I N THE SUPREME COURT OF PAKI STAN

( Ori gi nal Juri sdi ct i on)

PRESENT:

MR. JUSTI CE I FTI KHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTI CE MI AN SHAKI RULLAH JAN
MR. JUSTI CE TASSADUQ MR. HUSAI N JI LLANI
MR. JUSTI CE JAWWAD S. KHAWAJA
MR. JUSTI CE TARI Q PARVEZ
MR. JUSTI CE MI AN SAQI B NI SAR
MR. JUSTI CE EJAZ AFZAL KHAN
MR. JUSTI CE I JAZ AHMED CHAUDHRY
MR. JUSTI CE MUHAMMAD ATHER SAEED




CONSTI TUTI ON PETI TI ONS NO. 77 TO 85 & 89 OF 2011
& CMA NO. 5505/ 2011 I N CONST. P. 79 OF 2011
[ Const it ut ion Pet it ion under Ar t icle 184( 3) of t he Const it ut ion
r egar ding alleged Memorandum t o Admir al Mike Mullen by Mr .
Husain Haqqani, for mer Ambassador of Pakist an t o t he Unit ed
St at es of Amer ica]




Wat an Part y PETI TI ONER
[ CP 77/ 2011]

M. Tari q Asad Advocat e Supreme Court PETI TI ONER
[ CP 78/ 2011]

Muhammad Nawaz Sharif PETI TI ONER
[ CP 79/ 2011]

Senat or Muhammad I shaq Dar & anot her PETI TI ONERS
[ CP 80/ 2011]

I qbal Zafar Jhagra & anot her PETI TI ONERS
[ CP 81/ 2011]

Lt . General Abdul Qadi r Bal och & 2 ot hers PETI TI ONERS
[ CP 82/ 2011]

Raj a Muhammad Farooq Hai der Khan & anot her PETI TI ONERS
[ CP 83/ 2011]

Syed Ghous Ali Shah & 2 ot hers PETI TI ONERS
[ CP 84/ 2011]


CONST P 77- 85, 89/ 2011, et c.
2
Hafeez ur Rahman PETI TI ONER
[ CP 85/ 2011]

Shafqat ullah Sohail PETI TI ONER
[ CP 89/ 2011]
VERSUS


Federat i on of Paki st an & ot hers RESPONDENTS



For t he pet i t i oners: Barri st er Zafarullah Khan, ASC i n person
Mr. Tari q Asad, ASC in person
Mr. Rashi d A. Razvi , Sr. ASC
Senat or Muhammad I shaq Dar &
Khawaj a Muhammad Asi f, MNA in person
Mr. Muhammad Rafi q Raj wana, ASC
Mr. At t i que Shah, ASC
Dr. M. Sal ahuddin Mengal , ASC
Sardar Asmat ullah Khan, ASC
Syed Ghous Ali Shah, ASC
Dr. M. Shamim Rana, ASC
Mr. Naseer Ahmad Bhut t a, ASC
Mr. M.S. Khat t ak, AOR



For t he Presi dent of Paki st an: Nemo.


For t he Prime Mini st er of Paki st an: Nemo.


For Chi ef of Army St aff, Maulvi Anwar- ul- Haq
DG, I SI & M/ O of Cabinet , At t orney General for Paki st an
Defence, Forei gn Affai rs, Mr. Dil Muhammad Ali zai , DAG
I nt eri or & Law:


For Mr. Husai n Haqqani: Ms. Asma Jahangi r, ASC
Ch. Akht ar Ali , AOR assist ed by
M/ s I drees Ashraf and Asad Jamal, Advocat es


For Mansoor I j az: Nemo.


Dat e of hearing: 19- 23 & 27- 30 December, 2011



CONST P 77- 85, 89/ 2011, et c.
3
O R D E R


I FTI KHAR MUHAMMAD CHAUDHRY, CJ. We have
uphel d t he maint ainabilit y of t he li st ed pet i t i ons vi de foll owi ng order
dat ed 30.12.2011: -
The Obj ect ives Resolut ion, which has been made subst ant ive par t of
t he Const it ut ion by means of Ar t icle 2A of t he Const it ut ion of I slamic
Republic of Pakist an commands t hat :
And wher eas it is t he will of t he people of Pakist an t o
est ablish an or der ;
Wher ein int egr it y of t he t er r it or ies of t he Feder at ion, it s
independence and all it s r ight s, including it s sover eign
r ight s on land, sea and air, shall be safeguar ded;
So t hat people of Pakist an may pr osper and at t ain t heir
r ight ful and honour ed place amongst t he nat ions of t he
Wor ld and make t heir full cont r ibut ion t owar ds
int er nat ional peace and pr ogr ess and happiness of
humanit y.
2. This shor t or der shall be followed by det ailed r easons, t o
be r ecorded lat er. The above pet it ions have been inst it ut ed under
Ar t icle 184( 3) of t he Const it ut ion of I slamic Republic of Pakist an.
3. For t he pur pose of under st anding t he issues involved in
t hese pet it ions pr ecisely t he fact s not ed fr om t he pleadings of t he
par t ies ar e t hat on 10
t h
Oct ober , 2011, t he r espondent Mansoor I j az
wr ot e an Ar t icle in Financial Times, London. The cont ent s of t he said
Memo have alr eady been r epr oduced in t he or der dat ed 1
st
December ,
2011, however , same ar e r epeat ed her ein below: -

CONFI DENTI AL MEMORANDUM
BRI EFI NG FOR ADM. MI KE MULLEN, CHAI RMAN, JOI NT CHI EFS
OF STAFF

During t he past 72 hours since a meet ing was held bet ween t he
president , t he prime minist er and t he chief of army st aff, t here has
seen a significant det eriorat ion in Pakist ans polit ical at mosphere.
I ncreasingly desperat e effort s by t he various agencies and fact ions
wit hin t he government t o find a home I SI and/ or Army, or t he
civilian government for assigning blame over t he UBL raid now
dominat e t he t ug of war bet ween milit ary and civilian sect ors.
Subsequent t it - for-t at react ions, including out ing of t he CI A st at ion
chiefs name in I slamabad by I SI officials, demonst rat es a dangerous
devolut ion of t he ground sit uat ion in I slamabad where no cent ral
cont rol appears t o be in place.
Civilians cannot wit hst and much more of t he hard pressure being
delivered from t he Army t o succumb t o wholesale changes. I f civilians
are forced from power, Pakist an becomes a sanct uary for UBLs legacy
and pot ent ially t he plat form for far more rapid spread of al Qaedas
brand of fanat icism and t error. A unique window of opport unit y exist s
for t he civilians t o gain t he upper hand over army and int elligence
direct orat es due t o t heir complicit y in t he UBL mat t er.
Request your direct int ervent ion in conveying a st rong, urgent and
direct message t o Gen Kayani t hat delivers Washingt ons demand for
him and Gen Pasha t o end t heir brinkmanship aimed at bringing down
CONST P 77- 85, 89/ 2011, et c.
4
t he civilian apparat us t hat t his is a 1971 moment in Pakist ans
hist ory. Should you be willing t o do so, Washingt ons polit ical/ milit ary
backing would result in a revamp of t he civilian government t hat , while
weak at t he t op echelon in t erms of st rat egic direct ion and
implement at ion ( even t hough mandat ed by domest ic polit ical forces) ,
in a wholesale manner replaces t he nat ional securit y adviser and ot her
nat ional securit y officials wit h t rust ed advisers t hat include ex- milit ary
and civilian leaders favorably viewed by Washingt on, each of whom
have long and hist orical t ies t o t he US milit ary, polit ical and
int elligence communit ies. Names will be provided t o you in a face-t o-
face meet ing wit h t he person delivering t his message.
I n t he event Washingt ons direct int ervent ion behind t he scenes can be
secured t hrough your personal communicat ion wit h Kayani (he will
likely list en only t o you at t his moment ) t o st and down t he Pakist ani
milit ary-int elligence est ablishment , t he new nat ional securit y t eam is
prepared, wit h full backing of t he civilian apparat us, t o do t he
following:
1. President of Pakistan will order an independent
inquiry int o t he allegat ions that Pakist an harbored and offered
assist ance to UBL and other senior Qaeda operat ives. The
Whit e House can suggest names of independent invest igat ors
t o populat e t he panel, along t he lines of t he bipart isan 9- 11
Commission, for example.
2. The inquiry will be account able and independent , and
result in findings of t angible value t o t he US government and
t he American people t hat ident ify wit h exact ing det ail t hose
element s responsible for harboring and aiding UBL inside and
close to t he inner ring of influence in Pakist ans Government
( civilian, int elligence direct orat es and milit ary) . I t is cert ain
t hat t he UBL Commission will result in immediat e t erminat ion
of act ive service officers in t he appropriate government offices
and agencies found responsible for complicit y in assist ing UBL.
3. The new nat ional securit y t eam will implement a
policy of eit her handing over t hose left in t he leadership of Al
Qaeda or ot her affiliat ed t errorist groups who are st ill on
Pakist ani soil, including Ayman Al Zawahiri, Mullah Omar and
Siraj uddin Haqqani, or giving US milit ary forces a green light
t o conduct t he necessary operat ions t o capt ure or kill t hem on
Pakist ani soil. This cart e blanche guarant ee is not wit hout
polit ical risks, but should demonst rat e t he new groups
commit ment to root ing out bad elements on our soil. This
commit ment has t he backing of t he t op echelon on t he civilian
side of our house, and we will insure necessary collat eral
support .
4. One of t he great fears of t he milit ary- int elligence
est ablishment is that wit h your st ealt h capabilit ies t o ent er and
exit Pakist ani airspace at will, Pakist ans nuclear assets are
now legit imat e t argets. The new nat ional securit y team is
prepared, wit h full backing of t he Pakist ani government
init ially civilian but eventually all t hree power cent ers t o
develop an accept able framework of discipline for t he nuclear
program. This effort was begun under the previous milit ary
regime, wit h accept able result s. We are prepared t o react ivat e
t hose ideas and build on t hem in a way t hat brings Pakist ans
nuclear asset s under a more verifiable, t ransparent regime.
5. The new nat ional securit y t eam will eliminat e Sect ion
S of t he I SI charged wit h maint aining relat ions t o t he Taliban,
Haqqani net work, et c. This will dramat ically improve relat ions
wit h Afghanist an.
6. We are prepared t o cooperat e fully under t he new
nat ional securit y t eams guidance wit h t he I ndian government
on bringing all perpetrat ors of Pakist ani origin t o account for
t he 2008 Mumbai at t acks, whet her outside government or
inside any part of t he government , including it s int elligence
agencies. This includes handing over those against whom
CONST P 77- 85, 89/ 2011, et c.
5
sufficient evidence exist s of guilt to the I ndian securit y
services.

Pakist an faces a decision point of unprecedent ed import ance. We, who
believe in democrat ic governance and building a much bet t er
st ruct ural relat ionship in t he region wit h I ndia AND Afghanist an, seek
US assist ance t o help us pigeon-hole t he forces lined up against your
int erest s and ours, including cont ainment of cert ain element s inside
our count ry t hat require appropriat e re- set s and re- t asking in t erms of
direct ion and ext ent of responsibilit y aft er t he UBL affair.
We submit t his Memorandum for your considerat ion collect ively as t he
members of t he new nat ional securit y t eam who will be induct ed by
t he President of Pakist an wit h your support in t his undert aking.

4. Pet it ioner s invoked or iginal j ur isdict ion of t his Cour t by means of
Const it ut ion Pet it ions, quest ioning t her ein t he cont ent s of above Memo
on st at ed allegat ions t hat quest ion of public impor t ance involving t heir
fundament al r ight s under t he Const it ut ion has been made out as
according t o t he ver sion of Mansoor I j az- r espondent , Memo was
pr epar ed/ draft ed for t he purpose of deliver ing t he same t o Chair man
of t he US Joint Chiefs of St aff Admir al Mike Mullen t hr ough Gen.
( Ret d. ) James Logan Jones, for mer US Nat ional Secur it y Advisor .
5. All t he pet it ions wer e t aken up for hear ing on 1
st

December , 2011 when aft er hear ing t he pet it ioner s, eit her t hr ough
counsel or in per son, not ices wer e issued t o t he r espondent s for filing
of t heir r eplies and t o conduct a pr obe r egar ding t he Memo, Mr . Tar iq
Khosa, former Secr et ar y Nar cot ics/ DG, FI A, subj ect t o his consent ,
was dir ect ed t o act as a Commission. On t he same day, by means of
pr ess- confer ence held in PI D office by Dr . Babar Awan, Sr . ASC along
wit h t wo Minist er s and ot hers, t he or der of t he Cour t was cr it icized
cont empt uously. I nasmuch as, br ot her of Mr . Tar iq Khosa, namely, Mr .
Just ice Asif Saeed Khan Khosa, a lear ned Judge of t his Cour t , who
alt hough was not member of t he Bench, was r efer r ed in t er ms which
pr ima facie ar e cont empt uous, t her efor e, for such r easons, Mr . Tar iq
Khosa r ecused t o act as a Commission. I n t his cont ext , r eact ion of t he
Chief Execut ive/ Pr ime Minist er of Pakist an had been obt ained and
appr opr iat e dir ect ions shall be passed in t he lat er par t of t he order .
6. Par t ies, including t he Chief of Ar my St aff, DG, I SI , Mansoor I j az
as well as Mr. Husain Haqqani and t he Feder at ion of Pakist an t hrough
Secr et ar y I nt er ior , For eign Secr et ar y r epr esent ed by lear ned At t or ney
Gener al for Pakist an, filed t heir r eplies. No separ at e r eply has been
filed by t he Pr esident of Pakist an.
7. Wit h a view t o nar r ow down t he cont r over sy bet ween t he
par t ies, dir ect ions wer e issued t o t hem t o file count er affidavit s/ r e-
j oinder s t o t he r eplies of each ot her s vide or der dat ed 19. 12. 2011. A
per usal of t he pleadings suggest s: -
( i) Aft er t he publicat ion of above Ar t icle along wit h
Memo in Financial Times, London on 10
t h
of
Oct ober , 2011, DG, I SI ( Mr . Shuj ah Pasha)
est ablished his cont act wit h Mansoor I j az in London
and on his r et ur n t o Pakist an shar ed his views wit h
t he Chief of Army St aff, Gener al Ashfaq Par vez
Kayani, t hus, bot h of t hem in t heir r eplies t o t he
pet it ions as well as affidavit s have maint ained t hat
Memo dat ed 10
t h
May, 2011 exist s.
( ii) On 16
t h
November , 2011 Mr. Husain Haqqani
addr essed a let t er t o t he Pr esident of Pakist an
wher ein aft er ment ioning cer t ain fact s, he desir ed
CONST P 77- 85, 89/ 2011, et c.
6
t o t ender his r esignat ion fr om t he post of
Ambassador of Pakist an in Unit ed St at es and
expr essed t o probe int o t he mat t er.
( iii) About 3 t o 4 meet ings wer e held bet ween t he
Pr ime Minist er and Chief of Ar my St aff, t he
Pr esident and Chief of Ar my St aff and j oint meet ing
bet ween t he Pr esident , Prime Minist er, Chief of
Ar my St aff, DG I SI and Mr . Husain Haqqani,
wher eaft er , Mr . Husain Haqqani on account of t heir
per suasion t ender ed his r esignat ion on 22. 11. 2011,
which was accept ed vide not ificat ion dat ed
23. 11. 2011.
( iv) For mer Ambassador , Mr. Husain Huqqani has
denied cat egor ically about his r ole in pr eparat ion of
t he Memo who at t he same t ime has r elied upon an
affidavit t ender ed by James Jones, t o est ablish t hat
Mansoor I j az has concoct ed t his st or y t hat such
Memo was sent by him for delivering t o Admiral
Mike Mullen befor e 9
t h
May, 2011.
( v) I n t he meanwhile, vide let t er dat ed 28. 11. 2011,
issued under t he signat ur es of Mr . Khushnood
Akht er Lashar i, Principal Secr et ar y t o t he Pr ime
Minist er r efer r ed t he mat t er t o t he Par liament ar y
Commit t ee t o conduct probe on t he subj ect issue.
The pr oposed t erms of t he r efer ence ar e as under : -
a. To pr obe int o t he memo pur por t edly writ t en
and sent by Mr . Mansoor I j az.
b. To give consequent ial r ecommendat ions.
( vi) Feder at ion of Pakist an t hrough Secr et ar y I nt er ior
had not denied t he exist ence of t he Memo in t heir
count er affidavit s except r aising t echnical flaws in
r espect of under t aking j our ney by DG, I SI t o
London t o conduct a meet ing wit h Mansoor I j az
wit hout permission of t he Prime Minist er.
( vii) Mansoor I j az in his r eply and in count er affidavit
has cont radict ed t he st and t aken by Mr. Husain
Haqqani, for mer Ambassador and he has offer ed t o
pr ovide fur t her evidence t o subst ant iat e his plea
t hat allegedly on per suasion of Mr . Husain Haqqani,
Memo dat ed 10
t h
may, 2011 was draft ed t o be
deliver ed t o Mike Mullen t hr ough James Jones.
8. On 1
st
of December , 2011 t he Cour t it self r aised t he
quest ion about t he maint ainabilit y of t he pet it ions and at t he same
t ime it was obser ved t hat it would be appr eciat ed if t he out come of t he
pr oposed inquir y by t he Par liament ar y Commit t ee on Nat ional Secur it y
is shar ed wit h t he Cour t , if possible.
9. Aft er having hear d t he par t ies and having t aken int o
consider at ion t he r elevant pr ovisions of t he Const it ut ion and t he law,
j udgment s cit ed on behalf of bot h t he sides and t he pleadings of t he
par t ies car efully, we hold as under : -
( a) I n exer cise of power s of Judicial Review, we hold
t hat in t hese pet it ions, pet it ioner s have succeeded
in est ablishing t hat t he issues involved ar e
j ust iciable and quest ion of public impor t ance wit h
r egar d t o enfor cement of fundament al right s, pr ima
facie, under Ar t icles 9, 14 and 19A of t he
Const it ut ion has been made out . Thus, t he
CONST P 77- 85, 89/ 2011, et c.
7
pet it ions under Ar t icle 184( 3) of t he Const it ut ion
ar e maint ainable.
( b) To delineat e measur es wit h a view t o ensur e
enfor cement of t he fundament al r ight s not ed in
para ibid, a pr obe is called for t o ascert ain t he
or igin, aut hent icit y and pur pose of
cr eat ing/ dr aft ing of Memo for delivering it t o
Chairman of t he US Joint Chiefs of St aff Admiral
Mike Mullen t hr ough Gen. ( Ret d. ) James Logan
Jones, former US Nat ional Secur it y Advisor . Thus,
in exer cise of power s conferr ed upon t his Cour t
under Ar t icle 187 of t he Const it ut ion, Order XXXI I ,
Rules 1 and 2 r ead wit h Order XXXVI of t he
Supr eme Cour t Rules, 1980 coupled wit h t he
pr inciple of Civil Procedur e Code, a Commission i s
appoint ed. As t he due pr ocess of law is t he
ent it lement of all t he st akholder s, t her efor e, t o
ensur e pr obe int o t he mat t er in an t r anspar ent
manner t he Commission shall be compr ising of:
( i) Mr. Just ice Qazi Faez I sa, ( Chairman)
Chief Just ice of Balochist an High Court

( ii) Mr. Just ice I qbal Hameed- ur- Rehman ( Member)
Chief Just ice, I slamabad High Court

( iii) Mr. Just ice Mushir Alam ( Member)
Chief Just ice, High Court of Sindh

Raj a Jawwad Abbas Hassan, Dist rict & Sessions Judge,
I slamabad is appoint ed as Secret ary t o t he Commission.
( c) The Commission shall hold it s meet ings in t he
building of I slamabad High Cour t . The Commission
shall be exer cising all t he power s of Judicial
Officer s for t he pur pose of car r ying out t he obj ect
ment ioned her einabove and it shall be fr ee t o avail
ser vices of advocat es, exper t s of for ensic science
and cyber crimes. All t he Federal Secr et ar ies,
including I nt er ior Secr et ar y, Secr et ar y Cabinet ,
Secr et ar y For eign Affair s; Chief Secr et aries of all
t he pr ovinces; DG, FI A; I nspect or Gener als of
Police of all t he pr ovinces and Ambassador s of
Pakist an in USA and UK, shall pr ovide necessar y
assist ance t o t he Commission.
( d) Gover nment of Pakist an t hr ough Secr et ar y Cabinet
Division shall pr ovide logist ic suppor t t o t he
Commission, subj ect t o it s demands t hr ough t he
Secr et ar y of t he Commission.
( e) The Commission shall be aut hor ized t o collect
evidence wit hin and out side Pakist an accor ding t o
pr evailing laws on t he subj ect .
( f) The Commission shall provide full oppor t unit y of
hear ing t o all t he par t ies.
( g) The Commission is r equir ed t o complet e t his t ask
wit hin a period of four weeks aft er r eceipt her eof.
10. I t is t o be not ed t hat t he r eply submit t ed befor e t he Cour t
by Mr. Mansoor I j az, int er alia, compr ises of cer t ain document s
including exchange of e- mails and ot her communicat ions using t he
BlackBerr y Messaging ser vice commonly known as BBM bet ween t hem
i. e. Mansoor I j az and Mr . Husain Haqqani wer e in const ant t ouch eit her
CONST P 77- 85, 89/ 2011, et c.
8
t hr ough BBM, e- mails or voice calling w. e. f. 9
t h
t o 12
t h
May, 2011. I n
fact dur ing r elevant days, as many as 85 BBMs, voice calls and e- mails
wer e exchanged bet ween t he t wo. Pr ima facie t hese communicat ions
for m t he most impor t ant piece of evidence r egar ding purpor t ed
cont act s bet ween t he t wo for t he pur poses of dr aft ing t he alleged
Memo. I n addit ion t o t hese dat es, Mansoor I j az also claims t hat he had
elect r onic/ t elephonic int er act ions wit h Mr . Husain Haqqani on Oct ober,
28 and November , 1 2011. Ther efor e, in t he int er est of j ust ice, it is
appr opr iat e t o get t he confir mat ion about t he ver acit y and aut hent icit y
of t hese communicat ions fr om t he or iginal company known as
Resear ch in Mot ion ( RI M) based in Canada being t he sole and
exclusive cust odian of such infor mat ion. Ther efor e, t he lear ned
At t or ney Gener al is dir ect ed t o cont act t he said Company RI M t hr ough
Secr et ar y, Minist r y of For eign Affair s for get t ing confir mat ion about t he
aut hent icit y of t he above ment ioned elect r onic communicat ions
exchanged bet ween Mansoor I j az and Mr . Husain Haqqani. This
confir mat ion may be obt ained at t he ear liest and in or der t o save and
pr ot ect t he for ensic evidence and t o scr ut inize t he same it should be
pr oduced befor e t he Commission. As for ensic evidence is likely t o be
collect ed fr om t he company Resear ch in Mot ion ( RI M) based in
Canada, t her efor e, t he High Commission of Pakist an in Canada is
dir ect ed t o cooperat e and assist t he Commission as well.
11. Vide or der dat ed 1
st
December , 2011, Mr . Husain Haqqani
was dir ect ed not t o leave t he count r y wit hout t he per mission of t he
Cour t . This or der is kept int act .
12. Office is dir ect ed t o put a separat e not e in t he Chamber s
of Chief Just ice of Pakist an along wit h t he t r anscr ipt ion of t he pr ess-
confer ence dat ed 1
st
December , 2011 of Mr . Babar Awan, Sr. ASC
along wit h r eplies/ r eact ions of t he Pr ime Minist er of Pakist an dat ed
23
rd
December and 26
t h
December , 2011 for passing appr opr iat e
or der s.
13. The pet it ions ar e adj our ned for a dat e t o be fixed by t he
office aft er r eceipt of t he r epor t fr om t he Commission.

