Article 6. High treason ARTICLE 6 OF CONSTITUTION OF PAKISTAN
MIAN ashraf asmi
ADVOCATE HIGH COURT
The statement was was given by ex. Ameer jmalat Islami regarding the martyers.He declared that who is killed by Pakistan Army is martyr. So this statement clearly explained the Islamic party of paskitan.That party was with shoulder to shoulder with Pak Army in the jehad Afghanistan against Russia.The statement of Syed Manwer Hussain was astonish able thing for the whole country.so the statement of JI was condemned by the ISPR and lot of political and religious party. This statement has clearly defined that the pak Army is not the Islamic Army and whatever is being done by pak army is not the act of islam. This version can not be accept by any lover of islam and Pakistan because the army is the defender of the geographical boundaries of the paksitan.Leader of JI has clearly violated the constitution of pasitan.When any body works against the constitution of paksitan or against the state of paskitan or the army of Pakistan , then how can that may be loyal with this country.This is sin and it can be trilled under the Article 6 of constitution of Pakistan as High Treason.In the present scenario when Pakistan army fighting against the terrorists then by JI termed the terrorists as martyrs .
High treason (1) Any person who abrogates
or subverts or suspends or holds in abeyance, or attempts or conspires to
abrogate or subvert or suspend or hold in abeyance, the Constitution by use of
force or show of force or by any other unconstitutional means shall be guilty
of high treason.]
(2) Any person aiding or abetting 2[or collaborating] the acts
mentioned in clause (1) shall likewise be guilty of high treason.
3[(2A) An act of high treason mentioned in clause (1) or clause (2)
shall not be validated by any court including the Supreme Court and a High
Court.]
(3) 4[Majlis-e-Shoora (Parliament)]
shall by law provide for the punishment of persons found guilty of high
treason.
Footnotes:
1. Section 4(i) of the Constitution (Eighteenth Amendment) Act,
2010 (10 of 2010), substituted the said clause, in its present form, (w.e.f.
April 19, 2010), in place of the clause (1) of Art. 6, as adopted in 1973, that
read :
(1) Any person who abrogates or attempts or conspires to abrogate,
subverts or attempts or conspires to subvert the Constitution by use of force
or show of force or by other unconstitutional means shall be guilty of high
treason.
2.
Section 4(ii) of the Constitution (Eighteenth Amendment) Act, 2010 (10 of
2010), inserted the said word after the word “abetting” in clause (2) of Art.
6, (w.e.f. April 19, 2010).
3.
Section 4(iii) of the Constitution (Eighteenth Amendment) Act, 2010 (10 of
2010), inserted a new clause (2A), in its present form, after clause (2) of
Art. 6, (w.e.f. April 19, 2010).
4.
See Footnote 2 on page 4.
Leading & Latest Cases on Article 6 of the
Constitution of Pakistan,
1973 :
MIAN
ZAHID SARFARAZ
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RAJA
NADIR PERVAIZ KHAN AND OTHER
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SHARAF
FARIDI AND OTHERS
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FEDERATION
OF ISLAMIC REPUBLIC
OF PAKISTAN
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MUHAMMAD
NAWAZ SHARIF
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PRESIDENT
OF PAKISTAN
AND OTHERS
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SH.
LIAQUAT HUSSAIN AND OTHERS
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FEDERATION
OF PAKISTAN
through Ministry of Law, Justice and Parliament
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PAKISTAN
LAWYERS FORUM AND OTHERS
SINDH HIGH COURT BAR ASSOCIATION THROUGH ITS SECRETARY
FEDERATION OF PAKISTAN
AND OTHERS
FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF LAW
FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF LAW
1986 CLC 1464
MIAN ZAHID SARFRAZ
V/S
RAJA NADIR PERVAIZ KHAN AND OTHER
Constitution of Pakistan
1973 Article 6—r/w High Treason (Punishment) Act (LXVIII of 1973), S.2—Penal
Code (XLV of 1960), Ss. 120-A to 130—Houses of Parliament and Provincial
Assemblies (Election) Order (5 of 1977), Article 10.
The word “treason” has not been used in any of the sections
(sections 120-A to 130) contained in Chapter V-A and Chapter VI of Pakistan
Penal Code. Again Article 6 of the Constitution read with High Treason Act
LXVIII of 1973 talks of the offence of “High Treason” and not of “treason”. The
definitions of the term “treason” in English Dictionaries are not relevant as
in the instant case we are concerned with the provisions contained in clause
(h) of sub-Article (1) of Article 10 of the Presidential Order V of 1977. No
law was referred by the learned counsel for the petitioner to show that any
offence by the name of “treason” is known to the laws in force in Pakistan.
