PLD 2001 S C 233 (PLP)

Syed Sharifuddin Pirzada submitted that in this view of the matter, this Court validated the impugned action dated 12.10.1999, which was a very conscious decision and then referred to a compliment by John Clifford Wallace, a retired Judge of the United States at page-2 of the Supplementary Paper Book (reported in Dawn dated 9.12.2000) in the following words: ?When asked to comment on the administration of oath to judges on the Provisional Constitutional Order (PCO),? he said one should not have very rigid view on such issues. ?What would have happened had nobody taken oath on the document,? he said. ?He said after taking oath on the PCO the judiciary had given a very courageous verdict in a case challenging the military action of October

12. He said the court gave a specific time-frame for holding of elections and return to democracy.? 34.?????????????????? While advancing his arguments on the question of conferring power on one man to amend the Constitution, Syed Sharifuddin Pirzada vehemently contended that what was accepted and established in Begum Nusrat Bhutto?s case in 1977 was recognition of a reality and that two renowned jurists in the country, whose ability and integrity is above board, namely, Justice A.R. Cornelius and Justice Hamoodur Rehman, proposed something similar when an akin situation arose. He submitted that Begum Nusrat Bhutto (supra) has been approved, among others, by the Court of Appeal of Grenada and this Court had discussed this case in detail? in the judgment under review as also reaffirmed in Achakzai?s case (PLD 1997 SC 426) and the caution mentioned in the last case that checks and balances are necessary for prevention of such situations was completely ignored. He submitted that the same caution is reflected in concrete terms in the drafts prepared by Justice A. R. Cornelius and Justice Hamud-ur-Rahman, former Chief Justices of Pakistan.? He referred to a passage at page 245 from the draft Constitution prepared by Justice A.R. Cornelius in support of his plea, which reads thus: ??It shall be within the power of the Commander-in-Chief of the Pakistan Army, who shall be the Chief Martial Law Administrator, to suspend for the duration of the Martial Law, or any shorter period as may be specified, the operation of specified provisions of this Constitution, but he shall not have power to abrogate this Constitution.? He submitted that Justice Hamoodur Rahman wrote a detailed note on the working of the Constitution of 1973 and while talking about checks and balances he observed that on appropriate occasions Martial Law can be imposed. 35.?????????????????? Dilating on departure of Nawaz Sharif, Syed Sharifuddin Pirzada referred to page-11 of the Supplementary Paper Book, a press clipping of Daily ?The News? dated 21.12.2000, captioned ?CE kills rumours about civilian setup? wherein it is reported that while addressing the nation:? ?He disclosed Nawaz? Sharif, Shahbaz Sharif, Abbas Sharif and Hussain Nawaz had signed an appeal after which the President remitted Nawaz?s 14-year R.I. sentence.??? He pointed out that Mr. Nawaz Sharif is convicted? in two cases: one in hijacking case by Special Court which was upheld in appeal and he was given sentence of life imprisonment plus fine and second is the case of Helicopter wherein he was sentenced to 14 years and disqualification for 21 years plus fine and further that what was remitted is only the sentence of imprisonment. He submitted that the Chief Executive further disclosed as under: ??????????????????????? ?General Musharraf said that Pakistan had information but no evidence about Sharifs assets abroad. ?I know billions of dollars have been sent outside Pakistan but there is no proof. Flats in London are not in the name of Nawaz Sharif.? ? 36.?????????????????? Syed Sharifuddin Pirzada, on instructions, in response to the Court?s query, made the following statement: (i)???????? ?Your lordship has asked about the date of the proposed elections and restoration of the democratic institutions. First, I refer to your lordship?s judgment. How careful your lordships have been. And this is a departure from Nusrat Bhutto?s case. ??????????? ??? ?Paragraph 16 and 17 at page 313 of the above judgment read as under : ?16.??????????? That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above three years period is allowed to the Chief Executive with effect from the date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives. ?? ?17.???????? That the Chief Executive shall appoint a date, not later than 90-days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.? (ii)??????? So the date is to be appointed not later than 90 days before the expiry of aforesaid period of three years. Now this was accepted by General Musharraf in the Press Conference on 25.5.2000 at Islamabad, when the Short Order was already announced, relevant portion whereof reads thus: ??Ans. Timeframe, you see, it is a Supreme Court Decision which we accept in its right spirit.? It is a balanced judgment.? They have given this timeframe according to their own judgment.? And,? as I said we will try our level best to meet this timeframe, and if there occurs any fluctuation then we will see it afterwards.? With our best efforts we will certainly meet the timeframe since this is the decision of the Supreme Court. ??????????????????????? ?Q.????????????????? Will you give us perhaps a ?Yes? or ?No? answer as to whether you will accept the three year?s deadline? ??????????????????????? ?Ans.????????????? Yes. ??????????????????????? ?Q.????????????????? Will you hand back powers to civilians within three years? ??????????????????????? ?Ans.????????????? Yes, Obviously, this is the Supreme Court judgement which has to be accepted.? ?