2. Det ailed marshaling of t he fact s of inst ant case are not
called for because of t he set t l ed princi ple of l aw wit h regard t o exerci se
of j uri sdi ct i on under Art i cle 184( 3) of t he Const it ut i on t hat t he Court
shoul d not ent er int o di sput ed quest i ons of fact involvi ng appreci at i on
of vol umi nous evi dence. However, t o deci de t he quest i on brought
before t he Court rel at ing t o t he publi c import ance and enforcement of
fundament al ri ght s, t here is no prohi bit i on t o consi der fact s, which do
not requi re consi derat i on of vol umi nous evi dence. Reference may be
made t o t he cases of Nawaz Sharif v. President of Pakist an ( PLD 1993
SC 473) , Pakist an Muslim League ( N) v. Federat ion of Pakist an ( PLD
CONST P 77- 85, 89/ 2011, et c.
9
2007 SC 642) , Sindh High Court Bar Associat ion v. Federat ion of
Pakist an ( PLD 2009 SC 879) , Dr. Mubashir Hassan v. Federat ion of
Pakist an ( PLD 2010 SC 265) and Al- Jehad Trust v. Lahore High Court
( 2011 SCMR 1688) . I t i s al so set t led pract i ce of t he Court t hat
proceedi ngs are not undert aken for academi c purposes but on t he
basi s of admi t t ed or proven fact s t o resol ve t he cont roversy [ Dr.
Mubashir Hassans case( supra) ] .
3. Accordi ng t o t he cont ent i ons of Mr. Tari q Asad, ASC in
respect of Memo dat ed 10
t h
May, 2011 ori ginat ed/ draft ed by Mansoor
I j az i n t he ci rcumst ances, whi ch have al ready been not ed hereinabove
informat i on whereof was communicat ed by t he medi a. Therefore, he
inst i t ut ed pet it i on No.78/ 2011 on 21
st
of November, 2011 wherei n
int er alia it was prayed t o const i t ut e hi gh level Commi ssi on t o
invest i gat e int o t he mat t er of Memo writ t en t o US Government and t o
fi x t he responsi bilit i es for damagi ng t he soverei gnt y of t he count ry.
Pri or t o filing of t hi s pet it i on, anot her pet i t i on was filed by Wat t an
Part y t hrough Barri st er Zafarull ah Khan, ASC on 19
t h
November, 2011
wherei n int er alia i t i s st at ed t hat t ext of t he Memo, whi ch cont ains six
poi nt s, are regardi ng t he concessi ons, whi ch will be given t o Ameri ca
so t hat all t he desi red demands of Ameri can Army are met and
Paki st an will change it s securi t y t eam and new nat i onal securi t y t eam
will make arrangement s, provi ded t he pressure of Paki st an Army on
civili an government s i s rel eased or cont rol by t he Army on ci vilian
government i s removed t hrough Ameri cas i nt erference, et c. I t was
prayed t hat i ssue of secret Memo, i ssued aft er t he approval of
government and Presi dent be det ermined whet her i t i s t reasonous
document or fabri cat i on i mput ed t o t he government of day/ Presi dent
CONST P 77- 85, 89/ 2011, et c.
10
and Judi ci al Commissi on be appoi nt ed for it s i nvest i gat i on. Simil arl y,
Mi an Muhammad Nawaz Shari f and ot hers submi t t ed pet it i ons on
23.11.2011 wherein ot her i mport ant fact s were di scl osed t hat copy of
t he t ranscri pt of t he sai d conversat i on rel eased by sai d Mansoor I j az
as publi shed in t he issue of 18
t h
November, 2011 of t he Daily t he
News was avail able whi ch was appended as annexure P/ I I . However,
it was ment i oned t hat i n t he meant ime fri ght fully di st urbing comment s
al so came from t he spokesman of Admi ral Mike Mullen t o t he effect
t hat : -
Admn. Mullen had no recoll ect i on of t he Memo and no
rel at i onshi p wit h Mr. I j az. Aft er t he ori gi nal Art i cle
appeared on Forei gn Policys websi t e, he fel t it i ncumbent
upon himsel f t o cheque hi s memory. He reached out t o
ot hers who he beli eved might have had knowl edge of such
a Memo, and one of t hem was able t o produce a copy of
it .
I t was prayed t hat t he ones responsi ble and/ or i nvol ved i n ini t iat i ng
t he process l eadi ng t o t he sai d memorandum; aut hori ng t he same;
provi di ng any assi st ance what soever in t he process and t he ones
bl essing or approvi ng t he sai d act , may graci ousl y be i dent ified.
4. Undi sput edl y, an Art i cle has been publi shed in Fi nanci al
Times, London on 10
t h
Oct ober, 2011, reference of whi ch has been
made i n t he short order, reproduced herei nabove. Subsequent l y, on
22
nd
Oct ober, 2011, DG I SI ( Lieut enant General Ahmad Shuj a Pasha)
cont act ed t he aut hor of Art i cle ( Mansoor I j az, respondent ) i n London.
The Federat i on, t hrough Secret ary I nt eri or in count er affidavit , has not
deni ed t his fact except rai sing t he obj ect i on t hat t he DG I SI had gone
t o London wi t hout permi ssi on of Chief Execut ive/ Prime Mini st er. I t has
CONST P 77- 85, 89/ 2011, et c.
11
al so not been di sput ed by t he Federat i on t hat on 13
t h
November, 2011
t he Chi ef of Army St aff advi sed t he Prime Mini st er t hat det ails of t he
Memo were graduall y comi ng t o li ght and t hat cont ent s of t he Memo,
so far leaked, were hi ghl y sensit i ve i n nat ure, t herefore, posi t i on woul d
have t o be t aken on t he veraci t y or ot herwi se of t he sai d i ssue. I t was,
t herefore, import ant t hat compl et e det ail s be coll ect ed as earl y as
possi bl e. He st rongly recommended t o t he Prime Mi nist er t hat
Ambassador of Paki st an in t he Unit ed St at es, who was best sui t ed and
informed on t he mat t er, be call ed t o brief t he Count rys l eadership, as
t he t ime was of essence and t hat earlier t hey knew t he t rut h, t he
bet t er i t woul d be t o address t he negat i ve fall out for t he count ry. On
15
t h
November, 2011, t he Presi dent asked him for a meet i ng. He met
hi m at t he Presi dency at 1400 hours on t he same day. The Pri me
Mini st er had al ready informed t he Presi dent about hi s
recommendat i ons. The Presi dent t ol d him t hat he had al ready deci ded
t o call Mr. Husai n Haqqani for a bri efing. On 16
t h
November, 2011,
anot her meet ing was hel d bet ween Chief of Army St aff, Presi dent and
Pri me Mi ni st er, wherein, it was deci ded t hat Mr. Husai n Haqqani shoul d
come t o I sl amabad as early as possi ble. On 22
nd
November, 2011 at
1500 hours, a meet i ng was hel d i n t he Pri me Mi nist er House, whi ch
was at t ended by Presi dent , Pri me Mi nist er, Chi ef of Army St aff and
DG, I SI , whereby, Mr. Husai n Haqqani was called i n t o bri ef.
Thereaft er, t he Pri me Mini st er t ook t he deci si on t o ask for Mr. Husai n
Haqqani s resi gnat i on and al so ordered for i nvest i gat i on.
5. Likewi se, a copy of t he l et t er dat ed 16
t h
November, 2011
addressed t o Mr. Asi f Ali Zardari , President of Paki st an has been fil ed
in Court by respondent Mr. Husain Haqqani t hrough hi s
CONST P 77- 85, 89/ 2011, et c.
12
learned counsel Ms. Asma Jahangi r, ASC. The l et t er, which has been
relied upon by t he respondent himsel f, needs t o be reproduced
herei nbel ow as it di scl oses i mport ant aspect s of t he case: -


EMBASSY OF PAKI STAN
3517 I nt er nat ional Cour t , N. W.
Washingt on, D. C. 20008
November 16, 2011
Dear Mr. Pr esident ,

Since my appoint ment as Ambassador of Pakist an t o t he Unit ed
St at es in 2008, I have st r ived t o ser ve t he count r y and
r epr esent it for cefully in t he count r y of my accr edit at ion. I have
fait hfully followed t he dir ect ions of t he Pr ime Minist er and t he
gover nment in execut ing my dut ies and dealt wit h many crises
t hat have bedeviled US- Pakist an t ies.
I t is unfor t unat e t hat I have been consist ent ly vilified by t hose
who oppose t he democr at ically elect ed gover nment as well as
t he opponent s of good r elat ions bet ween t he Unit ed St at es and
Pakist an. This vilificat ion has oft en included t he baseless char ge
t hat somehow I under mine or defame t he ar med for ces of
Pakist an even t hough many member s of my family have
fait hfully ser ved t he count r y as milit ar y officer s. Like many
Pakist anis, I have consist ent ly opposed milit ar y int er vent ion in
polit ics but I have never connived, conspir ed or sought t o
under mine our armed forces or t heir leadership.
Most r ecent ly allegat ions have been made t hat I wr ot e a let t er
or memo on your behalf t o t he US Chairman Joint Chiefs,
Admiral Michael Mullen, soon aft er t he May 2 r aid in Abbot t abad
t hat r esult ed in t he killing of Al- Qaeda leader Osama Bin Laden.
The alleged memo/ let t er pr oposed US suppor t for civilian r ule in
r et ur n for changes in Pakist ans milit ar y leader ship. I want t o
cat egorically st at e t hat at no point was I asked by you, or
anyone else, in t he gover nment of Pakist an t o wr it e such a
let t er or memo and t hat I did not draft or deliver such a let t er or
memo nor did I ask anyone t o do so on my behalf or t hat of t he
gover nment or Pr esident of Pakist an.
CONST P 77- 85, 89/ 2011, et c.
13
I may add t hat as ambassador it is my official dut y t o
communicat e wit h US officials at all levels and I am per fect ly
capable of dr aft ing and deliver ing all official communicat ions
myself.
I t has been my pr ivilege t o ser ve Pakist an as it s ambassador in
t he US but I cannot do so effect ively under t he shadow of
suspicion and vilificat ion. I , t her efor e, r equest t hat an inquir y be
set up t o ascer t ain t he ver acit y of any specific allegat ions
against me. Pending ascer t ainment of fact s I pr opose t o r esign
t o your will in t he nat ional int er est .
I am a Pakist ani pat riot who ser ves as ambassador at t he
pleasur e of t he Pr ime Minist er and your self. I do not wish t o be
a dist r act ion from t he mor e impor t ant challenges faced by our
count r y and it s gover nment . As inst r uct ed, I am pr epar ing t o
t r avel t o I slamabad for consult at ion.

Wit h highest consider at ion and r egards.
Your s sincer ely,

Sd/ -
Mr . Husain Haqqani
Ambassador

His Excellency Asif A. Zar dari
Pr esident of Pakist an
I slambad


Two t hi ngs are very prominent from t he reci t at i on of t he above let t er ;
( i ) he had t aken upon himself t o make t he reference of t he
let t er/ memo wi t h reservat i on t hat he had not associ at ed hi mself t o
ori gi nat e/ draft it on behalf of t he Presi dent of Paki st an; ( ii) he had
made t he reference t o t he i nci dent , whi ch t ook pl ace on 2
nd
May,
2011, whi ch result ed i n killing of Al- Qaeda leader, Osama Bi n Laden.
Sai d inci dent generat ed t he publi c int erest i n t he l engt h and breat h of
t he count ry as a whole and t he nat i on vociferousl y condemned t he
inci dent publi cally, as a consequence whereof a j oi nt sessi on of
CONST P 77- 85, 89/ 2011, et c.
14
Parli ament was hel d on 13
t h
and 14
t h
May, 2011 t o consi der t he
sit uat i on i n dept h and as a result of discussi on i ncludi ng present at i on
made on t he relevant i ssues, a unanimous resolut i on was passed,
whi ch called upon t he government t o appoi nt an independent
Commi ssi on of I nqui ry for t he sai d purpose. Accordi ngl y, on 31
st
May,
2011 vi de not ifi cat i on No.NI L/ 2011, Government of Paki st an, Mi ni st ry
of Law, Just i ce and Parli ament ary Affai rs, a Commi ssi on was
const i t ut ed u/ s 3 and 5( 1) of t he Paki st an Commi ssi ons of I nqui ry Act ,
1956 headed by Mr. Just i ce Javed I qbal , seni or most Judge of t he
Supreme Court as Presi dent wit h four ot her members. The not ifi cat i on
was foll owed by anot her not ifi cat i on dat ed 21
st
June, 2011 in
supersessi on of earlier not ifi cat i on as t he former not ifi cat i on was
i ssued for t he appoi nt ment of a l earned Judge as Presi dent / Chai rman
of t he Commi ssi on, wit hout approval of t he Chief Just i ce of Paki st an
and such act i on apparent ly seemed t o be cont rary t o t he pri nci pl e of
independence of t he j udi ciary, hence rect i fied. The Commi ssi on so
const i t ut ed, in respect of i nci dent of Abbot t abad, cont i nues it s probe,
whi ch has not so far been concl uded.
6. I t mi ght not be out of cont ext t o ment i on t hat t he
Memorandum does not di scl ose t he name of any of t he persons, who
allegedl y got it ori ginat ed. However, subj ect t o all j ust except i ons and
wit hout causi ng prej udi ce t o t he case of any of t he part i es, t he let t er
of Mr. Husai n Haqqani reproduced hereinabove, reli ed upon by t he
respondent s counsel herself di scl oses t hat Mr. Husain Haqqani was
being i nvol ved on having wri t t en a let t er or Memo on behal f of t he
Presi dent of Paki st an t o Chai rman US Joint Chiefs of St aff Admi ral Mike
Mull en soon aft er t he 2
nd
May, 2011 raid i n Abbot t abad t hat result ed i n
CONST P 77- 85, 89/ 2011, et c.
15
t he killing of Al- Qaeda l eader Osama Bin Laden. I t i s al so not di sput ed
t hat i n t he meet ing bet ween hi gh- ups i .e. Presi dent , Pri me Mi ni st er,
Chi ef of Army St aff and DG I SI , resignat i on was t endered by Mr.
Husai n Haqqani , addressed t o t he Prime Mi ni st er at I sl amabad on 22
nd

November, 2011, cont ent s whereof read as under: -

I slamabad, November 22, 2011

Resignat ion

Having ser ved as Ambassador of Pakist an t o t he Unit ed St at es
since 2008, I have fait hfully fulfilled my obligat ions under your
dir ect ion and guidance.
2. I ser ve at your pleasur e and pur suant t o your inst r uct ions and
under t he t er ms of t he cont r act of my appoint ment , I her eby
t ender r esignat ion fr om t he posit ion ent r ust ed t o me by you.


Sd/ -
Mr . Husain Haqqani
The Honor able Prime Minist er


7. As far as an Ambassador of Paki st an i s concerned,
incl uding t he one who i s on cont ract appoi nt ment i s deemed t o be
hol ding t he post in connect i on wi t h t he affai rs of t he Federat i on and i s
t o be governed by t he rul es appli cable t o t he general body of ci vil
servant s, such as t he Government Servant s ( Effi ciency and Disci pline)
Rul es, Government Servant s Conduct Rul es and t he Civil Servi ces
( Cl assi fi cat i on, Cont rol and Appeal ) Rules. Reference may be made t o
t he case of Abida Hussain v. Tribunal for N.A.69 ( PLD 1994 SC 60) .
8. A perusal of resi gnat i on of Mr. Husain Haqqani reveal s t hat
pursuant t o t he inst ruct i ons of t he Pri me Mi ni st er and under t he t erms
of cont ract of his appoint ment , he t endered resi gnat i on, whi ch was
accept ed on 23
rd
November, 2011 vi de not ifi cat i on No.Est t ( I ) -
10/ 177/ 2008 w.e.f. 22
nd
November, 2011. I t i s equally si gnifi cant t o
CONST P 77- 85, 89/ 2011, et c.
16
not e t hat i n t he let t er dat ed 16
t h
November, 2011, Mr. Husai n Haqqani
al so request ed t o t he Presi dent Asif Ali Zardari t hat an i nqui ry be set
up t o ascert ain t he veracit y of any specifi c allegat i ons against him.
Furt her, pending ascert ai nment of fact s, he proposed t o resi gn in t he
nat i onal i nt erest .
9. I t may not be out of cont ext t o infer from t he fact s and
ci rcumst ances of t he case t hat exist ence of t he Memo has been
accept ed because ot herwi se t here was no necessi t y for hol ding four
consecut i ve meet ings bet ween t he Const i t ut i onal fi gures i .e. Presi dent ,
Pri me Mi ni st er and t he Chief of Army St aff as well as DG I SI and Mr.
Husai n Haqqani , and as a consequence of t hese meet i ngs, resi gnat i on
was t endered by t he l at t er and order was al so passed by Pri me
Mini st er for i nit i at ing probe in t he mat t er.
10. Barri st er Zafarull ah Khan, ASC appearing i n Const it ut i on
Pet i t i on No.77/ 2011, has cont ended t hat as a mat t er of ri ght bei ng a
cit i zen, he has ri ght t o have access t o informat i on i n respect of t he
Memo. He cont ended t hat Art i cl es 5, 9 and 14 of t he Const it ut i on, deal
wit h securi t y of person; if t here i s no securit y, t here i s no li bert y of
indi vi dual s. The act i on of ori ginat ing/ draft i ng Memo i n rel at i on t o t he
affai rs of Paki st an, as has been ment ioned t herein, i s t ant amount t o
compromi si ng securit y and soverei gnt y of Paki st an and i f such effort
had succeeded, Ameri cans would have been all owed t o cont rol our
securit y, t he i ndependent charact er of t he government of t he count ry
woul d be t ot ally l ost . Thus, t he securi t y of li fe and di gnit y of cit i zens
and of persons, whi ch are fundament al ri ght guarant eed under t he
Const i t ut i on, shall have seri ousl y been vi ol at ed. He pl aced reli ance
upon t he cases of Malik Asad Ali v. Federat ion of Pakist an ( PLD 1998
CONST P 77- 85, 89/ 2011, et c.
17
SC 161) , Wat t an Part y v. Federat ion of Pakist an ( PLD 2006 SC 697)
and in Re: Corrupt ion in Haj j Arrangement s ( PLD 2011 SC 963) .
11. Mr. Tari q Asad, l earned ASC appeari ng in CP No. 78/ 2011
has st at ed t hat when cit i zens know t hat t hei r rul ers were conspi ri ng
agai nst peopl e, Army, I nt elligence Agenci es, et c., it i s against t he
di gnit y of man. Furt her, Art i cl es 14 and 19A of t he Const it ut i on have
t o be read t oget her t o ascert ai n as t o whet her fundament al ri ght s of
cit i zens guarant eed under bot h t hese Art i cles have been vi ol at ed or
not . He furt her cont ended t hat Federat ion while denying t he exi st ence
of t he Memo, i s not coming forward wit h t he t rut h about t he
ci rcumst ances whi ch led t o issuance of Memo dat ed 10
t h
May, 2011.
Though t he art i cle publi shed in t he Financi al Times suggest s t hat t he
Memo was prepared on 10
t h
May, 2011 out si de t he count ry, but it
shows concern about t he securit y insi de Paki st an and securit y agenci es
of Paki st an. He furt her emphasi zed t hat seeki ng int ervent i on, as i s
evi dent from t he cont ent s of t he Memo, i s agai nst t he di gni t y of t he
peopl e and he bei ng a cit i zen has no source t o col l ect t he i nformat i on
about genui neness or ot herwi se of t he Memo, t herefore, he has
impl eaded i n his pet i t i on t he COAS, DG I SI and ot hers. He referred
Sura Al- Mumt aanah wherei n i t has been ordained as under: -
O you who have believed, do not t ake My enemies and your
enemies as allies, ext ending t o t hem affect i on while t hey have
di sbelieved i n what came t o you of t he t rut h, having dri ven out
t he Prophet and yoursel ves [ only] because you believe i n All ah,
your Lord. I f you have come out for j ihad i n My cause and
seeki ng means t o My approval , [ t ake t hem not as friends] . You
confi de t o t hem affect i on, but I am most knowing of what you
have conceal ed and what you have decl ared. And whoever does
CONST P 77- 85, 89/ 2011, et c.
18
it among you has cert ai nly st rayed from t he soundness of t he
way. [ 60: 1]
I n Sura Al - M'idah it has been said that:-
But t he Jews and t he Chri st i ans say, "We are t he chil dren of
All ah and His bel oved." Say, Then why does He puni sh you for
your sins? Rat her, you are human beings from among t hose He
has creat ed. He forgi ves whom He wills, and He puni shes whom
He wills. And t o All ah bel ongs t he domini on of t he heavens and
t he eart h and what ever i s bet ween t hem, and t o Him i s t he
[ fi nal] dest i nat i on. [ 5: 18]
12. Mr. Rashi d A. Razvi , l earned Sr. ASC cont ended t hat t he
fact not ed i n t he pet it i ons as well as replies on behalf of t he
respondent s i n CMAs, t ouches t he quest i on of securi t y, i ndependence
and soverei gnt y of t hi s count ry; t herefore, apparent l y, Art i cl es 9 and
14 of t he Const i t ut i on have been vi olat ed. There are so many cases,
whi ch indi cat e t hat t hi s Court i s bound t o enforce t he fundament al
ri ght s. Reliance was pl aced i n t he cases of Miss Benazir Bhut t o v.
Federat ion of Pakist an ( PLD 1988 SC 416) , Pakist an Muslim League
( N) v. Federat ion of Pakist an ( PLD 2007 SC 642) , Shahida Zaheer
Abbasi v. President of Pakist an ( PLD 1996 SC 632) , and Zulfiqar Mehdi
v. Pakist an I nt ernat ional Airlines Corpor at ion ( 1998 SCMR 793) and in
Re: Corrupt ion in Haj j Arrangement s in 2010 ( PLD 2011 SC 963) . As in
t he i nst ant case fundament al ri ght s have been vi ol at ed, t herefore, t hi s
Court i s bound t o enforce t he same because an import ant quest i on of
public import ance has been rai sed before t hi s Court and Court has no
di scret i on t o decline t he reli ef as i t i s possi bl e under Art i cle 199 of t he
Const i t ut i on. And pri nci ple of j udi ci al rest rai nt cannot be applied t o
depri ve t he cit i zens as t hei r securi t y/ int egrit y of t he ent i re count ry i s
invol ved.
CONST P 77- 85, 89/ 2011, et c.
19
13. He furt her st at ed t hat obj ect i on rai sed by t he learned
counsel for Mr. Husai n Haqqani t hat issue present ed before t he Court
fall s wi t hi n t he defi nit i on of sensit i ve polit i cal quest i on, t herefore, t he
Court may not go i nt o t he same, has no rel evance as t here i s
absol ut el y no poli t ical quest i on and t he mat t er rel at es t o ci vil liabilit y
as well as cri minal responsi bilit y subj ect t o est abli shing t hat Memo was
ori gi nat ed and execut ed t o compromi se t he int egri t y/ securi t y of t hi s
Count ry. He has referred t he case of Mehmood Khan Achakzai v.
Federat ion of Pakist an ( PLD 1997 SC 426) in support of hi s argument s.
14. Senat or Muhammad I shaq Dar, appeared i n person i n
Const i t ut i on Pet it i on No. 80/ 2011 and cont ended t hat overall
perspect ive i s linked wi t h vi ol at i on of fundament al ri ght s. None of t he
respondent s has di sput ed t he cont ent s of t he Memo, however, wit hout
di scl osing t he name, what was t he obj ect and mot i vat i on of i t s
di ssemi nat i on. He furt her st at ed t hat probe of t he Memo has been
conceded by all of t hem except rai si ng t he di sput e in respect of forum.
He st at ed t hat he had wri t t en a l et t er t o Parli ament ary Commit t ee on
Nat i onal Securi t y for t he purpose of t aking up t he i ssue, but on having
seen t hat no progress was made out , he approached t hi s Court for
redressal of hi s gri evance. He furt her has cont ended t hat t he
Commi t t ee [ of which he hi mself i s a member] was ori gi nally compri sed
of 17- members but present ly st rengt h of t he Commi t t ee has reduced
t o 14- members. He was al so of t he opini on t hat in vi ew of t he rul es
framed by t he Commi t t ee and consi dering t he past hi st ory of t he
Commi t t ee, it woul d not be abl e t o achi eve t he progress beyond a
t hreshol d. He expl ained t hat t hi s Commi t t ee was not ifi ed on 11
t h