“Treason” being not one of the offences made punishable by the penal laws of Pakistan,
the non-traversing of the same specifically cannot be made a basis for culling
out an admission. Moreover, the meaning of the said term (treason) was neither
explained nor fixed in the petition itself. In these circumstances, it will not
be fair and reasonable to bind down the respondent No.1 with any such admission
which was sought to be drawn by the learned counsel for the petitioner.
The evidence brought on record in the shape of affidavits is to
the effect that the contesting respondent was convicted on the charge of
“Baghawat”. These averments contained in the affidavits were not challenged in
the cross-examination. Now the word “Baghawat” may imply anything. It may mean
“Baghawat” or revolt against the social order, against the form of Government
against the Government establishment by law, against Superior Officers of the
Army or against the State. It may mean mutiny. Now every “Baghawat” or
“treason” does not necessarily imply working against integrity or opposing the
ideology of Pakistan.
The facts and the circumstances which may constitute the accusation of working
against integrity or opposing the ideology of Pakistan came to consider in
Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57. If the facts
and circumstances noted in this report are kept in view, it becomes apparent
that there is nothing on the record to show that the respondent No.1 was
involved in any activity which can attract the gravamen of the accusation,
subject-matter of clause (h) of sub-Article (1) of Article 10 of the Order.
Even a charge of conspiracy to overawe and paralyze the Government not
involving criminal force does not fall under section 121-A of the Pakistan
Penal Code. In fact in a democracy every citizen has a right to seek change of
the Government through constitutional means. It is the unconstitutional means
and acts or use of force and violence which have been made punishable. Now any
and every act or series of acts may not amount to an offence unless these are
so declared by the Penal law of the country. Assuming that the respondent No.1
was convicted under Section 121-A, P.P.C. on the basis of the charge reproduced
above, still there is nothing on record to show that by taking part in the
conspiracy to overthrow the Government and to assume power, the integrity of
the country was sought to be jeopardized or undermined. It is also important to
keep in mind that every conviction does not render a citizen disqualified to
contest election. It is only the prescribed Conviction with the attendant
conditions which renders a citizen unqualified to be elected or to be a Member
of the Parliament or the Provincial assembly. In the instant case such as
disqualifying conviction has not been established.
……………………………………………………………………………….
P L D 1989 KARACHI 404
SHARAF FARIDI AND OTHERS
V/S
FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN
Per Ajmal Mian, C. J.
(a) Constitution of Pakistan (1973), Art.175, 200(1)(4), 177, 182, 193, 196(b),
2-A, 199(1)(C), 203, 30(2), 203, 7, 8, 50, 48, 268, 9 & 203-C(4-B).
In my view, this may not be practicable. I am inclined to hold
that the requirements of above Article 175 will be met if the judiciary has
effective say in formulation of its annual demands. To put it differently,
the executive should place annual funds as par requirements at the disposal
of the judiciary for operating it without being interfered with by any agency
of the Executive. [p. 420] A.
It may be observed that the relevant provisions of the
Constitution pertaining to transfer of a High Court Judge to another High
Court and his appointment to the Federal
Shariat Court are referred to and discussed here
in below. However, it will suffice to observe that I am inclined to hold that
a transfer of a High Court judge to anther High Court or to the Federal
Shariat Court can only be made in the public interest and not for an object
alien to the said object, and that the question, whether a transfer is for a
public interest is justiciable even at the behest of a lawyer. [p. 425] B.
The introduction of the provision for transfer of a High Court
Judge to another High Court without his consent under the Fifth Amendment for
one year then under President’s Order No.14
of 1985 for 2 years and so also appointment of a High Court Judge to the
Federal Shariat Court without his consent for the above period, at the peril
of his being stand retired, in case of his refusal to accept transfer or
appointment, or the provision relating to the nomination of a High Court
Judge to any of its Benches, created under the PCO for a minimum period of
now year are the amendments/additions which militate against the concept of
the independence/separation of judiciary, as envisaged by the Constitution.
[p. 428] D.
In my view, the present cases do not involve the question of
change in the basic structure and framework of the Constitution as the
amendments in the aforesaid Articles relating to judiciary cannot be said to
have altered the basic structure of the Constitution pertaining to the
working of the judiciary. It is, therefore, not necessary to dilate upon the
above question any further. The upshot of the above discussions is that we
cannot declare any of the constitutional provisions as ultra vires in the
instant petitions. [p. 431] F & G.
In my view the above cases are not directly on the point. It may
be observed that the High Court exercises supervisory jurisdiction of two
types i.e. judicial which is conferred on the High Court by virtue of Article
199 of the Constitution, provisions in the Civil Procedure Code, Criminal
Procedure Code and the other relevant enactments either as an Appellate Court
or Revisional Court and the second type of supervisory jurisdiction is
administrative.
In my view Article 203 relates more to administrative aspect
than the judicial aspect as has been held in the above Karachi case of the Full Bench. The members
of the Full Bench comprised of Qadeeruddin Ahmed, C. J., Abdul Kadir Shaikh
and Muhammad Haleem, as their Lordships then were. [p. 436] H.
