P L D 1993 SC 473

MUHAMMAD NAWAZ SHARIF

V/S
PRESIDENT OF PAKISTAN AND OTHERS

Per Shafiur Rahman, J

(a) Constitution of Pakistan(1973), Articles, 6, 12 & 56
Enquiries made from the Federal Government reveal that though the Constitution was framed
in 1973 and the Parliament also discharged its duty on 29-9-1973 by framing the requisite
law on the subject, in terms of section 3 of the High Treason (Punishment) Act, 1973, the
Federal Government has not so far designated the authorised person on whose complaint such
an offence can be taken cognizance of by the Courts. The failure here is not of the
Constitution, not of the Parliament but of the executive Government and that too since 1973
of not giving a salutary Constitutional provision a meaningful content and operational
mechanism, thereby frustrating it altogether. (p. 601) H
Per Saleem Akhtar, J
(b) Constitution of Pakistan (1973), Article 6
Right of expression and speech is conferred by the Constitution and is regulated by law.
Every restriction on free speech must pass the test of reasonableness and overriding public
interest. Restriction can be imposed and freedom of expression may be curtailed provided it
is justified by the clear and present danger test that the substantive evil must be extremely
serious and the degree of imminence extremely high. The danger should imminently threats
immediate interference with the lawful and pressing purposes of the law requiring
immediate step to ensure security of the country. Speech would be unlawful if it is directed to
inciting or producing imminent lawless action and is likely to produce such action. Speech
and conduct are two different concepts. Speech relates to expression and conduct to action.
Speech ends where conduct begins but if both are combined the Court has to draw the
dividing line. As held in American Communications Association v. Douds (1950) 399 US 382
the freedom of expression of views in curtailed or restricted when they threaten clearly and
imminently to ripen into conduct against which the public has a right to protect itself. The
concept of clear and present danger in USA was liberalised by making imminence as
basic test. (p.832)V
Fear of serious injury cannot alone justify suppression of free speech and assembly. there
must be reasonable ground to fear that serious evil will result if free speech is practised.
There must be reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious one. In order
to support a finding of clear and present danger it must be shown either that immediate
serious violence was to be expected or was advocated, or that the past conduct furnished
reason to believe that such advocacy was then contemplated. (p. 833)W

The effect, weight and impact of speech is to be judged from an overall appreciation by
looking to its background, the truthful statement made in it and object with which it has been
made. If such a speech makes allegation or defames anyone without any justification, but
does not create lawlessness, disorder, or threat to security or disruption, it will hardly amount
to subversion of the Constitution. (p. 833)X
Per Saeeduzzaman Siddiqui, J
(c) Constitution of Pakistan (1973), Article 56
There is nothing either in Article 56 of the Constitution or in Rules 40 to 47 of the Rules of
Procedure and Conduct of Business in National Assembly, 1992, to suggest, that address of
the President to the joint session of the two Houses at the Commencement of the first session
after each general election to the National Assembly and at the commencement of the first
session year, would reflect the policies of the Government and not the views of the President.
I am, therefore, of the view that the address of the President to the joint session of Parliament
on the occasion of first session of each year, is his Constitutional duty under Article 56(3) of
the Constitution and in his address the President is not bound by the policy or views of the
Government in power. The President is free to express his own views and assessment in
respect of any matter concerning the functioning of the Government in power in his said
address to the joint session of Parliament. (p. 881)U
.

P L D 1977 SC 657
BEGUM NUSRAT BHUTTO
V/S
CHIEF OF ARMY STAFF AND FEDERATION OF PAKISTAN

(a) Constitution of Pakistan (1973), Articles 184 & 199:

Article 184(3) Maintainability of petition Petition directed against Chief of Army Staff
whereas impugned orders of detention passed by Chief Martial Law Administrator Chief
of Army Staff also being Chief Martial Law Administrator, objection regarding nonmaintainability of petition on ground of not having been directed against Chief Martial Law
Administrator, held, only technical since it could be easily rectified by adding words Chief
Martial Law Administrator to description of respondent. (Writ). [p. 674]A
Article 184(3) read with Article 199 Aggrieved person Petitioner moving petition in her
capacity of wife of one of detenus and as Acting Chairman of Party to which all detenus
belonged Petitioner though not alleging any contravention of her own Fundamental Rights
yet in circumstances, held, an aggrieved person within meaning of Article 199 (Aggrieved
person). [p. 675]B
MANZOOR ELAHI V. STATE PLD 1975 SC 66. Ref.

