caused
great embarrassment to me and I had to personally
apologize to the Chinese leadership that we are
ashamed that despite you being our such great friends
this has happened to you. And then they set on fire the
Ministry of Environment and the vehicles. What should
we have done? We were humiliated for several
months and the people kept on saying that we were
not taking any action. And we were not taking any
action because we wanted to protect lives and not
take lives. Therefore, when as a last resort we took
action, and I again commend all law enforcing
agencies, that they took action and brought to an end
all this humiliation and embarrassment. Many of these
were martyred and I pray for them. May Allah send
them to the heavens as they undertook this mission for
this nation and this country and not for their own sake
and laid down their lives.

After that unfortunately there was the decision of

Supreme Court. And now the situation is that 61 of the
terrorists that were declared black, meaning they were
confirmed terrorists, were released, and they are all
roaming around freely. No one knows that the
Rawalpindi blast, or the Karachi or Sargodha blast were
their doings. They are now at large and no one knows
what action they will continue to do and keep on
causing severe damage to us.
Then those madaris that were involved in extremism
were also ordered to be opened. We in the
government want to open up madaris. It is the
government's plan to establish model madaris,
meeting all standards, for the most poor children,
provide them boarding and lodging. There is no such
thing that there is someone in the government who is
against the madaris. They need to be taken to the best
places and get best education and best places to live.
The government is working on a comprehensive plan
to provide such facilities. The courts ordered opening
of those places that were shut down and now it is
being said that the security system will remain the
same as it was before and some of these people will
look after the security of the mosque. Now there is no
need for any security in any mosque and we do not
know whether these security people will once again
take rifles and enter the mosque and we end up from
where we started. And now all those elements who
were first challenging the government, now there
relatives are challenging the government, and the law
enforcement agencies are being blamed for whatever
action they are taking against extremists. They are also
openly showing solidarity with extremists all over the
country, while sitting in Islamabad. Now this is the
other situation that we are facing.

Now coming to the Presidential elections in the past

one month. During this a procedure was adopted fully
according to the law .and the constitution. The election
commission gave a schedule under a time frame. The
Chief Election Commissioner examined the nomination
papers and these were accepted and then some
references were filed, particularly against me that
were taken up in the Supreme Court for consideration.
Now there is no problem in it, It is a legal process. But
then a seven-member bench was set up, later it was
made into a nine-member bench, later to eleven-
member bench. The case was thus being prolonged, no
decision was being taken and there was a situation of
uncertainty. In the presidential election, I am grateful
to the assemblies for electing me by giving me 57 per
cent votes in the national assembly, senate and the
four provincial assemblies, but the case still lingered
on. Unofficial result was announced, but the decision
came that there should be no notification. Now the
case is continuing, without any decision. Now one
personality said that he has to attend the marriage
ceremony of his daughter so the dates were further
extended and the nation that was in a state of
hopelessness and uncertainty continued.

The Prime Minister too noticed the situation and wrote

to me that the government's functioning in such
circumstances was very difficult. My brothers and
sisters, what is happening in Pakistan? What is
happening to us? What is happening to this country? In
which direction are we moving?

This country lives in my heart, in my blood and in my

soul. I cannot see it goes down. Therefore a time for
action has come. I reviewed the entire situation. How
to stop this downslide. In my view, these three pillars
of state; judiciary, executive and legislative all need to
work in harmony so that we can have good governance
and can fight extremism and terrorism with full force.
This is the way to bring back the derailed government
back on its tracks, before we completely run aground.

After reviewing this situation and after discussing it

with all military, government, political and private,
friends expatriate Pakistanis, I took a decision and this
decision is basically part of the third phase of transition
to democracy that I have already mentioned. This
phase has to complete Inshallah. The hurdles in the
way to democracy have to be removed. And what is,
and has been my decision, of completing this third
phase, will Inshallah be completed.

To do this I have declared emergency. I have issued a

Provisional Constitution Order that was on the
television and you might have seen it. In this respect
there will be no change in the government, Prime
Minister, Governors, Chief Ministers, all will continue
to function, all assemblies - Senate, National Assembly,
Provincial Assemblies - will continue to function as
they are working now and this process will continue. I
have taken this decision. For me this was the easiest
way to put Pakistan back on the tracks and the
progress on the economic developmental aspects
continues unabated, and the last transition phase to
democracy is completed.
Now taking advantage of this opportunity I would like
to speak in English. I have spoken in Urdu to my
countrymen, I would like to take this opportunity to
speak to the world in general, but particularly to our
friends in the West, United States, European Union
and the Commonwealth.

I would ask you to kindly understand the criticality of

the environment inside Pakistan and around Pakistan.
Pakistan is on the verge of destabilization. If not
arrested in time now, without loosing any further time,
or delaying the issue. The saddest part of everything
that saddens me the most, that after all we have
achieved in the past seven years, I see in front of my
eyes, Pakistan's upsurge taking a downward trend. I
personally, with all my conviction and with all the facts
available to me consider that inaction at this moment
is suicide for Pakistan. And 'I cannot allow this country
to commit suicide.

Therefore I had to take this action in order to preserve

the democratic transition that I initiated eight years
back. I would like to repeat that what I have already
said in Urdu that I started with a three-staged
transition. The first stage from 1999 to 20.02 where I
remained in control, the second stage from 2002 to
2007, five years of democratic rule, all assemblies
functioning, local government functioning, I only
oversaw it as the Chief of the Army Staff and the
President combined. And now I was launching the third
phase that was to be completed in a few months, with
complete democracy, return to civil rule, myself being
only a civilian President, if elected.

It is this third stage that is being subverted today and it

is this third stage which I want to complete with all my
conviction. And if we don't take action, I don't think we
are going into this third stage, I don't know what chaos
and confusion may follow-So, therefore, I request you
all to bear with us. ????

To the critics and idealists against this action, I would

like to say, Please do not expect or demand your level
of democracy which you learned over a number of
centuries we are also trying to learn and we are doing
well - Please give us time. Please also do not demand
and expect your level of civil rights, human rights, civil
liberties, which you learned over the centuries. We are
trying to learn and we are doing very well also. Please
give us time.

It would at this time venture to read out an excerpt of

President Abraham Lincoln especially to all my
listeners in United States. As an idealist, Abraham
Lincoln had one consuming passion during the time of
supreme crisis and this was to preserve the Union
because the Union was in danger. Towards that end;
he broke laws, he violated the Constitution, he
usurped arbitrary power he trembled individual
liberties. His jurisdiction was necessity and explaining
his sweeping violation of constitutional limits, he wrote
letter in 1864 and I quote "My oath to preserve the
constitution imposed on me, the duty of preserving by
every indispensable means that government, that
nation of which the constitution was the organic law.
Was it possible to lose the nation and yet preserve the
Constitution.

By general law, life and limb must be protected. Yet

often a limb must be amputated to save a life but a life
is never wisely given to save a limb. I felt that
measures otherwise unconstitutional might become
lawful, by becoming indispensable to the preservation
of the constitution through the preservation of the
nation. Right or wrong, I assume this ground and now
avow it."

We are also learning democracy. We are going through

a difficult stage. It is the nation which is important and
for me and every Pakistani, Pakistan comes first and
any one else's considerations come after that. I look at
this from this point of view. So, whatever I do is for
Pakistan and whatever anyone else thinks, comes after
Pakistan with all my sincerity whatever I am doing is in
the interest of Pakistan and therefore, I am doing it
with full conviction and my full heart and soul and
mind in it.

My dear brothers and sisters

I hope that you all will understand the criticality of this

serious situation. In my view at this stage, whatever I
 did, there was no other option. I will have no
hesitation If I have to render my life for this country. I
know how to face the challenges. I never surrender. I
always resist and will fight back. Not for me, but for
this country and for the people of this nation, for their
welfare and prosperity. If you stand by me, I have no
doubt that if you keep on supporting with me,
Inshallah Ta' Allah we will take Pakistan forward on the
same path of growth, prosperity and will put it back on
tracks. I have no doubt that the nation wants to
progress, wants to move forward. The people have
concern about the prices of everyday commodities,
unemployment and poverty. The people are sick of the
state of uncertainty in the name of democracy. The
people are sick of these extremists and terrorists who
every other day are killing Muslims in the name of
Islam. The people are sick of all this.

I want to say to all my brothers and sisters that we will

together, fight it and will take Pakistan forward. May
Allah help you and Pakistan.

Pakistan Paindabad always."

17. We have gone through the material brought on record

by the learned counsel for the respondent No. 2 as well as
by the learned Attorney General for Pakistan. Both Mr. Irfan
Qadir, ASC as well as Mr. Zafar Ullah Khan, ASC did not
dispute the alarming security/law and order situation
prevalent in the country which was borne out from the
details of incidents of terrorism given by the Prime Minister
of Pakistan in his letter of 3rd November 2007, as also
explained by the President/Chief of Army Staff in his speech
of the same day. Both ti.? learned counsel for the petitioners
conceded in plain terms that the country was in a grip of
terrorism, extremism and militancy and the state institutions
had been rendered non-functional and ineffective on
account of the conduct of some of the former Judges,
particularly the former Chief Justice of Pakistan as a result of
which a state of uncertainty had overtaken the government
machinery. However, they did not agree with the modus
operandi adopted by the Government to tackle the situation
and they were of the view that the constitutional means
should have been adopted to meet the situation. When
questioned what remedy did the Constitution provide to
meet such an extreme situation, Barrister Zafar Ullah Khan
stated that the Government ought to have placed the
matter before the Parliament for an appropriate action.
According to him, for the purpose of handling law and order
situation and upsurge of terrorism, the President could have
proclaimed emergency under Article 232 of the Constitution
in the areas affected by terrorist activities, but not
throughout Pakistan. According to Mr. Irfan Qadir, the
Armed Forces could have been called in aid of the civil
power. The learned counsel for the petitioners insisted that
situations of 12th October 1999 was different from 3rd
November 2007 inasmuch as the military takeover of
October 1999 was welcomed by the people of Pakistan,
which was not the position of the case in hand.

18. In response to the above stance of the petitioners, the

learned Attorney General stated that there was a lack of
harmony and cohesion among various institutions of the
state and none of them was in a position to provide a
solution to the situation faced by the country on or before
3rd November 2007. Therefore, in order to save the country
from chaos and anarchy, minimum deviation from the
Constitution was made in the larger interests of the State
necessity and for the welfare of the people under the
principle of salus populi est suprema lex. The learned
Attorney General for Pakistan submitted that National
Assembly, being the highest democratically elected
institution, had also endorsed and approved all the extra-
constitutional measures of 3rd November 2007. The
resolution passed by the National Assembly reads as under:-
-

"This House is of the considered view that the serious

circumstances were prevailing in the country. The
terrorist incidents were in the rising trend. There was
lack of harmony among the various organs of the
State. This was leading to weakening of the writ of the
government and its resolve in the war against
terrorism. The demoralization and paralysis of the
bureaucracy had been caused.

Out of this there are adverse effects on law and order

situation in the country and economic growth,
necessitated emergent and extraordinary action.
Therefore, this House endorses and affirms the
Proclamation of Emergency and Provisional
Constitutional Order of 3rd November 2007."
The above resolution of the National Assembly meets the
argument of the petitioners that the government ought to
have approached the Parliament for an appropriate action
under the Constitution. The action of the respondent No.2
was welcomed by the National Assembly whose members
were elected representatives of the people. Here too, the
people have spoken, though indirectly, i.e. through their
representatives.

19. The learned counsel for the respondent No. 2 rightly

contended that the country as a whole was in a grip of
terrorism, extremism and suicide attacks. Incidents of
terrorism had also taken place in Sargodha, Islamabad, the
Province of Balochistan and many other parts of the
country. It would suffice to recount only some of such acts
of terrorism,

On 5th April 2007 45 foreigners and 7 locals were killed

and four LEAs and four civilians were injured during
clashes between militants and LEAs in South
Waziristan;

On 28th April 2007, 27 persons were killed and 39

injured in a suicide bombing in Charsadda;

On 5th May 2007, three persons were killed and one

injured in two separate incidents of sectarian violence
in Layyah and D.I. Khan;

On 9th May 2007 two police officials killed in an attack

by unidentified miscreants in Karachi;
On 10th May two IED explosions took place in Sui and
Khuzdar and a rocket attack on FC post in Dera Bugti
with one person injured in Sui;

On 15th May 2007, 276 persons were killed and 24

injured in a suicide attack in a restaurant in Peshawar;

On 3rd July nine persons including one Rangers' official

were killed and 136 injured in Lal Masjid incident in
Islamabad;

On 7th July 2007 unknown culprits fired anti-aircraft

shells on a VVIP airplane; three police officials
including a DSP injured when their mobile was fired
upon in Swat; two locals and four kidnappers were
killed and four persons were injured in an attempt to
kidnap an Army Captain in North Waziristan;

On 8th July 2007 three Chinese businessmen were

killed and one injured in Peshawar; one Levies official
was killed and seven injured as a result of remote
controlled explosion in Bajaur Agency; Four-Levies
personnel kidnapped in Bajaur Agency;

On 10th July 2007, 68 persons were initially reported

to have died and 32 injured in the Lal Masjid incident
in Islamabad.

About two to three attempts were made on the lives of

President and the Prime Minister.
The wave of terrorism reached its climax on 18th October
2007 when in the two bomb blasts on the rally of a former
Prime Minister of Pakistan, who had returned to Pakistan
after an exile of 7-8 years, about 150 people were killed and
350 seriously injured. The incident posed serious threat to
the national security and also lowered the image of Pakistan
before the international community. About the said
holocaust, The Newsweek of 29th October 2007 carried the
headline - "The Most Dangerous Nation in the World isn't
Iraq. It's Pakistan". We have read with great pain the
following comments made in the above news story:--

"Today no other country on earth is arguably more

dangerous than Pakistan. It has everything Osama bin
Laden could ask for: political instability, a trusted
network of radical Islamists, an abundance of angry
young anti-Western recruits, secluded training areas,
access to state-of-the-art electronic technology,
regular air service to the West and security services
that don't always do what they're supposed to do.
(Unlike in Iraq or Afghanistan, there also aren't
thousands of American troops hunting down would-be
terrorists.) Then there's the country's large and
growing nuclear program. "If you were to look around
the world for where. Al Qaeda is going to find its
bomb, it's right in their backyard," says Bruce Riedel,
the former senior director for South Asia on the
National Security Council.

The conventional story about Pakistan has been that it

 is an unstable nuclear power, with distant tribal areas
in terrorist hands. What is new, and more frightening,
is the extent to which Taliban and Al Qaeda elements
have now turned much of the country, including some
cities, into a base that gives jihadists. more room to
maneouver, both in Pakistan and beyond."

The Pakistani nation needs to rise above all prejudices and

stand together against the menace of terrorism as well as
the misleading propaganda aimed at harming the vital
interests of Pakistan at the international level. The
sovereignty, integrity and solidarity of the nation need to be
preserved and protected internally as well as externally. The
unabated gruesome terrorist activities worsened the
security as also the law and order situation in the country,
which called for zero tolerance approach. It is also clear
from the letter of the Prime Minister that the Government's
efforts to combat terrorism on the civil side unfortunately
bore no fruit. It was an extraordinary situation that called for
taking such measures, which were not provided by the
Constitution.