I am inclined to hold that the supervision and control over the
subordinate judiciary vested in the High Court under Article 203 of the
Constitution Keeping in view Article 175, is exclusive in nature,
comprehensive in extent and effective in operation. It comprehends the
administrative power as to the working of the subordinate Courts and
disciplinary over the subordinate judicial officers. In this view of the
matter, any provision in an Act or nay rule or a notification empowering any
executive functionary to have administrative supervision and control over the
subordinate judiciary will be violative of above Article 203 of the
Constitution. Besides, it will militate against the concept of separation and
independence of judiciary as envisaged by Article 175 of the Constitution and
the Objective Resolution. [p. 438] I.
However, there cannot be any doubt that a Court having
jurisdiction to adjudicate upon a matter, has the power to mould a relief
according to the circumstances of the case, if dictates of justice so demand
even if such a relief has not been expressly claimed provided the relief to
be given is within the compass of the jurisdiction of the Court. [p. 439] J.
I am in respectful agreement with the conclusion of the Hon’ble
Chief Justice that the supervision and control over subordinate judiciary
vested in the High Court under Article203 of the Constitution, keeping in
view Article 175 thereof is exclusive in nature, comprehensive and effective
in operation. It comprehends the administrative power as to working of the
subordinate Courts and jisciplinary over the subordinate Judicial officers.
In this view of the matter any provision in an Act or any rule or a
notification empowering any executive functionary to have administrative
supervision and control over subordinate judiciary will be violative of the
above Article 203. Besides it will militate against the concept of separation
and independence of judiciary as envisaged by Article 175 of the Constitution
and the Objectives Resolution. [p. 450] GG.
The rule of law has been universal obligation of every civilized
country. It means supremacy of law as opposed to the arbitrary authority of
the Government. According to Dicey this supremacy guarantees three concepts
(i) absence of arbitrary power, (ii) equality before law and (iii) rights of
citizen. [p. 450] HH.
“Subversion” late ME (O) Fr. Subversion or late L, Subversio-om-,
(as pree.; see ON)
(1) Overthrow, demolition (of a city, stronghold, etc.). Now
rare or obs.2. The turning (of a thing) upside down or uprooting it from its
position; overturning, upsetting (of an object) Now rare. 1670. 3. In
immaterial senses; Overthrow, ruin. Late ME.
(2) The s. of woods and timber.. through my whole estate….is
almost tragical EVELYN.
(3) The decaye of healthe, and subversion of reason 1558, the s.
of several powers and states upon the continent 1798. Hence subversionary a.
(rare) -next.”
I am not inclined to subscribe to the submission made by M/S.
Muhammad Ali Sayeed and Qadir H. Sayeed no relief can be granted in relation
to Article 175 but at the same time I am also not agreeable to the submission
made by Mr. Sharaf Faridi that non-fulfilment of Article 175 amounts to
subversion in terms of Article 6 of the Constitution. [p. 441] ZZ & L.
It will not be out of context to mention that under Chapter 2 of
Part II of the Constitution certain provisions have been incorporated under
the caption “PRINCIPLES OF POLICY”. Clause (2) of Article 30 of the above
Chapter provides “the validity of an action or of law shall not be called in
question on the ground that it is not in accordance with the Principles of
Policy, and no action shall lie against the State, any organ or authority of
the State or any person on such ground.” From the above clause, it is evident
that the tramers of the constitution provided expressly that in respect of
certain provisions relating to the Principles of Policy no action will lie
but there is no such provision in respect of Article 175 or Article 203. [p.
442] M.
Since the various Federal and Provincial Governments after the
enforcement of the Constitution in 1973 have failed to do what they were/are
required to do under the Constitution, direction/directions under Article 199
can be issued to them to do the same and similarly a prohibitory direction
can also be issued not to do which is not permitted by the Constitution. I
may observe that in order to bring the existing laws in conformity with
Articles 175 and 203 of the Constitution, not only some administrative
actions are required to be taken but also some legislative measures are
needed. There seems to be no controversy that direction/directions to take administrative
actions/measures required by the Constitution and/or debatable point, whether
a direction can be issued to the legislature to discharge its constitutional
obligation as to bring the existing laws in conformity with the provisions of
the Constitution by legislating the required laws, but in my view, a
direction can be issued to the Federal and Provincial Governments to initiate
legislative measure for bringing the existing laws in conformity with the
above Articles 175 and 203 of the Constitution.
I am inclined to hold that there is a marked distinction between
a direction to the Legislature to legislate and a direction to the Executive
to initiate the legislative measures to bring the existing laws in conformity
with the provisions of the Constitution. The latter in my view is
permissible. [p. 442] N.
