P L D 1998 Supreme Court 92 (PLP)

RAJA AFRASIAB KHAN, J.--On 14-12-1995, the petitioner, Raja Muhammad Afzal, Advocate instituted a suit for declaration and permanent injunction against the Federation of Pakistan and 19 others in the Court of Senior Civil Judge, Chakwal with the following prayer:- The learned Civil Judge 1st Class, Chakwal vide his order dated 15th of January, 1996 dismissed the suit holding:- "The plaintiff has filed the present suit for declaring the Constitution of Pakistan, 1973, Political Parties Act, 1962, Arms and Explosives Act, 1965 and laws relating to interest null and void and repugnant to Qur'an and Sunnah with the further prayer to declare all the other laws which one in conflict with Qur'an and Sunnah null and void with the prayer of permanent injunction directing the State to declare the Holy Qur'an and Sunnah as Constitution of the country. In fact, the above said prayers are in exclusive jurisdiction of either Federal Shariat Court or the Courts which can grant extraordinary legal remedy i.e. the Hon'ble High Courts as such this Court lacks jurisdiction to try the present suit, therefore, the plaint is hereby rejected. Parties are left to bear their own costs." Feeling dissatisfied with the order of the learned trial Judge, Regular First Appeal No.38 of 1996 was filed by the petitioner with the following prayer:- The appeal was dismissed in limine by a learned Judge of the Lahore High Court, Rawalpindi Bench. It was observed:- "Office is directed to register this case. Through this petition, the petitioner submits that the Constitution of Islamic Republic of Pakistan alongwith the Political Parties Act, 1962 and Arms and Explosives Act, 1965 be considered as null and void. He contends that the Constitution and the other above-referred Laws/Acts are against the principles of Islam and prays that order passed by the learned Civil Judge dated 15-1-1996 be set aside. Arguments heard and record perused. Quite lengthy petition has been filed writing number of things therein but the petition itself is not maintainable in the eyes of law because it is not within the competency of this Court to declare the Constitution of the Islamic Republic of Pakistan and the other Laws/Acts as null and void. The proper course for the petitioner is to approach the National Assembly of Pakistan and such-like other forum where the law is made, particularly, with regard to the Constitution. Hence the petition is dismissed in limine. " This petition for leave to appeal has been filed by the petitioner to call in question the validity of the impugned orders. ???

2. According to the petitioner, the Constitution of Islamic Republic of Pakistan, 1973, the Political Parties Act, 1962 and the Arms Ordinance, 1965 have been enacted and enforced against the spirit and commandments of Allah Almighty contained in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). Be that as it may, in view of the rule laid down by this Court in Hakim Khan and others v. Government of Pakistan and others PLD 1992 SCI 595, we are unable to give any relief to the petitioner in the given situation. They view already taken by the High Court on the controversy is valid and proper and as such needs no interference. Needless to observe that it is the function of the A law-making body or for that matter any other competent authority having been constituted under the Constitution to change the existing Constitutional provisions. The Courts are the creation of the Constitution and as such are unable to annul it as requested by the petitioner in these proceedings. The Judges of the superior Courts have taken oath of their offices to preserve, protect and defend the Constitution. This being so, there is no substance in this petition which is hereby dismissed by refusing leave to appeal. A.A./M-65/S ? Leave refused.