20. The other set of reasons and circumstances given in the

Proclamation of Emergency relates to the trichotomy of
powers enshrined in the Constitution of Pakistan, which was
eroded as a result of actions taken and orders passed in
some cases by some of the former Judges of the Supreme
Court and the High Courts, particularly the former Chief
Justice of Pakistan. The learned counsel for the respondent
No.2 as well as the learned Attorney General for Pakistan
repeatedly submitted that the Government held the
superior judiciary in the highest esteem and believed in its
independence. They, however, stated that the Supreme
Judicial Council was virtually rendered ineffective and
redundant. Pakistan was the first country in Asia, apart from
Malaysia, which made a provision in its Constitution for
accountability of the Judges of the superior courts by their
own peers. Article 209 of the Constitution provides an
exclusive forum called Supreme Judicial Council of Pakistan
comprising the Chief Justice of Pakistan, two most Senior
Judges of-the Supreme Court and two most Senior Chief
Justices of High Court. In case of a Reference against a
member of the Council, the next senior most Judge of the
Supreme Court, or next Senior Chief Justice of another High
Court, as the case may, is to act as a member of the Council
in his place. On 9th March 2007 the President made a
Reference under Article 209 of the Constitution to the
Supreme Judicial Council against the former Chief Justice of
Pakistan. In the course of the proceedings of the Reference,
some objections were raised before the Council.
Subsequently, a petition was filed by the former Chief
Justice of Pakistan invoking the original jurisdiction of this
Court under Article 184(3) of the Constitution against the
Reference despite the clear bar of jurisdiction of courts
contained in Article 211. The hearing of the petition of the
former Chief Justice of Pakistan continued for nearly two
months. Unfortunately, very unpleasant and uncharitable
observations were made by some former Judges of the
Supreme Court and authors of the petition in the course of
the hearing, which tended to bring the Supreme Judicial
Council into disrespect and disrepute among the masses.
Such a conduct on the part of some former Judges was
incompatible with their office. Here, we may cite, with
advantage, a passage from the book titled "Justice at Cross
Roads" by V.R. Krishna Iyer, a former Judge of the Supreme
Court of India and a scholar of great repute, which reads
thus:--

The bench is a hallowed seat and judges must observe

a gracious port and presence without making derisive
comments and digs at lawyers and litigants who could
as well retort and humble the bench in public.
Offensive observations, even regarding other judges
and judgments, are not uncommon with little-minded
judges. Comic performance cannot be fobbed off on a
submissive Bar, David Pannick cites some British
instances which may have Indian parallels:

"Judicial humour can turn into judicial scorn. The

eighteenth century Scottish judge, Lord Braxfield, was
a disgrace to the age'. He took pleasure in `tauntingly
repelling the last despairing claims of a wretched
culprit, and sending him to Botany Bay or the fallows
with an insulting jest'. Robert Louis Stevenson based
Lord Hermiston upon Braxfield. In court, Hermiston
`took his ease and jested, unbending in that solemn
place with some of the freedom of the tavern, and the
rag of man (the defendant) was hunted gallowsward
with jeers'. Braxfield and his contemporaries have a
special place in the annals of judicial misbehaviour.
They were `cynically indifferent to the proprieties of
the Bench to an extent which now may well seem
incredible. Uncouth in appearance, profane in speech,
 frequently harsh and contemptuous in the discharge of
their judicial functions, addicted to the wildest
eccentricities, and exhibiting at all times are decided
penchant for deep potation and the course and
boisterous jocularity of the tavern...', they lacked all
judicial qualities." (David Pannick-Judges-Oxford
University Press, 1988 Edn., p.83)

"Some judges do not care to listen or are too

loquacious and by frequent interruptions make
coherent argument impossible. Performance and
discipline are components of judicial decorum."

21. On 20th July 2007, through a Short Order the

Presidential Reference was set aside by majority and the
former Chief Justice was reinstated. Thus, the exclusive
jurisdiction, power and authority of a high level
constitutional forum meant for the accountability of Judges
of the superior courts were eroded. The Supreme Judicial
Council was not only paralyzed but also politicized in
disregard of the provisions of Article 209 read with Article
211 of the Constitution. At this stage, it would be pertinent
to refer to a judgment in the case of Muhammad Ikram
Chaudhry v. Federation of Pakistan (PLD 1998 SC 103),
where this Court had held as under:-

"11. A perusal of the above clause (clause 5 of Article

209) indicates that on an information received from
the Council or from any other source, the President is
of the opinion that a Judge of the Supreme Court or of
a High Court may be incapable of properly performing
 the duties of his office by reason of physical or mental
incapacity or may have been guilty of misconduct, he
shall direct the Council to inquire into the matter. The
above clause does not admit filing of a Constitutional
petition for a direction to the Supreme Judicial Council
or to the President to initiate proceedings of a judicial
misconduct against a Judge of a superior Court by a
practising lawyer or any other citizen of Pakistan. The
wisdom seems to be that in order to keep the Judges
free from being pressurized through frivolous
Constitutional petitions or other legal proceedings for
filing of a Reference, the framers of the Constitution
provided above mechanism. This Court or a High Court
cannot take upon itself the exercise to record even a
tentative finding that a particular Judge has committed
misconduct warranting filing of a Reference against
him under Article 209 of the Constitution as it will be
contrary to the language and spirit of the said Article."

In the above case, it is clearly laid down that direction

cannot be issued to the Supreme Judicial Council to initiate
proceedings of judicial misconduct against any Judge of a
superior court at the instance of a lawyer or a citizen. The
above judgment in clear terms prohibits the Supreme Court
as also a High Court to take upon themselves the exercise to
record even tentative finding that a particular Judge has
committed misconduct warranting filing of a Reference
against him under Article 209 of the Constitution. On the
same analogy, no direction could be issued to the Supreme
Judicial Council to stay its hands off the Reference filed
against the former Chief Justice of Pakistan, what to speak
of quashing the Reference altogether. During the course of
arguments, the learned Attorney General stated at the bar
that a former Judge of the Supreme Court, in connivance
with a Banking Judge for whom, in turn, he managed to get
his tenure extended, purchased property worth more than
Rs.20,000,000 for a petty consideration of Rs.4,000,000. The
Government very much wanted to file a Reference against
him before the Supreme Judicial Council, but retrained from
doing so in view of the treatment meted out to the
Reference filed against the former Chief Justice of Pakistan.

22. Judicial accountability is a cardinal principle of the

system of administration of justice and is essential to its
successful working. A pertinent discussion on the subject is
found in the book titled "Justice at Cross Roads" by V.R.
Krishna Iyer, referred to above. Relevant excerpts are
reproduced below:--

"The Indian experience with regard to the Executive,

Judicative' and Legislative instrumentalities over four
decades has been one of exploitation darkening into
misgiving, misgiving deepening into despair and
despair exploding as adventurist violence. The
categorical imperative for stability in democracy is,
therefore, to see that every instrumentality is
functionally kept on course and any deviance or
misconduct, abuse or aberration, corruption or
delinquency is duly monitored and disciplinary
measures taken promptly to make unprofitable for the
delinquents to depart from the code of conduct and to
make it possible for people, social activists,
professional leaderships and other duly appointed
agencies to enforce punitive therapeutics when robed
culprits violate moral - legal norms.

Less than impeachment, the Great Parchment does not

provide as a punitive measure. There are
misdemeanours and felonious temptations and vices,
rudeness, vulgarities and arrogant misdirection of
power which may call for milder therapeutics and
punishment after due enquiry by impartial authority. In
this area, our constitutional jurisprudence leaves a
vacuum. We need an urgent graded measure for
systemic correction and suitable mechanism because
accusations are no longer exceptions and judges must
suffer criticism and complaints against them cannot be
condemned or go uninvestigated and, if true,
unpunished. Judicial imperialism, impertinence and
absurd or irresponsible behaviourism are a menace to
the Justice Process and must, if the turpitude is truly
proved, suffer sentence.

The judge is the symbol of justice itself and, therefore,

we cannot have a dissection of private life and judicial
life of the `brethren'; both must become the sublime
office. The pleasures and pains of millionaires, the
temptations and vices of the higher classes, the
aberrations and abuses of persons in power are taboo
or forbidden fruit for the judges. Winston Churchill
decades back, told the Commons that judges are
required to conform to standards of "life and conduct
far more severe and restricted than that of ordinary
people". Indeed, their constitutional obligation to do
justice without fear or favour, affection or illwill, is a
high moral command and exacting demand on their
conscience. If "you are what you were" you have to
keep up a certain manner of conduct which puts you in
a category beyond the politicians and members of the
bureaucracy. Judges, like Caesar's wife, must be above
suspicion. They must be patient, maintain poise, the
gentle and impartial and decline to be provoked and
never lapse into venal behaviour or class conscience
uppishness.

"Even judicial independence, almost important value

of our system, cannot forbid bringing to book those
guilty of judicial misbehaviour. Judge Power is a critical
factor of the highest importance in our constitutional
order. For that very reason, the law must keep them
away from lawless, immoral, unethical and
unbecoming conduct. Some cowardly judges and
opportunist brethren obligingly bend their judgments
when political heavy-weights and tycoons with clout
happen to be parties. Some leading members of the
Supreme Court bar wrote, not long ago, a complaint to
a Chief Justice referring to holiday hearings and
nocturnal proceedings where influential persons
figured as parties. Even the Bhopal Gas catastrophe
litigation and later settlement with judicial imprimatur
have come in for short criticism, bordering on the,
needle of suspicion being pointed at five judges. This
case is not merely an event but a portend, and the
contempt ''barricade not with standing, may remain a
 polemical issue where the judges may not emerged
with flying colours."

"Some judges think that disciplinary over their peers may be

left to the Chief Justices. Unfortunately, there are many
instances where complaints have come against Chief Justices
and judges themselves, in private, admit the Chief's to be
over-bearing or dubious. More than that, Chief Justices have
their own prejudices and many High Courts (is the Supreme
Court an exception, I wonder), are not free from factions
and the domineering moods of judicial heavyweights. Even
their lordly special philosophy is distances away from the
ideology of the Socialist Secular Republic of India. It widely
known that Chief Justices even of the Supreme Court have
abetted are arranged hearing of bail petitions V.I. Ps. on
holidays and after nightfall. A senior-most Judge of the
Supreme Court, who later became the Chief Justice, and
another senior-most Judge of the Supreme Court, who also
became a Chief Justice later, did hear criminal matters on an
abnormal day or at an abnormal hour making a special
exception the accused tycoons. This resulted in some
dissatisfaction at the Bar. Indeed, if we draw the line of
objectionable conduct with socialistic sensitivity the
discrimination in favour of influential petitioners makes the
conduct of the Judges vanal. It is also reliably rumoured,
perhaps, that a Chief Justice of Punjab and Haryana High
Court was not consulted in the appointment of a Judge to
the High Court, and likewise a Judge of the Supreme Court
was appointed even though the Chief Justice of that time
had not consented to his appointments. Other instances can
be discovered, without much research, about deviances by
Chief Justices themselves. Therefore, to make a class
distinction between Chief Justices and puisne Judges on the
assumption that Chief Justices are superior beings does not
hold good. On the contrary, some Chief Justices are
susceptible to Executive pressure and blandishments but it is
not fare to divulge that here. For the sake of the extension
of age of retirement, for perquisites which are not extended
to other Civil Servants and so on, Judges have been passing
resolution and getting their points accepted by
Governments. Here is a case of Judges as a class, showing
anxiety to secure Executive favours -- not becoming conduct
for those who have to sit in judgment over the benefactors.

"Legal sanctions against judicial delinquency are a

necessity if the globorama of robed souls robbing the
Bench of its great integrity and impressive good
behaviour is to be arrested. But the escalating
misconduct of Judges has often gone unpunished
because the law of judicial accountability is still in its
infancy. Barring the extreme measure of impeachment
the law is silent, so much so, world-wide one might
well say that, with marginal exceptions, accountability
of the judiciary to the country is the vanishing point of
jurisprudence. This void, unless competently covered
by well thought-out legislation, may militate against
the democratic creditability of the high institution
which is so central to human justice. While Judicial
Independence is a valiant check against executive
legislative tyranny, absent judicial accountability,
independence, may important a forensic despotism.
The subject is delicate, the remedy, unless carefully
 adjusted, may aggravate the malady. Crude nostrums
may prove iatrogenic and so experiences in various
democratic countries must be garnered to win the
principles and processes whereby the best system of
checks can be evolved. Justice has a global dimension
in our age of human rights and the twin components of
Independence and Accountability also are matters of
universal concern."

"Judge's Power is vast and strong in the keeping of

those who are fearless and flawless surrogates of
Public Justice. But the Judiciary as a fiduciary must pay
a price they must be clean in public and private life, on
the bench and off the bench and the worthy to be
watchdogs, not lapdogs, sentinels, not sycophants."

"The Justice System is our, only stable asset, as yet not

corrupt. Let us preserve it. Public Justice is too serious
a business to be left to the Justices alone. We need a
national debate on this theme."

23. The learned Attorney General for Pakistan contended

that thousands of applications, all raising individual
grievances were entertained and processed. For processing
of such applications the former Chief Justice of Pakistan
established a Human Rights Cell in the Court's Registry and
engaged a large number of staff. The actions taken by the
former Chief Justice of Pakistan were got covered in the
media. This opened a floodgate of applications leading, on
the one hand, to an arbitrary pick and choose of the cases,
and on the other, to a naked interference in the other
branches of the government in the name of judicial activism
conveniently ignoring and defying the principle of judicial
restraint. This exercise, according to the learned Attorney
General was undertaken in the purported exercise of power
and jurisdiction vested in this Court under Article 184(3) of
the Constitution.

24. The right of access to justice and the exercise of

jurisdiction and power by this Court under Article 184(3) of
the Constitution have formed subject matter of discussion in
different judgments. It may be instructive to have a' glimpse
at how the Court looked at it on different occasions. In
Government of Balochistan v. Azizullah Memon (PLD 1993
SC 341), the Supreme Court elaborated the `right of access
to justice' in the following words: -

"The right of `access to justice to all' is a well-

recognized inviolable right enshrined in Article 9 of the
Constitution. This right is equally found in the doctrine
of `due process of law'. The right of access to justice
includes the right to be treated according to law, the
right to have a fair and proper trial and a right to have
an impartial Court or Tribunal. This conclusion finds
support from the observation of Willoughby in
Constitution of United States, Second Edition, Vol. II at
page 1709 where the term `due process of law' has
been summarized as follows:--

"(1) He shall have due notice of proceedings, which

affect his rights.
(2) He shall be given reasonable opportunity to defend.

(3) That the Tribunal or Court before which his rights

are adjudicated is so constituted as to give reasonable
assurance of his honesty and impartiality, and

(4) That it is a Court of competent jurisdiction.

It therefore follows that in terms of Article 9 of the

Constitution, a person is entitled to have an impartial
Court and Tribunal. Unless an impartial and
independent Court is established the right to have a
fair trial according to law cannot be achieved.
Therefore justice can only be done if there is an
independent judiciary which should be separate from
executive and not at its mercy or dependent on it."

"The right of access to justice is internationally well-

recognized human right and is now being implemented
and executed by granting relief under the
Constitutional provisions. Article 10 of Universal
Declaration of Human Rights and Article 14 of the
United Nations Convention on Criminal Political Rights
recognize the right of fair trial by an independent and
impartial Tribunal established by law. The right of
equal access to ordinary Tribunals and Courts is
recognized in other countries also."

"The right of access to justice does not only mean that

the law may provide remedies for the violation of
rights, but it also means that every citizen should have
 equal opportunity and right to approach the Courts
without any. discrimination. It also envisages that
normally the Courts established by law shall be open
for all citizens alike. Where the jurisdiction of the
ordinary Courts established under the ordinary law is
excluded or barred and certain class of cases or class of
persons or inhabitants of an area are not allowed to
approach such Courts and are to be tried or rights
adjudicated by special Courts, then a fair, rational and
reasonable classification must be made which have
nexus with the object of the legislation. Even in such
cases where special Tribunals are constituted, arbitrary
powers cannot be conferred on executive for
appointing persons on the Tribunal providing
procedure or imposing any sentence of conviction.
Such special Tribunals and Courts must follow the
ordinary rules of justice, equality and good
conscience."