Article 184(3) read with Laws (Continuance in Force) Order, 1977 (C.M.L.As 1 of 1977),
Articles 2, Proviso & 4 Jurisdiction Maintainability of petition under Article 184(3),
Constitution of Pakistan (1973) C.M.L.A.s Order 1 of 1977 New Legal Order for time
being Supreme Court deriving its jurisdiction from new Legal Order, orders of detention,
held, cannot be challenged and petition liable to dismissal. Criteria: [Jurisdiction]
Since the Courts including the Supreme Court were revived by the Laws (Continuance in
Force) Order and continued to work under the authority, they therefore derived their
jurisdiction also from the said Order. For example, if after the issuance of the Proclamation
the Chief Martial Law Administrator had not issued the Laws (Continuance in Force) Order
and had started ruling by decrees through his officers then where would have been this Court
and what jurisdiction it would have had.
Otherwise too allegiance is always due to the def facto Government for it is this Government
which can provide protection to the citizens and allegiance to the State imposes as one of its
most important duty obedience to the laws of the sovereign power for the time being within
the State. The municipal Courts have always to enforce the laws of the de- facto Government
and it is such a Government which can enact law, can appoint Judges and can enforce the
execution of law. [p. 742]LL
INTERPRETATION Apprehension that decision of Supreme Court in Asma Jilanis case
PLD 1972 SC 139 in effect rendered illegal all successive Governments of Pakistan and
Constitutions framed during relevant period, held, not well-founded [Interpretation of
precedents]. (p. 684)C
STATE V. DOSSO PLD 1958 SC 533; STATE V. ZIA-UR-REHMAN PLD 1973 SC 49;
MISS ASMA JILANI V. THE GOVERNMENT OF THE PUNJAB AND ANOTHER PLD
1972 SC 139. Ref.
Interpretation of Judgements delivered in Southern Rhodesian case of Madzimamuto
[(1968) 3 All ER 561] Held, cannot be regarded as judicial authority for proposition that
effectualness of new regime provides its own legality Doctrine subjected to weighty
criticism on ground of seeking to exclude all considerations of morality and justice from
concept of law and legality [Interpretation of precedents Doctrine of necessity]. (p. 688) D

..

P L D 2000 SC 869
SYED ZAFAR ALI SHAH AND OTHERS
V/S
GENERAL PERVEZ. MUSHARRAF,
CHIEF EXECUTIVE OF PAKISTAN AND OTHERS

(a) Constitution of Pakistan (1973), Arts. 91(4) & 184(3)

PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-10-

1999Constitution of Pakistan 91973), Arts. 184(3) & 91(4), (5)Extra-constitutional

