Full court reference on the retirement of mr. Justice saad saood jan, judge, supreme court of pakistan

FULL COURT REFERENCE ON THE RETIREMENT OF MR FULL COURT REFERENCE ON THE RETIREMENT OF MR. JUSTICE SAAD SAOOD JAN, JUDGE, SUPREME COURT OF PAKISTAN Speech by Mr. Justice Sajjad Ali Shah, Chief Justice of Pakistan The bio‑data of Mr. Justice Saad Saood Jan has been repeatedly read by the speakers preceding me, hence I need not repeat it but I cannot resist the temptation to comment upon it. Perusal of the bio‑data shows very eventful past indicative of commendable feat of accomplishments with distinctions which reflect the attributes of an extraordinary brain of a young boy with extremely bright and happy future. 2. Mr. Justice Jan graduated in the field of science with distinction in physics and chemistry and then went for law which he passed in the first class. This shows natural proficiency both in the fields of sciences and arts. I am told by my friends on the Bench who knew him in the days of school and college and they are unanimous in their view that Mr. Justice Jan as a student was extremely intelligent and talented and was destined to attain the top position in whatever he did. 3. Apart from being a very bright student always passing with flying colours, he was a very good debator and a prominent sportsman. In the field of sports also he made his mark and made name in cricket and tennis. 4. After college days, he joined Civil Service of Pakistan in 1953 and served as Assistant Commissioner in various sub‑divisions and then was promoted as Deputy Secretary in the Government of West Pakistan and then as Secretary, West Pakistan Public Service Commission. He joined judicial service in 1959 and served as Additional District and Sessions Judge and then as District and Sessions Judge and the Registrar of the High Court of the West Pakistan. He was appointed as Joint Secretary in the Federal Ministry of Law and Parliamentary Affairs in 1966. 5. Mr. Justice Jan was elevated as Judge of the High Court in 1971 and was appointed as Secretary, Parliamentary Affairs Division in which capacity he played a very active role in the preparation of the Constitution of Pakistan in extremely difficult period and in very trying circumstances when after war with India, we lost East Pakistan which became Bangladesh and the remaining West Pakistan was to be saved from disastrous disintegration and tentacles of martial law. Pakistan was struggling to survive and, there was a dire need for a system of governance for which constitution had to be framed. This was a stupendous task for which a tenacious person like Mr. Justice Jan was required. 6. For the first time a full‑fledged Secretary was appointed for the Parliamentary Affairs Division. Mr. Justice Jan accepted this challenge and worked extremely hard doing research for the preparation of the Constitution. In the exercise he was associated with Justice Muhammad Gul who was Law Secretary and Mir Muhammad Ali who was draftsman. They jointly assisted the Constitution Committee of the National Assembly under the able guidance of the then Minister of Law, late Mian Mehmood Ali Qasuri, who was in his own right a very renowned and highly capable lawyer of his time. As a result of the joint efforts with positive contribution by Justice Jan in the process of preparation, the nation succeeded in getting first the Interim Constitution of 1972 which was later converted into permanent Constitution of 1973. The remarkable thing worth mentioning is that after promulgation of the Constitution, Justice Jan opted to go back to the ,High Court and did not desire to continue serving in the Ministry. 7. While serving as the Judge of the High‑ Court, Justice Jan held many, additional assignments and finally was elevated to the Supreme Court of Pakistan in 1986. As a Judge whether in the High Court or in the Supreme Court Mr. Justice Jan laudably acquitted himself as a very distinguished Judge with perfect temperament for the job, with extensive knowledge of law in all branches and attributes of role‑model Judge whose integrity is beyond question arid who is extremely quick in understanding and grasping the relevant points with marvellous tendency of expeditious disposal. 8. His intelligence, competence and sense of doing justice strictly according to law is reflected in a long series of cases in which he rendered decisions and judgments which are published in the law journals. J shall be failing in my duty if I do not advert to some of these landmark judgments. 9. In the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khan reported as PLD 1989 SC 26, Article 270‑A of the Constitution came up for detailed examination and in that connection it is held that there is a presumption against the ouster of jurisdiction of the superior Courts and any such provision is to be narrowly construed for the reason that the superior Courts are the for a created by people for obtaining relief from oppression and redress for the infringement of their rights. It was further held that the cover of validation as contemplated under Article 270‑A(2) for Martial Law Orders and enactments does not include proceedings which are without jurisdiction, mala fide or coram non judice. The. is a very bold historic judgment on interpretation of Article 270‑A of the Constitution giving blanket exemption to proceedings under Martial Law Orders and Regulations from challenge in the ordinary Courts of the land. 10. In another famous case of Syeda Abida Hussain v Tribunal for N.A.69‑‑Jhang, reported as PLD 1994 SC. 60, Justice Jan examined in detail "service of Pakistan" as defined in Article 260(1) of the Constitution alongwith Articles 63 and 240 of the Constitution and has held that the post of an Ambassador is a post in connection with the affairs of the Federation and person holding such post is disqualified from contesting election before expiry of two years since such person ceased to hold office regardless of the fact whether it was contract service or regular service. 