25. According to the learned Attorney General, the former

Chief Justice of Pakistan disregarded the principle bf `due
process' in pursuit of judicial activism. M.N. Rao, an Indian
research scholar and a former Judge of a High Court, in his
Article titled "Public Interest Litigation and Judicial Activism"
has discussed the issues concerning judicial activism.
Relevant portion from the article is reproduced below:--

"Judicial creativity may yield good results if it is the

result of principled activism but if it is propelled by
partisanship, it may result in catastrophic
consequences generating conflicts which may result in
social change. In 1857 when the American Supreme
Court headed by Chief Justice Taney ruled in Dred
Scott v. Sandford that negros were not equal to whites
and the rights guaranteed under the Constitution were
not available to them, the decision had accelerated the
civil war between the Northern and Southern States
ultimately resulting in the abolition of slavery and
strengthening of the Union.

A common criticism we hear about judicial activism is

that in the name of interpreting the provisions of the
Constitution and legislative enactments, the judiciary
often rewrites them without explicitly stating so and in
this process, some of the personal opinions of the
judges metamorphose into legal principles and
constitutional values. One other facet of this line of
criticism is that in the name of judicial activism, the
theory of separation of powers is overthrown and the
judiciary is undermining the authority of the legislature
and the executive by encroaching upon the spheres
reserved for them. Critics openly assert that the
Constitution provides for checks and balances in order
to pre-empt concentration of power by any branch not
confided in it by the Constitution.

Every judge must play an active role in the discharge of

his duties as adjudicator of disputes. His role as an
interpreter of law and dispenser of justice according to
law should not be allowed to be diminished either
because of the perceived notions of the other two
wings of the State the legislature and the executive or
 any section of the public. But this cannot be termed
judicial activism.

The role of the Judge in interpreting law has been

graphically described thus.--"Judges must be
sometimes cautious and sometimes bold. Judges must
respect both the traditions of the past and the
convenience of the present. Judges must reconcile
liberty and authority; the whole and its parts.

Where the public opinion asserts itself against the

decisions of the judiciary, the question immediately
surfaces as to the legitimacy of the judiciary since it
lacks popular mandate. That is the reason why
judiciary was cautioned by eminent legal philosophers
to exercise great restraint while declaring the actions
of the legislature unconstitutional. Judicial veto must
not be exercised except in cases that "leave no room
for reasonable doubt". Very eminent Judges like
Holmess, Brandeis and Frankfurter always adhered to
the theory of reasonable doubt believing firmly that
what will appear to be unconstitutional to one person
may reasonably be not so to another and that the
Constitution unfolds a wide range of choices and the
legislature therefore should not be presumed to be
bound by any particular choice and whatever choice is
rational, the court must uphold as constitutional."

26. Justice Fazal Karim, a former Judge of the Supreme Court

of Pakistan, in his treatise on "Judicial Review of Public
Actions", First, Edition 2006, has thrown light on `judicial
activism' and `judicial restraint' in a scholarly way. Relevant
portion from page 478 of the book [Volume 1] is reproduced
below for facility of reference:-

"There have also been phases of `judicial activism' in

the sense of aggressiveness. Aggressiveness may imply
exceeding of limits and cases which exemplify that
sense are not wanting. Two of the cases are from
Great Britain and relate to the `judicial activism' of
Lord Denning. In one, Re Racal Communications Ltd,
the Court of Appeal, presided over by Lord Denning
MR, entertained an appeal and reversed the trial
judges in a case in which the statute provided for no
appeal; in so doing, Lord Denning was of the view that
the provision excluding an appeal "is not a bar to the
appeal to this court. There are many cases now which
show that if a judge 'misconstrues a statute by giving
himself jurisdiction when he has none or by refusing
jurisdiction when he has it, then he makes an error
which goes to the jurisdiction: and there is an appeal
to this court, no matter how wide the words which
seem to exclude it..." The Court of Appeal was, of
course, reversed by the House of Lords. In the other,
Duport Steels v. Sirs, the Court of Appeal did not follow
a decision, directly in point, of the House of Lords. In
reversing the Court of Appeal, Lord Diplock said:

"It endangers continued public confidence in the

political impartiality of the judiciary, which is essential
to the continuance of the rule of law, if judges, under
the guise of interpretation, provide their own
preferred amendments to statutes which experience
of their operation has shown to have had
consequences that members of the court before whom
the matter comes consider to be injurious to the public
interest."

And Lord Scarman started his discussion with the

observation that the case raised "some profound
questions as to the proper relationship in our society
between the Courts, the government and the
Parliament"' and went on to say:

"My basic criticism of all three judgments in the Court

of Appeal is that in their desire to do justice the court
failed to do justice according to law... Within these
limits, which cannot be said in a free society possessing
elective legislative institutions to be narrow or
constrained, judges, as the remarkable judicial career
of Lord Denning MR himself shows, have genuine
creative role. Great judges are in their different ways
judicial activists. But the Constitution's separation of
powers, or more accurately functions, must be
observed if judicial independence is not to be put at
risk. For, if people and Parliament come to think that
the judicial power into be confined by nothing other
than the judge's sense of what is right (or, as Selden
put it, by the length of the Chancellor's foot),
confidence in the judicial system will be replaced by
fear of it becoming uncertain and arbitrary in its
application. Society will then be ready for Parliament
to cut the power of the judges. Their power to do
justice will become more restricted by law than it need
be, or is today."

"In Pakistan, examples of this kind of `judicial activism'

are a 1997 case, in which a three-Judges Bench of the
Supreme Court, in a judicial review petition under
Article 184(3) of the Constitution, thought it proper to
suspend the operation of a duly enacted constitutional
Amendment viz. 14th Amendment and a 1999 case in
which the Supreme Court went so far as to extend the
fundamental rights guaranteed by the Constitution of
Pakistan to the Northern Areas which admittedly are
not part of the territory of Pakistan and to which the
Constitution of Pakistan and the jurisdiction of the
Supreme Court itself do not extend.

"We have seen that a Constitution is drafted "with an

eye to the future"; it is "intended to endure for ages to
come, and consequently to be adapted to the various
crises of human affairs"; it must therefore be capable
of growth and development at the hands of the
Judges, who are to interpret it, and that is possible
only if a constitutional instrument is treated as sui
generic "so that there is room for interpreting it `with
less rigidity and greater generosity'." This means that
the interpretation of a constitutional provision must be
approached with an open mind, for the meaning of the
words "is not fixed once and for all time. They usually
change owing to the lapse of time, the change in social
conditions and the changed needs and views of
society'. If this is `judicial activism' so be it. For, by so
interpreting the Constitution, the Judges are doing
what they are supposed to do; they are merely
performing their ordinary day to day judicial function.
They are making law through interpretation, their
"very own field of creative endeavor".

There is here no usurpation; no exceeding of

constitutional limits. No Judge worthy of his name will
knowingly exceed his judicial authority. If in
performing the judicial function, the Judges depart
from a precedent or an accepted practice or meaning
of a provision, they do so because "it appears right to
do so ..."; they are "deciding the law applicable to the
changed times and conditions.

`Judicial self-restraint' is a self-imposed discipline

which, we conceive, means that despite opportunities
and temptations to indulge his personal views and
ideas, the Judge exercise self-restraint to remain within
the limits of his judicial authority consistently with the
doctrine of separation of powers, It does not mean
`judicial timidity' which implies that the Judges become
so supine as to fear treading on the executive's or the
legislature's toes; nor are its "overtones of servility"
appropriate to describe it.

"It emerges therefore that neither of the expressions -

Judicial activism and Judicial restraint - is the best
expression to use, if only because both are likely to be
misunderstood. What is necessary is to understand the
true nature of the judicial function, particularly in the
 interpretation of a written constitution. Like Aharon
Barak (quoted above), we would therefore avoid, what
we may call, esoteric distinction between `judicial
activism' and `judicial restraint'. A true Judge knows
the limits of his judicial function and if remaining
within those limits he interprets the law and that
involves departing from precedent or otherwise
bringing about a change, then what he does need not
fit into either of those philosophic theories. The true
judicial attitude has, if we may say with great respect,
been described nowhere better than by Chief Justice
John Marshall in a speech made in answer to a tribute
from the Bar. He said:

"... if he might be permitted to claim for himself and

his associates any part of the kind things they had said,
it would be this, that they had never sought to enlarge
the judicial power beyond its proper bounds, nor
feared to carry it to the fullest extent that duly
required."

27. The distinction between a judicial and a legislative act

came under examination in B.Z. Kaikaus v. President 'of
Pakistan (PLD 1980 SC 160). Relevant portion from the
judgment at page 181 of the report is reproduced below:-

"Basu in his commentary on the Constitution of India

(4th Edition) (Vol. 2) at page 331 states that "the
distinction between a judicial and a legislative act is
well-defined. The one determines what the law is, and
what rights the parties have with reference to
transactions already had the other prescribes what the
law shall be in future cases arising under it" " A judicial
enquiry investigates, declares and enforces liabilities as
they stand on present or past facts and under laws
supposed already to exist. That is its purpose and end.
Legislation, on the other hand, looks to the future, and
changes existing conditions by making a new rule to be
applied thereafter to all or some part of those subject
to its power." "To declare what the law is or has been
is a judicial power ; to declare what the law shall be is
legislative." "It is not for the Judges to alter the law,
even through they have reasons to doubt the wisdom
or justice of any provision or to find that the
Legislature has made a mistake or was even deceived.
The same Jurist in his commentary under Article 122
states that a writ would not lie against a legislature to
prevent it from passing a Bill on the ground that the
Bill, if passed, would contravene some Fundamental
Right". "The Court would have jurisdiction to declare
the Act void after it is passed and a proper proceeding
is brought by a person who is affected by the Act.
Similar view is expressed by A.K. Brohi in his
"Fundamental Law of Pakistan" at pages 160/333 and
469. He states with reference to 1956 Constitution that
"Article 4 also prohibits the State from enacting any
law, "which takes away or abridges rights conferred by
this part", and declares that "any law in contravention
of this clause shall, to the extent of such
contravention, be void". Despite the fact that the
Constitution contains an express prohibition directed
against the legislative organs thereby preventing them
from making any law which takes away or abridges the
rights conferred by this Part, there is no known
method whereby the Legislature can be prevented
from enacting laws, which are inconsistent with the
fundamental rights guaranteed under the Constitution.
No mandamus can lie to compel the Legislature to do
or refrain from doing any act. Besides when the Bill is
introduced in the House it does not become an Act of
the Legislature until it has actually been taken through
the various stages of law-making and has received the
assent of the Governor, if it is a Provincial law, and of
the President, if it is a Federal law. It is thus only the
completed Act of the Legislature which can be
prohibited, and when the Act is actually passed it is no
use prohibiting it as it can be declared void by Courts.
Thus it is not the mere projected adventure by the
Legislative Assembly which is calculated to result in the
consummation of a law which purports to take away
fundamental rights of the citizens that can be
prohibited by courts. Every Bill that is moved in the
State Legislature can be opposed by any one of its
members, and even if its principle is accepted it can be
amended and drastically modified. It would thus be
worse than useless for any Court, assuming it had the
jurisdiction to issue mandamus to legislative bodies, to
interfere with legislative process when the Act of the
Legislature is not complete. If the Act, as "finally
emerges is in conflict with the fundamental rights, it
would ipso facto be void and can be declared as such
by our Courts." See also Narainder Chand v. U.T.H.P.
(AIR 1971 SC 2399) it was observed that "no Court can
 issue a mandate to a legislature to enact a particular
law. Similarly no Court can direct a subordinate
legislative body to enact or not to enact."

28. In the above context, it may also be advantageous to

refer to the book titled "Treatise on Constitutional Law,
Substance and Procedure", by Ronald D. Rotunda & John E.
Nowak, Second Edition 1992, Volume 1, Chapter 2, section
2.13, which reads as under:--

"The doctrines related to advisory opinions, mootness,

collusiveness, ripeness, prematurity and abstractness,
standing, and other such rules of self-restraint are all
functions of the general and basic judicial duty to avoid
decisions of constitutional questions. This duty, in turn,
draws support from Chief Justice Marshall's rationale
of judicial review as a reluctant power exercised only
because the Court must decide cases brought before it
in conformity with the Constitution.

There are also more pragmatic considerations for this

policy of self restraint. Judicial review is inconsistent
with pure majority rule, and, because of the conflict
between the judiciary and the democratic system, may
result in popular disapproval of court action. The policy
of a strict necessity in disposing of constitutional issues
is a useful device which helps assure that judicial
review does not take place gratuitously."

29. The learned Attorney General referred to Article 184(3)

of the Constitution which conferred original jurisdiction on
the Supreme Court. This provision was introduced for the
first time in the 1973 Constitution and was not there in the
late Constitutions of 1956 and 1962. It lays down that
without prejudice to the provisions of Article 199, the
Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part II is
involved, have the power to make an order of the nature
mentioned in the said Article. Therefore, the said provision
does not apply to individual grievances. In the case of
Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66 at
pp. 144 & 145) wherein this Court held as under:--

"We may now proceed to consider whether this is a fit

case for being dealt with by this Court under the
special jurisdiction conferred on it by clause (3) of
Article 184 of the Constitution. This clause provides
that "without prejudice to the provisions of Article 199,
the Supreme Court shall, if it considers that a question
of public importance with reference to the
enforcement of any of the fundamental rights
conferred by Chapter 1 of Part II is involved, have the
power to make an order of the nature mentioned in
the said Article.

It will be noticed that although the power conferred on

the Supreme Court is co-terminus with that enjoyed by
the High Courts under Article 199 of the Constitution,
yet it has been made subject to two limitations,
namely:
 (a) that the case must involve a question of public
importance and

(b) that the question must be with reference to the

enforcement of any of the fundamental rights,
guaranteed by the Constitution.

The Supreme Court can act only if both these elements

are present. However, even then it may stay its hands
if it finds that sufficient justification has not been
shown for not invoking the concurrent, and wider,
jurisdiction of the High Court concerned, it being an
established principle of the exercise of judicial power
that ordinarily, in matters concurrent jurisdiction, the
lowest Court or tribunal must be approached in the
first instance.

Now, what is meant by a question of public

importance. The term "public" is invariably employed
in contradistinction to the terms private or individual,
and connotes, as an adjective, something pertaining to,
or belonging to, the people; relating to a nation, state,
or community. In other words, it refers .to something
which is to be shared or participated in or enjoyed by
the public at large, and is not limited or restricted to
any particular class of the community. As observed by
the Judicial Committee of the Privy Council in Hamabai
Framjee Petit. V. Secretary of State for India-in-Council
(1) while construing the words "public purpose" such a
phrase, "whatever else it may mean must include a
purpose, that is an object or aim, in which the general
 interest of the community, as opposed to the
particular interest of individuals, is directly and vitally
concerned". This definition appears to me to be
equally applicable to the phrase "public importance."

The learned Attorney-General is clearly right in saying

that a case does not involve a question of public
importance merely because it concerns the arrest and
detention of an important person like a Member of
Parliament. In order to acquire public importance, the
case must obviously raise a question which is of
interest to, or affects, the whole body of people or an
entire community. In other words, the case must be
such as gives rise to questions affecting the legal rights
or liabilities of the public or the community at large,
even though the individual, who is the subject-matter
of the case, may be of no particular consequence."

30. In Miss Benazir Bhutto v. Federation of Pakistan (PLD

1988 SC 416), this Court held that in the exercise of
jurisdiction under Article 184(3) the Court can exercise its
power to issue the writ when element of "public
importance" is involved and that exercise of powers by it
under Article 184(3) is not dependent only at the instance of
the "aggrieved party" in the context of adversary
proceedings. It was further observed that -

"While construing Article 184(3), the interpretative

approach should not be ceremonious observance of
the rules or usages of interpretation, but regard should
be had to the object and the purpose for which this
 Article is enacted," i.e. this interpretative approach
must receive inspiration from the triad of provisions
which saturate and invigorate, the entire Constitution,
namely, the Objectives Resolution (Article 2A), the
Fundamental Rights and the Directive Principles of
State Policy so as to achieve democracy, tolerance,
equality and social justice according to Islam."