step of taking over the affairs of Pakistan by the Armed Forces of PakistanSuspension
of Assemblies and the Senate through extra-constitutional measures by the Chief of
Army StaffFactors ValidityDoctrine of State necessityApplicabilityRole of
public representativesPrinciples of joint and ministerial responsibility in Parliamentary
systemRest of the members of representatives bodies cannot be absolved of their
responsibility if, despite wrongdoings by the cabinet, they remained silent spectators
Suspension of the Assemblies and the Senate through extra-constitutional measures
taken by the Chief of Army Staff, warrants validation on the ground of State necessity
and State survival. [p. 1152] Z
(b) Provisional Constitution Order (1 of 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Constitution of Pakistan (1973), Arts. 184(3) & 63(2) Extra-constitutional step
of taking over the affairs of Pakistan by the Armed Forces of PakistanFactors
ValidityRidiculing the Judiciary and tapping of telephones of Judges of superior
CourtsDebates of parliament of the relevant period clearly demonstrated that integrity
and independence of the judiciary of Pakistan were challenged by the Members of
Parliament which had the effect of defaming and bringing the Judges into ridicule and
disparaging remarks against the Judiciary crossed all limits and no Reference was made
to the Chief Election Commissioner for their disqualification as Members of the
Parliament under Art. 63(2) of the Constitution of Pakistan (1973)Such acts of tapping
the telephones of Judges of the superior Courts and maligning the judiciary were most
detestable, immoral, illegal and unconstitutional. [p. 1168] BB
Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Mohtarama
Benazir Bhuttos case PLD 1998 SC 388 ref.
(c) Provisional Constitution Order (1 of 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Constitution of Pakistan (1973), Arts. 91 & 184(3)Term Chief Executive,
import ofConstitution of Pakistan (1973) envisages Parliamentary form of
Government where the Prime Minister acts as the Chief Executive of the countryBy
means of Proclamation of Emergency dated 14-10-1999 as also the Provisional
Constitution Order, 1999 the Constitution has been only held in abeyance and the
country is to be run as nearly as may be in accordance with the Constitution, therefore,
Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff while taking over
the affairs of the country assumed to himself the title of Chief ExecutiveValidity
Since practically the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff
was performing the functions of the Prime Minister, he held the position of Chief
Executive in the scheme of the Constitution of Pakistan.
The term Chief Executive means President where there is a Presidential form of
Government and Prime Minister in a Parliamentary form of Government. The
Constitution of 1973 envisages Parliamentary form of Government where the Prime
Minister acts as the Chief Executive of the country. By means of the proclamation of
Emergency as also the PCO 1 of 1999, the Constitution has only been held in abeyance

and the country is to be run as nearly as may be in accordance with the Constitution,
therefore, General Pervez Musharraf, while taking over the affairs of the country,
assumed to himself the title of Chief Executive. Since practically, he is performing the
functions of the Prime Minister, he holds the position of Chief Executive in the scheme
of the Constitution. [p. 1208] MM
Indian Constitutional Law by H.M. Seervai, 4th Edn., p,20; Fazalul Qadir Chaudhrys
case PLD 1963 SC 486 and American Constitutional Law, 1995 Edn., p.204 ref.
(d) Provisional Constitution Order (1 of 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Constitution of Pakistan 91973), Art. 184(3)Extra- constitutional step of taking
over the affairs of Pakistan by the Armed Forces of PakistanNatureCoup detat or
revolutionCoup detat and revolution are interchangeable in the context of step of
taking over the affairs of Pakistan by the Armed Forces and nothing substantial would
turn on considering it from one angle or another.
In coup detat as well in revolution, power changes from one man to another from one
clique to another depending upon the facts and circumstances of each case. Coup detat
is generally undertaken to achieve a particular objective motivated by various
considerations. [p. 1210] NN
In the context of the present case the terms coup detat and revolution are
interchangeable and nothing substantial would turn on considering it from one angle or
another. [p. 1210] OO
Farzand Ali v. province of West Pakistan PLD 1970 SC 98; Madzimbuto v. Lardner
Burke (1968) 3 AER 561; Texas v. White 74 US (7 Wall) 700 (at p. 733), 1868;
Madzimbuto v. Lardner Burke 1966 Rhodesian L. Rep. 228 (General Division);
Revolution and Political Change by C. Welch and Bunker Taintor; Attorney-General v.
Mustafa Ibrahim 1964 Cyprus LR 195 Sup. Ct.; Revolutions, published in the Irish
Jurist, 1977 and Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 ref.
(e) Provisional Constitution Order (1 of 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Constitution of Pakistan (1973), Art. 184(3)Extra- constitutional step of taking
over the affairs of Pakistan by the Armed Forces of PakistanValidityGrant of power
to Chief Executive of Pakistan to amend the ConstitutionExtentPower of the Chief
Executive of Pakistan to amend the Constitution is strictly circumscribed by the
limitations laid down by the Supreme CourtLimitations with regard to amendment of
the Constitution by Chief Executive of Pakistan as laid down by the Supreme Court
enumerated.
If the Parliament cannot alter the basic features of the Constitution, power to amend the
Constitution cannot be conferred on the Chief Executive of the measure larger than that
which could be exercised by the Parliament. Clearly, unbridled powers to amend the
Constitution cannot be given to the Chief Executive even during the transitional period