It should be made clear that if any action is taken or order is
passed which is in conflict with Article 175, the Court will be competent to
examine and determine its validity. Any law, order, action or proceeding
which offends the Fundamental Rights can be struck down. The question now
arises that as the respondents have failed to discharge their constitutional
duty and offended Article 9 can any relief be granted. [p. 449] CC.
It is the duty of the Court to ensure compliance of the
Constitutional provisions. In Ziaur Rehman’s case PLD 1973 SC 49, at page 70
Hamoodur Rehman . C. J. while discussing the judicial power vested in Court
observed:-
[p. 449] DD.
It therefore, follows that Legislature is also bound within the
four corners of the Constitution.
A mandatory duty has been cast upon the Executive and
Legislature to separate the Judiciary from Executive, but they have remained
completely silent, dormant and unconcerned. Such omission to exercise jurisdiction
not only violates Article 175 but infringes Fundamental Rights as well. In
such circumstances necessary orders can be passed and direction in mandatory
from can be issued to ensure enforcement of the provisions of the
Constitution and to prevent the breach of Fundamental Right. [p. 450] EE
& FF.
I would however, observe additionally that the Federal
Government in view of what has been said in this judgment as well as in view
of the rulings from Indian jurisdiction discussed in the judgment of the
Hon’ble Chief Justice endeavour discussed in the judgment of the Hon’ble
Chief Justice endeavour to develop traditions and practices whereby transfers
of High Court Judge which may have the effect of causing harassment or
inconvenience to the concerned High Court Judge are avoided as far as
possible. Healthy practices should be developed by not transferring a High
Court Judge from one Court to another or from the High Court to Federal Shariat Court
to which requires fresh oath, without his consent, and in no case without the
concurrence of the Chief Justice concerned. After all in England from where we have
borrowed our entire legal and judicial system meaningful conventions and
healthy practices are the cornerstone of their democratic, judicial, legal
and constitutional edifice. In the same way promise to secure independence
for Judiciary in Pakistan
can also be fulfilled. [p. 457] MM.
However, the pivotal question is whether the provisions
contained in Article 175(3) or 203 of the Constitution are enforceable by the
Courts.
Turning first to Article 175(3), the same, no doubt, enjoins
that the Judiciary shall be separated from the Executive progressively within
fourteen years and it places in this respect an obligation on at least two of
the organs of the State viz., the Executive and the Legislature, but there is
no indication of the intention of the framers of the constitution regarding
the effect of non-compliance with this Article. A question, therefore, arises
whether provisions of the Article are self-executing or mandatory or they are
simply directory. Referring to imperative and directory provisions, Maxwell
on the interpretation of Statutes, Tenth Edition, at page 375, says that: [p.
459] PP.
The question is, how to give effect to the provisions of Article
175(3)? Can it be enforced by issuance of directions to the Executive without
reference to the Legislature? What, if the Executive fails to get the
required majority of the members of the Legislature to pass laws in order to
give effect thereto? Can the Legislature be addressed by this Court by
issuance of a writ ? The Court can strike down a law as invalid, but can the
Legislature be compelled to make a law? Article 175(3) is also silent as to
the extent of the Executive’s responsibility to give effect to the
provisions thereof. A part from the obligation cannot be carried out without financial implications or working out of modalities for its implementation. Can the Executive or the Legislature be compelled by issuance of a writ to discharge this constitutional obligation within the specified time without taking into consideration the means and resources at their command? No. satisfactory answers can be found to these questions. [p. 460] QQ.
It may, however, be pointed out that my intention is not to overlook
the importance of this Article as the provisions of the Constitution referred
to by Mr. Sharaf Faridi and Mr. S. M. Qureshi are in direct conflict with the
provisions of this Article and the declaration enshrined in the Objectives
Resolution. However, these provisions can always be available to the Courts
to expound the other provisions of the Constitution when executive actions
are impugned before them in individual cases. [p. 461] RR.
I have already pointed out that Article 175(3) is a non-self-executing
provision, not capable of being enforced. Article 203 of the Constitution is
also wide and general in terms and as already pointed out, the undefined
power which it confers on the High Court requires to be regulated by further
legislation. Accordingly, these provisions cannot be construed as laying down
any law in terms of Article 199 or 4 of the Constitution. The words “a person
performing functions in connection with the affairs of the Federation or a
Province or a local authority”, occurring in Article 199 are further
indicative of the fact that only executive action can be subjected to a
judicial review under Article 199 of the Constitution and no writ of general
nature can be issued. I am, therefore, constrained to hold that no writ can
be issued by this Court to grant any of the reliefs sought in these
petitions. No doubt, the object behind filing of these petitions noble, but
the Courts are creatures of the Constitution and no power can be exercised by
them which has not been vested in them by the Constitution.
[p. 464] VV.
Petition allowed.