31. In Noor Jehan v. Federation of Pakistan (1997 SCMR

160), this Court quoted with approval the observations
made in Wasey Zafar v. Government of Pakistan (PLD 1994
SC 621), which read as under: -

"A perusal of the above quoted provision of the

Constitution indicates that without prejudice to the
provisions of Article 199, the Supreme Court has been
conferred with the power to entertain a petition under
the above provision directly if the following two
conditions are fulfilled: -
?
(i) The case involves a question of public importance;.
and

(ii) The question so involved pertains to the

enforcement of any of the Fundamental Rights
contained in Chapter 1 of Part II of the Constitution.

It may further be noticed that if the above two

conditions are met, the above provision of the
Constitution confers power on the Supreme Court to
make an order of the nature mentioned in above
 Article 199 of the Constitution. It may be pertinent to
point out that the scope of Article 199, which confers
jurisdiction on the High Courts, is much wider than the
jurisdiction conferred on the Supreme Court under the
above quoted 'provision of the Constitution inasmuch
as a High Court not only can enforce a Fundamental
Right under clause (2) of the above Article, but can also
pass an appropriate order in the matters covered by
sub-clauses (a) and (b) of clause (1) of Article 199 of
the Constitution."

32. In Zulfiqar Mehdi v. Pakistan International Airlines

Corporation (1998 SCMR 793) this Court dilated upon the
term "public importance" used in Article 184(3) and held
that issues arising in a case cannot be considered to be
questions of public importance if the decision of those issues
affected only the rights of an individual or a group of
individuals. At pages 799 & 800 of the report, it was stated
as under: -

"8. In order, to confer jurisdiction on this Court to

entertain a petition under 184(3) of the Constitution, it
is necessary that two jurisdictional requirements must
be established. Firstly, that the question raised in the
petition is a question of public importance and
secondly, it relates to the enforcement of a
fundamental right guaranteed under Chapter 1, Part II
of the Constitution (see Wasey Zafar v. Government of
Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi
v. President of Pakistan PLD 1996 SC 632). The
expression 'public importance' was interpreted in the
 case of Manzoor Elahi v. Federation of Pakistan
(PLD1975 SC 66) as follows:-
?
"Now, what is meant by a question of public
importance. The term 'public' is invariably employed in
contradistinction to the terms private or individual,
and connotes, as an adjective,, something pertaining
to, or belonging to the people; relating to a nation,
State or community. In other words, it refers to
something which is to be shared or participated in or
enjoyed by the public at large, and is not limited or
restricted to any particular class of the community. As
observed by the Judicial Committee of the Privy
Council in Hamabai Framjee Petit v. Secretary for India-
in-Council (ILR 39 Boma 279) while construing the
words 'public purpose' such a phrase, 'whatever else it
may mean must include a purpose, that is an object or
aim, in which the general interest of the community, as
opposed to the particular interest of individuals is
directly and vitally concerned'. This definition appears
to me to be equally applicable to the phrase 'public
importance'.

The learned Attorney-General is clearly right in saying

that a case does not involve a question of public
importance merely because it concerns the arrest and
detention of an important person like a Member of
Parliament. In order to acquire public importance, the
case must, obviously raise a question which is of
interest to, or affects the whole body of people or an
entire community. In other words, the case must be
 such as gives rise to questions affecting the legal rights
or liabilities of the public or the community at large,
even though the individual, who is the subject-matter
of the case may be of no particular consequence.

Seen in this light, there can be little doubt as to the

public importance of the questions arising in this case.
I think I will not be far wrong in saying that it is not
often that a single case raises so many questions of
public 'importance touching the liberty of the citizen.
In all systems of law which cherish individual freedom
and liberty, and which provide Constitutional
safeguards and guarantees in this behalf, any invasion
of such freedom in circumstances which raise serious
questions regarding the effectiveness and availability
of those safeguards, must be regarded as a matter of
great public importance. "

9. The above observations of Anwar-ul-Haq, J. (as his

Lordship then was) in Manzoor Elahi's case were quoted
with approval in Ms. Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416).

10. In Shahida Zaheer Abbasi v. President of Pakistan (PLD

1996 SC 632), one of us (Justice Saiduzzaman Siddiqui), after
examining the scope of the observations of this Court in
Manzoor Elahi and Ms. Benazir Bhutto's cases held as
follows:--

"From above quoted passages, it is quite clear that

whether a particular case involved the element of
 'public importance' is a question which is to be
determined by this Court with reference to the facts
and circumstances of each case. There is no hard and
fast rule that an individual grievance can never be
treated as a matter involving question of public
importance. Similarly it cannot be said that a case
brought by a large number of people should always be
considered as a case of 'public importance' because a
large body of persons is interested in the case. The
public importance of a case is determined as observed
by this Court in Manzoor Elahi's case (supra), by
decision on questions affecting the legal rights and
liberties of the people at large, even though the
individual who may have brought the matter before
the Court is of no significance. Similarly, it was
observed in Ms. Benazir Bhutto's case (supra), that
public importance should be viewed with reference to
freedom and liberties guaranteed under Constitution,
their protection and invasion of these rights in a
manner which raises a serious question regarding their
enforcement irrespective of the fact whether such
infraction of right, freedom or liberty is alleged by an
individual or a group of individuals."

33. In WAPDA v. Saadullah Khan (1999 SCMR 319), it was

held as under:-

"Article 175(1) of the Constitution provides that there

shall be a Supreme Court of Pakistan, a High Court for
each Province and such other Courts as may be
established under or by any law. Clause (2) of this
 Article, however, ordains that no Court shall exercise
jurisdiction unless it is conferred upon it by or under
any law. Article 187 of the Constitution empowers
Supreme Court to pass any judgment and decree in a
case before it which, in the circumstances of the case,
it deems fit, which power is controlled by clause (2) of
Article 175, which is indicative of the express
command of the Constitution that jurisdiction
conferred on this Court by or under any statute has
been saved."

34. In Muhammad Shahbaz Sharif v. Federation of Pakistan

(PLD 2004 SC 583), this Court held that the mere fact that a
question of arrest or detention of an important person was
involved, that by itself was not enough to invoke clause (3)
of Article 184. Relevant portion from the judgment at pages
595 - 597 is reproduced below:---

17. Articles 199 and. 184(3) regulate the jurisdiction of

the Superior Courts and do not oust it. Perusal of
clause (3) of Article 184 unequivocally postulates that
two conditions are precedent for invoking said clause.
Firstly; the petition must clearly demonstrate that the
grievance relates to violation of fundamental rights.
Secondly, the violation is of nature of public
importance, which has been interpreted to mean, any
invasion of individual freedom, liberty, fundamental
rights, indu4ing effectiveness and safeguard for their
implementation. Therefore, having regard to the
connotation of the words "public importance", the
facts and circumstances of each case would have to be
scrutinized on its own merits.

18. With the assistance of learned counsel for the

parties, we have surveyed the relevant case-law. In
Manzoor Elahi's case, (PLD 1975 SC 66), Benazir
Bhutto's case (PLD 1988 SC 416), Mian Muhammad
Nawaz Sharif's case (PLD 1993 SC 473), Wasey Zafar's
case (PLD 1994 SC 621), I.A. Sharwani's case (1991
SCMR 1041) and the Employees of Pakistan Law
Commission's v. Ministry of Works (1994 SCMR 1548),
questions of general public importance, which affected
the people at large, were involved. In Asad Ali's case
(PLD 1998 SC 161), the Supreme Court entertained
petition directly for the reason that the issue affected
the judicial system of the country. The finding and
conclusion of the Supreme. Court in Syed Zulfiqar
Mehdi v. Pakistan International Airlines Corporation
(1998 SCMR 793) have never been deviated from. It is
advantageous to quote the relevant observation
occurring at page 801 of the report, which reads as
under:--

"The issues arising in a ease cannot be considered as a

question of public importance, if the decision of the
issues affects only the rights of an individual or a group
of individuals. The issue in order to assume the
character of public importance must be such that its
decision affects the rights and liberties of people at
large. The adjective 'public' necessarily implies a thing
belonging to people at large, the nation, the State or, a
community as a whole. Therefore, if a controversy is
 raised in which only a particular group of people is
interested and the body of the people as a whole or
the entire community has no. interest, it cannot be
treated as a case of public importance. "

19. Same view has recently been taken in Watan Party's case
(PLD 2003 SC 74). It was a 5 - member Bench judgment to
which one of us (Nazim Hussain Siddiqui, now Chief Justice)
was a party, wherein reliance was placed on Manzoor Elahi's
case and the above view was endorsed. For facility of
reference, the relevant observations in the latter case are
reproduced below:

"Now, what is meant by a question of public

importance. The term 'public' is invariably employed in
contradistinction to the terms private or individual,
and connotes, as an adjective, something pertaining to,
or belonging to the people, relating to a nation, State
or community..."

Although the Supreme Court thereafter in a number of

cases, such as Amanullah Khan v. Chairman, Medical
Research Council (1995 SCMR 202) and Mrs. Shahida
Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632)
has taken a different view, yet the cases under Article
184(3) have been brought within the parameters of
the observations referred to above.

20. Learned Attorney General took us through Article

32 of the Constitution of India, which is pari materia
with Article 184(3) of the Constitution of Pakistan. It is
noted that the words 'question of public importance
are not used in Article 32 of the Constitution of India.
The Constitutions of 1956 and 1962 also did not have
these words. There is a conscious departure and the
words 'question of public importance' in Article 184(3)
have been used with a purpose. The parameters of the
jurisdiction under Article 184(3) are, that the petition
must raise a question of public importance. In India,
where there is no such requirement, the Supreme
Court of India, has held that if the scope of Article 32
of the Indian Constitution were to be enlarged, it
would immensely increase the dockets of the Court.
Such jurisdiction remains with the High Court.

21. Under Article 199 wider powers have been

conferred upon High Court than, Supreme Court and
these powers cover more areas than a mere
enforcement of 'Fundamental Rights. It is significant to
note that under Article 184(3), Supreme Court only
interferes in cases of violation of Fundamental Rights,
which are of public importance, whereas, no such-
condition is provided under Article 199. Mere fact that
a question of arrest or detention of an important
person is involved, this by itself is not enough to invoke
clause (3) of Article 184. What is essential is that the
question so raised must relate to the interest of whole
body of the people or an entire community. To put it in
other words, the case must be such, which raises a
question affecting the legal rights or liabilities of the
public or the community at large, irrespective of the
fact that who raised such question."
35. In Pakistan Muslim League (N) v. Federation of Pakistan
(PLD 2007 SC 642) the discussion on the question of exercise
of jurisdiction under Article 184(3) of the Constitution was
summed up at page 667 as under:-

"20. After having discussed the law laid down in the

above mentioned cases the judicial consensus seems
to be as follows:--

(i) That while interpreting Article 184(3) of the

Constitution the interpretative approach should not be
ceremonious observance the rules or usages of the
'interpretation but regard should be had to the object
and purpose for which this Article is enacted i.e. the
interpretative approach must receive inspiration from
the triad of provisions which saturate and invigorate
the entire Constitution namely the Objectives
Resolution (Article 2-A), 'the fundamental rights and
the directive principles of State policy so as to achieve
democracy, tolerance, equity and social justice
according to Islam.

(ii) That the exercise of powers of Supreme Court

under Article 184(3) is not dependent only at the
instance of the "aggrieved party in the context of
adversary proceedings. Traditional rule of locus standi
can be dispensed with and procedure available in
public interest litigation can be made use of, if it is
brought to the Court by a person acting bona fide.
 (iii) That the provisions of Article 184(3), provide
abundant scope for the enforcement of the
Fundamental Rights of an individual or a group or class
of persons in the event of their infraction and it would
be for the Supreme Court to lay down the contours
generally in order to regulate the proceedings of group
or class actions from case to case.

(iv) That under Article 184(3) there is no requirement

that only an aggrieved party can press into service this
provision. Supreme Court can entertain a petition
under Article 184(3) at the behest of any person.
???????

(v) That the Article 184(3) is remedial in character, and

is conditioned by three prerequisites, namely----

There is a question of public importance.

Such a question involves enforcement of fundamental

right, and

The fundamental right sought to be enforced is

conferred by Chapter 1, Part II of the Constitution.

(vi) That it is not every question of public importance

which can be entertained by this Court; but such
question should relate to the enforcement of
Fundamental Rights.

(vii) That even the disputed questions of facts which do

 not require voluminous evidence can be looked into
where Fundamental Right has been breached.
However, in case where intricate disputed question of
facts involving voluminous evidence are involved the
Court will desist from entering into such controversies.

(viii) That the language of Article 184(3) does not admit

of the interpretation that provisions of Article 199
stood incorporated in Article 184(3) of the
Constitution. Therefore, this Court while dealing with a
case under Article 184(3) of the Constitution is neither
bound by the procedural trappings of Article 199 ibid,
nor by the limitations mentioned in that Article for
exercise of power by the High Court in a case."

36. A survey of case law makes it abundantly clear that the

power and jurisdiction under Article 184(3) of the
Constitution cannot be invoked for redress of individual
grievances. Unfortunately, the former Chief Justice of
Pakistan paid no heed to the judicial precepts. He spared no
department, whether judicial, executive or legislative. He
took over the functions of superintendence over the
subordinate courts, which was the exclusive domain of the
High Courts under Article 203 of the Constitution. He would
entertain cases making grievances in matters pending before
the High Courts as well as the subordinate courts or which
ought to be dealt with by a District & Sessions Judge. The
learned Attorney General submitted that on several
occasions, during the hearing of suo motu applications it
was pointed out off and on by many counsel that power and
jurisdiction under Article 184(3) of the Constitution could
not be exercised in those matters, but unfortunately, the
former Chief Justice would brush aside such submissions by
making awful observations and remarks. According to the
learned Attorney General, as a result of the above, the
former Chief Justice of Pakistan interfered with and
interrupted the working of each and every
department/office of the government and, created a
situation in which the other branches of the government
were not allowed to perform their functions and duties in
accordance with the provisions of the Constitution and the
law. This was a situation of chaos and anarchy for which the
Constitution provided no solution and the Chief of Army
Staff was constrained to take extra-constitutional steps in
the larger interest of the state necessity and for the welfare
of the people.

37. Pakistan has a parliamentary system and the

Constitution is based on the principle of trichotomy of
powers whereunder all the three organs of the state,
namely, the legislative, executive and the judiciary are
required to perform their functions and exercise their
powers within their allotted sphere. Theory of trichotomy of
power is the foundation of s the constitutional scheme. Each
organ of the State is equally important and each has definite
role to play. None is permitted to intrude into the domain of
the other. Illuminating discussion on the subject is found in
State v. Zia-ur-Rehman (PLD 1973 S.C. 49). Relevant
observations from pages 69 and 70 are reproduced below:--

"It may well be asked at this stage as to what is meant

by "jurisdiction"? How does it differ from "judicial
power"? Apart from setting up the organs the
Constitution may well provide for a great many other
things, such as, the subjects in respect of which that
power may be exercised and the manner of the
exercise of that power. Thus it may provide that the
Courts set up will exercise revisional or appellate
powers or only act as a Court of a cessation or only
decide Constitutional issues. It may demarcate the
territories in which a particular Court shall function
and over which its Writs shall run. It may specify the
persons in respect of whom the judicial power to hear
and determine will be exercisable. These are all
matters which are commonly comprised in what is
called the jurisdiction of the Court. It expresses the
concept of the particular res or subject matter over
which the judicial power is to be exercised and the
manner of its exercise. Jurisdiction is, therefore, a right
to adjudicate concerning a particular subject-matter in
a given case as also the authority to exercise in a
particular manner the judicial power vested in the
Court.