November, 2008, whereas, t he Memo I ssue cropped up on 10
t h
May,
CONST P 77- 85, 89/ 2011, et c.
20
2011 and was brought t o t he lime light aft er publicat i on of Art i cle
wri t t en by Mansoor I j az on 10
t h
Oct ober, 2011 i n t he Fi nanci al Ti mes,
London. Therefore, t he Commi t t ee would not be aut hori zed t o l ook i nt o
t hi s mat t er. Wi t hout prej udi ce t o t he argument s, he added t hat not a
singl e report so far has been recei ved from t he Commi t t ee and like
ot her Commit t ees i t has failed t o deliver, t herefore, suggest i ons made
by t he respondent in hi s reply t hat l et t he mat t er be probed i nt o by
t he Parliament ary Commit t ee on Nat i onal Securi t y, i s not in
accordance wit h it s mandat e.
15. Mr. At t i que Shah ASC and Mr. Muhammad Rafi q Raj wana,
ASC l earned counsel in Pet i t i on No. 81/ 2011 framed foll owing t wo
quest i ons: -
( i ) Whet her i t i s a case i n whi ch quest i on of i nfri ngement of
fundament al ri ght s ari ses?
( ii ) Whet her t he present lis involves cont roversy rel at i ng t o
j udi ciall y di scoverabl e and manageabl e st andards?
They have referred t o t he case of Powell v. McCormack [ 395 US
486( 1969) ] t o subst ant i at e t hei r pl ea t hat t he i ssue present ed before
t he Court i s j ust i ciabl e and i s t o be r esolved by t he Judi ci al Forum.
They have al so relied upon t he cases of Mehmood Khan Achakzai
( supra) , Darshan Masih v. t he St at e ( PLD 1990 SC 513) and
Muhammad Yasin v. Federat ion of Pakist an ( Civil Pet i t i on No.42 of
2011) .
16. Mr. At t i que Shah l earned ASC al so made a cat egori cal
st at ement t hat in t he past few years, t he peopl e of Mal akand Divi si on
have suffered at roci t ies and mi series, and have sacri fi ced li fe and
CONST P 77- 85, 89/ 2011, et c.
21
honour. I n t he operat i on of Swat , et c., apart from ot her damages and
dest ruct i on suffered by t he peopl e of Mal akand, t wo million peopl e
became I DPs and had li ved i n camps, only for t he soverei gnt y and
int egri t y of t hi s count ry. Out of t hem, 4000 were members of t he legal
frat erni t y. The Memo cont ai ns concessions on t he one hand, and t he
dest ruct i on on t he ot her. Thi s court i s t o appreci at e t hat ri ght from
1979 t ill dat e, onl y Peshawar i s having t he burden of 3 million Afghan
mi grant s. We have l ost di gni t y, profession and fi nances for t he sake of
int egri t y and soverei gnt y of t his nat i on. At present on west ern borders
spreadi ng over 500 km, due t o t he act i vit i es of t he t roops, 21000
civili an casual t ies have occurred for t he honour, int egri t y and
soverei gnt y of t he count ry, but t hrough t he Memo t he concessi ons are
being gi ven. Thi s i s t he result of seri ous act i ve connivance amongst
t he responsi bl e persons. There are drone at t acks and act ivi t ies of
milit ant s. Thus i t i s a case of seri ous vi ol at i on of Fundament al Ri ght s.
17. Dr. Sal ahuddi n Mengal , ASC st at ed t hat by means of
Art i cle 2A, whi ch i s now t he subst ant i ve part of t he Const it ut i on,
adequat e provi si on t o safeguard t he int erest s of j udi ci ary have been
provi ded incl uding t he soverei gnt y, securit y and di gnit y of t hi s
count ry; t hat t he crux of t he Memo i s admit t ed by Mansoor I j az; DG
I SI t ravelled t o UK, i nspect ed BBM and ot her comput er mat eri al ,
submi t t ed report t o t he Presi dent ; a meet ing was convened i n t he
Presi dent House; Paras 1, 2, 3 of t he Memo speak of t he new Nat i onal
Securit y Team, et c.; t hi s falls wi t hin t he defi nit i on of vi ol at i on of
fundament al ri ght of t he peopl e of t hi s count ry. Previ ously, Amal Kansi
was handed over t o Ameri cans, whi ch was very unfort unat e and i t al so
needs t o be probed. The Memo has shaken t he ent i re nat i on. He has
CONST P 77- 85, 89/ 2011, et c.
22
st at ed t hat he i s represent ing t he elect ed members of t he Nat i onal
Assembly who bel ong t o Bal ochi st an. His emphasi s was mai nly on t he
vi ol at i on of Art i cle 9 of t he Const it ut i on.
18. Sardar Asmat ull ah Khan, ASC has appeared i n Const i t ut i on
Pet i t i on No. 83/ 2011 and argued t hat t he pet it i oners are former
Presi dent and Speaker of Azad Jummu & Kashmi r and are al so ci t i zen
of Paki st an. I t i s a mat t er of vi ol at i on of Art i cles 9 and 19A of t he
Const i t ut i on. He also referred t o t he case of Shehla Zia v. WAPDA ( PLD
1994 SC 693) .
19. Syed Ghous Ali Shah, ASC has appeared i n Const i t ut i on
Pet i t i on No. 84/ 2011 and adopt ed t he argument s of ot her counsel for
t he pet i t i oners, however, has added t wo t hi ngs; fi rst l y, i t i s absolut ely
incorrect t hat i f t he mat t er i s deci ded by t hi s Court , supremacy of t he
Parli ament will be affect ed, because except t he Court or a Tri bunal
const i t ut ed by i t , no ot her forum would be i n a posi t i on t o conduct a
t horough probe; secondly, t he issue of Memo has affect ed every
cit i zen of Paki st an and not j ust merely one or t wo i nst it ut i ons of t he
St at e. Thus, i t i s a mat t er of publi c i mport ance wit h reference t o
enforcement of fundament al ri ght .
20. Rana M. Shamim, ASC has appeared in Const it ut i on
Pet i t i on No.84/ 2011 and adopt ed t he argument s of ot her learned
counsel while rel ying upon t he j udgment s cit ed by t hem. He, however,
added t hat COAS has fil ed affidavit in t hi s Court request i ng for a probe
int o t he mat t er, as soverei gnt y and int egri t y of t he count ry i s i nvol ved.
CONST P 77- 85, 89/ 2011, et c.
23
21. Mr. Naseer Ahmad Bhut t a, ASC has appeared in
Const i t ut i on Pet it i on No.85/ 2011. He has adopt ed t he argument s of
ot her l earned counsel for t he pet i t i oners.
22. Maulvi Anwar- ul - Haq, l earned At t orney General for
Paki st an appeared on behal f of t he Federat i on and cont ended t hat as
t he Court has observed t hat respondent s, COAS and DG I SI al so fall
wit hin t he defini t i on of Federat i on, t herefore, he i s appeari ng on behalf
of all of t hem. I t i s a mat t er of record t hat repli es dat ed 14
t h

December, 2011 on behal f of respondent s Chief of Army St aff and DG
I SI were dul y filed under coveri ng l et t er No.1( 3) / 2011- AGP dat ed 15
t h

December, 2011 before t his Court t hrough t he learned At t orney
General for Paki st an. Si milarl y, affi davi t s of Chief of Army St aff and DG
I SI dat ed 21
st
December, 2011, whi ch were delivered by t he M/ o
Defence vi de let t er No.1/ 603/ Di r ( Legal) / 11 t o t he office of At t orney
General for Paki st an, were filed i n Court vi de C.M.As No.5625/ 2011
and 5691/ 2011 respect ively.
He furt her cont ended t hat t here i s no exi st ence of Memo
because a person, whose name i s Mansoor I j az, i s sit t i ng out side t he
count ry who i s an Ameri can Nat ional . And he on hi s own,
ori gi nat ed/ draft ed a Memo allegedl y t o invol ve Ambassador of Paki st an
in US, for whi ch no cogent and t angi ble reasons exi st . He cont ended
t hat t he Federal Government as well as t he Presi dency has al ready
deni ed t he cont ent s of t he sai d Art i cl e published on 10
t h
Oct ober, 2011
and having t aken not i ce of t he same, proper st eps have al ready been
ini t i at ed by t he compet ent aut hori t y, on t he execut i ve si de as well as
at Parli ament ary Forum, for t he purpose of conduct ing probe in t he
i ssue. The Parli ament ary Commit t ee is fully empowered not only t o
CONST P 77- 85, 89/ 2011, et c.
24
probe i nt o t he mat t er but al so t o ensure product i on of such evi dence
as i t deems necessary. He st at ed t hat t he former Ambassador of
Paki st an t o US has put i n hi s resi gnat i on on t he call of Chi ef Execut i ve
and i t s accept ance has been not ifi ed.
23. Mr. Mansoor I j az has sent hi s reply t hrough e- mail al ong
wit h at t ached document s t o subst ant iat e t he plea t hat Memo dat ed
10
t h
May, 2011 ori ginat ed at t he behest of Respondent No.4, Mr .
Husai n Haqqani .
24. Ms. Asma Jahangi r, Learned counsel appeari ng on behalf
of Mr. Husain Haqqani has vehement ly cont est ed t he pet i t i on for want
of i nfract i on, vi ol at i on and breach of any of t he fundament al ri ght s of
t he pet it i oners, as accordi ng t o her, absence of such element s i s
suffi cient t o render t he pet it i ons li able t o be di smi ssed bei ng not
mai nt ainabl e. She has cont ended t hat quest i on of publi c import ance
and enforcement of fundament al ri ght s shoul d have di rect link wi t h
each ot her, enabling t hi s Court t o exerci se j uri sdi ct i on under Art i cl e
184( 3) of t he Const i t ut i on. There must be bona fides of t he pet i t i oners
t o approach t hi s Court for a reli ef under Art i cl e 184( 3) . Thi s Court has
t o safeguard t he fundament al ri ght s on t he basi s of cogent evi dence,
as merely on t he basi s of assumpt i ons and presumpt i ons, j uri sdi ct i on
cannot be exerci sed as t he same i s likely t o creat e chaos, i f ult imat ely
it i s found t hat t he declarat i on i s not enforceabl e. Exerci se of
j uri sdi ct i on must not be vague and based on hypot hesis. The remedy
sought shoul d st rengt hen and enforce t he fundament al ri ght s.
Juri sdi ct i on under Art i cl e 184( 3) is remedi al in charact er and exerci se
of t he j uri sdi ct i on under t hi s provi si on i s condi t i oned by foll owing t hree
pre- requi sit es; namel y, t here is a quest i on of publi c i mport ance; such
CONST P 77- 85, 89/ 2011, et c.
25
quest i on involves enforcement of t he fundament al ri ght s; and
fundament al ri ght s t o be enforced are conferred by Chapt er 1, Part I I
of t he Const it ut i on. When t here is a quest i on of fact , whi ch is di sput ed,
copi ous or t oo i nt ri cat e, t hen rest raint has t o be exerci sed while
exerci si ng j uri sdi ct i on under Art i cl e 184( 3) . Act i ons or i nact i ons of t he
St at e, whi ch result i n act ual breach of fundament al ri ght s, would
warrant exerci se of j uri sdi ct i on. The fundament al ri ght s have t o be
est abli shed in t angi ble t erms for est abli shi ng bona fides. Safeguard
provi ded under t he Const it ut i onal j uri sdi ct i on for t he due process of
l aw has t o be adhered t o st ri ct ly, as now t hrough Art i cle 10A of t he
Const i t ut i on, it has become a fundament al ri ght of t he ci t i zens. No
infract i on, breach or vi ol at i on of Art i cl e 9, 14, and 19A, as i s all eged,
has been involved in t he inst ant case. Therefore, pet it i ons deserve t o
be di smi ssed wit h special cost s. She has relied upon t he j udgment s i n
t he cases of Miss Benazir Bhut t o v. Federat ion of Pakist an ( PLD 1988
SC 416) , Pakist an Muslim League ( N) v. Federat ion of Pakist an ( PLD
2007 SC 642) , Corrupt ion in Haj j Arrangement s, 2010: ( PLD 2011 SC
963) , Mrs. Shahida Zaheer Abbasi v. Pr esident of Pakist an ( PLD 1996
SC 632) , Syed Zulfiqar Mehdi v. Pakist an I nt ernat ional Airlines
Corporat ion t hrough M.D. ( 1998 SCMR 793) , K.B. Threads ( Pvt .)
Limit ed v. Zila Nazim, Lahore ( PLD 2004 Lahore 376) , Jamat - e- I sl ami
v. Feder at i on of Paki st an ( PLD 2008 SC 30) , Ch. Muhammad
Si ddi que v. Government of Pakist an ( PLD 2005 SC 1) , Haj i
Muhammad Saifullah Khan v. The Federat ion of Pakist an ( 1989 SCMR
22) , Grp. Capt . ( Ret d.) Cecil Sohail Chowdhry v. Federat ion of Pakist an
( 1989 SCMR 523) , Al- Jehad Trust v. The President of Pakist an ( PLD
2000 SC 84) , Mian Muhammad Shahbaz Sharif v. Federat ion of
Pakist an ( PLD 2004 SC 583) , Al- Jehad Trust v. Lahore High Court
CONST P 77- 85, 89/ 2011, et c.
26
( 2 0 1 1 SCMR 1688) , I n Re: Suo Mot o Case No.10 OF 2007 ( PLD
2008 SC 673) , Nawaz Sharif v. President of Pakist an ( PLD 1993 SC
473) , St at e Life I nsurance Employees Federat ion v. Federal
Government of Pakist an ( 1994 SCMR 1341) and Ashok Kumar Pandey
v. The St at e of West Bengal ( AI R 2004 SC 280) = [ ( 2004) 3 SCC 349] .
25. Learned counsel for t he part i es have no seri ous
reservat i ons about t he quest i on of publi c import ance in t his mat t er t o
be one of t he component s t o at t ract t he j uri sdi ct i on of t his Court under
Art i cle 184( 3) of t he Const i t ut i on coupl ed wit h t he fact t hat t hree
el ement s i .e. quest i on of publi c import ance, quest i on of enforcement
of fundament al ri ght and fundament al ri ght s sought t o be enforced as
conferred by Chapt er 1, Part I I of t he Const i t ut i on, are requi red t o be
sat i sfi ed.
26. Learned At t orney General , however, conceded t hat
pet i t i ons rel at e t o mat t er of publi c import ance.
27. Accordi ng t o t he dict i onary meani ng, t he t erm publi c
import ance coul d be defined t hat t he quest i on, which affect s and has
it s repercussi ons on t he publi c at l arge and i t al so i ncludes a purpose
and ai m, in which t he general int erest of t he communi t y, part i cul arly
int erest of i ndivi dual s i s di rect l y or vi t ally concerned. I n Words and
Phrases Vol . 18- A, Great Publi c I mport ance has been defi ned as
under: -
A case in which a court is proceeding wit hout j urisdict ion of
person or subj ect mat t er involves a mat t er of great public
import ance wit hin rule providing t hat relief in nat ure of
prohibit ion will not be grant ed by Supreme Court except in
mat t ers of great public import ance.
CONST P 77- 85, 89/ 2011, et c.
27
28. Thi s Court had undert aken exerci se t o defi ne t hi s phrase i n
t he cases of Manzoor Elahi v. Federat ion of Pakist an ( PLD 1975 SC
66) , Miss Benazir Bhut t o v. Federat ion of Pakist an ( PLD 1988 SC 416) ,
Maqbool Ahmad v. Pakist an Agricult ural ( 2006 SCMR 470) , Mian
Muhammad Shahbaz Sharif v. Federat ion of Pakist an ( PLD 2004 SC
583) and Shahida Zaheer Abbasi v. President of Pakist an ( PLD 1996
SC 632) . I n t he case of St at e of Jammu and Kashmir v. Bakshi
Ghulam Mohammad ( AI R 1967 SC 122) some of t he act i ons of Bakshi
Ghul am Mohammad ( t he t hen Chief Mini st er) were challenged before
t he Hi gh Court and t he Hi gh Court expressed t he vi ew t hat such act s
woul d have been act s of publi c import ance if he was in offi ce but t hey
ceased t o be so, as he was out of offi ce, when t he not ifi cat i on was
i ssued. The Supreme Court reversed t he fi nding whil e observi ng t hat
t hi s was a mi sreading by t he Hi gh Court and hel d t hat what is t o be
inquired int o in any case are necessarily past act s and it is because
t hey have already affect ed t he public well - being or t heir effect might
do so, t hat t hey became mat t ers of public import ance. I t was furt her
hel d t hat it is of public import ance t hat public men failing in t heir dut y
should be called upon t o face t he consequences. I t is cert ainly a
mat t er of import ance t o t he public t hat lapses on t he part of t he
Minist ers should be exposed. I n t he case of Sohail But t v. Deput y
I nspect or General of Police ( 2011 SCMR 698) i t was hel d t hat t he word
public import ance can only be defined by a process of j udicial
inclusion or exclusion because t he expression public import ance is not
capable of any precise definit ion and has not a rigid meaning,
t herefore, each case has t o be j udged in t he circumst ances of t hat
case as t o whet her t he quest ion of public import ance is involved. But it
is set t led t hat public import ance must include a purpose or aim in
CONST P 77- 85, 89/ 2011, et c.
28
which t he general int erest of t he communit y as opposed t o t he
part icular int erest of t he individuals is direct ly and vit ally concerned.
29. Thi s Court in Manzoor El ahi s case ( supra) has observed
t hat in order t o acquire public import ance t he case must obviously
raise a quest ion, which is of int erest t o, or affect s t he whole body of
people or an ent ire communit y. I n ot her words, t he case must be such
as gives rise t o quest ions affect ing t he legal right s or liabilit ies or t he
public or t he communit y at large, even t hough t he individual, who is
t he subj ect mat t er of t he case, may be of no part icular consequence.
I n t he case of Munir Hussain Bhat t i advocat e v. Federat ion of Pakist an
and ot hers( PLD 2011 SC 407) it has been hel d t hat a wealt h of
j uri sprudence i s availabl e on t hi s subj ect . The i ssue, t herefore, whi ch
has t o be addressed while deci ding t he respondent s preliminary
obj ect i on i s whet her or not t hese pet i t i ons rai se i ssues of publi c
import ance. Furt hermore, i n making t hi s det ermi nat i on, t he Court i s
not t o be swayed by expressi ons of publi c sent iment nor i s i t t o
conduct an opini on poll t o det ermi ne if t he publi c has any int erest i n
an i ssue bei ng agit at ed before t he Court under Art i cle 184( 3) of t he
Const i t ut i on. I nst ead, a whol e range of fact ors need t o be kept i n
mi nd, which have, over t he years, been expounded in numerous
precedent s of t hi s Court . I t i s import ant t o keep t hese precedent s in
vi ew because, as not ed i n an earli er j udgment , i t i s t hrough t he use of
precedent t hat t he cont ours of t he law are const ant ly defined. I n t he
case of Muhammad Shahbaz Sharif ( PLD 2004 SC 583) it has been
hel d t hat in order t o acqui re publi c import ance t he case must obvi ously
rai se a quest i on, whi ch i s of i nt erest t o, or affect s t he whol e body of
peopl e or an ent i re communit y. What is essent ial i s t hat t he quest i on
CONST P 77- 85, 89/ 2011, et c.
29
so rai sed must rel at e t o t he int erest of whole body of t he peopl e or an
ent i re communi t y. To put it in ot her words, t he case must be such,
whi ch rai ses a quest i on affect i ng t he legal ri ght s or li abilit ies of t he
public or t he communi t y at large, i rrespect i ve of t he fact t hat who
rai sed such quest i on. I n t he case of Kellner v. Dist rict Court [ 256 P.2d
887 ( 1953) 127 Col o 320] , t he Supreme Court of Col orado has l ai d
down t hat as t o t he quest i on of what i s of great publi c import ance,
sole det erminat ion in all cases, according t o t he peculiar feat ures of
each, is wit hin t he province of t he court . I n some cases t here may be
an adequat e remedy at law, but not speedy. I n some inst ances, and
we believe applicable here it is apparent on t he face of t he pleadings
and record before us. The Supreme Court of Judi cat ure, UK in t he case
of t he Queen on t he Applicat ion of Compt on v. Wilt shire Primary Care
Trust [ ( 2008) EWCA Civ 749] has hel d t hat t he fi rst governing
pri nci ple requi res t he j udge t o evaluat e t he import ance of t he issues
rai sed and t o make a j udgment as t o whet her t hey are of general
public i mport ance. I n t he case of Jamat - e- I slami v. Federat ion of
Pakist an ( PLD 2009 SC 549) , t he dual offi ce of General Pervez
Musharraf as Chief Execut ive and t he Chi ef of Army St aff was
chall enged. Alt hough t he pet it i ons were di smi ssed being not
mai nt ainabl e, however, in t he maj ori t y view, i t was hel d t hat t he
condi t i on precedent for foll owi ng t he precedent must be quest i on of
public i mport ance. The learned Judge, who aut hored t he maj orit y
j udgment , accept ed t he princi pl e t hat j uri sdi ct i on under Art i cle 184( 3)
of t he Const i t ut i on cannot be exerci sed unl ess t he mat t er i s of publi c
import ance i nvol ving t he fundament al ri ght s conferred by Part - I I
Chapt er 1 of t he Const it ut i on. I n t he case of Muhammad Yasin v.
CONST P 77- 85, 89/ 2011, et c.
30
Federat ion of Pakist an ( Civil Pet it i on No.42 of 2011) it has been hel d
as under: -
I t i s clear from t he t ext of t his art i cle t hat t he Court s powers
and j uri sdi ct i on are broad i n scope. We have el aborat ed t he
cont ours of our j uri sdi ct i on in a recent j udgment wherei n it has
been hel d t hat Art icle 184( 3) ibid empowers t his Court t o
exercise j urisdict ion t hereunder whenever t he Court considers a
mat t er t o: ( i) be of public import ance and ( ii) t hat it pert ains t o
t he enforcement of fundament al right s. The det erminat ion on
bot h t hese count s is made by t his Court it self keeping t he fact s
of t he case in mind . The exerci se of j uri sdi ct i on by t he Supreme
Court , t hus i s not dependent on t he exi st ence of a pet i t i oner. We
have al so before us precedent where t hi s Court has exerci sed
j uri sdi ct i on under Art i cl e 184( 3) even where a l egal proceedi ng
in respect of t he same mat t er was pending or had been fi nally
deci ded by a Hi gh Court . Reference in t hi s behalf can be made t o
Suo Mot o Case No.10 of 2009, ( 2010 SCMR 8845) .