Advocate for the Petitioners:
Syed Sami Ahmad, Sharaf Faridi, G. M. Qureshi.
A. A. Muhammad, Ali Ahmed Fazeel, Khalid M. Ishaque and Muhammad
Ali
Sayeed: Amicus curiae.
Advocate for the Respondents:
Qadir H. Sayeed, Dy. Attorney-General & Abdul Khair Ansari.
Dates of hearing: 20th, 21st, 22nd, 22nd, 28th, 29th and 30th
March, 1989.
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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
…………………………………………………………………………………………………………………………
Per Iftikhar Muhammad Chaudhry, J–
Constitution of Pakistan(1973)
Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule—-
53. On a plain reading of the provisions of Article 245(1),
the functions of the Armed Forces can be bifurcated into two categories,
namely, they shall (1) defend Pakistan against external aggression or threat of
war, and (2) subject to law, act in aid of civil power when called upon to do
so. Under clause (1) of Article 243, the control and command of the Armed
Forces is vested in the Federal Government, therefore, in the performance of
both the categories of functions, the Armed Forces act under the directions of
the Federal Government. Thus, the provisions of clause (1A) of Article 243 under
which the supreme command of the Armed Forces vests in the President, does not,
in any manner, derogate from the power of the Federal Government to require the
Armed Forces to defend Pakistan against external aggression or threat of war,
or to act in aid of civil power in accordance with law. The Constitution does
not envisage any situation where the Armed Forces may act without any direction
by the Federal Government.
Thus, essentially, a proclamation requiring the aid of the Armed
Forces must come from the civilian authorities and as soon as the necessity for
the exercise of the military power is over, the civil administration must,
of necessity, be restored, and assume its normal role. 54. In the cases of
Dosso, Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan the
Court did not take into consideration the above aspect of the matter and
rendered judgments, not on the force of the constitutional provisions, but by
recourse to the theory of revolutionary legality propounded by Hans Kelsen, the
doctrine of civil and state necessity and the principle of salus populi est
suprema lex, and thus kept open the gate for military intervention for all
times to come. Let it be made clear that any action of the Armed Forces
undertaken without a direction by the Federal Government shall be
unconstitutional, illegal, void ab initio and consequently of no legal effect.
Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff
Committee and the three Services Chiefs, namely, the Chief of Army Staff, the
Chief of Naval Staff and the Chief of Air Staff, or any person acting under
their authority, or on their behalf, who acts in the performance of either of
his functions of defending Pakistan against external aggression, or of acting,
subject to law, in aid of civil power without any direction by the Federal
Government acts in violation of the Constitution and the law and does so
at his own risk and cost. This Court, in Liaquat Hussain’s case (at page 626 of
the report), has held that martial law cannot be imposed in Pakistan in view of
the change in the language of Article 237 of the Constitution wherein the words
“martial law” have been omitted, the legal effect of which is that the
Parliament cannot make any law indemnifying any person in the service of the
Federal Government or a Provincial Government, or any other person in respect
of any act done in connection with the maintenance or restoration of order in
any area in Pakistan. This change in the language of Article 237 of the Constitution
was preceded by a discussion of the term ‘martial law’ in Asma Jilani’s case, a
decision which was rendered only a year before the promulgation of the
Constitution of 1973.
Along with Article 237 as finally approved, the framers of
the Constitution also legislated Article 6 of the Constitution, which
provided that any person who abrogated or attempted or conspired to abrogate,
subverted or attempted or conspired to subvert the Constitution by use of force
or show of force or by other unconstitutional means shall be guilty of high
treason.
In the above background, we affirm and approve the law laid
down in Asma Jilani’s case that martial law in any form and by whatever name
called, for any purpose whatsoever cannot be imposed in Pakistan. We also firmly lay down
that no proclamation of emergency can be issued, the effect of which is to hold
in abeyance the Constitution, or its subsequent mutilation by incorporating
amendments in it by an authority not mentioned in the Constitution and in a
manner not provided for in the Constitution.