In exercising this power, the judiciary claims no

supremacy over other organs of the Government but
acts only as the administrator of the public will. Even
when it declares a legislative measure unconstitutional
and void, it does not do so, because, the judicial power
is superior in degree or dignity to the legislative power;
but because the Constitution has vested it with the
power to declare what the law is in the cases which
come before it. It thus merely enforces the
 Constitution as a paramount law whenever a legislative
enactment comes into conflict with it because it is its
duty to see that the Constitution prevails. It is only
when the Legislature fails to keep within its own
Constitutional limits, the judiciary steps in to enforce
compliance with the Constitution. This is no doubt a
delicate task as pointed out in the case of Fazlul
Quader Chowdhury v. Shah Nawaz, which has to be
performed with great circumspection but it has
nevertheless to be performed as a sacred
Constitutional duty when other State functionaries
disregard the limitations imposed upon them or claim
to exercise power which the people have been careful
to withhold from them."

38. The theory of separation of powers, particularly the

domain of the judiciary was examined in some detail in
Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445).
The principle of separation of powers is a fundamental
principle of the constitutional system, which means that the
governmental powers are divided among the three
departments of government; viz., the legislative, executive
and the judiciary and that each of them is separate from the
other. For an understanding of the principle, following
excerpts from the American Jurisprudence, Second Edition
Volume 16A (1998) are reproduced below:--

"246??..The Principle of separation of the powers of

government operates in a broad manner to confine
legislative powers to the legislature, executive powers
to the executive department, and those which are
judicial in character to, the judiciary. The Constriction's
central mechanism of separation of powers depends
largely upon a common understanding' of what
activities are appropriate to legislatures, to executives,
and to courts, and this separation of powers doctrine
requires the court to leave intact the respective roles
and regions of independence of the coordinate
branches of government?????.. ?

The true meaning of the general doctrine of the

separation of powers seems to be that the whole
power of one department should not be exercised by
the same hands which possess the whole power of
either of the other departments. Thus,. it is generally
recognized that constitutional restraints are
overstepped where one department of government
attempts to exercise powers exclusively delegated to
another; and that officers of any branch of the
government may not usurp or exercise the powers of
either of the others."

247???.The principle of the separation of the powers

of government is fundamental to the very existence of
constitutional government as established in the Untied
States. The division of governmental powers into
executive, legislative; and judicial represents probably
the most important principle of government declaring
and guaranteeing the liabilities of the people
????????

268????It is not the function of the judiciary to

 entertain private litigation which challenges the
legality, the wisdom, or the propriety of conduct of the
executive, who is acting within his constitutional
powers. In other words, so long as a public governing
body acts within the limits of its legal powers and
jurisdiction, the exercise of its judgment and discretion
is not subject to review or control by the courts at the
instance of citizens, taxpayers, or other interested
persons, in the absence of a statute authorizing such
review or control. However, a court order directing a
local government body to levy its own taxes is a judicial
act within the power of a Federal Court. While the lack
of authority in the judiciary to restrain a lawful exercise
of power by another department of government,
where a wrong motive or purpose has impelled the
exertion of the power, may render abuses temporarily
effectual, the remedy lies not in the abuse by the
judicial authority of its function, but in the people,
upon whom reliance must be placed for the correction
of such abuses."

39. In a very recent judgment titled Divisional Manager v.

Chander Dass passed in Appeal (Civil) No. 5732 of 2007 the
Supreme Court of India cautioned the judiciary in the
exercise of its powers and jurisdiction and desired that it
should confine itself to its proper sphere. Paragraphs 38 to
41 of the judgment are reproduced below for a ready
reference: -

"38. The moral of this story is that. if the judiciary does

not exercise restraint and overstretches its limits there
is bound to be a reaction from politicians and others.
The politicians will then step in and curtail the powers,
or even the independence, of the judiciary (in fact the
mere threat may do, as the above example
demonstrates). The judiciary should, therefore, confine
itself to its proper sphere, realizing that in a democracy
many matters and controversies are best resolved in
non-judicial setting.

39. We hasten to add that it is not our opinion that

judges should never be activist. Sometimes judicial
activism is a useful adjunct to democracy such as in the
School Segregation and Human Rights decisions of the
U.S. Supreme Court vide Brown v. Board of Education
347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436,
Roe v. Wade 410 U.S. 113, etc. or the decisions of our
own Supreme Court which expanded the scope of
Articles 14 and 21 of the Constitution. This, however,
should be resorted to only in exceptional
circumstances when the situation forcefully demands it
in the interest of the nation or the poorer and weaker
sections of society but always keeping in mind that
ordinarily the task of legislation or administrative
decisions is for the legislature and the executive and
not the judiciary.

40. In Dennis vs. United States (United States Supreme

Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341)
Mr. Justice Frankfurter observed: Courts are not
representative bodies. They are not designed to be a
good reflex of a democratic society. Their judgment is
 best informed, and therefore, most dependable, within
narrow limits. Their essential quality is detachment,
founded on independence. History teaches that the
independence of the judiciary is jeopardized when
courts become embroiled in the passions of the day
and assume primary responsibility in choosing
between competing political, economic and social
pressures.

41. In view of the above discussion we are clearly of

the view that both the High Court and First Appellate
Court acted beyond their jurisdiction in directing
creation of posts of tractor driver to accommodate the
respondents."

40. On 3rd November 2007 the Prime Minister addressed a

letter to the President of Pakistan who was also the Chief of
Army Staff apprising him of the grave situation prevailing in
the country on account of terrorism, extremism, militancy as
well as the erosion of trichotomy of power resulting in a
state of chaos and anarchy. The Chief of Army Staff
reviewed the situation in his meetings with the Prime
Minister, Governors of all the Provinces, Chairman Joint
Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice
Chief of Army Staff and the Corps Commanders of the
Pakistan Army, and in pursuance of the deliberations and
decisions of these meetings decided to proclaim emergency
throughout the country by way of exercise of power extra to
the Constitution. The emergency if proclaimed under the
Constitution, the President could not have dealt with the
above situation. Therefore, the Chief of Army Staff justifiably
decided to take extra-constitutional step by means of the
Proclamation of Emergency as in the past the constitutional
deviations by the Chief of Army Staff/Armed Forces 'were
validated by the Parliament in similar circumstances.

41. It was submitted by the learned counsel for the

respondent No. 2 as well as the learned Attorney General
for Pakistan that the Proclamation of Emergency of 3rd
November 2007, Provisional Constitution Order No. 1 of
2007 and the Oath of Office (Judges) Order, 2007 were not
sub-constitutional but extra-constitutional measures. The
learned counsel for the respondent No. 2 rightly stated that
if the actions of 3rd November 2007 were not taken, there
would have been chaos and anarchy in the country. The
impugned actions were taken by the Chief of Army Staff in
the larger interests of the State and for the welfare of the
people in consonance with the maxim salus populi est
supema lex. The maxim has been discussed in Hastings Law
Journal [USA, April 1994 issue] as under:--

Salus Populi had many sources and expressions. The

most w abstract forms emanated from civil-law writers
like Emmerich de Vattel, who based the legitimacy of
all society and government on its ability to promote
the general happiness of mankind. [FN91] American
versions most often took the shape of Chancellor
Kent's declaration that private interest must be made
subservient to the general interest of the community.
Kent used this rationale to uphold governmental
regulations of unwholesome trades, slaughter houses,
gunpowder, cemeteries, and the like. As Justice
 Holmes accurately noted later, this 1092 doctrine was
the foundation for the state police power. [FN92]
Indeed, the salus populi maxim is most often
encountered in appellate cases justifying state
regulations that restrict private rights in the common
interest."

42. The principle of salus populi est supema lex is

described in American Jurisprudence, Second Edition
(1998) Volume 16A, Section 322, p. 259 in the
following words: -

"Another principle involved in the police power is

expressed by the well known maxim "salus populi est
supremo lex" (the welfare of the people is the highest
law). "Solus populi est supremo lex" is the maxim most
popularly applied to the police power. It stands for the
proposition that legislation in response to the
demands of strong or preponderant opinion is
necessary to the public welfare and is a proper
exercise of the police power. This maxim is the
foundation principle of all civil government and for
ages it has been a ruling principle of jurisprudence. It is
the polestar, of police power legislation. All private
rights enjoyed by individuals as members of the public
are subject to the paramount right of the state to
modify them to conserve the public welfare under this
maxim."

At section 323 ibid is discussed the law of necessity as

under:--
"The police power has been described as the law of
necessity and as being coextensive with the necessities
of the case and the safeguards of public interest. In a
general way the police power extends to all the great
public needs, and may be put forth in aid of what is
sanctioned by usage or held by the prevailing morality
or strong and preponderant opinion to be greatly and
immediately necessary to the public welfare. And
governments may undertake to do more than the
Constitution requires. Thus, for example, imposition of
a requirement that all automobile drivers have
mandatory insurance coverage is within the state's
police power. This general doctrine furnishes the key
to what is included within the boundaries of police
power not that a police regulation, to be legitimate,
must be an absolute essential to the public welfare,
but that the exigency to be met must so concern such
welfare as reasonably to suggest a necessity for the
legislative remedy. It is not essential that a present
necessity should exist before the legislature moves
under the police power; it may act to prevent
apprehended dangers as well as to control those
already existing.

While an emergency does not create power, increase a

granted power, or remove or diminish the restrictions
imposed upon a power granted or reserved, an
emergency may furnish the occasion for the exercise of
police measures. Thus, a limit in time in order to tide
over a passing trouble may justify a law that could not
 be upheld as a permanent change. It must be borne in
mind, however, that an emergency does not
automatically lift all constitutional restraints, and that
a law that depends upon the existence of an
emergency to uphold it may cease to operate if the
emergency ceases, even though it was valid when
passed."

43. The maxim salus populi est supema lex and the principle
of State necessity were dilated upon by the Federal Court
(predecessor of this Court) in Re: Reference by H.E. the
Governor-General (PLD 1955 F C 435). At pages 478 to 480
of the report, the Court observed as under:--

"The point that arises, and I am not aware if it has ever

arisen before in this acute form, is whether in an
emergency of the character described in the Reference
there is any law by which the Head of the State may,
when the Legislature is not in existence, temporarily
assume to himself legislative powers with a view to
preventing the State and society from dissolution. In
seeking an answer to this question resort must
necessarily be had to analogies and first principles
because the law books and reported precedents
furnished no direct answer to the precise question
which today confronts the judiciary of Pakistan. The
Governor-General claims in the Proclamation that he
has acted in the performance of a duty which devolves
on him as Head of the State to prevent the State from
disruption and the preliminary question that has to be
considered is whether when we speak of rights and
duties in the matter of preservation of States or their
creation, foundation and dissolution, we are still in the
field of law or in a region out of bounds to lawyers and
courts. Having anxiously reflected over this problem I
have come to the conclusion that the situation
presented by the Reference is governed by rules which
are part of the common law of all civilized States and
which every written Constitution of a civilized people
takes for granted. This branch of the law is, in the
worlds of Lord Mansfield, the law of civil or State
necessity.

The law of natural necessity is a par to the statute, law

of our country, but the law of civil or State necessity is
as much a part of the unwritten law as the law of
military necessity, instances of which are adjudged
cases and authorities on this part of the case Mr.
Diplock has addressed us an eager and anxious
argument claiming for the Governor-General, as
representative of the King or as Head of the State,
certain powers which entitle him in the interest of the
State temporarily to act outside the limits of the
written Constitution. He has realized in this connection
on the maxim cited by the Bracton at folios 93-E and
247-A of his Treatise, "DE LEGIBUS ET
CONSUETUDINIBUS ANGLIAE" (Of the laws and.
Customs of England), "ID QUOD ALIAS NON EST
LICETOM, NECESSITAS LISCETOM FACIT" ( that which
otherwise is not lawful, necessity makes lawful), and
the maxims salus pouli suprema lex (Safety of the
people is the supreme law) and Salus republicae est
suprema lex (Safety of the State is the supreme law)
and certain authorities where one or more of these
maxims or the principle underlying them was treated
as part of the law. The best statement of the reason
underlying the law of necessity is to be found in
Cromwell's famous utterance. "If nothing should be
done but what is according to law, the throat of the
nation might be cut while we send for someone to
make a law." Broom at p.1 of the 10th Edition of his
legal maxims says that the phrase salus populi
suprema lex is based on the implied agreement of
every member of society that his own individual
welfare shall, in cases of necessity, yield to that of the
community, and that his property, liberty, and life shall
under certain circumstances, be placed in jeopardy or
even sacrificed for the public good. In re: An
Arbitration between Shipton, Anderson & Co. and
Harrison Brothers & Co. (1) Darling J. described the
maxim salus populi suprema lex as not only a good
maxim but essential law. In that case, by a contract in
writing, W made in September, 1914, the owner of a
specific parcel of wheat in a warehouse in Liverpool
sold it upon the terms "payment cash within seven
days against transfer order". Before delivery and
before the property passed to the buyer the wheat
was requisitioned by and delivered to His Majesty's
Government under the powers of an Act passed before
the date of the contract. It was held by the Court of the
King's Bench Division that delivery of the wheat by the
seller to the buyer having been rendered impossible by
the lawful requisition of the Government, the seller
 was excused from the performance of the contract.
The act of requisition was described both by Lord
Reading C. J. and Lush J. as `an act of state'. Referring
to that act Darling J. said:--

"It must be here presumed that the Crown acted

legally, and there is no contention to the contrary. We
are in a state of war; that is notorious. The subject-
matter of this contract has been seized by State acting
for the general good. Salus populi suprema lex is a
good maxim and the enforcement of that essential law
gives no right of action to whomsoever may be injured
by it."

44. Syed Sharifuddin Pirzada, Sr. ASC contended that the

Constitution made provision for emergency in Article 232.
He also took us through the provisions of Article 280 of the
Constitution to show that indirectly the Constitution
recognized the emergency proclaimed during martial law. By
notification No.45/1/71-P&C dated 23-11-1971, albeit in
somewhat different circumstances, (viz. Pakistan threatened
by external aggression) emergency was continued in
pursuance of the Proclamation of 25th March 1969 read
with the Provisional Constitution Order promulgated by the
then President and Chief Martial Law Administrator. Under
Article 280 of the Constitution said Proclamation of
Emergency was deemed to have been issued under Article
232 of the Constitution. The 1973 Constitution was enacted
on 14th August 1973 and as pointed out by the learned
counsel for both sides, within four hours, an Order
suspending fundamental rights was promulgated (Gazette of
Pakistan dated 15th August 1973).

45. The principle of derogation or deviation, as the case may

be, is accepted even in international charters on protection
of human rights. An instance of the kind may be found in
Article 15 .of the European Commission on Human Rights,
which reads as under:--

ARTICLE 15:

1. In time of war or other public emergency

threatening the life of the nation any High Contracting
Party may take measures derogating from its
obligations under this Convention to the extent strictly
required by the exigencies of the situation, provided
that such measures are not inconsistent with its other
obligations under international law.

2. No derogation from Article 2, except in respect of,

deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made under
this provision.

3. Any High Contracting Party availing itself of this right

of derogation shall keep the Secretary-General of the
Council of Europe fully informed of the measures
which it has taken and the reasons therefor. It shall
also inform the Secretary-General of the Council of
Europe when such measures have ceased to operate
and the provisions of the Convention are again being
fully executed.
46. A very instructive and illuminating discussion on the
need to have extra powers during emergency is found in
Basu's Human Rights in Constitutional Law, Second Edition
2003. At page 537 of the book, the learned author has
stated as under:--

"Two World Wars have established the lesson that

even in an ultra democratic country, the Government
would need extraordinary powers in order to be able
to meet a threat against the State itself, by situations
such as a war or external aggression or even internal
rebellion, civil war or the like, which render it
impossible for the normal Constitutional machinery to
cope with the abnormal situation.

In a federal country, such extraordinary emergency

situation would call for a greater concentration of
powers in the federal or national authorities and a
greater encroachment on the powers normally
assigned to the State Governments.