(iii)????? The Federal Cabinet on Wednesday last? resolved ??????? to complete the government?s agenda, including the establishment of a true democracy within three years as stipulated in the May 12 verdict of the Supreme Court. ?(iv)????? I take the liberty and seek indulgence to refer to the news item today, an interview was given to Gulf News wherein General Pervez Musharraf reaffirmed that the schedule will be adhered to.? This has been reproduced in the Daily ?Jang? of today?s issue also.? My Lord so far as the date is concerned, very pertinently you lordship asked the question? but it was reflected in your lordship?s considered judgment and this has been accepted.? ?(v)????? I have sought the instructions.? Under instructions from the competent authority, I reaffirm the assurances which have been given and which I have read out earlier.?? 37.?????????????????? He concluded his arguments with the submission that so far as one man rule is concerned, actually even under section 9 of the Indian Independence Act, 1947, a provision was made, which was discussed at length in The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others (PLD 1969 SC 485) the relevant portion whereof is at Page 503, which reads as follows: ?9(c) for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935,? and the Orders in Council, rules and other instruments made thereunder, in their application to the separate new Dominions;? According to him, in the above report it was further held that the view taken by the Peshawar High Court is incorrect and in this behalf reliance was placed on Dawarkadas and another v. The State (PLD 1957 SC [Pak] 72).? Further, Quaid-i-Azam Muhammad Ali Jinnah himself made amendments in the Government of India Act, 1947 and Governor General of India also effected amendments on the advice of Dr. Ambedker another eminent jurist.? He contended that this is not a new or novel provision and some other colonies where independence was given by Orders in Council, the Governors General could promulgate Constitutions, amend them and amend even whatever was already there. 38.?????????????????? Mr. Aziz A. Munshi, appearing as Attorney General, on Court?s notice, supported the submissions made by Syed Sharifuddin Pirzada, learned Senior ASC, representing the Federation. 39.?????????????????? Mr. Wasim Sajjad, learned Senior ASC, in rebuttal, referred to the cases of Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. (PLD 1997 SC 865); Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189) and Abdul Ghaffar-Abdul Rehman v. Asghar Ali reported as (NLR 1998 Civil 305)=(PLD 1998 SC 363)? to contend that a review petition is competent if there is an obvious error on the face of record or there is something floating on the surface or review is warranted in the interest of justice.? He? quoted the following paragraph from the judgment in Abdul Ghaffar Abdul Rehman (supra): ?15.????? We may now refer to the judgments relied upon by the learned counsel for the parties. Mr. S. Sharifuddin Prizada has referred to the following cases : (i)???????? Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Deputy, Government of Pakistan, Karachi and others (PLD 1962 SC 335). (ii)??????? Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701). (iii)?????? Suba through Legal Heirs v. Fatima Bibi through Legal Heirs and others (1996 SCMR 158). (iv)?????? Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Limited and another (PLD 1997 SC 865). (v)??????? Unreported -order in Civil Review Petition No.1-K of 1989 (Begum Asfar Saeed and others v. Ch.Abdul Aziz) rendered by this Court on 10.3.1991.? Mr. Wasim Sajjad submitted that he relies on all the above precedents and particularly on the observations of Chief Justice A.R. Corlenius to the effect that ???there is no restriction on the power of review?. He also relied on paragraph-17(vi) at page 327 of the report which reads thus: ?17-(vi) That if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie.? He also placed reliance on paragraph-18 of the Report, which reads thus: ?If we were to apply the above principle of law to the case in hand, it becomes evident that this Court has overlooked a very important and obvious fact that the cause of action to a tenant to apply to the Rent Controller for an order directing that he be put in possession of such area in the new building which does not exceed the area which he was in occupation in the old building, in case the ejectment order is granted under section 13(2)(vi) of the Ordinance on the ground of reconstruction arises under sub-section (5-B) thereof not at the time of grant of ejectment order but before the completion of new building and its occupation by another person. This Court has also overlooked the legal implication of the use of the word ?area? in the new building and not the words ?shop or residential premises?.? As a corollary it must follow that the conclusion recorded by this Court in the above earlier cases on the basis of the approved plans, even before the commencement of the construction of the then proposed building that the provision of sub-section (5-B) of Section 13 of the Ordinance would come into play if the reconstructed building was of the same type and character and suitable for