30. As not ed above, exi st ence of Memo dat ed 10
t h
May, 2011
has not been deni ed by t he Federat i on, ot herwi se t here was no
necessi t y for hol ding four meet ings bet ween t he Const it ut i onal and
ot her seni or fi gures i .e. Presi dent , Prime Mi ni st er, t he Chief of Army
St aff and DG I SI as well as Mr. Husain Haqqani and as a consequence
of t hese meet ings t enderi ng of resi gnat ion by Mr. Husain Haqqani and
ini t i at i on of probe by t he Pri me Mi ni st er. What was t he nat ure of
di scussi on bet ween all of t hem is not avail abl e as only t he Chi ef of
Army St aff and DG I SI have submi t t ed t hei r replies as well as count er
affi davit s whereas t he Federat i on t hrough t he Secret ary I nt eri or has
al so not di sput ed t hi s fact but wit hout sharing informat i on wi t h t he
Court on account of whi ch t wo i mport ant deci si ons referred t o
herei nabaove were t aken. The persons who represent t he masses, are
bound by t he Const i t ut i on but when any deci si on i s t aken, it al so
creat es curi osi t y amongst masses t o know t he realit y about t he
event s, whi ch persuaded t he Const i t ut ional fi gures t o t ake pri ma faci e
ext reme st eps like obt ai ning resi gnat ion from respondent No.4 ( Mr.
CONST P 77- 85, 89/ 2011, et c.
31
Husai n Haqqani ) and di rect i ng t he probe. We may ment i on here t hat
t hi s angle of t he case has been examined in view of t he admi t t ed fact s
as it has been poi nt ed out hereinabove. The body of t he peopl e, who
are t he cit i zens of t his count ry, are al ways i nt erest ed in well being and
securit y of t hei r bel oved count ry. There are not onl y many peopl e who
are int erest ed t o know t he reali t y but t he medi a, bot h elect roni c and
pri nt , had hi ghli ght ed t he i ssue ext ensivel y. Ri ght ly so, because as a
living nat i on, t hey have every ri ght t o know about t he affai rs of t hei r
count ry.
31. I n vi ew of above pri nci ple/ observat i ons and aft er
consi dering t he nat ure of t he i ssue i t is observed t hat t he expressi on
"public i mport ance" i s t agged wit h t he enforcement of t he
Fundament al Ri ght s as a precondi t i on of t he exerci se of t he power.
Thi s should not be underst ood in a limit ed sense, but in t he gamut of
t he const i t ut i onal ri ght s of freedoms and li bert ies, t hei r prot ect i on and
invasi on of such freedoms in a manner whi ch rai ses a seri ous quest i on
regardi ng t hei r enforcement . Such mat t ers can be vi ewed as of publi c
import ance, whet her t hey ari se from an i ndivi dual ' s case t ouching hi s
honour, libert y and freedom, or of a cl ass or a group of persons as
t hey woul d al so be l egit imat ely covered by t hi s expressi on. Thus, it i s
hel d t hat t o delineat e measures wit h a view t o ensure enforcement of
fundament al right s, a probe is called for t o ascert ain t he ORI GI N,
AUTHENTI CI TY and PURPOSE of creat ing/ draft ing for delivering it
t o Admiral Mike Mullen t hrough James Jones , t hus, a quest i on
squarely fall en wit hin t he defini t i on of t erm public import ance.
CONST P 77- 85, 89/ 2011, et c.
32
32. Now next quest i on for examinat i on i s as t o whet her t he
mat t er involves t he enforcement of any of t he fundament al ri ght s
conferred by Chapt er 1, Part - I I of t he Const i t ut i on of Paki st an.
33. Ms. Asma Jahangi r, l earned ASC has vehement ly
cont ended t hat t he pet i t i oners have failed t o show t he i nfringement of
any of t hei r fundament al ri ght s as t hey have prayed for conduct i ng
inqui ry/ probe int o t he mat t er, and such prayer does not confer any
fundament al ri ght as per Const i t ut i on.
34. On t he ot her hand, l earned counsel for t he pet it i oners in
rebut t al have st at ed t hat in t he pet it i ons t hey have cat egori call y st at ed
t hat t he mat t er i nvol ves t he soverei gnt y and i nt egri t y of t he count ry,
t herefore, t hei r ri ght t o life i s invol ved. Furt her, t hey cont ended t hat
t hi s Court has j uri sdi ct i on i n case of any t hreat t o t he fundament al
ri ght s of t he pet i t i oners, t o conduct probe t o enforce fundament al
ri ght s envi saged by t he Const i t ut i on.
35. On havi ng gone t hrough f act s of t he case and t he
j udgment s cit ed by t he l earned counsel for t he part i es, foll owi ng
pri nci ples are hi ghlight ed t o exerci se j uri sdi ct i on under Art i cle 184( 3)
of t he Const it ut i on: -
( 1) I t i s not necessary t hat who has approached t he Court for
t he enforcement of fundament al ri ght s as an i nformat i on
has t o be l ai d before t he Court , may be by an i ndivi dual or
more t han one person.
( 2) The case must i nvol ve deci si on on an i ssue in which t he
public- at - large i s i nt erest ed.
CONST P 77- 85, 89/ 2011, et c.
33
( 3) The case al so rel at es t o t he enforcement / vi olat i on of any
of t he fundament al ri ght s ment i oned in Chapt er I , Part - I I
of t he Const it ut i on, namely, Art i cl es 8 t o 28.
( 4) I f i t i s permissi bl e for t he next fri end t o move t he Court on
behal f of a minor or a person under di sabilit y, or a person
under det ent i on or i n rest rai nt , t hen why not a person,
who were t o act bona fi de t o act i vi se a Court for t he
enforcement of t he Fundament al Ri ght s of a group or a
cl ass of persons who are unabl e t o seek reli ef.
( 5) Under Art i cl e 184( 3) , it i s not a t radi t i onal li t igat i on whi ch,
of course, i s of an adversary char act er where t here i s a li s
bet ween t he t wo cont endi ng part i es, one cl ai ming relief
agai nst t he ot her and t he ot her resi st ing t he cl aim.
( 6) The Court while dealing wit h a case under Art i cle 184( 3) of
t he Const i t ut i on is nei t her bound by t he procedural
t rappi ngs of Art i cl e 199 nor by t he li mit at i ons ment i oned i n
t he sai d Art i cl e for exerci se of power by t he Hi gh Court .
( 7) The provi si ons of Art i cl e 184( 3) of t he Const i t ut i on are
self- cont ained and t hey regulat e t he j uri sdi ct i on of t hi s
Court on it s own t erminol ogy.
( 8) I n a gi ven case where a quest i on of public i mport ance wi t h
reference t o t he enforcement of any of t he Fundament al
Ri ght s conferred by Chapt er 1 of Part I I i s involved, i t
shoul d di rect ly i nt erfere, and any ri gid or a st rai t - j acket
formul a prescri bed for enforcement of t he Ri ght s would be
self- defeat ing.
CONST P 77- 85, 89/ 2011, et c.
34
( 9) I n order t o ascert ai n t he vi ol at i on of a fundament al ri ght ,
t he Court has t o consi der t he di rect and inevit abl e
consequences of t he act i on whi ch i s sought t o be remedi ed
or t he guarant ee of which is sought t o be enforced.
36. I t i s al so si gni ficant t o not e t hat t he Court sei zed wit h t he
inqui sit ori al kind of proceedings i s bound t o be careful whil e exami ning
t he mat t er pl aced before it , l est it shoul d cause inj ust i ce or prej udi ce
t o any of t hem and shall make reference of t he mat eri al / document s or
ci rcumst ances, whi ch are not di sput ed bet ween t hem. As in t he i nst ant
case reference has only been made t o t he document s i n respect
whereof t he part i es before t he Court have no cont roversi al at t i t ude
agai nst each ot her and despi t e i t , final det ermi nat i on about t he ci vil
liabilit y and cri minal cul pabilit y has t o be made by t he forum
empowered t o det ermine t he ext ent of t he i nvolvement subj ect t o
foll owing t he due process as defined in Art i cles 4 and 10A of t he
Const i t ut i on. I n short order dat ed 30.12.2011 except appoi nt i ng a
Commi ssi on t o probe int o t he mat t er for t he purpose of delineat i ng
measures wi t h a view t o ensure enforcement of fundament al ri ght s i .e.
Art i cles 9, 14 and 19A t o ascert ain t he origin, aut hent icit y and
purpose of creat ing/ draft ing of Memo for deli veri ng i t t o Chai rman
of Joi nt Chi efs of St aff, Admi ral Mike Mullen t hrough General ( R) ,
James Logon Jones, Former US Nat i onal Securi t y Advi sor. No reference
concerning i nvolvement of any of t he respondent s has been made.
I nasmuch as i n t he earlier order dat ed 1
st
December, 2011 aft er
havi ng observed t hat no sooner t he i ssue of Memo came t o limelight ,
former Ambassador of Paki st an t endered hi s resi gnat i on. We do not
want t o at t ri but e t o him anyt hi ng adverse on account of hi s
CONST P 77- 85, 89/ 2011, et c.
35
invol vement as he is ent i t led t o due respect but we desi red t hat he
shoul d fully cooperat e wi t h t he Commissi on and duri ng pendency of
t he cases before t hi s Court he would not be l eaving t he count ry
wit hout pri or permi ssi on of t hi s Court . As far as l at er port i on of l eavi ng
t he count ry wit hout permi ssi on of t his Court i s concerned, i t shall be
dealt wit h lat er separat ely, in t he light of argument s of Ms. Asma
Jahangi r, ASC. However, i n vi ew of t he fact t hat inst ant proceedi ngs
are inqui sit ori al in nat ure, t he expressi on in cont radi ct i on t o
adversari al proceedings has been defined i n foll owi ng paras i n Wat an
Part ys case ( PLD 2011 SC 997) : -
42. Adversari al proceedings are defi ned as proceedings
rel at ing t o, or charact eri st ic of an adversary or adversary
procedures. The t erm ""adversari al " has been defi ned in t he
Conci se Oxford Engli sh Di ct i onary, Elevent h Edi t i on, Revi sed, as
under: - .
"1. I nvolvi ng or charact eri zed by conflict or opposi t i on. 2.
Law ( of l egal proceedi ngs) i n which t he part i es invol ved
have t he responsi bilit i es for findi ng and present ing
evi dence."
I n "Advanced Law Lexi con" t he t erm "Adversari al Process" has
been defi ned as under: -
"A process i n whi ch each part y t o a disput e put s forward
it s case t o t he ot her and before a neut ral j udge, soli cit i ng
t o prove t he fai rness of t hei r cases."
I n t he Ameri can Herit age Di ct i onary of t he English Language,
Fourt h Edit i on: Publi shed by Hought on Mifflin Company, t he t erm
i s defined as under: -
"Rel at ing t o or charact eri st i c of an adversary; i nvol ving
ant agoni st i c el ement s: "t he chasm bet ween management
and l abor in t his count ry, an oft en needlessl y adversari al
..at mosphere" ( St eve Lohr) ."
I n Collins Engli sh Dict i onary - Compl et e and Unabri dged, it i s
defi ned as under:
"1. Pert aini ng t o or charact eri zed by ant agoni sm and
confli ct
2. ( Law) Bri t havi ng or invol ving opposing part ies or
int erest s i n a legal cont est US t erm adversary"
The adversari al syst em ( or adversary syst em) i s a l egal syst em
where t wo advocat es represent t hei r part i es' posi t i ons before an
impart i al person or group of peopl e, usuall y a j ury or j udge, who
at t empt t o det ermine t he t rut h of t he case, whereas, t he
inqui sit ori al syst em has a j udge ( or a group of j udges who work
t oget her) whose t ask i s t o invest i gat e t he case.

43. The adversari al syst em i s a t wo- si ded st ruct ure under
CONST P 77- 85, 89/ 2011, et c.
36
whi ch cri minal t ri al court s operat e t hat pi t s t he prosecut i on
agai nst t he defence. Just ice i s done when t he most effect ive and
ri ght ful adversary i s abl e t o convi nce t he j udge or j ury t hat hi s
or her. perspect i ve on t he case i s t he correct one.

44. As against t he above, t he t erm "inqui si t ori al " is defined in
"Conci se Oxford Engli sh Di ct i onary, Elevent h Edi t i on, Revised as
under: -
"1. Of or li ke an i nquisi t or.
2. Law ( of performi ng an examini ng rol e) "
I n "Advanced Law Lexi con" 3rd Edit i on, 2005, it i s defined in t he
foll owing words:
"The syst em of cri minal j ust i ce in most ci vil l aw nat i ons,
where j udges serve as pr osecut ors and have broad power s
of di scovery."
Webst er' s New Worl d College Di ct i onary Copyri ght 2010, by
Wil ey Publishing, I nc., Cleveland,. Ohi o defi nes i t as under - -
"1. of or li ke an i nqui si t or or i nqui si t i on
2. inqui sit i ve; prying"
Collins Worl d Engli sh Di ct i onary defines it as under: -
"1. of or pert ai ning t o an inqui sit or or inqui sit i on.
2. exerci si ng t he office of an i nquisi t or.
3. l aw.
a. pert aini ng t o a t ri al wi t h one person or group
inqui ri ng i nt o t he fact s and act i ng as bot h
prosecut or and j udge.
b. pert aini ng t o secret cri minal prosecut i ons.
4. resembli ng an i nquisi t or in harshness or
int rusiveness.
5. inqui sit i ve; prying.

45. The Free Dict i onary descri bes it i n part , as "a met hod of
legal pract i ce i n which t he j udge endeavours t o di scover fact s
whil st simul t aneously represent i ng t he int erest s of t he St at e in a
t ri al". Under t he inqui sit ori al model , t he obligat i ons of a Judge
are far great er and he is no l onger a passive arbi t er of
proceedi ngs but an act ive member of t he fact findi ng process.

46. An inqui sit ori al syst em i s a l egal syst em where t he court or
a part of t he court i s act ively involved in invest igat i ng t he fact s
of t he case, as opposed t o an adversarial " syst em where t he rol e
of t he court i s pri marily t hat of an i mpart i al referee bet ween t he
prosecut i on and t he defense. I nqui sit ori al syst ems are used in
some count ri es wi t h ci vil l egal syst ems as opposed t o common
l aw syst ems. Al so count ries using common l aw, i ncluding t he
Uni t ed St at es, may use an inquisi t orial syst em for summary
heari ngs i n' t he case of mi sdemeanors such as minor t raffi c
vi ol at i ons. I n fact , t he di st inct i on bet ween an adversari al and
inqui sit ori al syst em i s t heoret i cally unrel at ed t o t he di st inct i on
bet ween a ci vil legal and common law syst em. Some legal
schol ars consi der t he t erm "inqui sit ori al " mi sleadi ng, and prefer
t he word "non- adversari al ".

47. The i nqui si t ori al syst em applies t o quest i ons of crimi nal
procedure as opposed t o quest i ons of subst ant ive l aw; t hat i s, it
CONST P 77- 85, 89/ 2011, et c.
37
det ermi nes how cri minal enqui ries and t ri al s are conduct ed, not
t he ki nd of crimes for whi ch one can be prosecut ed, nor t he
sent ences t hat t hey carry. I t is most readily used in some ci vil
legal syst ems. However some j uri st s do not recogni ze t hi s
di chot omy and see procedure and subst ant i ve l egal rel at i onshi ps
as bei ng int erconnect ed and part of a t heory of j ust i ce as applied
different l y in vari ous l egal cult ures.

37. Thus, foll owing t he pri nci ple/ j udi cial consensus t hat while
int erpret ing Art i cle 184( 3) of t he Const i t ut i on, t he int erpret at ive
approach shoul d not be ceremoni ous observance of t he rules or usages
of t he int erpret at i on but regard shoul d be had t o t he obj ect and
purpose for whi ch t hi s Art i cle i s enact ed i .e. t he i nt erpret at ive
approach must recei ve i nspi rat i on from t he t ri ad of provi si ons whi ch
sat urat e and i nvi gorat e t he ent i re Const it ut i on i ncluding t he Obj ect i ves
Resolut i on ( Art i cle 2- A) , t he fundament al ri ght s and t he di rect ive
pri nci ples of St at e poli cy so as t o achi eve democracy, t olerance, equit y
and soci al j ust i ce accordi ng t o I sl am. The t erm as defi ned i n art i cle 9,
14 and 19A of t he Const it ut i on i s i nt erpret ed hereinbel ow wit h
reference t o mat t er under di scussi on.
38. I t i s observed t hat t he preamble whi ch i s now t he
subst ant ive part of t he Const i t ut i on by means of Art i cl e 2A, commands
t hat it is t he will of t he people of Pakist an t o est ablish an order
wherein t he int egrit y of t he t errit ories of t he Federat ion, it s
independence and all it s right s, including it s sovereign right s on land,
sea and air, shall be safeguarded; so t hat t he people of Pakist an may
prosper and at t ain t heir right ful and honoured place amongst t he
nat ions of t he World and made t heir full cont ribut ion t owards
int ernat ional peace and progress and happiness of humanit y. These
words of t he Const i t ut i on comprehensivel y defi ne t he st at ure of an
CONST P 77- 85, 89/ 2011, et c.
38
independent Paki st an where t he peopl e of Paki st an may prosper and
at t ai n t hei r ri ght ful and honoured pl ace amongst t he nat i ons of t he
worl d. Undoubt edl y, t his provi si on of Const i t ut i on has overwhel ming
nexus wi t h t he fundament al ri ght s of t he ci t i zens of Pakist an ( peopl e)
specifi cally guarant eed under Art i cl es 9 and 14 of Chapt er 1, Part - I I of
t he Const i t ut i on.
39. The expressi on li fe i mplied in Art i cl e 9 of t he Const i t ut i on,
i s al so used in t he correspondi ng Art i cle 21 of t he I ndi an Const it ut i on.
Art i cle 9 of t he Const i t ut i on of Pakist an prescri bes t hat no person
shall be deprived of life or li bert y save i n accordance wi t h law .
Whereas i n t he I ndi an Const i t ut i on it reads t hat no person shall be
depri ved of hi s life or personal li bert y except accordi ng t o procedure
est abli shed by l aw . Fourt eent h Amendment of t he Ameri can
Const i t ut i on provi des, no St at e shall depri ve any person of li fe,
li bert y, or propert y wit hout due process of l aw . I n Shehla Zias case
( i bi d) , i t i s hel d t hat t he word Life used in Art i cle 9 of t he
Const i t ut i on i s very si gnifi cant as i t covers all facet s of human
exi st ence. The word life has not been defi ned in t he Const it ut i on but
it does not mean nor can i t be rest rict ed onl y t o t he veget at i ve or
ani mal life or mere exist ence from concept i on t o deat h. Li fe i ncludes
all such amenit i es and facilit i es whi ch a person born i n a free count ry
i s ent it l ed t o enj oy wi t h di gnit y, l egally and const it ut i onally. I n t he
case of Munn v. I llinois ( 100 U.S. 1) Fiel d, J., i n hi s di ssent ing opi ni on
has hel d t hat by t he t erm "life," as here used, somet hing more is
meant t han mere animal exist ence. The inhibit ion against it s
deprivat ion ext ends t o all t hose limbs and facult ies by which life is
enj oyed. The provision equally prohibit s t he mut ilat ion of t he body by
CONST P 77- 85, 89/ 2011, et c.
39
t he amput at ion of an arm or leg, or t he put t ing out of an eye, or t he
dest ruct ion of any ot her organ of t he body t hrough which t he soul
communicat es wit h t he out er world. The deprivat ion not only of life,
but of what ever God has given t o everyone wit h li fe for it s growt h and
enj oyment , is prohibit ed by t he provision in quest ion if it s efficacy be
not frit t ered away by j udicial decision. The I ndi an Supreme Court i n
Francis Coralie Mullin v. The Administ rat or ( AI R 1981 SC 746) has held
t hat any act which damages or inj ures or int erferes wit h t he use of any
limb or facult y of a person eit her permanent ly or even t emporarily,
would be wit hin t he inhibit ion of Art icle 21. Fundament al right t o life
which is most precious human right and which forms t he ark of all
ot her right s must t herefore be int erpret ed in a broad and expansive
spirit so as t o invest it wit h significance and validit y endure for years
t o come and hence t he dignit y of individual and t he wort h of human
person. I t was furt her observed as under: -
"I t i s t he fundament al ri ght of everyone i n t his count ry ... t o live
wit h human dignit y free from expl oit at i on. Thi s ri ght t o live
wit h human di gnit y enshri ned in A. 21 derives it s life breat h from
t he Di rect i ve Pri nci ples of St at e Poli cy and part i cul arly cl auses
( e) and ( f) of A. 39, A. 41 and A. 42 and at l east , t herefore i t
must include prot ect i on of t he healt h and st rengt h of t he
workers men and women, and of t he t ender age of chil dren
agai nst abuse, opport uni t ies an facilit ies for chil dren t o devel op
in a healt hy manner and i n condit i ons of freedom and dignit y,
educat i onal facilit i es, j ust and humane condi t i ons of work and
mat erni t y relief. These are t he minimum requi rement s whi ch
must exi st in order t o enabl e a person t o live wi t h human di gni t y
and no St at e has t he ri ght t o t ake any act i on whi ch will deprive
a person of t he enj oyment of t hese basi c essent i al s." [ emphasi s
supplied]
CONST P 77- 85, 89/ 2011, et c.
40
I n t his case, t he t erm life has been defi ned wi t h an expansi ve spi ri t ,
accordi ng t o whi ch every limb or facul t y, wi t h whi ch life i s enj oyed i s
prot ect ed by Art i cle 21 and a fort i ori , whi ch woul d incl ude t he facul t ies
of maki ng and feeling. The expressi on life i n t his Art i cle does not
connot e mere ani mal exi st ence or cont inui ng drudgery t hrough life. I t
means somet hi ng much more t han j ust physi cal survi val . I t has a
much wi der meani ng whi ch i ncludes ri ght t o livelihood, bet t er st andard
of livi ng, hygieni c condi t i ons in t he work pl ace and l ei sure. I t woul d be
advant ageous t o reproduce relevant ext ract s from t he case of Bandhua
Murt i Morcha v. Union of I ndia [ 1984 ( 3) SCC 161] : -
I t i s t he fundament al ri ght of everyone i n t hi s Count ry, assured
under t he int erpret at i on gi ven t o Art y. 21 by t his court i n
Faranci s Mullin' s case ( 1981) 1 SCC 608 t o live wi t h human
dignit y, free from exploit at ion. Thi s ri ght t o live wit h human
di gnit y enshri ned i n Art .21 deri ves it s life breat h from t he
Di rect ive pri ncipl es of St at e Poli cy and Part i cul arl y cl s. ( e) and
( f) of Art . 39 and Art s. 41 and 42 and at t he least , t herefore, i t
must include prot ect i on of t he healt h and st rengt h of t he
workers, men and women, and of t he t ender age of chil dren
agai nst abuse, opport uni t ies an facilit ies for chil dren t o devel op
in a heal t hy manner and i n condi t i ons of freedom and di gnit y,
educat i onal facilit ies, j ust as human condi t i ons of work and
mat erni t y relief. These are t he minimum requi rement s whi ch
must exi st in order t o enabl e a person t o live wit h human
dignit y and no st at e neit her t he cent ral Government has t he
ri ght t o t ake any act i on which will depri ve a person of t he
enj oyment of t hese basi c essent i al s. [ emphasi s supplied]
Si milarl y, i n t he case of Sunil Bat ra v. Delhi Administ rat ion ( AI R 1978
SC 1675) t he word life has been defi ned as every act whi ch offends
against or impairs human dignit y woul d const it ut e depri vat i on
prot ant o of t hi s ri ght t o live and i t would have t o be i n accordance wit h
CONST P 77- 85, 89/ 2011, et c.
41
reasonabl e, fai r and j ust procedure est ablished by l aw which st ands
t est of ot her fundament al ri ght s. I n t he case of Bira Kishore Naik v.
Coal I ndia Lt d. ( AI R 1986 SC 2123) i t has been hel d t hat Art i cle 21 of
t he Const it ut i on guarant ees ri ght t o life, whi ch ri ght woul d be
meaningl ess unl ess t he cit i zen has a right t o live wit h di gni t y. I n t he
case of Common Cause v. Union of I ndia ( AI R 1999 SC 2979) i t has
been hel d t hat t he ri ght s al so i ncl ude t he ri ght t o live wi t h human
di gnit y and all t hat goes al ong wi t h. Same view was t aken i n t he cases
of Bandhua Mukt i Morcha v. Union of I ndia ( AI R 1984 SC 802) =
[ ( 1984) 2SCR 67] and N. P. S. NPC Teachers' Associat ion v. Union of
I ndia ( AI R 1993 SC 369) .
40. I n t he case of Shehla Zia ( i bid) ci t i zen havi ng
apprehensi on agai nst const ruct i on of a gri d st at i on in resi dent i al area
sent a l et t er t o t he Supreme Court for consi derat i on as human ri ght s
case rai si ng t wo quest i ons; namely, whet her any Government agency
has a ri ght t o endanger t he life of cit i zens by it s act i ons wit hout t he
l at t ers consent ; and secondly, whet her zoni ng laws vest ri ght s i n
cit i zens which cannot be wi t hdrawn or al t ered wi t hout t he ci t i zens
consent . The Court decl ared t he pet i t ion t o be mai nt ainabl e on t he
ground t hat i f t here are t hreat s of seri ous damage, effect ive
measures shoul d be t aken t o cont rol i t and i t shoul d not be post poned
merel y on t he ground t hat sci ent ifi c research and st udies are uncert ai n
and not conclusi ve. The word li fe const i t ut i onally i s so wi de t hat t he
danger and encroachment compl aint woul d i mpinge fundament al ri ght
of a ci t i zen. I n t he case of Bank of Punj ab v. Haris St eel I ndust ries
( PLD 2010 SC 1109) , t he mat t er was rel at ed t o one of t he gravest
fi nancial scams in t he banking hi st ory of Paki st an as a resul t of whi ch
CONST P 77- 85, 89/ 2011, et c.
42
t he Bank st ood cheat ed of an enormous amount of around eleven
billion rupees whi ch amount of money in fact bel onged t o around one
milli on i nnocent deposit ors incl uding deposi t ors of small amount s of
money whose life savings and propert y had come under serious
t hreat , t herefore, i t was hel d t hat t he fact s cast an obli gat i on on t he
Supreme Court t o move in t o prot ect and defend t he ri ght of propert y
of such a l arge sect i on of t he popul at i on i .e. about one milli on
deposi t ors and cust omers of t he Bank whi ch ri ght of propert y st ood
guarant eed t o t hem by Art .24 and Art .9 of t he Const i t ut i on and it was
in view of t he fact s and ci rcumst ances t hat t he Bank had felt
compelled t o approach Supreme Court under Art . 184( 3) of t he
Const i t ut i on read wi t h O.XXXI I I , R. 6 of t he Supreme Court Rul es,
1980 t hrough Const i t ut i onal pet it i on. I t was furt her hel d t hat Supreme
Court was possessed of power t o make any order of t he nat ure
ment i oned i n Art .199 of t he Const it ut i on, if in i t s opini on, a quest i on of
public import ance rel at i ng t o t he enforcement of any of t he
Fundament al Ri ght s was i nvol ved i n t he mat t er. I n t he case of D. A. V.
College, Bhat inda v. The St at e of Punj ab [ AI R 1971 SC 1731] t he
I ndi an Supreme Court has hel d t hat whet her or not ul t imat el y any
fundament al ri ght in fact is t hreat ened or vi ol at ed so l ong as a prima
facie case of such a t hreat or violat ion i s made out a pet it i on
under Art . 32 must be ent ert ai ned. So l ong as t he pet i t i oner makes
out a pri ma faci e case t hat hi s fundament al ri ght s are affect ed or
t hreat ened he cannot be prevent ed from chall engi ng t hat t he l aw
compl ained of, whi ch affect s or i nvades t hose ri ght s, i s invalid because
of want of l egi sl at i ve compet ence. I n t he case of Shri Ram Krishna
Dalmia v. Shri Just ice S. R. Tendolkar ( AI R 1958 SC 538) i t has been
hel d t hat qui t e conceivabl y t he conduct of an indi vi dual person or
CONST P 77- 85, 89/ 2011, et c.
43
company or a group of i ndivi dual persons or compani es may assume
such a dangerous proport i on and may so prej udi ci ally affect or
t hreat en t o affect t he publi c well- bei ng as t o make such conduct a
defi nit e mat t er of public import ance urgent ly calling for a full i nqui ry.
41. The t erm li fe wi t h di gnit y, defined by t he Superi or Court s,
poi nt ed out hereinabove, prima facie suggest s t hat a ci t i zen who i s
const i t ut i onally under t he obli gat i on t o be l oyal t o St at e, t he
Const i t ut i on and t he l aw, what ever hi s st at us may be, al so remai ns
under t he command of t he Const i t ut i on t o have an honoured pl ace
amongst t he nat i ons of t he worl d. The at t empt / act of t hreat eni ng t o
t he di gnit y of t he people, collect ively or i ndivi dually, concerning t he
independence, soverei gnt y and securit y of t hei r count ry, prima facie,
rai ses a seri ous quest i on t agged/ linked wit h t hei r fundament al ri ght s.
The exi st ence of Memo dat ed 10
t h
May, 2011 may have effect s of not
only compromi sing nat i onal soverei gnt y but al so it s di gnit y. The l oyal
cit i zens have shown great concern, t o live i n t he comit y of nat i ons wit h
di gnit y and honour, as accordi ng t o expanded meanings of life, t he
cit i zen have a ri ght t o ask t he St at e t o provi de safet y t o t hei r lives
from int ernal as well as ext ernal t hreat s. Undoubt edl y t hi s nat i on had
achi eved independence at t he cost of great sacrifi ces. I nasmuch as, at
present securit y forces are fi ght ing against t he unscrupul ous persons
invol ved in t errori sm, not i n a part i cul ar part but t hroughout t he
count ry, wit hout any di st inct i on.
42. Learned counsel for respondent No.4 emphasi zed t hat
t here must be a seri ous quest i on invol ving enforcement of t he
fundament al ri ght s. Prima facie, what coul d be more t hreat t o t he life
of cit i zens who are l oyal t o t hi s count ry and t he Const i t ut i on where on
CONST P 77- 85, 89/ 2011, et c.
44
t he basi s of act i vit i es, whi ch resul t ed in ori gi nat ing Memo dat ed 10
t h