Whatever be the form of Government, emergent

situations are bound to arise in any country, owing to
various factors like war, rebellion, natural disaster,
economic or financial breakdown which call for
immediate measures to be taken by the Government
to safeguard the stability of the country or the safety
of the citizens, which, in order to be adequate, must be
different from or in addition to the normal system of
administration.
 But in a country having a democratic system of
Government such abnormal situation presents a
dilemma, because the assumption of any extraordinary
powers by the Government must be in derogation of
the civil and political rights normally ensured to the
citizens by the democratic Constitution.

A satisfactory solution of the problem can therefore be

had only if extraordinary powers are available to the
Government to meet such emergencies with the least
encroachment upon the rights and liberties of the
citizens."

47. In Muhammad Umer Khan's case (PLD 1953 Lahore 528),

martial law was proclaimed in the area of the Corporation of
the city of Lahore on account of serious disturbances,
involving loss of life and property during Ahmadi Movement.
At pages 538 and 539 of the report it was held as under:--

"If riot, rebellion or insurrection outrun the ordinary sources

of law and order and assume such proportions that civil
authorities become powerless to deal with it, the State
would naturally look to its armed forces for assistance. If the
military take over in any such contingency and the general
commanding the army completely ousts or subordinates civil
authorities in the area, the law applied by him during the
period of his occupation is martial law in sensu strictiore.
During such period, all constitutional guarantees are
suspended and the officer in chief command of the forces
operating in the troubled area acquires for the time being
supreme legislative, judicial and executive authority. In
other words, he himself fixes the limits and definition of his
own authority. He makes his own law, sets up his own courts
and no civil authority, while he is in command, may call into
question what he does. In this sense, therefore, martial law
is not law at all but the will of the officer commanding the
army. A commander who steps in to quell a rebellion
inaugurates a reign of lawlessness and a civil authority,
legislative or executive, which hands over the civil populace
of a locality to the military, places the life, liberty and
property of the people at the feet of the general who
commands the army.

In some constitutions, as for instance, the French

Constitution there is provision for the declaration of
what is called "a state of siege". Then such a
declaration is made, even fundamental rights are
suspended and during this suspension any person is
liable to arrest, imprisonment or execution at the will
of a military tribunal consisting of a few officers.
Martial law in this sense is completely foreign to British
or the American Constitution. And in our own
Constitution there is nothing enabling the military to
step in and take over to the exclusion of civil power,
though in living memory there have been four
occasions when people groaned under or enjoyed the
blessings of martial law.

In seeking to discover the source and reason of martial

law, the best course to adopt is to find an answer to a
few simple questions. In case of war or invasion do the
military have a right to act suo motu? If so, do they
have the same right where there is a riot, insurrection,
revolt or rebellion which, if not suppressed
immediately, may become a successful revolution? If
the answer to both these questions be in the
affirmative, a third question, and that is the most
important question, immediately presents itself,
namely, what are the powers of the military when
called upon to act in any such contingency? Can they,
for the purpose of suppressing the riot or rebellion,
make their own Rules and Regulations, set up their
own courts to enforce such Rules and Regulations and
thus infringe the high of freedom of person and of
enjoyment of property to which citizens are entitled
under the ordinary law in peace time? If constitutional
jurisprudence furnishes an answer to these questions,
that is martial law sui generis.

Most constitutional writers affirm that where civil

power is a deposed, suspended or paralysed by
domestic disturbances, the military are entitled to step
in to fill up the void but these writers are equally clear
in their opinion that while so acting the legality or
excusability of any action taken by the military will be
judged by "necessity" and that such judgment will lie
with the civil Courts ex post facto. Thus martial law is
the law of military necessity, actual or presumed in
good faith. Whether where the defence of necessity
and good faith cannot be founded on civil law, e.g.,
right of private defence or the use of force to disperse
unlawful assemblies and there is no indemnity bill, it
 will be recognized by civil Courts is an open question
though observations occur in several cases clearly
indicating that such necessity will be recognized as a
good defence Phillips v. Eyre (supra); Tilonko v.
Attorney-General of Natal (supra). If martial law is law
and its limits" are prescribed by necessity, then

(1) Not only the Crown has the prerogative to proclaim

martial law but without any such proclamation the
military can take over where by war, insurrection,
rebellion or tumult civil authority is y deposed',
suspended or paralysed;

(2) all acts done by the military which are either

justified by the civil law or were dictated by necessity
and done in good faith will be protected, even if there
be no bill of indemnity;

(3) while preventive action for the duration of the

martial law will be valid, punitive action will generally
be invalid;

(4) martial law will cease ipso facto with the cessation
of the necessity for it; and

(5) sentences of confinement by military courts will

expire with the expiry of the martial law."

48. In State v. Dosso (PLD 1958 SC 533) this Court relied on

the theory of Hans Kalson and recognized the imposition of
martial law in the country. In Asma Jilani v. Government of
the Punjab (PLD 1972 SC 139) the doctrine of condonation
was applied to the imposition of martial law. In
consequence, though General Agha Muhammad Yahya Khan
was declared a usurper, yet many of his acts, e.g., all past
and closed transactions, all acts and legislative measures,
which were in accordance with, or could have been made
under the abrogated Constitution of 1962 or the previous
legal order, all acts, which tended to advance or promote
the good of the people, all acts required to be done for the
ordinary orderly running of the State, etc., were condoned.
Relevant discussion occurring at pages 204 to 207 of the
report reads as under:--

"Some of the learned counsel appearing on the other

side at first advocated that we should totally ignore
this argument but Mr. Manzoor Qadir and Mr.
Sharifuddin Pirzada frankly conceded that within
certain limits validation can be given to certain acts of
even a de facto usurper of power either on the ground
of State necessity or implied authority. Mr. Anwar
sought at one stage to disassociate himself with this
view but when it was pointed out to him that the
result would then be that even the Legal Framework
Order (No. 2 of 1970) and the elections held
thereunder would also become invalid, he too
hesitated and thought that that might be going too far.
Mr. Brohi on the other hand, is prepared to 'concede
only this much that an usurper may be given the
limited power of acting within the framework of the
Constitution, but nothing beyond that.
This is a difficult question to decide and although I
have for my guidance the example of our own Federal
Court, which in Governor-General's Reference No. 1 of
1955 invoked the maxim of salus populi suprema lex to
create some kind of an order out of chaos, I would like
to proceed with great caution, for, I find it difficult to
legitimize what I am convinced is illegitimate. I shall,
therefore, first examine some other decisions which
have been cited at the Bar before I begin to formulate
my own views in the matter.

I have been referred to the decision of the Privy

Council in the case of Madzimbamuto v. Lardner-Burke
and another (0968) 3 A E R 561) where Lord Pearce in a
very elaborate dissenting judgment accepted that acts
done by those actually in control without lawful
authority may be recognized as valid or acted upon by
the Courts within certain limitations, on principles
either of necessity or implied mandate, particularly
where the enquiry is being made ex post facto,
because, common sense dictates that every thing done
during the intervening period, whether good or bad,
cannot be treated in the same manner. In support of
this proposition the noble lord refers also to a passage
from Grotius' book on De Jure Belli et Pacis (Book 1,
Ch. 4) where the following principle is enunciated:--

"Now while such a usurper is in possession, the acts of

Government which he performs may have a binding
force, arising not from a right possessed by him, for no
such right exists, but from the fact that one to whom
the sovereignty actually belongs, whether people, king,
or senate, would prefer that measures promulgated by
him should meanwhile have the force of law; in order
to avoid the utter confusion which would result from
the subversion of laws and suppression of the Courts."

There is no doubt that a usurper may do things both

good, and bad; and he may have during the period of
usurpation also made many Regulations or taken
actions which would be valid if emanating from a
lawful Government and which may well have, In the
course of time, affected the enforcement of contracts,
the celebration of marriages, the settlement of estates,
the transfer of property and similar subjects. Are all
these to be invalidated and the country landed once
again into confusion?

Such a principle, it appears, has also been adopted in

America In various cases which came up after the
suppression of the rebellion of the Southern States and
the American Courts too adopted the policy that
where the acts done by the usurper were "necessary
to peace and good order among citizens and had
affected property or contractual rights they should not
be invalidated", not because they were legal but
because they would cause inconvenience to innocent
persons and lead to further difficulties. Vide Texas v.
White (1868) 7 Wallace 733, Horn v. Loekhurt (1873)
17 Wallace 850 and Baldy v. Hunter. (1897) 171 U S
388.
Lord Pearce himself indicated 3 limitations for the
validation of such acts; namely:--

"(1) So far as they are directed to and reasonably

required for ordinary orderly running of the State;

(2) So far as they do not impair the rights of citizens

under the lawful Constitution; and ??

(3) So far as they are not intended to and do not in fact

directly help the usurpation and do not run contrary to
the policy of the lawful Sovereign."

The judgments of the Court of Appeal in Rhodesia in

the same case and of .a Court in Uganda in the case of
Uganda v. Commissioner of Prisons, Ex Parte Matovu
(1966 E A L R - 514) have also been cited before us but
I do not propose to deal with them, as they seem
mainly to draw their inspiration from Hans Kelsen and
the decision in Dosso's case. There is, however,
another case from Nigeria where the military take over
was not accepted as legitimate but condoned as a
"manifestation of necessity" and not as "revolutionary
breach of legal continuity". On this basis even the
fundamental rights guaranteed by the pre-existing
constitution were also maintained in the case of
Lakamani and Ola v. Attorney General (West), Nigeria.
(Unfortunately the full report of this decision is not
available but it is referred to in S. A. de Smith's book on
Constitutional and Administrative Law).
We have also in this connection been referred .to a
case from Cyprus sub-nominee. The Attorney-General
of the Republic v. Mustafa Ibrahim and others (1964
CLR 195) where the Supreme Constitutional Court of
Cyprus also applied the doctrine of necessity to
validate a certain legislation which was otherwise to
consistent with certain Articles of the Cyprus
Constitution on the ground that they would be justified
"if it can be shown that it was enacted only in order to
avoid consequences which could not otherwise be
avoided, and which if they had followed, would have
inflicted upon the people of Cyprus, whom the
Executive and Legislative organs of the Republic are
bound to protect, inevitable irreparable evil; and
furthermore if it can be shown that no more was done
than was reasonably necessary for that purpose, and
that the evil inflicted by the enactment in question,
was not disproportionate to the evil avoided" This the
Court thought was its duty to do in view of its "all
important and responsible function of transmitting
legal theory into living law; applied to the acts of daily
life for the preservation of social order"

I too am of the opinion that recourse has to be taken

to the doctrine of necessity where the ignoring of it
would result in disastrous consequences to the body
politic and upset the social order itself but I
respectfully beg to disagree with the view that this is a
doctrine for validating the illegal acts of usurpers. In
my humble opinion, this doctrine can be invoked in aid
only after the Court has come to the conclusion that
 the acts of the usurpers were illegal and illegitimate. It
is only then that the question arises as to how many of
his acts, legislative or other-wise, should be condoned
or maintained, notwithstanding their illegality in the
wider public interest. I would call this a principle of
condonation and not legitimization.

Applying this test I would condone (1) all transactions

which are past and closed, for, no useful purpose can
be served by re-opening them, (2) all acts and
legislative measures which are in accordance with, or
could have been made under, the abrogated
Constitution or the previous legal order, (3) all acts
which tend to advance or promote the good of the
people, (4) all acts required to be done for the ordinary
orderly running of the State and all such measures as
would establish or lead to the establishment of in our
case, the objectives mentioned in the Objectives
Resolution of 1954. I would not, however, condone any
act intended to Entrench the usurper more firmly in his
power or to directly help him to run the country
contrary to its legitimate objectives. I would not also
condone anything which seriously impairs the rights of
the citizens except in so far as they may be designed to
advance the social welfare and national solidarity."

49. The issue of condonation/validation in the above context

was also dealt with in Begum Nusrat Bhutto's case. Relevant
portion from the judgment occurring at pages 708 to 710
reads as under: -
"It is clear, therefore, that the conclusion that the act
of General Muhammad Yahya Khan amounted to a
usurpation of power flows directly from the
circumstances obtaining in that case, and is not to be
regarded as a general proposition of law to the effect
that whenever power is assumed in an extra-
Constitutional manner by an authority not mentioned
in the Constitution, then it must amount to usurpation
in all events. It would obviously be a question for
determination in the circumstances of the particular
case before the Court as to whether the assumption of
power amounts to usurpation or not.

It is also clear from the various judgments delivered in

Asma Jillani's case that the question of condonation
arose only on the view that the Army Commander-in
Chief was a usurper. The learned Attorney General is,
therefore, right in saying that in a case where extra-
constitutional intervention is justified by necessity,
then different considerations arise from those which
would be relevant for judging the acts of a usurper.

It has also to be noticed that the concept of

condonation, as expostulated in Asma Jillan's case, has
relevance not only to the acts of a usurper, but also to
a situation which arises when power has fallen from
the hands of the usurper, and the Court is confronted
with protecting the rights and obligations which may
have accrued under the acts of the usurper, during the
time he was in power. However, in the case of an
authority, whose extra-Constitutional assumption of
power is held valid by the Court on the doctrine of
necessity, particularly when the authority concerned is
still wielding State power, the concept of condonation
will only have a negative effect and would not offer
any solution for the continued administration of the
country in accordance with the requirements of State
necessity and welfare of the people. It follows,
therefore, that once the assumption of power is held
to be valid, then the legality of the actions taken by
such an authority would have to be judged in the light
of the principles pertaining to the law of necessity.

As already stated, the learned Attorney General

submits that the doctrine of necessity is recognized by
Islam. He has in this connection, the first place, drawn
our attention to the Injunctions contained in Sura Al-
Baqar and Sura Al Nahal, which are in almost identical
terms and permit, if one is forced by necessity, without
wilful disobedience, nor transgressing due limits, that
which is forbidden, namely, dead meat and blood and
the flesh of swine and any food over which the name
of other than Allah has been invoked. He also refers to
certain observations appearing in Islamic
Jurisprudence and Rule of Necessity and need by Dr.
Muslehuddin, 1975 Edition, (pp. 60-63), Islamic
Surveys by Coulson (p. 144), and the Muslim Conduct
of State by Hamidullah (p. 33). These writings lend
support to the maxim that "Necessity makes
prohibited things permissible."

Mr. Sharifuddin Pirzada has next drawn our attention

to certain Articles in the Majelle in support of his
proposition. Article 17 enjoins that "Hardship, causes
the giving of facility; that is to say, difficulty becomes a
cause of facility, and in times of embarrassment it
becomes necessary that latitude should be shown."
Article 21 says that "Necessities make forbidden things
canonically harmless". Article 22 lays down that
necessities are estimated according to their quantity,
and Article 26 embodies the maxim salus populi
suprema lex by saying that "To repel a public damage a
private damage is preferred." He submits that although
these maxims are directly relevant to cases of private
necessity but the principle can certainly be extended to
State necessity.

In support of his contention that the doctrine or law of

necessity is recognized in most Western Systems of
Jurisprudence, and has also been followed in Pakistan,
the learned Attorney-General has referred us to Rex v.
Stretton (1779) reported in Vol.21, Howell's State
Trials; Attorney-General of Duchy of Lancaster v. Duke
of Devenshire (1); the well-known case from Cyprus,
The Attorney General of Republic v. Mustafa Ibrahim
(2); the well-known case from Nigeria reported as E.O.
Lakanmi and another v. Attorney-General, West
Nigeria, Reference by H.E. The Governor-General (3)
and of course observations appearing in the case of
Asma Jillani.

He also relies upon the dissenting judgment delivered

by Lord Pearce in the Rhodesian case, already referred
to earlier in another contest, namely, Madzimbamuto
v. Lardner Burke (0968) 3 All ER 561).

I find that in the Federal Court case, relied upon by the

learned Attorney General, namely, Reference by H.E.
Governor General, the implications of the law of
necessity were discussed at some length by
Muhammad Munir, C.J., and accordingly it will be
useful to refer to it .in the first instance.