even on the touchstone of State necessity. The Constitution of Pakistan is the supreme
law of the land and its basic features i.e. independence of Judiciary, federalism and
parliamentary form of Government blended with Islamic Provisions cannot be altered
even by the Parliament. Resultantly, the power of the Chief Executive to amend the
Constitution is strictly circumscribed by the limitations laid down by the Supreme Court.
[p. 1211] PP
Mahmood Khan Ackakzais case PLD 1997 SC 426 ref.
Following are the limitations laid down by the Supreme Court with regard to the powers
of Chief Executive of Pakistan to amend the Constitution:
(i) The Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff through
Proclamation of Emergency, dated the 14th October, 1999, followed by PCO 1 of 1999,
whereby he has been described as Chief Executive, having validly assumed power by
means of an extra-constitutional step, in the interest of the State and for the welfare of
the people, is entitled to perform all such acts and promulgate all legislative measures as
enumerated hereinafter, namely:
(a) All acts or legislative measures which are in accordance with, or could have been
made under the 1973 Constitution, including the power to amend it.
(b) All acts which tend to advance or promote the good of the people.
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared
objectives of the Chief Executive.
(ii) That Constitutional Amendments by the Chief Executive can be resorted to only if
the Constitution fails to provide a solution for attainment of his declared objectives and
further that the power to amend the Constitution by virtue of clause (6), sub-clause (i)(a)
ibid is controlled by sub-clauses (b),(c) and (d) in the same clause.
(iii) That no amendment shall be made in the salient features of the Constitution i.e.
independence of Judiciary, federalism, parliamentary form of Government blended with
Islamic provisions.
(iv) That Fundamental Rights provided in Part II, Chapter 1 of the Constitution shall
continue to hold the field but the State will be authorized to make any law or take any
executive action in deviation of Articles 15, 16, 17, 18, 19 &24 as contemplated by
Article 233(1) of the Constitution, keeping in view the language of Articles 10, 23 and
25 thereof.
(v) That these acts, or any of them, may be performed or carried out by means of orders
issued by the Chief Executive or through Ordinance on his advice;
(vi) That the superior Courts continue to have the power of judicial review to judge the
validity of any act or action of the Armed Forces, if challenged, in the light of the