11. In the case of Nasrullah Khan Henjra v. Government of Pakistan, reported as PLD 1994 SC 23, Articles 9 and 15 of the Constitution which relate to the fundamental rights of security of person and freedom of movement have been examined alongwith several provisions of the Extradition Act of 1972. The Government of the United States of America made request for surrender of the accused and sent a number of documents including affidavits of persons who had direct dealings and association with the accused in Pakistan with regard to smuggling of heroine in the U.S.A. Such documents were placed before the Magistrate in Pakistan in connection with extradition proceedings. Copies' of such documents including affidavits were handed over to the accused whose statements under section 342, Cr.P.C. were recorded. It was found by the Magistrate that the deponents of the affidavits had no motive to falsely implicate the accused, hence such documents were relied upon against the accused. It was held by the Supreme Court that the procedure followed by the Magistrate did not suffer from any infirmity. 12. The latest case in the series is that of Government of N.W.F.P., v. Muhammad Irshad, reported as PLD 1995 SC‑281. In this case also Articles 7, 8 and 247 of the Constitution came up for examination alongwith the provisions of the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulations of 1975. In that connection powers of the President and the Governor, to modify laws made by the Parliament or the Provincial Assembly before extending them to the tribal areas was considered and interpretation of the words "any law" used in Article 8(1) and the word "State" used in Article 7 of the Constitution is given in connection with the administration of the tribal areas as contemplated under Article 274 and it has been held that when the President or the Governor makes law for the tribal areas which is different from the prevailing in the rest of the country it must be .accompanied by good reasons. Omission in this regard would lay the President and the Governor open to charge of arbitrariness and on that account compromise the validity of that action whether it is in the legislative field or it relates to a purely administrative act. 13. Coming back to the present day, I would like to say that the superior Courts of the country have always been functioning in difficult circumstances. Sometimes circumstances obtaining in the country are beyond control. Cases of political nature are brought in the Courts and the Courts are duty bound to decide them in accordance with the law. In that pursuit the Judges of the superior Courts rise to the occasion and decide cases according to the law and their conscience. The Courts have to be objective in the assessment of facts and circumstances and they have always rendered decisions in favour of finding solution to the problem in accordance with law. Such decisions of the apex Court are binding on .all other Courts in Pakistan as contemplated under Article 189 of the Constitution. Article 190 further requires all executive and judicial authorities throughout Pakistan mandatorily to act in aid of the Supreme Court. 14. With such sense of duty the Courts have always endeavoured to interpret the provisions of the Constitution so that there is no ambiguity in the interpretation. The Constitution is the supreme document and all other laws are subordinate to it, hence the three pillars of the State, i.e. Executive, Legislature and the Judiciary, have to function `within their own ambits of power and authority without overlapping, with such cooperation and coordination that the system becomes efficiently functional. In this context it would not be out of place to mention that the Legislature has to make law, Executive has to execute laws, and the Judiciary has to interpret laws. It is the bounden‑duty of the Courts to interpret the Constitution and the laws so that no other pillar of the State is allowed to exceed the limits set for it. 15. Our country has to march with time and with new perceptions and vistas. Our country has to survive and stand on its own feet. We have to save the system from falling apart and that can be done by collective efforts of all by salvaging the institutions from total decadence and collapse and allowing them to function independently and honestly. The judiciary like any other importants institution has to play its part in this task. The components of this institution are members of the Bench and the Bar. Together we can make joint endeavours with utmost cooperation to see that this institution performs its due rule as envisaged in the Constitution and laws. Attempts are being made to create rift among the Judges of this Court and bring about polarisation which will not succeed. In furtherance of that object, irresponsible statements are being made to give a bad name to the judiciary which is doing only its duty as enjoined by the Constitution and has not taken any side in the political divide and will not do so in future. Ridiculing the Judiciary is prohibited by the Constitution. Often quoted rule applies to this institution as well "united we stand like a rock and divided we fall apart". In the past two years in this Court, all the Judges have worked unitedly and have succeeded in reducing the pendency of cases to a very great extent and such figures of‑disposal of cases will be released by a handout which will be issued by the office of this Court today for which credit goes to the Judges including Justice Jan who have made very positive, contribution. 16. We are extremely sorry that Mr. Justice Saad Saood Jan is parting company with us today and is laying down his robes as Judge of the Supreme Court. He has rendered very important decisions while construing different provisions of the Constitution and the laws as stated in a number of judgments some of which are narrated above. In the field of law he will always be remembered as a towering personality. There is no dispute about the fact that he is a man of integrity and principles and has always acted according to the dictates of his conscience. He never deviated from his principles and always stood for what is right. He never compromised his position. He always commanded respect among his colleagues and members of the Bar because of his learning, knowledge, keen sense of duty, and imparting of justice without fear or favour. He is leaving behind in the Judiciary a great impact of honesty, integrity and imparting justice according to law. He is leaving behind a great vacuum which cannot be filled in a long time to come. 17. As a Judge from civil service, he has attained such height of capability and fame that he can be ranked in the class of Justice Cornelius, Justice Kiyani and Justice Shafiur Rahman. Incidentally, I may mention that, he is the last Judge from civil service retiring from this Court and there is no other Judge from civil service in any other High Court at present. We are going to miss him very much: On behalf of my brother Judges and myself wish him good luck, god‑speed, happiness, and long life after his retirement.