After referring to several authorities including some of

those now mentioned by Mr. Sharifuddin Pirzada, his
Lordship stated, particularly relying on the address of
Lord Mansfield in the proceedings against George
Stretton and others that "the principle clearly
emerging from this address of Lord Mansfield is that
subject to the condition of absoluteness, extremeness
and imminence, an act which could otherwise be illegal
becomes legal if it is done bona. fide under the stress
of necessity, the necessity being referable to an
intention to preserve the Constitution, the State or the
society and to prevent it from dissolution, and affirms
Chitty's statement that necessity knows no law, and
the maxim cited by Bracton that necessity makes
lawful which otherwise is not lawful." Having stated
this principle, the learned Chief Justice, with whom the
majority of the Judges agreed, proceeded to answer
the questions referred to the Court by the Governor-
General, and suggested certain arrangements for the
setting up of a Constituent Convention, which he
preferred to call Constituent Assembly, and for which
 there was otherwise no provision in the Government
of India Act, which then served as the Constitution for
Pakistan. The opinion recorded by the Federal Court in
this case provides a striking example of the invocation
of the law of necessity to validate certain extra-
Constitutional measures dictated by the considerations
of the welfare of the people and the avoidance of a
legal vacuum owing to an earlier judgment of the
Federal Court in Usif Patel v. Crown (PLD 1955 FC 387).
The measures in question were validated and not
sought to be condoned.

In the case from the Cyprus jurisdiction a more or less

similar situation had arisen owing to the difficulty of
the Turkish members of the Cyprus Parliament
participating for the passing of a law regarding the
functioning of the Supreme Court itself. In a very
elaborate judgment, after surveying the concept of the
doctrine or law of necessity as obtaining in different
countries the Court came to the conclusion that the
Cyprus Constitution should be deemed to include the
doctrine of necessity in exceptional circumstances
which is an implied exception to particular provisions
of the Constitution, and this in order to ensure the very
existence of the State. It was` further stated that the
following pre-requisites must be satisfied before this
doctrine can become applicable:-

(a) An imperative and inevitable necessity or

exceptional circumstances;
 (b) No other remedy to apply;

(c) The measure taken must be proportionate to the

necessity; and

(d) It must be of a temporary character limited to the

duration of the exceptional circumstances.

It was added that "A law thus enacted is subject to the

control of this Court to decide whether the aforesaid
pre-requisites are satisfied, that is, whether there
exists such a necessity and whether the measures
taken were necessary to meet it".

It seems to me that this summing up of the law of

necessity by one of the learned Judges of the Cyprus
Supreme Court embodies the true essence of the
doctrine, and provides useful practical guidelines for its
application."

The discussion on the subject of emergency, the

circumstances and the need for its issuance in the context of
Pakistan's jurisprudence may be closed with the remark that
the Proclamation of Emergency of 3rd November 2007
cannot be seen in isolation, but has to be examined in the
context of the historical process of the country.

50. It is clear from the material placed on record by the

respondents and the circumstances of the present case that
the situation which led to the issuance of Proclamation of
Emergency and the two other Orders were quite similar to
the one that prevailed in July 1977 and October 1999. In
1977 almost in an identical situation martial law was
imposed and the Constitution held in abeyance. The action
of the Chief of Army Staff was upheld by this Court in the
case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD
1977 SC 657) on the touchstone of State necessity. The Chief
Martial Law Administrator was possessed with the power to
amend the Constitution. The Parliament validated all the
actions and constitutional amendments of the Chief Martial
Law Administrator through the Constitution (Eighth
Amendment), Act, 1985 .including Article 58(2)(b) of the
Constitution, which conferred power on the President to
dissolve the National Assembly and to direct holding of fresh
elections.

51. In Mahmood Khan Achakzai v. Federation of Pakistan

(PLD 1997 SC 426) this Court came to the conclusion that the
constitutional amendments made during 1977-1985 were
necessary to avoid martial law in future. From 1985 till 1999
elections to the Parliament and the Provincial Assemblies
were held in Pakistan. But all the successive assemblies were
dissolved by the President under Article 58(2)(b) of the
Constitution. These dissolutions were challenged before the
superior Courts, but all, except one, were upheld. Later, by
means of the Constitution (Thirteenth Amendment) Act,
1997, Article 58(2)(b) was omitted. As a result thereof,
things went out of control and ultimately the Proclamation
of Emergency of 14th October 1999 was issued and the
Armed Forces took over the administration of the country.
The Army takeover was challenged before this Court in Zafar
Ali Shah's case and the same was upheld. In pursuance of
the above judgment, the country returned to civilian rule. In
the said case this Court itself gave three years' time to the
Armed Forces to restore law and order and to prepare the
country for elections.

52. However, in the present case, soon after the imposition

of emergency and the promulgation of the Provisional
Constitution Order 2007, the Government announced the
holding of election on schedule. The tug of war launched by
the former Chief Justice of Pakistan and some other former
Judges of the 'Supreme Court and the High Courts against
the other branches of the Government made them non-
functional and ineffective. Practically, the country had been
driven to a state of lawlessness. The -situation that prevailed
on 3rd November 2007 could also adversely affect the
defence capability of the country. From this perspective, the
present situation was even worse than the one that
prevailed in October 1999, which was fully covered by the
law laid down in Zafar Ali Shah's case at page 1169 of the
judgment, where this Court held as under:--

"252. After perusing the voluminous record and after

considering the submissions made by the parties, we
are of the view that the machinery of the Government
at the Centre and the Provinces had completely broken
down and the Constitution had been rendered
unworkable. A situation arose for which the
Constitution provided no solution and the Armed
Forces had to intervene to save the State from further
chaos, for maintenance of peace and order, economic
stability, justice and good governance and to safeguard
 integrity and sovereignty of the country dictated by
highest considerations of State necessity and welfare
of the people. The impugned action was spontaneously
welcomed by all sections of the society."

53. As for the reinstatement of the former Judges of the

Supreme Court and the High Courts who ceased to hold
office under the Oath of Office (Judges) Order, 2007, we
have already held in the Short Order that the learned Chief
Justices and Judges of the superior courts, (Supreme Court
of Pakistan, Federal Shariat Court and the High Courts), who
were not given, or who did not make, oath under the
aforesaid Order had ceased to hold their respective offices
on 3rd November 2007 and their cases cannot be re-opened
being hit by the doctrine of past and closed transaction.
During the course of arguments, both the learned counsel
for the petitioners repeatedly submitted that the
Government ought to have adopted constitutional means to
meet the situation that prevailed in the country on or before
3rd November 2007. However, they failed to point out any
particular course that had been provided under the
Constitution to meet a situation where any organ of the
State, particularly when some former Judges of the superior
Courts transgressed their constitutional limits and took upon
themselves the execution of the functions of the executive
or legislative branches of the government, thereby bringing
the functioning of the Government to a standstill. The
learned Attorney General for Pakistan vehemently
contended that the treatment the Presidential Reference
filed against the former Chief Justice of Pakistan received at
the hands of the former Judges of the Supreme Court closed
the door for the Government to resort to the constitutional
remedies provided for the accountability of the Judges of
the superior Courts. According to him, the practical effect of
the order dated 20th July 2007 passed by a majority of 10 to
3 in Constitutional Petition No. 21/2007 was that the
provisions of Article 209 of the Constitution were rendered
nugatory and redundant. He further submitted that on the
eve of hearings before the Supreme Judicial Council of
Pakistan, lawyers-cum-political workers would enter the
Supreme Court premises, raise slogans against the members
of the Supreme Judicial Council and interrupt working of the
Council as well as the Supreme Court Benches. The Court
premises were practically turned into a ground exclusively
meant for political processions and rallies, which badly
impaired the sanctity of the Court. The learned Attorney
General further stated that on the very first date of hearing
of the Reference before the Supreme Judicial Council, the
former Chief Justice did not sit in the vehicle made available
to him at his official residence for travelling to the Supreme
Court to attend the proceedings of the Council and insisted
on walking on foot along with his family members.
According to the learned Attorney General, it was an act
unbecoming of a person who happened to be the Chief
Justice of Pakistan and thus, the dignity and prestige of the
highest judicial office of the country was disregarded. He
submitted that the law enforcing personnel on duty
requested the former Chief Justice time and again to use the
vehicle provided to him for going to the Supreme Court, but
he did not accede to their request. Hence, the behaviour of
the former Chief Justice created an unpleasant scene. At the
top of it, one of the former Judges took suo motu action of
the matter and created an embarrassing situation for the
administration a situation that was the creation of the
former Chief Justice. The learned Attorney General
lamented on the fact that the media, particularly some
private T.V. channels, took the occasion as the high time of
their business and never realized the sensitivity of the issue.
Instead of confining to their true role of relaying information
to the masses, they turned their talk shows into an exercise
aimed at advocating a particular point of view.

54. The learned Attorney General also submitted that a

politician-?cum-lawyer, who was one of the counsel of the
former Chief Justice of Pakistan, used all his political skills
and expertise in turning the Reference into a political
gambol. He used every occasion in the course of the
proceedings of the Reference and later the Constitutional
Petition filed by the former Chief Justice of Pakistan against
the said Reference to gain political mileage. He organized
political rallies for the former Chief Justice of Pakistan to
address the bar associations throughout the width and
breadth of the country. He became a personal driver of the
former Chief Justice and also intended to ply a coaster for
the other former Judges. Many former Judges of the High
Courts would participate in those events all of which were
calculated to destabilize the government machinery under a
scheme. Every speaker on the stage presided over by the
former Chief Justice would make a political speech and at
the end the former Chief Justice would deliver speech on the
`rule of law'. It was a mockery of the Constitution and the
law.
55. The learned Attorney General for Pakistan next
submitted that the former Chief Justice as well as the former
Judges of the Supreme Court created an atmosphere of
extreme uncertainty in the matter of hearing/decision of the
case relating to the election of the President of Pakistan. In
the first round, the matter was heard for a very long time
and ultimately the petitions were found to be not
maintainable by a majority of six to three. Thereafter the
nomination papers of the 'incumbent President were
accepted by the Chief Election Commissioner through a well
reasoned order, which was upheld by this Court vide
judgment dated 19th November 2007 passed in
Constitutional Petition No.73 of 2007 and Criminal Original
Petition No. 51 of 2007. At the scrutiny of the nomination
papers for the election of the President, some mischief
mongers attempted to interrupt the functioning of the Chief
Election Commissioner of Pakistan and created a situation of
law and order. The law enforcing agencies had to intervene
to ensure that the aforesaid constitutional functionary of
the State was not prevented from performing his
constitutional functions. However, the former Chief Justice
of Pakistan, in line with his past conduct, initiated suo motu
action against the concerned public servants and compelled
the Government to take instant arbitrary action against
those officials without waiting for the result of the inquiry
ordered by the Government into the matter. Rather he
never allowed the Government to proceed with the
aforesaid inquiry. According to the learned Attorney
General, this was not the first time that the State
functionaries were intimidated, frightened and put in an
embarrassing situation by the former Chief Justice. The suo
motu actions of the former Chief Justice had created an
atmosphere in which no senior officer was willing and ready
to be posted in the administration of Islamabad Capital
Territory.

56. The learned Attorney General for Pakistan further

submitted that after the acceptance of the nomination
papers for the Presidential election, the matter was again
brought before the Supreme Court in the second round. The
hearing continued for nearly two months. During this period
the election to the office of President took place and though
the incumbent President secured the highest votes (about
98%), yet the former. Judges passed an order restraining the
Chief Election Commissioner from issuing notification of the
result of the election. The former Chief Justice of Pakistan
kept changing the composition of the Bench, rather
increased from time to time the number of the Judges on
the Bench. Firstly, a Bench of 9 Judges was constituted. Later
the number was raised to 11. The matter of election of the
highest office of the country required urgent resolution in
the supreme national interest. The 'situation was being
closely monitored at the international level, particularly in
view of the position taken by the Government of Pakistan in
the war on terrorism. Summing up his arguments, the
learned Attorney General submitted that the above
uncertain state of affairs badly impaired the image of the
country among the comity of nations, negatively impacted
on the security as also the law and order situation in the
country and adversely affected the economic growth.

57. We have given deep consideration to this aspect of the

matter. The learned counsel for the petitioners have not
been able to rebut the submissions made by the learned
counsel for the respondent No. 2 as well as the learned
Attorney General for Pakistan on the above issue. The facts
and circumstances narrated by the learned Attorney General
for Pakistan in the preceding paragraphs presented an
alarming situation and unfortunately the concerned
stakeholders in the judicial and the legal arena of the time
never realized the implications of the situation to which the
country had been driven. The State functionaries were
pushed against wall and no way out was left for them. Thus,
the action of 3rd November, 2007 had become inevitable,
which had been taken by the respondent No. 2 to save the
country from chaos and anarchy. Being a step taken in the
interest of State necessity and for the welfare of the people,
this Court through the Short Order dated, 23rd November
2007 validated the same.

58. On 15th December 2007, through the Revocation of

Proclamation of Emergency Order, 2007, the emergency was
revoked, the Provisional Constitution Order No. 1 of 2007
was repealed, the Constitution as amended by the
Constitution (Amendment) Order, 2007 (P.O. No.5 of 2007)
and the Constitution (Second Amendment) Order, 2007
(P.O. No. 6 of 2007) was revived and the Chief Justice of
Pakistan and Judges of the Supreme Court, the Chief Justice
and the Judges of the Federal Shariat Court and Chief Justice
and the Judges of the High Courts holding office at the time
of the revival of the Constitution took oath under the
Constitution in the form set out in the Third Schedule to the
Constitution. The Revocation Order also provided that the
said revocation or repeal shall not revive anything not in
force or existing at the time of the revocation or repeal or
affect the previous operation of any law or anything done or
purported to, or suffered to have been done under the
Proclamation of Emergency, the Provisional Constitution
Order and the Oath of Office (Judges) Order, 2007. The
above revocation or repeal would also not affect any right,
privilege, obligation or liability acquired, accrued or incurred
under the Proclamation of Emergency, the Provisional
Constitution Order and the Oath of Office (Judges) Order,
2007.

59. The issue of reinstatement of the Judges of the Superior

Courts who were not given, or who had not made oath,
under the Oath of Office (Judges) Order, 2000 was examined
in depth in Syed Zafar Ali Shah's case. In the process, the
Court took into consideration the position emerging after
restoration of the Constitution. At Para 284 of the judgment,
this Court held as under: -

"284. We, therefore, declare that the Judges of the

Supreme Court and High Courts cannot be removed
without resorting to the procedure prescribed in
Article 209 of the Constitution, but the cases of Judges
who ceased to be Judges of the Supreme Court and
High Courts by virtue of Oath of Office (Judges) Order,
2000 (Order 1 of 2000) are hit by the doctrine of past
and closed transaction and cannot be reopened."

60. The learned Attorney General for Pakistan rightly

pointed out that the former Chief Justice of Pakistan, Justice
Iftikhar Muhammad Chaudhry and the former senior puisne
Judge of this Court, Justice Rana Bhagwandas were among
the Judges of the superior Courts who had taken oath under
the Oath of Office (Judges) Order, 2000 and were among the
signatories to the judgment in Zafar Ali Shah's case whereby
the Army takeover of 12th October 1999, dissolution of the
National Assembly and the Provincial Assemblies, dismissal
of the Federal and the Provincial Governments and the
removal of the Judges of the superior Courts were validated
and the Chief of Army Staff who was the then Chief
Executive of the country was given powers, inter alia, to
amend the Constitution. Alas, the former Chief Justice and
the former Judges forgot even the very recent history and
failed to read the writing on the wall.