principles underlying the law of State necessity as sated above. Their powers under
Article 199 of the Constitution, thus, remain available to their full extent, and may be
exercised as heretofore, notwithstanding anything to the contrary contained in any
legislative instrument enacted by the Chief Executive and/or any order issued by the
Chief Executive or by any person or authority acting on his behalf.
(vii) That the Courts are not merely to determine whether there exists any nexus between
the orders made, proceedings taken and acts done by Chief Executive or by any authority
or person acting on his behalf, and his declared objectives as spelt out from his speeches,
dated 13th and 17th October 1999, on the touchstone of State necessity but such orders
made, proceedings taken and acts done including the legislative measures, shall also be
subject to judicial review by the superior Courts. [p. 1220] QQ
(f) Provisional Constitution Order (1 0f 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Oath of Office (Judges) Order (1 of 2000), preamble Constitution of Pakistan
(973), Arts. 209 & 184(3)Extra-constitutional step of taking over the affairs of
Pakistan by the Armed Forces of Pakistan ValiditySupreme Court Judicial Council
Judges of the Supreme Court and High Courts cannot be removed without resorting to
the procedure prescribed in Art. 209 of the ConstitutionCases of the Judges who
ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office
(Judges) Order, 2000, however, was hit by the doctrine of past and closed transaction and
could not be re-opened. [pp. 1211, 1212] RR & SS
(g) Provisional Constitution Order (1 of 1999)
PreambleProclamation of Emergency by Chief Executive of Pakistan dated 14-101999Oath of Office (Judges) Order (1 of 2000), Preamble Constitution of Pakistan
(1973), Preamble, Arts. 209 & 184(3)Past and closed transaction, doctrine of
ApplicabilityCases of former Chief Justice and judges of Supreme Court who had not
taken oath under the Oath of Office (Judges) Order, 2000 and those Judges of the Lahore
High Court, High Court of Sindh and Peshawar High Court, who were not given oath,
could not be reopened being hit by the doctrine of past and closed transaction. [pp. 1219,
1220, 1222] QQ & BBB
The cases of former Chief Justice and Judges of the Supreme Court, who had not taken
oath under the Oath of Office (Judges) Order, 2000 (Order 1 of 2000), and those Judges
of the Lahore High Court, High Court of Sindh and Peshawar High Court, who were not
given oath, cannot be reopened, being hit by the doctrine of past and closed transaction.
The practical effect of the above observation is that the action of the Chief Executive in
this behalf has been validated. It is a well-settled principle that in such situations the
Court may refuse relief in respect of a particular decision, but go on to determine the
general question of law or interpretation that the case raises. Clearly, the Judges of the
Superior Judiciary enjoy constitutional guarantee against arbitrary removal. They can be
removed only by following the procedure laid down in Article 209 of the Constitution by
filing an appropriate reference before the Supreme Judicial Council and not otherwise.
The validity of the action of the Chief Executive was open to question on the touchstone

of Article 209 of the Constitution. But none of the Judges took any remedial steps and
accepted pension as also the right to practise law and thereby acquiesced in the action.
Furthermore, the appropriate course of action for supreme Court in these proceedings
would be to declare the law to avoid the recurrence in future, but not to upset earlier
actions or decisions taken in this behalf by the Chief Executive, these being past and
closed transactions. The Courts can refuse relief in individual cases even though the
action is flawed, depending upon the facts and circumstances of each case. The action of
Chief Executive in the context given above has not encroached on the judicial power or
impaired it in the process. However, the observations made herein as to the declaration
of law under Article 209 of the Constitution would not entitle the relevant authorities or
Supreme Court to reopen the cases of the above Judges which have become final. [p.
1211] RR
The Judges of the Supreme Court and High Courts cannot be removed without resorting
to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges
who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of
Office (Judges) Order, 2000 (Order 1 of 2000) is hit by the doctrine of past and closed
transaction and cannot be reopened. [pp. 1212, 1219, 1220, 1222] SS, QQ & BBB
(h) Constitution of Pakistan (1973), Arts. 209 & 184(3)
Provisional Constitution Order (1 0f 1999), PreambleProclamation of Emergency
by Chief Executive of Pakistan dated 14-10-1999Oath of Office (Judges) Order (1 of
2000), PreambleConstitution of Pakistan (1973), Preamble and Arts. 184(3) & 209
Accountability, process of Government shall accelerate the process of accountability
in a coherent and transparent manner justly, fairly, equitably and in accordance with law
Judges of superior Courts were subject to accountability only, in accordance with the
methodology laid down in Art. 209 of the Constitution of Pakistan (1973). [pp. 1219,
1220, 1222] QQ & BBB
(i) Constitution of Pakistan (1973) Arts. 243 & 184(3)
Command of Armed ForcesRemoval of Chief of the Army Staff and Chairman,
Joint Chiefs of Army Staff CommitteeProcedureChief of the Army Staff and
Chairman, Joint Chiefs of Army Staff Committee being a holder of constitutional post,
his arbitrary removal in violation of the principle of audi alteram partem was ab initio
void and of no legal effect. [pp. 1219, 1220, 1222] QQ & BBB