56. Each member of the Armed Forces, as per his oath under
the Third Schedule to the Constitution in pursuance of Article 244, is bound to
bear true faith and allegiance to Pakistan and uphold the
Constitution which embodies the will of the people. He is also sworn not to
engage himself in any political activities whatsoever. He also solemnly affirms
and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or
Navy or Air Force) as required by and under the law. The learned counsel for
the petitioners vehemently contended that General Pervez Musharraf, by his
actions of 3rd November, 2007, not only violated his oath as a member of the
Armed Forces, but also overthrew the solemn pledge he made as President of
Pakistan of performing his functions and discharging his duties honestly, to
the best of his ability, faithfully in accordance with the Constitution and the
law. We agree with the contention of the learned counsel that General Pervez
Musharraf failed to abide by his oath to preserve, protect and defend the
Constitution. The Constitution was framed to continue to be in force at all
times. By Article 6, an in-built mechanism was provided to safeguard the
Constitution from its abrogation or subversion by anyone, that is to say, it
could neither be cancelled by anyone nor could it be overthrown or undermined
by anyone in any manner or mode whatsoever. Thus, unless and until the
Constitution is altered or amended in accordance with the procedure laid down
in Articles 238 and 239, or it is repealed on the pattern of the Interim
Constitution under the provisions of Article 266, which too, is possible by
recourse to the provisions of Articles 238 and 239, its operation and
enforceability cannot be interrupted even for a single day, nay a single moment
except as specifically provided in the Constitution itself. The Constitution
has not contemplated any situation where it can be held in abeyance at the will
or whims of the Chief of Army Staff and to be revived after he has achieved his
objectives. Let it be stated in unequivocal terms that the validity accorded in
the past did not give a licence to any holder of the office of Chief of
Army Staff of repeating such acts at his will. It is hereby firmly laid down
that the holding in abeyance of the Constitution or any other act having the
effect of discontinuing the operation and the enforceability of the
Constitution for a single moment in a manner not authorized under the
Constitution is nothing but an overthrowing of the Constitution, so to say, the
subversion of the Constitution and thus constitutes the offence of high
treason.
Therefore, the military rule, direct or indirect, is to be
shunned once and for all. Let it be made clear that it was wrongly justified in
the past and it ought not to be justified in future on any ground, principle,
doctrine or theory whatsoever. Military rule is against the dignity, honour and
glory of the nation that it achieved after great sacrifices 62 years ago; it is
against the dignity and honour of the people of Pakistan, who are committed to
upholding the sovereignty and integrity of the nation by all means; and it is
against the dignity and honour of each and every soldier of the Armed Forces:
Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear
true faith and allegiance to Pakistan and uphold the Constitution, which
embodies the will of the people; not to engage himself in any political
activities whatsoever; and to honestly and faithfully serve Pakistan in the
respective services. Within such parameters, a soldier must remain committed to
defending Pakistan
until the last drop of his blood against external aggression or threat of war,
and subject to law, acting in aid of civil power when called upon to do so
under the directions of the Federal Government. In the course of the discharge
of his duties, a soldier, therefore, is obligated to seeing that the
Constitution is upheld, it is not abrogated, it is not subverted, it is not
mutilated, and to say the least, it is not held in abeyance and it is not
amended by an authority not competent to do so under the Constitution. If a
member of the Armed Forces acts in aid of a person who does any of the above
acts, or any other similar act, he violates his oath and renders himself liable
to action under and in accordance with the Constitution and the law.
100. It may be mentioned that the power to amend the
Constitution is an onerous task assigned to the Parliament, which represents
the will of the people through their chosen representatives. It is to be
carried out in accordance with the procedure prescribed in Articles 238 and 239
of the Constitution, viz. by a two-third majority of the members of both the
Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other
manner, and by no one else. The holding in abeyance of the Constitution in the
first place, and then making amendments in it by one man by the stroke of his
pen, that is to say, in a manner not envisaged or permitted by the Constitution,
are mutilation and/or subversion of the Constitution simpliciter, and no
sanctity is attached to such amendments per se. No sanctity attaches to them if
they are made after a declaration to that effect is made by the Court while
adjudging the validity of such assumption of power. Equally bereft of sanctity
remain the amendments of any such authority, which are ratified, affirmed or
adopted by the Parliament subsequently and deemed to have been made by the
competent authority.
In our view, only those acts which were required to be done
for the ordinary orderly running of the State could be protected. Similarly,
only such past and closed transactions could have been protected, which were
otherwise not illegal at the relevant time, and rights, privileges, obligations
or liabilities had been acquired, accrued or incurred, or any investigation,
legal proceeding or remedy in respect of any such right, privilege, obligation,
liability, penalty, forfeiture, or punishment had been taken. The actions taken
by General Pervez Musharraf on 3rd November, 2007 and thereafter being
unconstitutional, illegal and void ab initio, the principle of past and closed
transaction was not attracted even otherwise on account of the distinguishing
features between the martial laws of 1958 and 1977 and emergency of 1999 on the
one hand, and the emergency of 3rd November, 2007 on the other, as explained in
this judgment, including passing of order dated 3rd November, 2007 by a
seven – member Bench of this Court in Wajihuddin Ahmed’s case, arrest of
Judges, Judges not accepting it or applying for pension, sustained resistance
in the shape of protests by the Bar Associations, masses, including civil
society, political workers, students, labourers, large scale arrests of
lawyers, resolution of foreign bars, etc.