May, 2011. I t s exi st ence, as di scussed above, has been est abli shed.
I nasmuch as, t he Federat i on i t self, i s of t he opi ni on t hat t he mat t er
requi res t o be probed i nt o and t he ini t iat i ve apparent l y has been t aken
in view of t he let t er dat ed 16
t h
November, 2011, copy of whi ch has
been produced by learned counsel for respondent No.4, i n whi ch
besi des ment i oni ng ot her fact s he hi msel f has offered for a probe i nt o
t he i ssue of t he Memo, t herefore, in such like cases when cogent ,
concurrent and undi sput ed fact s have come on record about t he
exi st ence of t he Memo dat ed 10
t h
May, 2011 and cont ent s whereof
have t hreat ened t he independence, soverei gnt y and securi t y of t he
count ry, t he l oyal cit i zens are, prima facie, j ust ifi ed t o rai se a voi ce
about t he deni al of t hei r fundament al ri ght s under Art i cl es 9, 14 and
19A of t he Const i t ut i on, whi ch are t agged wi t h t he quest i on of public
import ance, t hus, call for t hei r enforcement . Learned counsel ,
however, st at ed t hat for enforcement of t he Fundament al ri ght s t o
have access t o i nformat i on, under Art i cle 19A of t he Const i t ut i on ,
alt ernat e remedy i s availabl e under t he Freedom of I nformat i on
Ordi nance, 2002 ( Promul gat ed on 26
t h
Oct ober, 2002) . On having
gone t hrough t he scheme of t he Ordinance, we are not inclined t o
agree wi t h her, as i n t he inst ant case, enforcement of fundament al
ri ght s i n t erms of Art i cle 184( 3) of t he Const i t ut i on has been prayed
for.
43. Subj ect t o all j ust except i ons, Mansoor I j az has shared
wit h DG I SI evi dence t o prove t hat he had wri t t en Memo, whi ch t he
l at t er brought i nt o t he not i ce of Chi ef of Army St aff, so on and so
fort h. But surpri singly, i n t he repl y submi t t ed by Mr. Hussai n Haqqani ,
CONST P 77- 85, 89/ 2011, et c.
45
he has not ment i oned about t he bri efing given t o t he Presi dent in t he
presence of Chi ef of Army St aff and D.G. I SI on 22
nd
November, 2011
in Pri me Mini st er House, nor has he st at ed about t he resi gnat i on. As
far as D.G. I SI i s concerned, he has furni shed compl et e
det ail / descri pt i on of hi s meet ing hel d by hi m in London wi t h
respondent Mansoor I j az. On recei pt of repl y from Chief of Army St aff
and D.G., I SI , copi es of t he same were handed over t o all t he part i es
for re- j oi nders, if any, by means of order dat ed 15.12.2011. No repl y
cont radi ct ing st at ement of bot h t he respondent s was filed, except vi de
CMA 5539/ 2011 Ms. Asma Jahangi r fil ed affi davi t , received from James
Logan Jones, whi ch he has not sent t hough Embassy of US nor t he
Government or t o t he Regi st rar of t hi s Court . Thi s affi davit , however,
has been cont radi ct ed by Mansoor I j az, copi es of whi ch have al so been
supplied t o all concerned. I nt erest ingly, t he Federat i on despi t e
knowi ng all t hese fact s had not t aken posi t i on in respect of event s
whi ch have been poi nt ed i n t he conci se st at ement of t he Chief of Army
St aff and D.G. I SI . For sake of argument s and t o be on safe si de at t he
moment wi t hout di scussing or t aki ng i nt o consi derat i on t he st at ement
of Mansoor I j az ( respondent No.4) and James Jones, prima facie i t i s
est abli shed t hat a Memo was draft ed and prepared, whi ch was sent t o
Mike Mullen, who ini t ially denied it s exi st ence but l at er he admit t ed
t hat he received such a Memo. Reference t o t he st at ement has been
made in Const i t ut i on Pet it i on No.79/ 2011 ( Mohammad Nawaz Shari f v.
Federat i on of Paki st an) . These assert i ons are i mport ant t o, prima
facie, draw an inference t hat t he memo epi sode has an i mpact on
nat i onal securit y. The cont ent s of memo, i f beli eved t o be t rue, prima-
facie, are t ant amount t o compromi si ng t he securi t y, soverei gnt y and
CONST P 77- 85, 89/ 2011, et c.
46
independence of t he count ry. I t i s not desi rabl e t o di scuss i t s cont ent s,
lest it shoul d cause prej udi ce t o eit her part i es.
44. I n all t hese pet it i ons specifi cally amongst t he respondent s,
no one has been sought t o be hel d liabl e t o t ake brunt of t he civil
liabilit y or cri mi nal cul pabilit y, except prayi ng t o probe i nt o t he mat t er
and t o i dent ify t hose who are responsi ble in i ssuance of t he derogat ory
Memo, t hough t hey have all eged t hreat t o life, securi t y, di gni t y as well
as deni al of fundament al ri ght t o have compl et e informat i on about t he
i ssue wherei n all egedly independence, soverei gnt y and securi t y of t he
count ry i s likely t o be compromi sed. Seeki ng no reli ef against any of
t he respondent s suggest s t hat in accordance wit h t he provi si ons of
Art i cle 184( 3) of t he Const i t ut i on, t hi s Court i s empowered t o make a
decl arat ory order t o enforce any of t he fundament al ri ght s conferred
by Chapt er- I , Part I I . Such kind of lit i gat i on falls wit hin t he cat egory of
inqui sit ori al proceedi ngs and not adversari al , whi ch i s generall y
undert aken by t he li t i gant s agai nst each ot her for det ermi nat i on of
t hei r respect ive ri ght s i n t he common l aw count ri es.
45. Ms. Asma Jahangi r, l earned ASC al so has not resi st ed t he
quest i on of probe i nt o t he i ssue of Memo dat ed 10
t h
May, 2011 and
she made a cat egori cal st at ement t hat as i t is not a fundament al ri ght
of t he pet i t i oners t o insi st for i nqui ry accordi ng t o t hei r own choi ce,
t hus, subj ect t o foll owing t he princi pl e of due process of l aw, a probe,
whet her conduct ed by a Commi ssi on appoi nt ed by t he Federal
Government under Commissi ons of I nqui ry Act , 1956 or by t he
Parli ament ary Commit t ee t o whom t he j ob i s assi gned by t he Pri me
Mini st er of Paki st an, or by means of t he depart ment al i nqui ry against
CONST P 77- 85, 89/ 2011, et c.
47
Mr. Husain Haqqani can be hel d. However, she opposed t he pr obe by a
body or t he Commi ssi on const i t ut ed by t hi s Court .
46. Learned At t orney General st at ed t hat t he Parliament ary
Commi t t ee on t he Nat i onal Securi t y on t he request of one of t he
pet i t i oners, namely, Senat or I shaq Dar vide let t er dat ed 21
st

November, 2011 addressed t o t he Chai rman of t he Commi t t ee
const i t ut ed under a Joi nt Resol ut i on of bot h t he Houses has al ready
commenced probe int o t he mat t er and it s fi rst meet ing has been hel d
on 25
t h
November, 2011, t herefore, let t he Commit t ee accompli sh i t s
assi gnment . As such, all t he pet i t i ons being pre- mat ure, may be
di smissed. As far as t hi s aspect of t he case i s concerned, on t he fi rst
day of heari ng i .e. 1
st
December, 2011, t he l earned At t orney General
for Paki st an had advanced t he same argument s and wit hout any
reservat i on we had observed: -
We are t old t hat t he Prime Minist er of Pakist an has also
announced t hat t he Parliament ary Commit t ee on Nat ional
Securit y will probe int o t he mat t er. We do not know t he
mandat e of t he Commit t ee. However, we have been
informed t hat as far as t his Commit t ee is concerned, it has
no const it ut ional backing, i.e. it has not been const it ut ed
under any provision of t he Const it ut ion. Be t hat as it may,
if any incriminat ing evidence is collect ed by t he Commit t ee
bot h for civil and criminal act ion by probing int o t he
mat t er, we would welcome t he same. During t he pendency
of t he proceedings, we would appreciat e if t he out come of
t he proposed inquiry by t he Commit t ee is shared wit h us,
if possible.
As i n t he inst ant case i n vi ew of t he fact s not ed hereinabove,
cont ai ned i n t he l et t er dat ed 16
t h
November, 2011 addressed by t he
CONST P 77- 85, 89/ 2011, et c.
48
former Ambassador Husain Haqqani t o t he Presi dent of Paki st an, t he
let t er dat ed 28
t h
November, 2011 and t he request made in
Const i t ut i on Pet it i ons No.77 and 78/ 2011 as well as by ot her
pet i t i oners duri ng course of t he argument s incl uding t he l earned
At t orney General as well as t he counsel for respondent No.4 Mr.
Husai n Haqqani all are one on t he poi nt t hat probe shoul d be
conduct ed i n t he mat t er. Thi s fact it self indi cat es t he import ance of t he
i ssue, ot herwi se respondent No.4 and t he Pri me Mini st er i n t he let t er
dat ed 28
t h
November, 2011 woul d have not referred t he mat t er for
probe by t he Parliament ary Commit t ee on Nat i onal Securi t y.
47. The mandat e of t he Parli ament ary Commi t t ee as conferred
by t he Consensus Resol ut i on passed at t he conclusi on of t he Joi nt
Si t t i ng of Parli ament ( 8
t h
t o 22
nd
Oct ober, 2008) is given bel ow: -
This in- camer a j oint session of Par liament has not ed wit h gr eat
concer n t hat ext r emism, milit ancy and t er r or ism in all for ms and
manifest at ions pose a grave danger t o t he st abilit y and int egr it y of t he
nat ion- st at e. I t was r ecalled t hat in t he past t he dict at or ial r egimes
pur sued policies aimed at perpet uat ing t heir own power at t he cost of
nat ional int er est . This House, having consider ed t he issue t hor oughly
and at gr eat lengt h is of t he view t hat in t er ms of framing laws,
building inst it ut ions; pr ot ect ing our cit izens fr om violence, er adicat ion
of t er r or at it s r oot s, r e- building our economy and developing
oppor t unit ies for t he disadvant aged, we all commit t o t he following: -
1. That we need an ur gent r eview of our nat ional secur it y
st r at egy and r evisit t he met hodology of combat ing t er r or ism
in or der t o r est or e peace and st abilit y t o Pakist an and t he
r egion t hr ough an independent for eign policy.
2. The challenge of milit ancy and ext r emism must be met
t hr ough developing a consensus and dialogue wit h all
genuine st akeholder s.
3. The nat ion st ands unit ed t o combat t his gr owing menace,
wit h a st r ong public message condemning all for ms and
manifest at ions of t er r or ism, including t he spr ead of sect ar ian
hat r ed and violence, wit h a f ir m r esolve t o combat it and t o
addr ess it s r oot causes.
4. That Pakist ans sover eignt y and t er r it or ial int egr it y shall be
safeguar ded. The nat ion st ands unit ed against any incur sions
and invasions of t he homeland, and calls upon t he
gover nment t o deal wit h it effect ively.
CONST P 77- 85, 89/ 2011, et c.
49
5. That Pakist ans t er r it or y shall not be used for any kind of
at t acks on ot her count r ies and all for eign fight er s, if found,
shall be expelled fr om our soil.
6. That dialogue must now be t he highest pr ior it y, as a pr incipal
inst r ument of conflict management and r esolut ion. Dialogue
will be encour aged wit h all t hose element s willing t o abide by
t he Const it ut ion of Pakist an and r ule of law.
7. That t he development of t r oubled zones, par t icular ly t he
t r ibal ar eas, and NWFP ( Pukht oonkhwa) , must also be
pur sued t hr ough all possible ways and legit imat e means t o
cr eat e genuine st akeholder s in peace. New economic
oppor t unit ies shall be cr eat ed in or der t o br ing t he less
pr ivileged ar eas at par wit h t he r est of Pakist an.
8. That a polit ical dialogue wit h t he people of Balochist an, t he
r edr essal of gr ievances and r edist r ibut ion of r esour ces shall
be enhanced and acceler at ed.
9. That t he st at e shall maint ain t he r ule of law, and t hat when it
has t o int er vene t o pr ot ect t he lives of it s cit izens, caut ion
must be exer cised t o avoid casualt ies of non- combat ant s in
conflict zones.
10. That t he feder at ion must be st r engt hened t hr ough t he
pr ocess of democr at ic plur alism, social j ust ice, r eligious
values and t oler ance, and equit able r esour ce shar ing
bet ween t he provinces as enshr ined in t he Const it ut ion of
1973.
11. That t he st at e shall est ablish it s wr it in t he t r oubled zones,
and confidence building mechanisms by using cust omar y and
local communit ies ( j ir ga) and t hat t he milit ar y will be
r eplaced as ear ly as possible by civilian law enfor cement
agencies wit h enhanced capacit y and a sust ainable polit ical
syst em achieved t hr ough a consult at ive pr ocess.
12. That Pakist ans st r at egic int er est s be pr ot ect ed by developing
st akes in r egional peace and t rade, bot h on t he west er n and
east er n border s.
13. That mechanisms for int er nal secur it y be inst it ut ionalized by;
paying compensat ion for vict ims of violence; and r ehabilit at e
t hose displaced fr om t heir homes as soon as possible; t hat
spill- over effect s of t er r or ism be cont ained t hr oughout t he
count r y and t hat public consensus be built against t er r or ism
t hr ough media and r eligious par t icipat ion.
14. That a Special Commit t ee of Par liament be const it ut ed t o
per iodically r eview, pr ovide guidelines and monit or t he
implement at ion of t he pr inciples fr amed and r oadmap given
in t his Resolut ion. This House aut hor izes t he Speaker t o
const it ut e t he said Commit t ee in consult at ion wit h t he
par liament ar y leader s of bot h Houses. The Commit t ee will
fr ame it s own r ules upon meet ing.

CONST P 77- 85, 89/ 2011, et c.
50
48. Senat or I shaq Dar expl ai ned t hat despi t e filing of
appli cat i on before t he Parli ament ary Commit t ee no act i on was
ini t i at ed, t herefore, he had t o file a pet i t i on before t hi s Court on
23.11.2011 as accordi ng t o hi s cont ent i on t he fi rst meet i ng of t he
Commi t t ee was convened aft er i ssuance of l et t er dat ed 28
t h

November, 2011, t he Pri nci pal Secret ary t o Pri me Mini st er, whereby
t he mat t er was referred t o Parli ament ary Commi t t ee on Nat i onal
Securit y for probe. Reference t o t hi s l et t er has al ready been made i n
t he short order dat ed 30.12.2011. He however, furt her st at ed t hat in
pursuance of consensus resolut i on passed at t he conclusi on of i n-
camera Joint Si t t ing of Parli ament ( 8
t h
t o 22
nd
Oct ober, 2008) a
Commi t t ee was const i t ut ed. As per cont ent s of t he resol ut i on, t he j oint
sessi on of Parliament not ed wit h great concern t hat ext remi sm,
milit ancy and t errori sm in all forms and mani fest at i ons posed a grave
danger t o t he st abilit y and int egri t y of t he nat i on/ st at e. I t may be
recalled t hat in t he past , t he di ct at ori al regi mes pursued poli ci es aimed
at perpet uat i ng t hei r own rul e at t he cost of nat i onal int erest ,
t herefore, t he Commi t t ee woul d not be empowered for conduct i ng
probe i n t his mat t er.
49. Foll owing t he above consensus resolut i on dat ed 22
nd

Oct ober, 2008 t he rul es of procedure for t he Parli ament ary Commit t ee
on Nat i onal Securi t y were framed on 17
t h
November, 2008. I t s preface
cat egori cally st at ed t hat t he Parli ament ary Commit t ee on Nat i onal
Securit y was const it ut ed wi t h specifi c t erms of reference t o
periodically review, provide guidelines and monit or t he
implement at ion of t he principles framed and roadmap given in
t he Resolut ion. Essent ially, t hese rul es and resol ut i on are sel f
CONST P 77- 85, 89/ 2011, et c.
51
expl anat ory, which call s for no i nt erpret at i on by t his Court wi t h
reference t o undert aking a probe i nt o t he i ssue of Memo dat ed 10
t h

May, 2011. Despi t e seri ous issues rai sed qua i t s j uri sdi ct i on t o probe
int o t he ori gi n of Memo dat ed 10
t h
May, 2011, i n t he order dat ed 1
st

December, 2011 and 30
t h
December, 2011, i t was observed t hat if
evi dence was collect ed, i t may be shared wit h t his Court , i f possi bl e,
and we again reit erat e t he same in t he i nt erest of count ry and t he
nat i on.
50. Apprehensi on of t he learned counsel about non- observance
of t he pri nci ple of due process by t he commi ssi on set up by t he Court ,
as i t has been argued by her, i s unfounded. I nst ant proceedi ngs are
inqui sit ori al in i t s nat ure and t he Commi ssi on t o whom j ob of probi ng
int o t he mat t er i s ent rust ed, shall be bound t o di scharge i t s funct i on t o
draw i t s proceedings foll owing t he j udici al norms, i .e. fai r opport uni t y
of heari ng, ri ght t o part i ci pat e i n t he proceedings wi t h a vi ew t o assi st
t he Commi ssi on for reachi ng at a correct concl usi on. Learned counsel
in support of her cont ent i on relied upon t he j udgment i n t he case
of Aft ab Shaban Mirani v. President of Pakist an ( 1998 SCMR 1863) ,
rel evant para wherefrom i s reproduced herei nbel ow: -
12. .. I t may be observed t hat by now it i s a well
set t l ed proposi t i on t hat a person cannot be condemned
wit hout provi di ng him a fai r opport uni t y t o meet rt e
allegat i on. I n t hi s regard reference may be made t o t he case
of Government of Bal ochi st an t hrough Addit i onal Chi ef
Secret ary v Azi zull ah Memmon and 16 ot hers ( PLD 1993 SC
341) , wherei n aft er referring cert ai n case l aw t he foll owing
conclusi on was recorded by t hi s Court as t o t he ri ght of
access t o Court s and j ust ice: - -
"12. Anot her aspect Thi s aspect of t he case
was consi dered in Sharaf Fari di v I sl ami c Republic of
Paki st an ( PLD 1989 Karachi 404) when aft er referri ng t o
Syed Abul A'l a Maudoodi ' s case ( PLD 1964 SC 673 at
CONST P 77- 85, 89/ 2011, et c.
52
710) and Ms. 13enazi r Bhut i o s ease ( PLD 1989 SC
416) observed as foll ows: -
' The ri ght of ' access t o j ust i ce t o all ' i s a well - recogni sed
invi ol able ri ght enshri ned in Art icl e 9 of t he
Const i t ut i on. This ri ght i s equally found in t he doct rine
of ' due process of l aw' . The ri ght of access t o j ust i ce
incl udes t he ri ght t o be t reat ed accordi ng t o l aw, t he
ri ght t o have a fai r and proper t ri al and a ri ght t o have
an i mpart i al Court or Tri bunal . Thi s conclusi on finds
support from t he observat i on of Will oughby in
Const i t ut i on of Uni t ed St at es, Second Edi t i on, Vo1.I I at
page 1709 where t he t erm ' due process of l aw' has
been summari sed as foll ows: - -
( 1) He shall have. due not i ce of proceedings whi ch
affect hi s ri ght s.
( 2) He shall be gi ven reasonabl e opport uni t y t o
defend.
( 3) That t he Tri bunal or Court before whi ch hi s ri ght s
are adj udi cat ed i s so const i t ut ed as t o gi ve
reasonabl e assurance of hi s honest y and
impart i alit y, and
( 4) That it is a Court of compet ent j uri sdi ct ion. "
13. The above ext ract indi cat es what are t he basi c
requi rement s of t he doct ri ne "due process of l aw", whi ch i s
enshri ned int er ali a in Art i cl e 4 of our Const i t ut i on. I t is
int ri nsi cally linked wit h t he ri ght t o have access t o j ust i ce, which
t hi s Court has hel d int er ali a in t he above report as a
fundament al ri ght . Thi s ri ght i nt er alia incl udes t he ri ght t o have
a fai r and proper t ri al and a ri ght t o have an impart i al Court or
Tri bunal . A person cannot be sai d t o have been gi ven a fai r and
proper t ri al unl ess he i s provi ded a reasonable opport uni t y t o
defend t he all egat i on made against him. I n t he inst ant case t he
Ret urning Offi cer was sei zed of t he quest i on, whet her
respondent No.1 was quali fied t o be a candi dat e for t he office of
t he Presi dent . His deci si on t hat respondent No.1 was not
qualified t o be elect ed as a member of t he Parli ament woul d
have ent ailed his non- seat ing as a member of t he Senat e, whi ch
was a quest i on of t he nat ure, whi ch coul d not have been
adj udi cat ed upon i n a summary inqui ry under Rule 5( 3) ( a) of t he
rules, part i cul arl y when t he correct ness of t he cont ent s of t he
int erview was not admi t t ed by respondent No.1.