61. The cases of the former Judges of the superior Courts

who ceased to hold office by virtue of the Oath of Office
(Judges) Order, 2007, are fully covered by the law laid down
in Zafar Ali Shah's case and cannot be dealt with differently.
Further, soon after the action of 3rd November 2007 the
process for filling the vacancies was undertaken and
consequently appointments were made in the Supreme
Court as well as in the High Courts. The Constitution stands
revived on and from 15th December 2007 and is in full force.
The action in respect of the former Chief Justice and former
Judges has attained finality and being a fait accompli the
same is even otherwise not reversible. The present
dispensation attracts the provisions of Article 264 of the
Constitution, which, inter alia, says:--

"Where a law is repealed, or is deemed to have been

 repealed, by, under, or by virtue of the Constitution,
the repeal shall not, except as otherwise provided in
the Constitution, -

(a) revive anything not in force or existing at the time

at which the repeal takes effect;

(b) affect the previous operation of the law or anything

duly done or suffered under the law;
? ??????????
???????????--------------------------------------------------------
--"

We, therefore, reaffirm, uphold and validate the action

taken by the respondent No.2 under the Oath of Office
(Judges) Order, 2007 in the light of the law laid down in
Zafar Ali Shah's case. Upon Proclamation of Emergency, the
Provisional Constitution Order and the Oath of Office
(Judges) Order of 2007, the former Chief Justice of Pakistan
and other former Judges of superior Courts had ceased to
hold office. Thereafter any order passed or function
performed by them was void, coram non judice and of no
legal effect or consequence.

62. On 14th December 2007, President's Order No. 8 of 2007

was issued, whereby a permanent Judge who had ceased to
hold office of a Judge of High Court in terms of Article 3 of
the Oath of Office (Judges Order, 2007 was held entitled to
full pension and other retirement benefits admissible to a
permanent Judge of a High Court and the provisions of
clause (3) of Article 207 of the Constitution would apply to
such a Judge. Likewise, President's Order No. 9 of 2007 of
even date provided that a Judge of the Supreme Court who
had ceased to hold office in pursuance of Article 3 of the
Oath of Office (Judges) Order, 2007 would be entitled to full
pension and other retirement benefits calculated on that
basis. Thus, the former Judges would be at liberty to avail
the pensionary benefits in terms of the aforesaid two
Presidential Orders.

63. We gave some thought to the issue of suspension of

Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and
25 of the Constitution under the Provisional Constitution
Order No. 1 of 2007. During the course of arguments, on a
Court query, the learned counsel for the respondent No. 2 as
well as the learned Attorney General for Pakistan stated that
as soon as the objects of the emergency were achieved and
the situation returned to normalcy, the emergency would be
lifted immediately. Considering the positive assurance given
on behalf of the Government, no order was deemed to be
called for on this aspect of the matter,

64. As to the 'alleged restrictions on the media, or the

alleged detention of certain lawyers-cum-political workers,
suffice it to observe that the matter involved individual
grievances of the concerned T.V. channels and the alleged
detenues, which could not be properly adjudicated upon in
these proceedings. The owners of those T.V. channels, as
also the alleged detenues were at liberty to seek remedy at
the appropriate forums in accordance with law. However, all
through the emergency, there were no restrictions on the
print media and the viewpoint of the citizens got full
coverage. The critics of the actions of 3rd November 2007
even got extra coverage, rather undue projection. During
this period yellow journalism touched new heights and
attempts to malign the institutions of the State were made,
which was an unhealthy sign in this noble profession: It
should be hoped that some thought would be given to this
aspect of the matter at the appropriate level and an effort
made to draw a line somewhere.

65. Now, we take up the other objection regarding duration

of Ordinances in force at the time of, or during the
Proclamation of Emergency and the Provisional Constitution
Order. A similar point was considered earlier by the superior
Courts in a number of cases. In Mrs. Keays Byrne v. M.
Obaidullah Khan (PLD 1961 [W.P.] Lahore 256), a plea was
taken that the West Pakistan Urban Rent Restriction
Ordinance (IX of 1959), made by the President pursuant to
Proclamation dated 21st March, 1957, under Article 193 of
late Constitution of 1956, had ceased to have effect on the
expiry of six months of the Proclamation. It was held as
under: -

"The Rent Restriction Ordinance of 1959, although

described as an Ordinance, cannot be said to be a
temporary statute. It has been promulgated in
pursuance of the Presidential Proclamation of the 7th
day of October 1958. There is no indication in that it is
to continue only for a limited period. While dealing
with this Ordinance, we cannot allow ourselves to be
influenced by the Articles of the late Constitution
according to which Ordinance made under the
 provisions of that Constitution used to lapse after the
expiry of the prescribed period. We are, therefore, of
the opinion that the Rent Restriction Ordinance 1959 is
a permanent statute and the question of its expiry
does not arise at all. In view of the permanent
character of the Rent Restriction Ordinance, we hold
that the jurisdiction of the Civil Court for trying a suit
for the ejectment of a tenant has been ousted and no
Civil Court is entitled to pass a decree for the
ejectment of a tenant after the enforcement of this
Ordinance."

66. In the case of Badrul Haque Khan v. The Election

Tribunal, Dacca (PLD 1963 SC 704), late Mr. Justice A.R.
Cornelius, the former Chief Justice of Pakistan, speaking for
the Court, took the view that the carrying over of laws as
effective instruments from the period prior to the
Revolution into the period of Martial law was effected by
Article 4 of the Laws (Continuance in Force) Order, 1958,
and it was clear that within the terms of that Article, the
Representation of the People Act was one of the laws which
continued to be existing law after the 7th October, 1958.
This Court did not see that the law could be thought to have
been deprived of its force by anything appearing in the
Proclamation of Martial Law of the 7th October, 1958.

67. In Abu Farida Khan v. East Pakistan (PLD 1964 Dacca

473), the East Pakistan Public Safety Ordinance (LXVIII of
1958) was promulgated by the Governor of East Pakistan
before the Constitution came into force on 8th June, 1962.
The High Court took the view that it was not necessary to
place the Ordinance for approval of the provincial
legislature. The Ordinance had been continued as a valid law
by virtue of Article 225 of the Constitution of 1962,
whereunder all existing laws, subject to the Constitution,
would continue in force until altered, repealed or amended
by the 'appropriate legislature. There was no doubt in the
mind of the High Court that the Ordinance was a valid law
before Constitution came into force and since the Ordinance
had not been excluded in Article 225, it continued to remain
in force and its continuation was not dependent upon
compliance with the provisions of Article 79 of the
Constitution.

68. In Hashmat Ali v. Abdul Karim (PLD 1968 Lahore 188),

the provisions of Article 225(1) of 1962 Constitution were
considered with reference to the continuation of the
Displaced Persons (Compensation and Rehabilitation) Act
(XXVIII of 1958). It was held that the existing laws would
continue until altered, repealed or amended by the
appropriate legislature. It was further held that the word
"until" was not used entirely to connote a duration. It really
meant that existing laws were to continue so long as they
were not altered, repealed or amended.

69. In the case of Sheikh Atta Muhammad v. Mian

Muhammad Abdullah (PLD 1971 Lahore 210), the validity of
the West Pakistan Urban Rent Restriction Ordinance, 1959,
was challenged on the ground that the Provincial Assembly
constituted under the 1962, Constitution had not accorded
its approval to the Ordinance under Article 79(2), therefore,
the same had ceased to operate after expiry of 42 days of
the first meeting of the Provincial Assembly. It was held that
the Ordinance in question, was promulgated during the
period of Martial Law in Pakistan and that admittedly at that
time there was no legislature. The conditions of
promulgation of the Ordinance too were no doubt similar to
those mentioned in Article 102 of the 1956 Constitution, but
the legislation, for failure of its approval by the subsequent
legislature, would not go out of the statute book because
protection to it had been given by virtue of Article 225 of the
1962 Constitution. The Ordinance was an existing law at the
time of promulgation of the 1962 Constitution and it had to
continue in force until altered, repealed or amended by the
appropriate legislature, i.e. the Legislative Assembly of
West Pakistan. The approval of the legislature as provided in
clause (2) of Article 79 of the 1962 Constitution would,
therefore, be unnecessary and the Ordinance could not be
considered to be invalid for non-approval by the Assembly.

70. In Malik Muzaffar Khan v. Government of the Punjab

(1980 SCMR 121), the question of validity of the West
Pakistan Tribunals of Inquiry Ordinance (II of 1969), was
called in question on the ground that the same had lapsed
automatically with the issuance of the Proclamation of
Withdrawal of Martial Law- on 21st April, 1972. It was held
by this Court that the Ordinance stood protected by the
provisions of Articles 268(1) and 280 of the 1973
Constitution, and continued, without brake, to remain a
valid law.

71. In our view, the Ordinances promulgated and legislative

measures taken by the President, or as the case may be, by
the Governor, which were in force at the time of, or during
the period for which the Proclamation of Emergency of 3rd
November, 2007 held the field, would continue to be in
force by virtue of the Provisional Constitution Order, 2007,
read with Article 270AAA(3) of the Constitution, until
altered, repealed or amended by the appropriate legislature.
There would be no question of expiry of these Ordinances in
terms of Article 89(2), or as the case may be, under Article
128(2) of the Constitution.

72. Above are the reasons for the Short Order dated 23rd
November, 2007 whereby these Constitutional Petitions
were disposed of in the terms mentioned therein. For facility
of reference, the Short Order is reproduced below:--

"ORDER

The above Constitutional Petitions are directed against

the Proclamation of Emergency of the 3rd day of
November 2007 and the Provisional Constitution Order
No. 1 of 2007 issued by the Chief of Army Staff, as also
the Oath of Office (Judges) Order, 2007 made and
promulgated by the President of Pakistan.

2. We have heard Mr. Irfan Qadir, learned ASC for the

petitioner in Constitutional Petition No.87/2007 and
Barrister Zafarullah Khan in Constitutional Petition
No.88/2007 as well as Syed Sharifuddin Pirzada, Senior
Advocate Supreme Court and Malik Muhammad
Qayyum, Attorney General for Pakistan on behalf of
the respondents in both the petitions. We find that--
(i) in the recent past the whole of Pakistan. was
afflicted with extremism, terrorism and suicide attacks
using bombs, hand grenades, missiles, mines, including
similar attacks on the armed forces and law enforcing
agencies, which reached climax on 18th of October
2007 when in a similar attack on a public rally, at least
150 people were killed and more than 500 seriously
injured. The extremists/terrorists resorted to
abduction of foreigners, which badly impaired the
image of Pakistan in the comity of nations, and
adversely affected its economic growth. The situation
in Islamabad and various places in N.-W.F.P.,
Balochistan and tribal areas was analogous to "a state
within the state". Unfortunately, no effort by the
government succeeded in curbing extremism,
terrorism and suicide attacks. The Prime Minister
apprised the President of the situation through his
letter of the 3rd of November 2007;

(ii) the Constitution of Pakistan is based on the

principle of trichotomy of powers. All the three organs
of the State, namely, the legislature, the executive and
the judiciary are required to perform their functions
and exercise their powers within their specified
sphere. Unfortunately, some members of the superior
judiciary by way of judicial activism transgressed the
constitutional limits and ignored the well-entrenched
principle of judicial restraint. Thousands of applications
involving individual grievances were being processed
as suo motu cases ostensibly in the exercise of power
under Article 184(3) of the Constitution, which
provision is resorted to the enforcement of
fundamental rights involving questions of law of
general public importance. Instances of transgression
of judicial authority at large scale may be found in the
cases of determination of prices of fruits, vegetables
and other edibles, suspension and transfers of
government officials, frequent directions to enact
particular laws, stoppage of various development
projects, such as New Murree City, Islamabad Chalets,
Lahore Canal Road and many more. They rendered the
state machinery, particularly legislative and, executive
branches of the government paralyzed and nugatory.
They made ineffective the institution of the Supreme
Judicial Council set tip under the Constitution for the
accountability of the members of the superior
judiciary;

(iii) the sum total of the circumstances led to a

situation where the running of the government in
accordance with the provisions of the Constitution
became impossible for which the Constitution
provided no remedy or satisfactory solution. There was
a strong apprehension of disastrous consequences,
that would have followed in case the action of the 3rd
day of November 2007 was not taken by the Chief of
Army Staff/President;

(iv) the situation which led to the issuance of

Proclamation of Emergency of the 3rd day of
November 2007 as well as the other two Orders,
 referred to above, was similar to the situation which
prevailed in the country on the 5th of July 1977 and
the 12th of October 1999 warranting the extra-
constitutional steps, which had been validated by the
Supreme Court of Pakistan in Begum Nusrat Bhutto v.
Chief of the Army Staff (PLD 1977 SC 657) and Syed
Zafar Ali Shah v. Pervez Musharraf, Chief Executive of
Pakistan (PLD 2000 SC 869) in the interest of the State
and for the welfare of the people, as also the fact that
the Constitution was not abrogated, but merely held in
abeyance;

Sufficient corroborative material .has been produced

by the respondents, which justifies the taking of the
extra-constitutional measures by the Chief of Army
Staff and the President.

3. We, therefore, hold that -

(ii) the Constitution of the Islamic Republic of Pakistan,

1973 still remains to be the supreme law of the land
albeit certain parts thereof have been held in abeyance
in the larger interest of the country and the people of
Pakistan;

(iii) the extra-constitutional steps of Proclamation of

Emergency of the 3rd day of November, 2007, the
Provisional Constitution Order No.1 of 2007, the
Provisional Constitution (Amendment) Order, 2007,
the Oath of Office (Judges) Order, 2007 and the
President's Order No. 5 of 2007 are hereby declared to
 have been validly made by the Chief of Army
Staff/President subject to the condition that the
country shall be governed, as nearly as may be, in
accordance with the Constitution. All acts and actions
taken for the orderly running of the State and for the
advancement and good of the people are also
validated. In absence of the Parliament, General Pervez
Musharraf, Chief of Army Staff/President, in pursuance
of the Proclamation of Emergency of the 3rd day of
November 2007 may, in the larger public interest and
the safety, security and integrity of Pakistan, under the
principle of salus populi supremo [ex, may perform -

(a) all acts or legislative measures which are in

accordance with, or could have been made under the
1973 Constitution, including the power to amend it;

(b) all acts which tend to advance or promote the good

of the people; and

(c) all acts required to be done for the ordinary orderly

running of the State.

4. We further hold and direct as under: -

(i) the old Legal Order has not been completely

suppressed or destroyed, but it is a case of
constitutional deviation for a limited transitional
period;

(ii) constitutional amendments can be resorted to only

if the Constitution fails to provide a solution for the
attainment of the declared objectives of the Chief of
Army Staff/President, but without affecting the salient
features of the Constitution, i.e. independence of
Judiciary, federalism, parliamentary form of
Government blended with Islamic provisions;

(iii) the President, the Federal Government and the

Election Commission of Pakistan shall ensure the
holding of fair, free and transparent elections as
required by the Constitution and the law;

(iv) the Superior Courts continue to have the power of

judicial review, to judge the validity of any act or action
of the Chief of Army Staff, or the President
notwithstanding the ouster of their jurisdiction by the
aforesaid extra-constitutional measures;

(v) the Chief Justices and Judges of the superior courts

(Supreme Court of Pakistan, Federal Shariat Court and
the High Courts) are subject to accountability only
before the Supreme Judicial Council in accordance with
the procedure laid down in Article 209 of the
Constitution;

(vi) the learned Chief Justices and Judges of the

superior courts, (Supreme Court of Pakistan, Federal
Shariat Court and the High Courts), who have not been
given, and who have not made, oath under the Oath of
Office (Judges) Order, 2007 have ceased to hold their
respective offices on the 3rd of November 2007. Their
 cases cannot be re-opened being hit by the doctrine of
past and closed transaction; and

(vii) The Proclamation of Emergency of the 3rd day of

November, 2007 shall be revoked by the President
and/or the Chief of Army Staff at the earliest so that
the period of constitutional deviation is brought to an
end. However, this Court may, at any stage, re-
examine the continuation of the Proclamation of
Emergency if the circumstances so warrant.

5. The petitions are disposed of in the above terms."

M.B.A./T-2/S
????????????????????????????????????????????????
?????????????????????????????????????Order accordingly