102. In the light of the above discussion, it is held and
declared that the amendments purportedly made by General Pervez Musharraf from
3rd November, 2007 up till 15th December, 2007 (both days inclusive) were
neither made by an authority mentioned in the Constitution nor the same were
made following the procedure prescribed in the Constitution and were,
therefore, unconstitutional, illegal and void ab initio. Accordingly, the
Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the
Constitution (Second Amendment) Order, 2007 (President’s Order No. 6 of 2007)
and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to
amending Articles 238 & 239 and the Third Schedule to the Constitution
(oath of office of Chief Justice/Judge) respectively, or any other instrument
having similar effect are unconstitutional, illegal and ultra vires of the
Constitution and consequently of no legal effect. [p 1027,1028, 1031, 1032,
1039, 1070]D, E, F, G, H, I, FF, GG
Lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
P L D 1999 SC 504
SH. LIAQUAT HUSSAIN AND OTHERS
V/S
FEDERATION OF PAKISTAN
through Ministry of Law, Justice and
(a) Constitution of Pakistan (1973) Art. 6-
As a fall out, our country had been experiencing instability in
the polity. The Doctrine of Necessity cannot be invoked if its effect is to
violate any provision of the Constitution, particularly keeping in view Article
6 thereof which provides that “Any person who abrogates or attempts or
conspires to abrogate, subverts or attempts or conspires to subvert the
Constitution by use of force or show of force or by other unconstitutional
means shall be guilty of high treason”.[p. 596] P
(b) Constitution of Pakistan (1973) Arts, 5 & 6
In this case, the country is not under the umbrella of Martial
Law and Fundamental rights have not been suspended. Article 5 of the
Constitution provides that loyalty to the States is the basic duty of every
citizen and that obedience to the Constitution and law is the inviolable
obligation of every citizen wherever he may be and of every other person for
the time being within Pakistan. Article 6 of the Constitution stipulates that
any person who abrogates or attempts or conspires to abrogate, subverts or
attempts or conspires to subvert the Constitution by use of force or show of
force or by other unconstitutional means shall be guilty of high treason; any
person aiding or abetting the acts mentioned in clause (1) of article 6 shall
likewise be guilty of high treason and that Majlis-e-Shoora (Parliament)
shall by law provide for the punishment of persons found guilty of high
treason. The Judges of the superior Courts have also sworn an oath under the
Constitution that they shall preserve, protect and defend the Constitution of
the Islamic Republic of Pakistan and shall discharge their duties and perform
their functions honestly to the best of their abilities and faithfully ion
accordance with the Constitution and the law and that in all circumstances,
they will do right to all manner of people, according to law, without fear or
favour, affection or ill-will.
It would, therefore, be seen that the civil liberties and
Military Courts cannot endure the scheme of our Constitution. There is no
doubt, as pointed out by Chief Justice Earl Warren, that so far as the
relationship of the military to its own personnel is concerned, the basic
attitude of the Court as to jurisdiction of the Civil Court to review the
decision of Military Courts by invoking the Constitutional jurisdiction has
been limited to examination of cases which are found to be mala fide, coram
non judice and without jurisdiction. [p. 804 & 805] H
(c) Constitution of Pakistan (1973), Art. 2A-
r/w Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998) S. 3-
The Constitution of the Islamic Republic of Pakistan, 1973 in
its preamble (now made a substantive part thereof vide Article 2A) declares
that “the independence of the Judiciary shall be fully secured “therein.
According to a consensus of the jurists, the independence of the Judiciary
means that every Judge is free to decide matters before him in accordance
with his assessment of the facts and his understanding of the law without
improper influences, inducements or pressures, direct or indirect, from any
quarter or for any reason; and that the Judiciary is independent of the
Executive and Legislature, and has jurisdiction, directly or by way of
review, over all issues of a judicial nature. This Court vide its judgement
in the case of Sharaf Afridi (supra) has separated the Judiciary from the
Executive. [p. 807] J
Some cases from American jurisdiction may also be referred to
wherein validity of the Military trials had been dilated upon, a bare reading
of which would urge us to draw a safe inference as to the establishment of
Military Courts that they ought never to exist where the Civil Courts are
open and performing their functions properly nor should they be obstructed in
the proper exercise of their jurisdiction by replacement thereof. [p. 811] K
In the case of O’ Callahan v. Parker 89 SCt. 1683, 395 US 258 it
was, inter alia, observed that history teaches that expansion of military
discipline beyond its proper domain carries with it a threat to liberty. [p
814] L
In Reid v. Covert (77 S. Ct. 1222, 354 US 1), it was noticed
that the trial of soldiers by Courts-Martial and the interference of the
Military with the Civil Courts had aroused great anxiety and antagonism not only
in Massachusetts but throughout the colonies. [p. 815] M
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Rawalpindi - November 10, 2013:
A spokesman of ISPR strongly condemned the irresponsible and
misleading remarks by Syed Munawar Hassan in a TV programme, declaring the
dead terrorists as shaheeds while insulting the shahadat of thousands of
innocent Pakistanis and soldiers of Pakistan's armed forces. Syed
Munawar Hassan has tried to invent a logic based on his political
convenience. Strong condemnation of his views from an overwhelming majority
leaves no doubt in any one's mind that all of us are very clear on what the
state of Pakistan
is and who are its enemies.