She al so reli ed upon t he case of Muhammad Nadeem Arif
v. I nspect or- General of Police, Punj ab, Lahore ( 2011 SCMR 408) ,
wherei n it has been observed t hat t he right of access t o j ust i ce t o all
CONST P 77- 85, 89/ 2011, et c.
53
i s a well recogni zed i nvi ol abl e ri ght enshri ned in Art i cle 9 of t he
Const i t ut i on and i s equally found i n t he doct ri ne of due process of
l aw . I t incl udes t he ri ght t o be t reat ed accordi ng t o law, t he ri ght t o
have a fai r and proper t ri al and a ri ght t o have an impart i al court or
t ri bunal .
51. The crux of t he above j udgment s persuades us t o hol d t hat
ri ght of due process, int er alia, envisages t he ri ght t o have a fai r and
proper t ri al and ri ght t o have i mpart i al court or t ri bunal . The
phrase/ expressi on i n t he pri nci ple hi ghli ght ed t herefrom are referabl e
t o t he basi c j udi ci al funct i on, whi ch necessarily are known t o j udi ci al
mi nded persons. For t he safe admi nist rat i on of j ust i ce we may observe
t hat t he princi pl e di scussed i n bot h t he j udgment s can onl y be adhered
t o st ri ct l y by t he forums manned by t he persons responsi bl e t o deliver
j udi cial fi ndings subj ect t o foll owi ng princi ple of nat ural j ust ice.
52. I t was st renuously argued by Ms. Asma Jahangi r t hat t he
quest i on of probe i nt o origin, aut hent icit y and purpose of
creat ing/ draft ing of Memo i s a poli t ical quest i on, t herefore,
Parli ament ary Commi t t ee on t he Nat ional Securit y i s a compet ent
forum t o l ook int o t hi s i ssue. Thi s aspect of t he case has al so engaged
our at t ent i on during t he heari ng. I n t his cont ext , Mr. Rashi d A. Razvi ,
learned Sr. ASC cont ended t hat i ssue of probe int o t he Memo i s a
quest i on, whi ch i s j ust i ci abl e only by t he Judi ci al forums, bei ng a
quest i on of publi c import ance wit h reference t o t he enforcement of any
of t he fundament al ri ght s conferred by Chapt er 1, Part - I I of t he
Const i t ut i on, as i t has been hi ghlight ed herei nabove.
CONST P 77- 85, 89/ 2011, et c.
54
53. Argument s so rai sed in t hi s behalf gi ve ri se t o t he
proposi t i on namel y, as t o whet her quest i on of ascert ainment of t he
origin, aut hent icit y and t he purpose of creat i ng/ draft ing t he Memo
dat ed 10
t h
May, 2011 is j ust i ciabl e or non- j ust i ciabl e by t he Court in
exerci se of i t s power of j udi ci al revi ew, and i f j uri sdi ct i on i s not vest ed
in t he j udi ci al forum t hen essent i ally t he mat t er has t o be deci ded by a
forum ot her t han it .
54. Thus, so far as t he quest i on of j ust i ci abilit y or non-
j ust i ci abilit y of t he i ssue is concerned, it woul d provi de a t est for t he
purpose of exerci sing t he j uri sdi ct i on or ot herwi se?
55. The hi st ory of t he j udi ci ary i n our count ry i ndi cat es t hat i n
t he past , t he court had been approached from t ime t o t ime for
grant ing reli ef i n whi ch polit i cal i ssues are i nvol ved, eit her t o express
it s opini on under Art i cl e 186 or t o exerci se j uri sdi ct i on or under Art i cl e
184( 1) or 184( 3) of t he Const it ut i on. Reference in t his behalf may be
made t o t he cases of Benazir Bhut t o v. Federat ion of Pakist an ( PLD
1988 SC 416) and Muhammad Nawaz Sharif v. Federat ion of Pakist an
( PLD 1993 SC 473) , where di ssol ut i on of t he Assemblies were
chall enged before t he Court not wi t hst anding t he fact t hat such i ssues
may give ri se t o a polit i cal quest i on. Si milarl y, at t i mes, references
have been made for t he purpose of get t i ng permissi on t o make
expendit ure out of consoli dat ed fund i n absence of Parli ament .
I nasmuch as, a Reference was sent t o t hi s Court t o adj udi cat e upon
purely poli t ical mat t er regarding formal recogni t i on of Bangl adesh. The
Court consi dered t he i ssue and expressed i t s opi ni on t hat t here was no
legal bar i n consi deri ng or adopt i ng such resol ut i on. Si milarl y, i n t he
case of Benazir Bhut t os case ( PLD 1988 SC 416) , t he amendment s i n
CONST P 77- 85, 89/ 2011, et c.
55
t he Poli t i cal Part i es Act , 1962 regarding compul sory regi st rat i on of
poli t ical part i es were challenged. The Court decl ared cert ai n provi si ons
of t he l aw t o be voi d being inconsi st ent wit h t he fundament al ri ght s.
56. At t hi s j unct ure, reference may be made t o t he case of
Baker v. Carr [ 369 U.S. 186 ( 1962) ] , wherei n t he compl ainant sought
a decl arat i on t hat Tennessee Apport i onment Act , 1901 was
unconst it ut i onal foll owed by t he relief of inj unct i on rest rai ning t he
defendant s from conduct ing any furt her el ect i on under t he Act . I t was
t hei r case t hat Act vi ol at ed t he Fourt eent h Amendment i n it s di sregard
of t he sl ander, t hereby affect ing a gross di sproport i on of t he
popul at i on t o vot e and pl ace t he compl ainant i n a posit i on
const i t ut i onally unj ust ifi abl e i n equi t y. The Di st ri ct Court , presi ded
over by t hree Judges, di smissed t he act ion on t he ground t hat i t l acked
j uri sdi ct i on of t he subj ect mat t er and t he compl ai nant failed t o st at e
t hat t he cl aim was j ust i ci able and t he reli ef coul d be grant ed. On
appeal , t he Supreme Court reversed t he j udgment of t he Di st ri ct Court
and remanded t he case. Brennan J. , expressi ng t he view of si x
members of t he Court , hel d t hat t he Di st ri ct Court possessed
j uri sdi ct i on over t he subj ect mat t er; t hat a j ust i ci abl e cause of act i on
was st at ed upon whi ch pl aint iff woul d be ent it led t o appropri at e relief
and t hat t he pl ai nt i ff had st anding t o chall enge t he Tennessee
Apport i onment Act . Two Honble Judges Dougl as and Cl ark concurred
wit h t he Brennan J. i n separat e opi ni on st at i ng t hat in t hei r vi ew a
case for reli ef was est abli shed if t he allegat i ons in t he compl aint coul d
be sust ained. St ewart J. al so concurred i n separat e opi ni on and made
it cl ear t hat i n hi s vi ew t he merit s of t he case were not before t he
Supreme Court . However, Frankfurt er J. , wi t h t he concurrence of
CONST P 77- 85, 89/ 2011, et c.
56
Harl an J. di ssent ed on t he ground t hat case i nvol ved t he cl ass of
poli t ical cont roversy, whi ch by t he nat ure of i t s subj ect i s unfi t for
federal j udi cial act i on, whereas Whi t t aker J. di d not part i ci pat e. Thi s
case i n fact went down in hi st ory as one of t he most import ant
deci si ons ever. The mat t er involved a delineat i on of t he ext ent of t he
j udi cial review, while dealing wi t h whet her equal prot ect i on of law
was vi ol at ed by t he borders of a di st ri ct not bei ng redrawn
appropri at el y t o adj ust for popul at i on movement . The i ssue pl aced
before t he Court was whet her i t coul d, i n fact , i nvest i gat e and
adj udi cat e on such i ssues, gi ving t he exi st ence of a st ri ct separat i on of
powers bet ween t he l egi slat i on and t he j udi ci ary. Mr. Rafi q Raj wana
al so ci t ed t he case of Powell v. McCormack [ 395 US 486 ( 1969) ] ,
whi ch has in fact proceeded as t he pri nci ple l ai d down in Bakers case.
57. I t i s t o be not ed t hat preci sel y quest i on rai sed in t he sai d
pet i t i on before t he Supreme Court was whet her appell ant s allegat i ons
of i mpai rment of t hei r vot es by t he 1901 Apport i onment St at ut e will
ul t imat ely, ent it l e t hem t o any relief, in order t o hol d t hat t hey have
st andi ng t o seek i t . I f such impai rment di d produce a legally
cogni zabl e inj ury, t hey woul d be among t hose who had sust ained it .
They were assert i ng a pl ai n, di rect and adequat e i nt erest in
mai nt aining t he effect i veness of t hei r vot es, not merely a cl ai m of
t he ri ght , possessed by every cit i zen, t o requi re t hat t he Government
be admi nist ered accordi ng t o l aw . The Supreme Court , aft er having
t aken i nt o consi derat i on t he princi pl es whi ch were hi ghli ght ed by t he
learned counsel grant ed reli ef t o t he appell ant , int er alia, observi ng
t hat t he chall enge t o an apport i onment present ed no non- j ust ici abl e
poli t ical quest i on . I t was furt her hel d t hat :
CONST P 77- 85, 89/ 2011, et c.
57
( 1) The cl aim pl eaded here neit her rest s upon nor
impli cat es t he Guarant y Cl ause and t hat i t s
j ust i ci abilit y i s t herefore, not foreclosed by our
deci si ons of cases invol ving t hat cl ause. The Di st ri ct
Court mi sint erpret ed Col e- grove v Green and ot her
deci si ons of t hi s Court on whi ch it relied. Appell ant s
cl aim t hat t hey are being denied equal prot ect i on i s
j ust i ci abl e and i f di scri minat i on i s suffi cient ly shown,
t he ri ght t o reli ef under t he equal prot ect i on cl ause is
not di mini shed by t he fact t hat t he di scri minat i on
rel at es t o polit i cal ri ght s.
( 2) That t o show why rej ect t he argument based on t he
Guarant y Claus, we must examine t he aut hori t ies
under i t . But because t here appears t o be some
uncert ai nt y as t o why t hose cases di d present l y
poli t ical quest i ons, and speci ficall y as t o whet her t hi s
apport i onment case i s like t hose cases, we deem i t
necessary fi rst t o consi der t he cont ours of t he
poli t ical quest i on doct ri ne.
( 2) That re- vi ew reveal s t hat i n t he Guarant y Cl ause
cases and i n t he ot her poli t ical quest i on cases, i t is
t he rel at i onshi p bet ween t he j udi ciary and t he
coordi nat e branches of t he Federal Government , and
not t he federal j udi ciarys rel at i onshi p t o t he St at es,
whi ch gives ri se t o t he poli t ical quest i on.
( 3) I n det ermi nat i on whet her a quest i on falls wit hin[ t he
poli t ical quest i on] cat egory, t he appropri at eness
under our syst em of government of at t ri but ing
fi nalit y t o t he act i on of t he polit i cal depart ment s and
CONST P 77- 85, 89/ 2011, et c.
58
al so t he l ack of sat i sfact ory cri t eri a for a j udi ci al
det ermi nat i on are domi nant consi derat ions.
( 4) Non- j ust i ci abilit y of a polit i cal quest i on i s primaril y a
funct i on of t he separat i on of powers. Much confusi on
result s from t he capaci t y of t he polit ical quest i on
l abel t o obscure t he need for case by case i nqui ry.
Deci di ng whet her a mat t er has i n any measure been
commi t t ed by t he Const i t ut i on t o anot her branch of
government , or whet her t he act i on of t hat branch
exceeds what ever aut hori t y has been commi t t ed, i s
it sel f a delicat e exerci se i n const i t ut i onal
int erpret at i on, and i s a responsi bilit y of t hi s Court as
ul t imat e i nt erpret er of t he Const i t ut i on.
( 5) To demonst rat e t hi s requi res no less t han t o analyze
represent at i ve cases and t o i nfer from t hem t he
anal yt ical t hreads t hat make up t he polit i cal quest i on
doct ri ne.

I n t he Corpus Juri s Secundum Vol ume 16, i t has been st at ed t hat : -
"I t i s not easy t o define t he phrase ' polit i cal quest i on' , nor
t o det ermi ne what mat t ers fall wit hin i t s scope. I t i s
frequent ly used t o desi gnat e all quest ions t hat lie out si de
t he scope of t he j udi ci al power. More' pr operl y, however, i t
means t hose quest i ons whi ch, under t he Const it ut i on, are
t o be deci ded by t he peopl e in t hei r soverei gn capacit y, or
t o regard t o whi ch full di scret i onary, aut hori t y has been
delegat ed t o t he l egi slat ive or execut ive branch of t he
Government . A poli t ical quest i on encompasses more t han
a quest i on about polit i cs, but t he mere fact t hat lit i gat i on
seeks prot ect i on of a polit i cal ri ght s, mi ght have polit i cal
consequences does not mean i t present s a poli t ical
quest i on."
I t was furt her observed :
"The doct ri ne is based on Const it ut i onal provi si ons rel at i ng
t o t he di st ri but i on of powers among t he branches of
Government , and it is as a funct i on of t he separat i on of
powers t hat poli t i cal quest i ons are, not ' det ermi nable by
t he j udiciary . t hus, t he limi t at i ons on j udi ci al revi ew
imposed by t he polit i cal quest i on doct rine apply onl y when
t he Court i s M faced wi t h a challenge t o act i on by a
coordi nat e branch of t he Government , and not where t he
i ssue i nvolved fall s wit hin t he t radi t i onal role accorded t o
Court s t o i nt erpret t he law or t he Const it ut i on. "
CONST P 77- 85, 89/ 2011, et c.
59
I n Ball ent ines Law Dict i onary "polit i cal quest i on" means: -
"A quest i on, t he det erminat i on of whi ch i s a prerogat i ve of t he
legi sl at ive or execut i ve branch of t he Government , so as not t o
be appropri at e for j udi ci al inqui ry or adj udi cat i on."
58. Thi s Court has al ways emphasi zed t hat i t has no concern
wit h powers of ot her organs of t he St at e. I n t he case of Muhammad
Nawaz Sharif vs. Federat ion of Pakist an ( PLD 1993 SC 473) Shafi- ur-
Rahman J. observed t hat i t was not easy t o draw a li ne of demarcat i on
bet ween a polit i cal and a non- poli t i cal quest i on. Thi s has t o be
det ermi ned by t he Court on t he fact s of each case. The Court s
funct i on i s t o enforce, preserve, prot ect and defend t he Const it ut i on.
Any act i on t aken, act done or poli cy framed, whi ch foll owed t he
provi si ons of t he Const i t ut i on are not permi ssi bl e under t he
Const i t ut i on or l aw. The Court i rrespect i ve of t he fact t hat it i s a
poli t ical quest i on must exerci se power of j udi ci al revi ew. Abuse, excess
or non- observance of t he provi si ons of t he Const i t ut i on has t o be
checked by t he Court unl ess i t s j uri sdi ct i on i s barred by t he
Const i t ut i on or l aw. I n t he case of Mahmood Khan Achakzai v.
Federat ion of Pakist an ( PLD 1997 SC 526) a l arger Bench held t hat a
poli t ical quest i on i s one, whi ch, because of it s poli t i cal sensi t ivi t y, i s
not fi t for adj udi cat i on by t he Court or t he Const it ut i on requi res it t o
be det ermi ned finally by any ot her organ of t he St at e. Thi s poli t i cal
quest i on doct ri ne i s based on t he respect for t he Const i t ut i onal
provi si ons rel at ing t o separat i on of powers among t he organs of t he
St at e. But where in a case t he Court has j uri sdi ct i on t o exerci se power
of j udi ci al review, t he fact t hat i t i nvolves polit i cal quest i on, cannot
compel t he Court t o refuse it s det ermi nat i on.
CONST P 77- 85, 89/ 2011, et c.
60
59. I n vi ew of t he above di scussi on it i s hel d t hat t hi s Court
enj oys j uri sdi ct i on t o proceed i n all t hose mat t ers whi ch are j ust i ciabl e.
However, i f t here i s an i ssue, whi ch i s alleged t o be non- j ust i ci able i t
woul d be t he dut y of t he Court t o exami ne each case in vi ew of it s
fact s and ci rcumst ances, and t hen t o come t o t he concl usi on whet her
it i s non- j ust i ci able or ot herwi se.
60. The argument s rai sed before t hi s Court pose t wo
quest i ons; fi rst ly, t o conduct probe t o ascert ain t he ori gin, aut hent i ci t y
and effect of Memo, for t he purpose of enforcement of Fundament al
Ri ght s; and secondl y, consequent i al effect of such probe, whi ch woul d
det ermi ne civil and cri minal li abilit y against t he person( s) , who were
responsi bl e for i t . I n view of t he t est l ai d down herei nabove, such
quest i ons, i n exerci se of power of j udi cial review are j ust i ci abl e by t hi s
Court t reat i ng it t o be proceedings of cri minal nat ure as in exerci se of
Art i cle 184( 3) of t he Const i t ut i on, Court i s sei zed wit h t he case whi ch
fall s in cat egory of inqui sit ori al nat ure.
61. Learned counsel al so suggest ed for probe t hrough a
Commi ssi on t o be const i t ut ed under t he Paki st an Commi ssi on of
I nqui ry Act , 1956. I t i s t o be not ed t hat t he Federal Government i s
empowered t o const it ut e an I nqui ry Commi ssi on but t he same has not
been done because t he mat t er has been referred t o Parliament ary
Commi t t ee, reference of whi ch has been made herei nabove. She al so
poi nt ed out t hat t he pet it i oner who i s in servi ce of Paki st an can be
subj ect ed t o di sci plinary proceedi ngs as he has t endered resi gnat i on
pursuant t o t he di rect i ons of t he Prime Mini st er, t herefore, it woul d be
for t he depart ment t o ini t iat e any proceedi ng i f permi ssi ble under t he
l aw, whi ch so far have not been commenced, as such, t hi s argument
CONST P 77- 85, 89/ 2011, et c.
61
has no subst ance t o be consi dered at t hi s st age. Therefore, t he poi nt s
so rai sed need no el aborat e di scussi on. I n t hese ci rcumst ances, for t he
foregoi ng reasons, we are of t he consi dered opi ni on t hat i ssue of probe
t o ascert ai n t he origin, aut hent icit y and purpose of
creat ing/ draft ing of t he Memo is j ust iciable.

62. As far as j uri sdi ct i on of t he Supreme Court t o i nit i at e
proceedi ngs i n t he cases wi t h t he obj ect of enforcement of
fundament al ri ght s guarant eed under Chapt er 1 Part I I of t he
Const i t ut i on, rel at ing t o a mat t er of public i mport ance i s concerned,
t he Court enj oys ampl e powers t o const it ut e Commi ssi on. Same i s t he
posi t i on i n t he nei ghbouri ng count ry.
63. The Supreme Court of I ndi a, under Art icl es 32 and 131 of
t he I ndi an Const it ut i on, exerci ses invari abl y such powers, whereas,
under Art i cl e 184( 3) , more power/ j urisdi ct i on i s conferred upon t he
Supreme Court of Paki st an as compared t o I ndi an Const it ut i on for
enforcement of fundament al ri ght s, relat i ng t o t he quest i on of publi c
import ance. Before cit i ng any j udgment from our own j uri sdi ct i on,
reference t o t he case of Vineet Narain v. Union of I ndia ( AI R 1998 SC
889) may be made, whi ch is commonly known as Jan Haval a case. I n
t hi s case, j uri sdi ct i on of t he Supreme Court was i nvoked under Art i cl e
32 of t he Const i t ut i on in t he public i nt erest for t he enforcement of rule
of l aw. I n t he sai d case, an alleged t errori st was arrest ed i n Delhi .
Duri ng t he rai ds conduct ed by t he Cent ral Bureau of I nvest i gat i on
( CBI ) , I ndi an and forei gn currency as well as t wo di ari es and t wo not e
books were sei zed, cont ai ning t he det ails of account s of vast payment s
made t o some persons, all egedly hi gh ranki ng polit i ci ans i n power and
CONST P 77- 85, 89/ 2011, et c.
62
out of power, and of hi gh ranking bureaucrat s. The wri t pet it i ons were
fil ed in t he publi c int erest under Art i cle 32 of t he Const it ut i on of t he
I ndi a, as not hi ng was being done i n t he mat t er of i nvest igat i on. The
gi st of t he all egat i ons i n t he writ pet i t i ons was t hat Government
agenci es like t he CBI and t he revenue aut hori t i es had failed t o perform
t hei r dut i es and l egal obli gat i ons inasmuch as t hey had failed t o
invest i gat e mat t ers ari sing out of t he sei zure of t he "Jan di ari es"; t hat
t he apprehensi on of t errori st s had led t o t he di scovery of financial
support t o t hem by cl andest ine and illegal means using t ai nt ed funds
obt ai ned t hrough ` haval a' t ransact i ons; t hat t hi s had al so di scl osed a
nexus bet ween poli t i cians, bureaucrat s and cri minal s, who were
reci pi ent s of money from unl awful sources, gi ven for unl awful
consi derat i on; t hat t he CBI and ot her Government agencies had failed
t o invest i gat e t he mat t er, t ake i t t o i t s logi cal conclusi on and prosecut e
all persons who were found t o have commi t t ed t he offence; t hat t hi s
was done wi t h a view t o prot ect t he persons i nvol ved, who were very
influent i al and powerful; t hat t he mat t er di scl osed a nexus bet ween
cri me and corrupt i on at hi gh levels i n public life and i t posed a seri ous
t hreat t o t he int egrit y, securi t y and economy of t he nat i on; t hat
probi t y in publi c life, t he rul e of l aw and t he preservat i on of democracy
requi red t hat t he Government agencies be compelled t o duly perform
t hei r l egal obli gat i ons and t o proceed in accordance wit h l aw against
every person i nvolved, i rrespect i ve of where he was pl aced i n t he
poli t ical hi erarchy. The Court observed t hat : -
8. The sum and subst ance of t hese orders i s t hat t he CBI and
ot her Government al agenci es had not carri ed out t hei r publi c
dut y t o invest i gat e t he offences di sclosed; t hat none st ands
above t he l aw so t hat an alleged offence by hi m i s not requi red
t o be i nvest i gat ed; t hat we woul d monit or t he invest i gat i ons, i n
CONST P 77- 85, 89/ 2011, et c.
63
t he sense t hat we woul d do what we permi ssi bly coul d t o see
t hat t he invest i gat i ons progressed while yet ensuring t hat we di d
not di rect or channel t hose invest i gat i ons or i n any ot her manner
prej udi ce t he ri ght of t hose who mi ght be accused t o a full and
fai r t ri al . We made it clear t hat t he t ask of t he moni t ori ng court
woul d and t he moment a charge- sheet was filed in respect of a
part i cular i nvest i gat i on and t hat t he ordi nary processes of t he
l aw woul d t hen t ake over. Havi ng regard t o t he di rect i on in
whi ch t he i nvest i gat i ons were leadi ng, we found i t necessary t o
di rect t he CBI not t o report t he progress of t he invest i gat i ons t o
t he person occupyi ng t he hi ghest offi ce in t he polit i cal execut ive.
Thi s was done t o eli minat e any impressi on of bi as or l ack of
fai rness or obj ect i vit y and t o maint ain t he credi bilit y of t he
invest i gat i ons. I n short , t he procedure adopt ed was of
"cont i nuing mandamus".

64. Above j udgment was foll owed in so many ot her cases by
t he I ndi an Supreme Court i ncludi ng Rubabbuddin Sheikh v. St at e of
Guj rat and ot hers [ ( 2010) 2 SCC 200] , Zahira Habibullah Sheikh ( 5) v.
St at e of Guj rat [ ( 2006) SCC 374] and Common Cause, Regist ered
Societ y v. Union of I ndia ( Ai r 1999 SC 2979) .
65. Si milarl y, superi or court s in Paki st an in t he case of Pervaiz
Elahi v. Province of Punj ab ( PLD 1993 Lahore 595) , Sindh High Court
Bar Associat ion v. Federat ion of Pakist an ( PLD 2009 SC 879) , Dr.
Mubashir Hassan v. Federat ion of Pakist an ( PLD 2010 SC 265) , in Re:
Const ruct ion of Fast Food Chain in F.9 Park ( PLD 2010 SC 759) , Bank
of Punj ab v. Haris St eel I ndust ries ( PLD 2010 SC 1109) , I n Re: Suo
Mot o Case No.18 of 2010( PLD 2011 SC 997) , I n Re: Corrupt ion in Haj j
Arrangement s ( PLD 2011 SC 963) and Munir Hussain Bhat t i v.
Federat ion of Pakist an ( PLD 2011 SC 407) have exerci sed j uri sdi ct i on
wit h reference t o enforcement of fundament al ri ght s.
CONST P 77- 85, 89/ 2011, et c.
64
Our consensus remai n t hat foll owing t he t ri chot omy of
powers, all t he t hree organs of t he St at e i .e. Legi sl at ure,
Execut i ve and t he Judici ary have t o exerci se t hei r powers
wit hin t hei r respect ive spheres. Most import ant l y, t he
Judi ci ary coul d not remain oblivi ous from i t s dut i es nor can
compromi se t he mandat e of t he Const i t ut i on i .e. 2A,
because i t i s t he will of t he peopl e of Paki st an t o est ablish
an order wherei n i ndependence of j udici ary shall be fully
secured. However, in vi ew of it s di st i nct i on and difference,
a separat e charact er has been best owed upon i t under
Art i cle 175( 3) of t he Const i t ut i on. Thi s aspect of t he case
has been hi ghlight ed in t he case of Government of
Balochist an v. Azizullah ( PLD 1993 SC 341) .

66. I n t he case of I n Re: Corrupt ion in Haj j Arrangement s ( PLD
2011 SC 963) t he power of j udi ci al revi ew of t he Supreme Court
di scussed i n det ail . Rel evant paragraphs from t he sai d j udgment are
ment i oned herei nbel ow: -
27. The power of j udi ci al revi ew which was exerci sed i n t he
case of Sindh High Court Bar Associat i on ( supra) has been
accept ed by t he Government as i t has not support ed t he act i ons
of 3rd November, 2007. As far as Parli ament i s concerned, we
have also admi red it as a body, whi ch for t he fi rst t ime i n t he
hi st ory of t he count ry di d not vali dat e t he act i ons t aken on 3rd
November, 2007, whereas in t he past t he si t uat i on had been
different . A number of j udgment s can be cit ed for assumi ng
j uri sdi ct i on and exerci se of power of j udi ci al review avail able t o
t hi s Court under t he Const it ut i on, t o whi ch we need not make
reference here, but goi ng t hrough t he same one can well
underst and t hat t hi s Court has al ways been enj oyi ng t he
j uri sdi ct i on of j udi ci al review agai nst admini st rat ive act i ons of
t he execut i ve which i s a set t l ed l aw by now. I f any reference i s
requi red, ri ght from Madi son up t o t he case of Si ndh Hi gh Court
Bar Associ at i on, t here are chai n of aut hori t i es where t he
Supreme Court has assumed j uri sdi ct i on of j udi cial revi ew, whi ch
even ot herwi se i s t he fi nal arbi t er of di sput es in order t o
mai nt ain check and bal ance. For t hese reasons, t he
independence of t he j udi ciary has been guarant eed and t he very
preambl e of t he Const i t ut i on provi des t hat t he peopl e of Paki st an
and t he independence of j udi ci ary shall be fully secured. The
j udi ciary cannot compromi se at any cost it s independence as
guarant eed under t he Const it ut i on, as such compromi ses woul d
lead us t o t he si t uat i on of t he last , so many years. I t i s for t he
fi rst t i me t he j udi ciary assert ed i t s aut hori t y and as a resul t
t hereof t he' democrat i c syst em is prosperi ng in t he count ry. I n
t he case of Dr. Mubashi r Hasan v. Federat i on of Paki st an ( PLD
2010 SC 265) whereby NRO was decl ared t o be ill egal ,
unconst it ut i onal and voi d ab i nit i o, t hi s Court has exerci sed i t s
const i t ut i onal j uri sdi ct i on of j udi cial review.

CONST P 77- 85, 89/ 2011, et c.
65
28. At t imes, present case was fixed for t he purpose of seeki ng
impl ement at i on of t he order, but we post poned i n order t o
ensure t hat t he democrat i c syst em under t he Const i t ut i on must
prevail and avoi d chaos. However, when t he cases of massi ve
corrupt i on, not only one, but so many came for hearing,
t herefore, t hi s Court in t he exercise of i t s const i t ut i onal
j uri sdi ct i on had enforced fundament al right s of t he cit i zens under
Art i cles 4, 9, 14 and 25 of t he Const it ut ion. I t i s quit e heart eni ng
t o observe t hat even t he wort hy Parli ament ari ans had al so
approached 1 t hi s Court , li ke in t he case of Rent al Power
Proj ect s where one of t he si t t i ng Mi ni st ers namel y, Makhdoom
Syed Fai sal Sal eh Hayat had approached t he Court . Li kewi se,
Ms. Marvi Memon, MNA, approached t hi s Court i n t he mat t er of
Breach of embankment s of rivers i n fl oods causing damages.
Si milarl y, Khawaj a Muhammad Asi f MNA brought t he case of
OGDCL, all of t hem acknowl edge power of j udi cial review of t his
Court . I n mat t ers of t he st eal Mills, LPG case, Nat i onal Police
Foundat i on, NI CL, Haj j arrangement s and RPPs are under
consi derat i on i ncludi ng t he Bank of Punj ab case where, in
exerci se of t he power of j udici al revi ew for t he enforcement of
fundament al ri ght s millions of rupees have been recovered whi ch
were bei ng l oot ed by government offi ci al s and ot hers.
Undoubt edly, whenever t he Court will not i ce t hat t here i s
corrupt i on or corrupt pract i ces, i t woul d be very difficul t t o
compromi se or di gest i t because t he publi c money of t he count ry
cannot be allowed t o be l oot ed by any one what soever st at us he
may have.

29. The j uri sdi ct i on of t hi s Court i s al ways exerci sed j udi ci ously
and wi t h j udi cial rest rai nt . All t hose cases whi ch are quot ed
herei nabove cl early i ndi cat e t hat i n t he mat t er of exerci se of
power of j udi ci al review i n Paki st an we have not t ravell ed so far
as i s t he posit i on i n t he nei ghbori ng' count ry. By now, t he
paramet ers of t he Court ' s power of j udi cial review of
admini st rat ive or execut ive act i on or deci si on and t he grounds
on whi ch t he Court can int erfere wi t h t he same are well set t l ed.
I ndi sput abl y, i f t he act i on or deci si on i s perverse or i s such t hat
no reasonabl e body of persons, proper ly informed; coul d come
t o or has been arri ved at by t he aut hori t y mi sdi rect ing i t sel f by
adopt i ng a wrong approach or has been i nfluenced by i rrelevant
or ext raneous mat t ers t he Court woul d be j ust i fied i n i nt erferi ng
wit h t he same. [ Commi ssi oner of I ncome Tax v. Mahi ndr a ( AI R
1984 SC 1182) ] . The exerci se of const i t ut i onal powers by t he
Hi gh Court and t he Supreme Court i s cat egori sed as power of
j udi cial revi ew. Every execut i ve or admi ni st rat i ve act i on of t he
St at e or ot her st at ut ory or publi c bodi es i s open t o j udi ci al
scrut i ny and t he Hi gh Court or t he Supreme Court can, in
exerci se of t he power of j udi ci al revi ew under t he Const it ut i on,
quash t he execut ive act i on or deci si on whi ch i s cont rary t o l aw
or i s vi ol at ive of Fundament al Ri ght s guarant eed by t he
Const i t ut i on. Wi t h t he expandi ng hori zon of Art i cles dealing wi t h
Fundament al Ri ght s, every execut ive act i on of t he Government
or ot her publi c bodi es, i f arbit rary, unreasonable or cont rary t o
l aw, i s now amenable t o t he writ j urisdi ct i on of t he Superi or
Court s and can be vali dly scrut i nised on t he t ouchst one of t he
CONST P 77- 85, 89/ 2011, et c.
66
Const i t ut i onal mandat es. [ Common Cause, A Regd. Soci et y v.
Uni on of I ndi a ( AI R 1999 SC 2979) ] . I n t he case of Uni on
Carbi de Cor por at i on v. Uni on of I ndi a [ AI R 1992 SC 248 = 1991
SCR ( 1) Supl . 251] , t he Court while t aki ng up t he i ssues of
heal t hcare and compensat i on t o t he vi ct ims, supervi sed t he
di st ri but i on of t he money among t he vi ct ims of Bhopal gas
t ragedy and monit ored t he hospit al s set up t o t reat t he vi ct i ms.
I n Vi shaka v. St at e of Raj ast han [ AI R 1997 SC 3011] = [ ( 1997)
6 SCC 241] , t he Court l ai d down gui deli nes t o make t he
workpl ace safer for women making a gri evance redressal
mechani sm in all privat e and publi c offi ces mandat ory. I n t he
case of Vi neet Narai n v. Uni on of I ndi a ( AI R 1998 SC 889) ,
commonl y known as Hawal a case, t he Supreme Court of I ndi a
had t aken over t he charge of CBI t o ensure t ransparent
invest i gat i on int o corrupt i on and corrupt pract i ces under it s own
supervi si on. I n t he case of Zahi r a Habi bul l ah Shei kh v. St at e of
Guj arat [ ( 2006) 3 SCC 374] , t he Court reopened several cases
and set up a speci al i nvest i gat i on t eam where t he poli ce
deli berat ely bot ched up t he probe t o hel p perpet rat ors of t he
post Godhra mob vi ol ence against Muslims in 2002, incl uding
overseas i nvest i gat i ons i nt o t he Sohrabuddin fake encount er
case of 2005 whereby several seni or poli ce offi cers and key
poli t ici ans were put i n t he dock. I n t he Case of Rubabbuddi n
Shei kh v. St at e of Guj ar at [ ( 2010) 2 SCC 200] pet i t i oner wrot e
a l et t er t o t he Chief Just i ce of I ndi a compl ai ning about t he killing
of hi s brot her in a fake encount er and di sappearance of hi s
si st er- i n- l aw at t he hands of t he Ant i - Terrori st Squad ( ATS)
Poli ce ( Guj arat ) and Raj ast han Speci al Task Force ( STF) . Taking
not i ce of t hi s l et t er, t he Court forwarded i t t o t he Di rect or
General of Poli ce, Guj arat t o t ake furt her act i on. The CI D
( Crime) conduct ed an enqui ry and t he st at ement s of a number
of wit nesses, incl uding t he pet it i oner, were recorded. The
learned At t orney General for - I ndi a submi t t ed t hat in view of t he
seri ous nat ure of t he offence i n whi ch some hi ghly pl aced poli ce
offi ci al s of t he St at e of Guj arat were alleged t o be i nvol ved,
orders may be i mmedi at ely passed direct ing t he CBI t o t ake
charge of t he invest i gat i on and report .t o t his Court . The CBI
Aut horit i es were di rect ed t o i nvest i gat e all aspect s of t he case
rel at ing t o t he killing of t he deceased incl uding t he alleged
possi bilit y of a l arger conspi racy.' The report of t he CBI
Aut horit i es was di rect ed t o be filed i n t he Court when t he Court
woul d pass furt her necessary orders i n accordance wi t h t he sai d
report , i f necessary. Ul t imat ely, it was hel d t hat accusat i ons
were di rect ed agai nst t he l ocal police personnel i n whi ch hi gh
poli ce offi ci als of t he St at e were invol ved. Therefore, it was
di rect ed t hat if i nvest i gat i on was all owed t o be carri ed out by t he
l ocal poli ce aut horit i es, all concerned incl udi ng t he relat ives of
t he deceased may feel t hat invest igat i on was not proper and i n
t he ci rcumst ances i t woul d be fi t and proper t hat t he pet i t i oner
and t he rel at ives of t he deceased shoul d be assured t hat an
independent agency shoul d l ook int o t he mat t er and t hat woul d
lend t he fi nal out come of t he invest i gat ion credi bilit y. I n t he case
of Cent er for Pil v. Uni on of I ndi a [ Appeal ari si ng out of SLP ( C)
No. 24873 of 2010 deci ded on 16- 12- 2010] , t he Court ordered
probe i nt o a mega crore scam agai nst t he sit t i ng Tel ecom
CONST P 77- 85, 89/ 2011, et c.
67
Mini st er. I n t he case of Cent er f or Pi l v. Uni on of I ndi a [ Wri t
Pet i t i on ( C ) No. 348 of 2010, deci ded on 3- 3- 2011] , t he Court
quashed t he illegal appoint ment of P J Thomas as Cent ral_
Vi gil ance Commissi oner because of a charge- sheet pendi ng
agai nst hi m in Keral a. The Court al so l ai d d o n gui delines for
fut ure appoint ment s t o t hi s post . I n t he case of Radhy Shyarn v.
St at e of UP ( Ci vil Appeal No.3261 of 2011, deci ded on 15- 4-
2011) , t he Supreme Court quashed Government ' s not ifi cat i on t o
acqui re l and for t he planned i ndust ri al devel opment i n Dist ri ct
Gaut am Budh Nagar t hrough Great er Noi da I ndust ri al
Devel opment Aut hori t y, whi ch appeared t o be a devi ce t o grab
t he l and of t he poor farmers. I n t he case of Nandini Sundar v.
St at e of Chat t isgarh [ Writ Pet it i on ( Ci vil) No. 250 of 2007 deci ded
on 5- 7- 2011] , t he Court di sbanded and di sarmed Speci al Police
Offi cers involved in ant i - Naxal operat i ons i n many st at es. Thus,
t he Supreme Court of I ndi a has been monit oring publi c
di st ri but i on syst em, t reat ment at hospit al s and conservat i on of
forest s for more t han t wo decades. I t al so set up a j udi ci al
commi ssi on t o examine t he publi c di st ri but i on syst em and
di rect ed t he Government t o provi de more facilit i es in t he poorer
di st ri ct s.

67. I n t he Bank of Punj abs case ( PLD 2010 SC 1109) , t his
Court observed t hat not onl y a col ossal amount of money/ propert y
bel onging t o a large sect i on of t he public but t he very exi st ence of t he
Bank of Punj ab was at st ake, t hus not onl y t he ri ght of t he Court but in
fact i t s onerous obligat i on was t o i nt ervene t o forest all t he assault on
t he sai d fundament al ri ght t o life and propert y of t he publi c.
68. I n t he recent past , a deci si on has been gi ven by t he
Supreme Court i n Suo Mot o Case No.16/ 2011, in respect of non-
adherence t o t he Const i t ut i onal provi sion and provi di ng guarant ee t o
life and securi t y in t arget killing in Karachi . The sai d j udgment has
been welcomed by all and sundry. The effect of t he proceedi ngs and
t he j udgment passed in t he sai d case have brought calm and peace i n
Karachi and t he j uri sdi ct i on, exerci sed by t hi s Court i n t he sai d case
was al so under Art i cl e 184( 3) of t he Const i t ut i on. I nt er alia such
j uri sdi ct i on i s exerci sed t o ensure effect i veness of t he orders passed
by t he Court under Art i cle 190 of t he Const i t ut i on, whi ch commands
CONST P 77- 85, 89/ 2011, et c.
68
t hat all t he execut ive and j udi cial aut hori t ies t hroughout Paki st an t o
act i n ai d of Supreme Court . I n t he case of Tirupat i Balj i Developers
Pvt . Lt d. v. St at e of Bihar ( AI R 2004 SC 2351) , whil e int erpret ing
Art i cle 144 of t he I ndi an Const it ut i on, whi ch i s corresponding Art i cle of
t he Const it ut i on of Paki st an, t he Supreme Court observed t hat under
Art i cle 144 all t he aut hori t ies, ci vil and j udi ci al, in t he t errit ory of
I ndi a and t hat woul d include Hi gh Court as well shall act i n ai d of
t he Supreme Court .
69. The i ssue of probe t hrough experienced j udi ci al offi cers
who are Chi ef Just ices of t hree Hi gh Court s i t self i s suffici ent t o at t ach
import ance wi t h t he case from t wo angles ( i ) t hat t he mat t er rel at es t o
soverei gnt y, independence and securit y of Paki st an and duri ng course
of probe procuri ng of evi dence shall be hel pful t o det ermine civil
liabilit y as well as cri minal cul pabilit y based on forensi c evi dence and
ot her mat eri al , which i s likely t o be produced before t he Commissi on.
Thus, seni or j udi cial offi ce hol ders i n view of t hei r experi ence woul d
conduct t horough probe i nt o t he mat t er i n order t o ascert ain t he
correct fact s.
70. Thus, for t he foregoing reasons, we are of t he opi ni on t hat
i ssue of probe t o ascert ai n t he ori gi n, aut hent ici t y and purpose of
creat ing/ draft ing Memo i s requi red t o be det ermined by hol ding a
Judi ci al Probe. Therefore, in exerci se of j udi cial powers conferred upon
t hi s Court under Art i cl es 187 and 190 of t he Const i t ut i on, Order XXXI I ,
Rul es 1 & 2 read wi t h Order XXXI I I , Rul e I of t he Supreme Court
Rul es, 1980 ( i n short order i nadvert ent ly t yped as Order XXXVI )
coupl ed wit h t he pri nci ples of Ci vil Procedure Code i ncl uding Order
CONST P 77- 85, 89/ 2011, et c.
69
XXVI , Rul e 10 and foll owi ng t he princi pl es/ observat i ons di scussed
herei nabove, a Hi gh Powered Commi ssion has been const it ut ed.
71. Learned counsel for respondent No.4 cont ended t hat t he
pet i t i ons submit t ed on behal f of t he pet it i oners are benami pet i t i ons as
t he pl eas t aken by t he respondent s Chief of Army St aff and DG, I SI
seem t o be t he case of t he pet it i oners and t he pet it i ons have been
fil ed wit h a mala fide i nt ent i on. We failed t o appreci at e t he argument
of t he l earned counsel except observing t hat t he defence funct i onari es
under t he Const it ut i on are bound t o di scharge t hei r funct i ons st ri ct ly i n
accordance wi t h t he Const it ut i on. The affi davit s/ count er affi davit s filed
by bot h t he hi gh- ups of t he Paki st an Army t he event s, whi ch t ook
pl ace aft er 10
t h
Oct ober, 2011, det ails whereof have been ment i oned,
and such event s have not been denied by t he Federat i on t hrough
learned At t orney General . As cert ain fact s have been pl aced before t he
Court , i t does not mean t hat t hey are support ers of t he pet it i oners. I n
addi t i on t o i t , ascert ai nment of origin, aut hent icit y and t he
purpose of t he draft i ng/ creat ing t he Memo i s a mat t er of publi c
import ance and prima facie calls for enforcement of t hei r Fundament al
Ri ght s provi ded under Art i cles 9, 14 and 19A of t he Const i t ut i on,
hence, whosoever has l ai d informat i on before t he Court , call s for due
consi derat i on as t he obj ect i s t o see what he i s speaki ng, and not who
i s speaking t he same. I n t hi s behalf we cannot do bet t er t han t o
reproduce a para from t he j udgment in Civil Pet it i on No.42 of 2011
composed by Mr. Just ice Jawwad S. Khawaj a: -
24. Before concl uding our di scussi on on t he i ssue of
mai nt ainabilit y of t hi s pet it i on we need t o address t he
respondent s submi ssi on t hat t he pet i t i on has been filed
mala fide. We have found no l awful basi s for t hi s
submi ssi on. Si mply because t he pet i t i oner may have been
a cont ender for t he office of Chai rman, OGRA, does not per
CONST P 77- 85, 89/ 2011, et c.
70
se t ransl at e int o mala fides. The pet i t ioner can genuinel y
consi der himself t o be a sui t abl e candi dat e for t he posit i on
whil e si mul t aneously hol ding t he vi ew t hat t he respondent
does not meet t he eligi bilit y cri t eri a set out i n sect i on 3 ( 4)
of t he Ordinance. Furt hermore, we have al ready held in
t he case t it l ed Moulvi I qbal Haider versus Capit al
Development Aut horit y and ot hers ( 2006 SC 394 at 413)
t hat t he cont ent s of a pet it i on under Art i cle 184 ( 3) ibid
will overri de concerns ari sing on account of t he conduct or
ant ecedent s of a pet it i oner. Thi s approach i s refl ect ive of
t he sagacit y of wi se men such as Maulana Jal aluddi n Rumi
who have emphasi zed t he import ance of t he message
rat her t han t he messenger. Learned counsel for t he
respondent t hen ci t ed t he I ndi an case t i t led Dat t araj
Nat huj i Thaware v. St at e of Maharasht ra and ot hers
[ ( 2005) 1 Supreme Court Cases 590] t o support hi s pl ea
t hat t he pet i t i on had been filed mala fide and shoul d,
t herefore, be di smissed. We have gone t hrough t he ci t ed
j udgment and fi nd t he same t o be wholly i rrel evant . I n
t hat case i t was det ermined by t he I ndi an Supreme Court
t hat t he pet i t i oner t herein had resort ed t o blackmailing
t he respondent s . . . and was caught red- handed accept ing
blackmailing money . No such ci rcumst ances ari se, or
were even suggest ed in t hi s case. I n vi ew of t hi s
di scussi on, we are sat i sfied t hat t his pet it i on i s not liabl e t o
di smissal on t he ground of mala fides of t he pet it i oner.