Sacrifices of our shuhada and their families need no endorsement
from Syed Munawar Hassan and such misguided and self-serving statements
deserve no comments. However, coming from Ameer of the Jamat-e-Islami, a
party founded by Maulana Maududi, who is respected and revered for his
services to Islam is both painful and unfortunate.
The people of Pakistan,
whose loved ones laid down their life while fighting the terrorist, and
families of shuhada of armed forces demand an unconditional apology from Syed
Munawar Hassan for hurting their feelings. It is also expected that
Jamat-e-Islami should clearly state its party position on the subject.
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ISLAMABAD: In a rare but furious reaction, Pakistan Army on Sunday lambasted head of a religious party for declaring terrorists killed in the war against terror ‘martyrs’ but denying the honorific for army soldiers killed in battle with the Taliban. In a strongly worded statement, the ISPR asked Munawar Hassan to clear the position of his party on the issue. Families of martyred army personnel and people who lost their loved ones in the terrorist attacks demand Jamaat-e-Islamai chief to tender an ‘unconditional apology’, it said. Munawar Hassan had told a private television channel that he considered TTP chief Hakimullah Mehsud, who was killed in a US drone strike in North Waziristan, a ‘martyr’. However, when asked about his views on army soldiers who sacrificed their lives fighting Taliban, he refused to recongnise them as martyrs. “Nobody thinks that a US soldier killed in that area is a martyr. In this context, death of a person who serves US interests puts a question mark on him. If death of a US soldier is not martyrdom, how can his supporter be called a martyr,” he asked. The army spokesmen strongly condemned the controversial remarks by Munawar and called those totally ‘irresponsible and misleading’. “Syed Munawar Hassan has tried to invent a logic based on his political convenience. Strong condemnation of his views from an overwhelming majority leaves no doubt in anyone’s mind that all of us are very clear on what the state of Pakistan is and who are its enemies,” the statement read. “Sacrifices of our shuhada and their families need no endorsement from Syed Munawar Hassan.” The spokesman said that such statements do not deserve any comments, but coming those from a party founded by Maulana Maududi was unfortunate. “Such misguided and self-serving statements deserve no comments. However, coming from Ameer of the Jamat-e-Islami, a party founded by Maulana Maududi, who is respected and revered for his services to Islam is both painful and unfortunate,” the statement said. “The people of Pakistan, whose loved ones laid down their lives while fighting the terrorists, and families of shuhada of armed forces demand an unconditional apology from Syed Munawar Hassan for hurting their feelings,” the statement said, and added that Jamaat-e-Islami should clearly state its party position on the subject. The controversial remarks by leader of the religio-political rightwing party triggered a serious debate in the country on a very sensitive issue. While Munawar’s comments invited a strong condemnation from rival political and religious parties as well as civil society, Maulana Fazlur Rahman of the JUI-F was seen not only endorsing the remarks but he virtually leaped a step forward. “I would call even a dog martyr if it is killed by US forces,” Fazl declared, in a move that prompted a conglomeration of ulema belonging to Sunni school of thought issue a decree. “Those who resort to violence in the name of jihad are not martyrs, but aggressors,” Sunni Ittehad Council chairman Hamid Raza Rizvi said, reading from a fatwa issued by 30 scholars and clerics affiliated with the organisation. “Hakimullah was involved in killing of thousands of innocent people and army men. The fact that he was killed by a US drone could not purge him of his sins and he was not a martyr,” Rizvi said, as he termed statements by Munawar Hasan and Maulana Fazlur Rahman ‘rubbing salt on the wounds of heirs of over 50,000 people killed in terrorist attacks in Pakistan’. Following condemnation by military, several political and religious leaders joined a chorus of voices calling for action against Munawar. “JI should be banned and a treason case be initiated against Munawar Hasan,” said Senator Zahid Khan of the ANP, the party worst hit by the terrorist attacks. He also demanded that Chief Justice Iftikhar Chaudhry should take suo motu notice of the statement. The Pakistan Sunni Tehreek also sided with the army and said that killers of innocent civilians and armed forces personnel can’t be labelled as ‘martyrs’. PPP Chairman Bilawal Bhutto Zardari said JI chief’s statement was tantamount to ‘adding insult to the injuries’. He demanded of the chief justice to take a suo motu. However, JI Secretary General Liaquat Baloch said his party was assessing the military statement and would respond to it after due consultation at the party level.
Now it is clearly see that jamat islami hurted the million of muslim of pakistan and JI insulted the Pak Army.
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