Thus, obj ect i on bei ng unfounded i s accordi ngly repelled.
72. Learned counsel for respondent No.4 vehement l y
cont ended t hat i nst ant pet it i ons l ack bona fides. She reli ed upon news
cli ppings fil ed by her wit h C.M.A. No. 5440/ 2011 as under: -
Haqqani det ain. ( Dawn Thursday, May 6, 1999)
Haqqani remanded in FI A cust ody for 4 days. ( Dawn
Tuesday, May 18, 1999.)
Haqqanis medical record goes missing. ( Dawn
Wednesday, May 19, 1999)
Eht esab Bureau decision in Haqqani case
embarrasses FI A ( Dawn May 21, 1999)

CONST P 77- 85, 89/ 2011, et c.
71



Reli ance i s pl aced on t he case of Ms. Benazir Bhut t o ( PLD 1988 SC
416) . On t he ot her hand, Mr. Rashi d A Razvi , l earned counsel
vehement ly denied t he all egat i ons and cont ended t hat t he mala fides
are requi red t o be proved t hrough cogent evi dence. He has reli ed upon
t he cases of Lt . Col. Farzand Ali v. Province of West Pakist an ( PLD
1970 SC 98) , Federat ion of Pakist an v. Saeed Khan ( PLD 1974 SC151)
and Tabassum Shahzad v. I .S.I . and ot hers ( 2011 SCMR 1886) .

I t i s t o be not ed t hat allegat i on of mala fides has been rai sed in
Const i t ut i on Pet it i ons No.79 & 80/ 2011, whereas, t here are ot her
pet i t i ons bearing Const it ut i on Pet it i ons No.77- 78/ 2011, et c., reference
of whi ch has been made hereinabove, wherei n no such allegat i on is
leveled. Thi s Court i n t he case of Government of West Pakist an v.
Begum Agha Abdul Karim Shorish Kashmiri ( PLD 1969 SC 14) has hel d
t hat bona fides are t o be presumed unl ess t he part y challenging t he
act i on i s able t o subst ant iat e t hat t he act i on was mala fide or wit hout
any grounds what soever. The pet it ioner in Const it ut i on Pet it i on
CONST P 77- 85, 89/ 2011, et c.
72
No.79/ 2011 cannot be at t ri but ed mala fides because he has not
cl aimed any relief agai nst respondent No.4. I n addi t i on t o it , except
filing news cli ppings, no ot her cogent evi dence has been produced.
Moreover, t here are ot her pet i t i oners as well who have al so j oi ned
Respondent No.4 as part y. Thus, obj ect i on bei ng wi t hout subst ance, is
repelled.
73. Learned counsel voci ferousl y st at ed t hat respondent No.4
i s a l aw abi di ng ci t i zen and hi s li bert y has been curt ail ed by pl acing hi s
name on t he ECL. She has relied upon t he j udgment s i n t he cases of
Munir Ahmad Bhat t i v. Government of Pakist an, Minist ry Of I nt erior
t hrough Secret ary ( 2010 CLD 1829) , Govt . of Pakist an v. Dada Amir
Haidar Khan ( PLD 1987 SC 504) and Sat want Singh Sawhney v. D.
Ramarat hnam, Assist ant ( AI R 1967 SC 1836) .
74. There i s no cavil wit h t he above proposit i ons of l aw, but in
t he inst ant case no rest raint has been pl aced on hi s movement vi de
order dat ed 1
st
December, 2011 except t hat he has been asked not t o
leave t he count ry wi t hout pri or permi ssion of t his Court as t o ascert ai n
origin, aut hent icit y and affect of memorandum i s under probe
before a Commissi on.
75. Thus, i nst ant pet i t i ons have rai sed seri ous quest i on of
public import ance, whi ch, prima facie is li nked wit h t he enforcement of
fundament al ri ght s under Art i cles 9, 14 and 19A of t he Const i t ut i on
based on cogent mat eri al avail able on record. Therefore, pet i t i ons
being mai nt ai nable, empowered t hi s Court t o make decl arat i on for t he
enforcement of fundament al ri ght s based on t he report of probe
t hrough t he Commissi on, whi ch has al ready been const i t ut ed t o
CONST P 77- 85, 89/ 2011, et c.
73
ascert ain t he origin, aut hent icit y and purpose of creat i ng/ draft ing
Memo dat ed 10
t h
May, 2011.
Above are t he reasons for t he short order dat ed
30.12.2011.


I FTI KHAR MUHAMMAD CHAUDHRY, CJ




MI AN SHAKI RULLAH JAN, J. TASSADUQ MR. HUSAI N JI LLANI , J.




JAWWAD S. KHAWAJA, J. TARI Q PARVEZ, J.




MI AN SAQI B NI SAR, J. EJAZ AFZAL KHAN, J.




I JAZ AHMED CHAUDHRY, J. MUHAMMAD ATHER SAEED, J.

I sl amabad, t he
30
t h
December, 2011

Approved For Report i ng.
CONSTI TUTI ON PETI TI ONS NO.77 TO 85 & 89 OF 2011 & CMA NO.5505/ 2011 I N CONST.P.79 OF 2011
Jawwad S. Khawaja, J. And ye shal l know t he Tr ut h, and t he Tr ut h shal l set you fr ee
(John 8:32). Thus spake H azr at Isa, the Messi ah and champi on of the oppressed. In
the same vei n, the Persi an savant H akeem Si nai Ghaznavi sai d: embr ace t he t r ut h
and become fr ee of gr i ef and t or ment . It i s these Bi bli cal and sage senti ments and
other si mi l ar sensi bil i ti es whi ch appear to have i nspi red an i mportant change i n
the Consti tuti on - the recent i ncorporati on of Arti cl e 19A i n the Chapter on
fundamental ri ghts. The sai d Arti cl e sti pul ates that ever y ci t i zen shal l have t he r i ght
t o have access t o i nfor mat i on i n al l mat t er s of publ i c i mpor t ance subj ect t o r egul at i on and
r easonabl e r est r i ct i ons i mposed by l aw . Most peti ti oners and respondents, and thei r
l earned counsel seem to have i gnored or gl ossed over the si gnifi cance of thi s major
consti tuti onal change. Whi l e the ci rcumstances i n whi ch these cases ari se have
been el aborated i n fai r detail i n the reasoni ng of Honbl e the Chi ef Justi ce, I onl y
rei terate thi s sal i ent aspect of the case.
2. It i s an unfortunate facet of our hi story that duri ng the 64 years si nce
Paki stans i ndependence i n 1947, the peopl e of Paki stan have been, at ti mes,
di sserved by a non-i ncl usi ve governance paradi gm where i nformati on cri ti cal to
them has been wi thhel d from them. Paki stan has faced many cri ses of publi c
i mportance. Thi s, i n i tself, i s not unexpected i n the li fe of a State. What has,
however, been aggravati ng for the Peopl e i s that numerous i nqui ri es and probes
have been undertaken by Governments whi ch have spent substanti al amounts of
publ i c ti me, money and effort, but the ci ti zens of Paki stan, the most di rect
affectees, have remai ned cl uel ess and uninformed as to the causes or the
progeni tors of the mul ti pl e cri ses i n our hi story.
3. Major events i n our hi story i n the past si x decades si nce 1947 have i ncl uded
the di smemberment of the country i n 1971 and the murder of one i ncumbent and
one former Pri me Mi ni ster of Paki stan. We have wi tnessed the extraordi nary case
of those i n the seats of governance i n December 1971 i nformi ng us that all was
goi ng well i n East Paki stan even after the surrender of forces i n Dhaka. The resul ts
2


of probes i nto such events have al most i nvari abl y been wi thhel d from the peopl e
of Paki stan or, at ti mes, sel ecti vel y di scl osed. The peopl e i n quest of the truth have
mostl y been l eft wi th conjectures, rumours and hal f truths. Conceal ment of
i nformati on has, i n turn l ed to a di storted hi story of the country and to a
destabi li zi ng di vi si on i n the poli ty.
4. Thi s paradigm has shi fted through the recent i ncorporati on of Arti cl e 19A
i n the Consti tuti on. By virtue of the said Arti cl e the ri ght of a ci ti zen to have
i nformati on i n al l mat t er s of publ i c i mpor t ance i s made a fundamental ri ght whi ch
i s guaranteed by the Consti tuti on. Arti cl e 184 (3) of the Consti tuti on sti pul ates,
i nt er al i a, that thi s Court shal l have juri sdi cti on to pass an order i n a case i f i t
consi der s t hat a quest i on of publ i c i mpor t ance wi t h r efer ence t o t he enfor cement of any of
t he fundament al r i ght s confer r ed by Chapt er I of Par t I I [ of t he Const i t ut i on] i s i nvol ved .
Arti cl e 184 (3) read i n conjuncti on wi th Arti cle 19A has empowered the ci ti zens of
Paki stan by maki ng access to i nformati on a justi ceabl e right of the Peopl e rather
than bei ng l argesse bestowed by the State at i ts whi m. Arti cl e 19A has thus,
enabl ed every ci ti zen to become i ndependent of power centres whi ch, heretofore,
have been i n control of i nformati on on matters of publi c i mportance.
5. Many of the arguments that came up duri ng the heari ng of these peti ti ons
are premi sed on a l ack of appreci ati on not just for thi s aspect of our consti tuti onal
l aw, but al so for the i ntri nsi c worth of Truth as a val ue i n i tself. What, i t may be
asked, i s the i ntri nsi c worth of i nformati on as a stand-al one fundamental ri ght?
The answer to thi s i s si mpl e. The very essence of a democrati c di spensati on i s
i nformed choi ce. It i s through such choi ce that the pol i ti cal soverei gn, the Peopl e
of Paki stan acqui re the abi li ty to reward or puni sh thei r el ected representati ves or
aspi rants to el ected offi ce, when i t i s ti me for the Peopl e to exerci se thei r choi ce. If
i nformati on on matters of publ i c i mportance i s not made avai l abl e to ci ti zens, i t i s
obvi ous they wi l l not have the abi l i ty to eval uate avai l abl e choi ces. Informati on on
matters of publ i c i mportance thus, i s a foundati onal bedrock of representati ve
3


democracy and the accountabi l i ty of chosen representati ves of the peopl e. It i s i n
thi s context, both hi stori cal and conceptual , that the fundamental ri ght to
i nformati on has to be seen. Through Arti cl e 19A i n the Consti tuti on, the ci ti zens of
Paki stan have al so been freed from the capri ce of a sorry fate and have become
i ndependent of whi stl e-bl owers i n forei gn l ands or the magnani mi ty of the li kes of
Wi kiLeaks or bi ographi es of pol i ti cal actors, to get to the i nformati on they are now
enti tl ed to as of ri ght under the Consti tuti on. Thi s provi des for and makes good a
cruci al mi ssi ng el ement of responsi bl e state governance i n our Consti tuti onal
scheme.
6. At thi s poi nt i t i s necessary to hi ghl i ght an i mportant aspect of our
Consti tuti on whi ch i s often over-l ooked. The Consti tuti on of 1973 has not been
bestowed as a matter of grace on the Peopl e of Paki stan by a monarch or a foreign
Parl i ament as, for i nstance, i s the case wi th Canada, Austral i a and a number of
other countri es. Our Consti tuti onal Order has been establi shed by t he wi l l of t he
peopl e of Paki st an . Al l State functi onari es have to understand that i n a very real
sense, they are empl oyed i n the servi ce of the Peopl e of Paki stan and are pai d for
by them. The l oyal ty, therefore, of these State functi onari es has to be to the
Consti tuti onal Order establ i shed by the Peopl e. Once thi s context i s understood,
the i ssue i n these peti ti ons stands greatl y si mpl i fi ed. There i s no contenti on
between the parti es arrayed before us that the Memo and the events surroundi ng
i t are mat t er s of publ i c i mpor t ance . The parties are al so agreed that these events
shoul d be probed. It i s, therefore, cl ear that a peti ti on under Arti cl e 184 (3) to
enforce the fundamental ri ght granted by Articl e 19A i s mai ntai nabl e.
7. We are cogni zant that there may be si tuati ons where the Government may
want to justi fy non-di scl osure of i nformati on on a matter of publi c i mportance.
That pl ea, however, does not ari se and nor has i t been taken i n these cases. It i s,
therefore, not necessary to comment on the same as a mere specul ati ve exerci se.
Learned ASC for Mr. Haqqani contended that these peti ti ons rai se a pol i ti cal
4


questi on and the Court shoul d, therefore, avoi d deci di ng the same. Thi s argument
has been adequatel y di scussed i n the reasoni ng of Honbl e the Chi ef Justi ce. I
woul d onl y add that the conduct of a governments forei gn poli cy i s i ndeed, by
and l arge, a pol i ti cal questi on. But the fact i s that the present peti ti ons do not
requi re us to devi se the countrys forei gn pol i cy or to di rect the government i n
that regard. These peti ti ons onl y seek to enforce the Peopl es ri ght to know the
truth about what thei r government, and i ts functi onari es, are up to. And that i s by
no means, a pol i ti cal questi on. It i s a ful l y jusi ti ci abl e fundamental ri ght
enumerated i n Chapter II, of the Consti tuti on no l ess. We need not l ook any
further than Arti cl e 19A, for thi s concl usi on.
8. Thi s bri ngs me to a consi derati on of the Freedom of Informati on Ordi nance,
2002 ( FIO, 2002 ) and to see i f there i s anythi ng therei n whi ch can support the
contenti on advanced on behal f of Mr. Haqqani , that the i nformati on sought by the
peti ti oners shoul d be deni ed to them i n these proceedi ngs or that the FIO 2002 i s
an adequate and compl ete al ternate to Arti cl e 19A. Secti on 3 (1) of the FIO 2002
speci fi es the substanti ve ri ght provi ded for thereunder. It i s couched i n restri cti ve
l anguage and reads as under:-
3. Access t o i nformat i on not t o be deni ed:- (1)
N ot wi t hst andi ng anyt hi ng cont ai ned i n any ot her l aw for t he
t i me bei ng i n for ce, and subj ect t o t he pr ovi si ons of t hi s
Or di nance, no r equest er shal l be deni ed access t o any offi ci al
r ecor d ot her t han exempt i ons as pr ovi ded i n Sect i on 15.

In stark contrast Arti cl e 19A i n affi rmati ve and expansi ve l anguage avows
as under:
19A. Ever y ci t i zen shal l have t he r i ght t o have access t o
i nfor mat i on i n al l mat t er s of publ i c i mpor t ance subj ect t o
r egul at i on and r easonabl e r est r i ct i ons i mposed by l aw.

9. It i s cl ear from a readi ng of Arti cl e 19A and secti on 3 (1) i bi d, that the
Consti tuti onal ri ght i s much broader and more asserti ve than the statutory ri ght
5


whi ch by i ts own terms i s restri cted to di scl osure of offi ci al record onl y.
Furthermore, the pri nci pl e of l aw i s that the fundamental ri ght under Arti cl e 19A
i s a grant of the Consti tuti on and, therefore, cannot be al tered or abri dged by a
l aw enacted by Parl i ament. The submi ssi ons of l earned ASC for Mr. Haqqani,
based on the FIO 2002 are, therefore, mi sconcei ved and have no meri t.
10. At thi s poi nt i t may al so be added that when the quest i s for the truth under
Arti cl e 19A, and nothi ng but the truth, the Court cannot foresee the resul t of the
probe whi ch has been ordered. The arguments on behal f of Mr. Haqqani amount
to aski ng the Court to adjust i ts opi nion accordi ng to some anti ci pated
consequences of such i nqui ry. As an objecti ve enforcer of fundamental ri ghts we
cannot do that. Whether the peti ti oners or the respondents stand to benefi t from
our order or whi ch i nsti tuti on or functi onary of the State ends up bei ng i ndi cted
by the Truth, we are not cal l ed upon to say. In fact, that i s the very poi nt of the
i nqui ry; the onl y cal cul us thi s Court i s enti tl ed to engage i n i s the cal cul us of true
i nformati on and i ts avail abi l i ty to the ci ti zens of Paki stan.
11. The Truth wi ll i ndeed be cri ti cal if the nati on i s to achi eve the goal the
Consti tuti on, i n i ts Preambl e, sets for al l organs of the state: vi z. t he pr eser vat i on of
democr acy achi eved by t he unr emi t t i ng st r uggl e of t he peopl e agai nst oppr essi on and
t yr anny. It, therefore, wil l not do for thi s Court to deny to the ci ti zens thei r
guaranteed fundamental ri ght under Arti cl e 19A by l i mi ti ng or tri vial i zi ng the
scope of such ri ght through an el i ti st constructi on whereby i nformati on remai ns
the preserve of those who exerci se state power.

(Jawwad S. Khawaja)
Judge



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6
EJAZ AFZAL KHAN, J.- I have gone through the judgment authored
by my lord the Chief Justice. It is complete and comprehensive in all respects. Reasons
recorded and the case law referred are so persuasive and powerful that one cannot have
any other choice but to agree therewith. I respectfully agree with the judgment thus
authored. However, I would like to add a few words to illustrate nexus between security
of person and State and dignity of person and State and also nexus between a right and
its different implications and manifestations.
2. The right to vote, for instance, is not a right confined to casting a ballot.
It is a wider and more comprehensive term. If it, on the one hand, aims at choosing the
representative, it on the other includes the right to participate in the electoral process,
political activity consisting in forming a political party, projecting a programme through
a manifesto and propagating it and thereby persuading the people to accept it. In the
case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and many other
cases cited in the main judgment this Court has interpreted the expression fundamental
right as of much greater amplitude and of much wider ring and connotation. It has been
extended to include all the possible implications and manifestations of such right.
Apparently registration of a political party has no nexus with a fundamental right. The
more so when the vires of a statute making its registration compulsory is challenged in a
Court of law. But since it is one of the manifestations and one of the consequential
effects of such right, it was extended to cover the same.
3. Security of person is one of the most important fundamental rights. It is
inextricably linked with the security of the State. If and when a person performing
functions in connection with the affairs of the Federation acts in a manner which
imperils the very existence of the State a writ of prohibition or any other appropriate
writ, according to the circumstances of the case could be issued against him. A petition
filed by a citizen asking for the issuance of an appropriate writ cannot be declined
simply because his fundamental right has not yet been infringed. A narrow and pedantic
interpretation may lend support to the argument that security of person is not imperiled
or infringed by a mere threat to the security of the State, but actually it is otherwise.
Security of person in the absence of a strong, secure and stable State would be
2
inconceivable. It would be as imaginary as drinking water from a mirage. Therefore,
fundamental right of person would stand infringed the moment something tending to
imperil the security of State is done.
4. Why is loyalty to the State the basic duty of every citizen? Why is
obedience to the Constitution and law the inviolable obligation of citizens? Why are
fundamental rights suspended when security of the State is at stake? Because the State
is a fortress protecting such rights. Because the Constitution and the law are the
fountains of such rights. So long as the fortress is intact fundamental rights shall remain
protected. So long as the fountains are secure fundamental rights would continue
flowing from it. It would thus be naive to say that threat to security of the State has
nothing to do with fundamental rights of person. A threat to the fortress protecting such
rights would, therefore, be a threat to the security of person. A citizen with seeing eyes
and thinking mind would not sit relaxed and relieved till the fall of such fortress by
seeking refuge in the belief that security of person is yet to be attacked or assaulted.
Such belief seems have originated from no other state except that of self-deception. A
person hacking a branch of a tree another is sitting on, does not harm the latter but when
the branch is hacked, its fall would coincide with the fall of the person sitting thereon.
5. The Constitution of the Islamic Republic of Pakistan not only guarantees
the security of person but also his right to live with dignity. The word dignity has
various shades of meanings. It, according to Chambers 21
st
Century Dictionary means
stateliness, seriousness and formality of manner and appearance, goodness and ability
of character, calmness, self-control and high rank and position. This right has various
effects and implications ranging from individual life to the collective national life.
Within the confines of his individuality he may be respectable but he cannot live with
his head high within or outside his country, when the country does not command
respect in the comity of nations. If the dignity of State which cannot be detached from
the dignity of person, appears to have been compromised or made negotiable by express
or implied terms he not only looses his moorings but also ceases to live with dignity and
respect. His right thus stands infringed. In the case of Benazir Bhutto vs. Federation of
Pakistan (PLD 1998 SC 388) this Court while highlighting this aspect held in no
3
uncertain terms that the right to live includes the right to live with respect, honour and
dignity. Therefore, dignity of person being commingled with the dignity of State cannot
be dealt with as something apart from the latter. Wherever an act or omission of a
person who is at the helm of affairs in any department of life tends to compromise or
even negotiate the dignity of the state that would be an affront to the fundamental right
of the citizen guaranteeing his dignity, notwithstanding his person may not be subjected
to any indignity. This is what has been portrayed in the preamble of the Constitution in
the words as follows:-
So that the people of Pakistan may prosper and attain their
rightful and honoured place amongst the nations of the World and
make their full contribution towards international peace and
progress and happiness of humanity;

6. What is sovereignty and what does it mean? Sovereignty means supreme
and independent power or authority. According to the preamble of the Constitution,
authority over the entire universe belongs to Almighty Allah alone. This has been
delegated to the people as a trust. It is to be exercised by them through their chosen
representatives within the limits prescribed by Him. Principles of democracy, freedom,
equality, tolerance and social justice as enunciated by Islam are the norms to be
followed. Those who are chosen are not given carte blanche to rule according to their
whim and caprice but according to the provisions of the Constitution and law. Any
chosen representative who does not exercise this authority in accordance with the
provisions of the Constitution shall betray the mandate given to him pursuant to the
exercise of right to vote. Such a course though does not infringe a right at its primary
level but it does so in its ultimate form and manifestation. Because the very condition
for the exercise of such right is that those who are chosen shall exercise their authority
in accordance with the provisions of the Constitution.
7. Consent to, connivance at or complicity in the infringement of security
of person may not be so criminal, as an act, an omission or an attitude evincing the
aforesaid attributes in the infringement of security of State. It is rather pedantic,
perverse and preposterous to detach or disassociate security, solidarity and sovereignty
of the State from fundamental rights. Security of person and security of State are
4
integral part of each other. Existence of one cannot be conceived without existence of
the other. All this is a part of an organic, integrated and indivisible whole. As an injury
to a limb of ones body cant be considered in isolation, so cant be an injury to a vital
organ like the brain or the heart when it tends to paralyze or benumb all the limbs. One
cannot keep them in water tight compartments or away from or independent of each
other. Security of the State is like a ship. One cannot have a safe and smooth sailing in
the ship by permitting others to drive a hole into that. Such an approach or outlook, we
are afraid, would be dangerous, devastating and even catastrophic for all those who live
in the hard world of reality and, of course not in fools paradise. Partial and piecemeal
approach or outlook in such matters cannot be approved of. It, therefore, follows that
the nexus between security of person and State and dignity of person and State cannot
be lost sight of while hearing a lis for enforcement of fundamental rights. The probe
ordered by us is a prelude thereto as it aims at uncovering the truth for taking remedial
measures before the situation goes beyond repair.

(Ejaz Afzal Khan)
Judge
12.01.2012