the same use as was the old building not warranted by law, as it pre-empted the causes of action of the tenants which had by then not accrued to them.? The question whether a tenant is entitled to invoke above sub-section (5-B) of Section 13 of the ordinance, cannot be decided on the basis of the approved plan, which a landlord may produce at the time of seeking ejectment order but it is to be determined on the basis of the building which is actually constructed. We may again point out that a landlord may construct a building other than of which he got the plan approved.? In other words, he may deviate from the approved plan. The view, which we are inclined to take, is in line with the judgment of this Court in the case of Hasan and others v. Fancy Foundation (supra), quoted hereinabove in para 12, of which notice was not taken in the judgment under review.? 40.?????????????????? Mr. Wasim Sajjad respectfully submitted that? eminence and intellectual calibre of Justice A.R. Cornelius and Justice Hamoodur Rahman is duly recognised by all of us but? what has been overlooked is that their lordships had recommended inclusion of these provisions in the Constitution and there is no jurisprudence in the world where without inclusion of such provisions in the Constitution one man can be given the right to amend the Constitution, particularly when this Court has already held that the Constitution remains the supreme law of the land.? He added that even a rule or bye-law cannot be amended by one person. 41.?????????????????? He emphasised that Syed Sharifuddin Pirzada after receiving instructions has reaffirmed that the elections will be held within the schedule laid down by this Court, therefore, an assurance may also be sought from him that he will not seek extension of time. 42.?????????????????? Mr. Abdul Haleem Pirzada, learned ASC, in rebuttal, emphasised his earlier stand reflected in paragraph-178 of the judgment under review to the following effect: ?178.??? Before concluding his arguments, he reiterated that the Court may consider to allow twelve months? time to the Armed Forces from now so that they can do the cleansing and go back to their Barracks.? 43.?????????????????? We have heard the learned counsel for the parties and have also considered the material placed on record.? Some of the questions raised on behalf of the petitioners have been dealt with in the preceding paragraphs.? As to the remaining pleas raised on behalf of the petitioners vide paragraphs-8, 9, 13 to 19 and 22 we would suffice by observing that the same were thoroughly dealt with in our Short Order dated 7th February, 2001, which reads thus: ?The above petitions under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Order XXVI Rule 1 of the Supreme Court Rules, 1980, seek review of judgment dated 12th May, 2000 rendered in Constitutional Petitions No. 62/99, 63/99, 53/99, 57/99, 3/2000, 66/99 and? 64/99.? ?2.??????????????????? When the Chief Executive issued Oath of Office (Judges) Order, 2000 (Order No.1 of 2000), it was specifically stated therein that Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the Chief Executive has and shall be deemed always to have had, the power to amend the Constitution.? ?3.??????????????????? This Court, however, did not concede that claim through the judgment under review.? The Court observed that the Chief Executive/Armed Forces have no power to amend the salient features of the Constitution relating to independence of judiciary, federalism and parliamentary form of government blended with Islamic provisions.? It also stated in unequivocal terms that prolonged involvement of the Army in civil affairs runs a grave risk of politicising it, which would not be in the national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives which necessitated the Military Takeover, as spelt out in the speeches of the Chief Executive dated 13th and 17th October, 1999.? The Court emphasised that the legitimacy conferred on the present Regime, on the touchstone of the doctrine of state necessity/state survival, does not imply abdication of the power of judicial review in the transient suspension of the previous legal order.? It also held that the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of state necessity/state survival.? The result is that notwithstanding the purported ouster of jurisdiction of all the Courts in Pakistan to challenge any action, order or law promulgated by the Chief Executive, the Supreme Court has ruled that every action of the Chief Executive/Armed Forces is open to judicial review through appropriate writs/petitions in line with the principles laid down in the judgment under review.? Similarly, the Fundamental Rights were also held to be intact and justiciable.? ?4.??????????????????? We have clearly stated in paragraph No. 270 of the judgment sought to be reviewed that the action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival.? It is for the representatives of the people to see to it that everything is in order and no body can raise his little finger when their actions are in line with the fundamentals of the Constitution.? No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary.? We are firmly committed to the governance of the country by the people?s representatives and we reiterate the definition of the term ?democracy? to the effect that ?it is government of the people, by the people and for the people? and not by the? Army rule for an indefinite period.?? ?5.??????????????????? Having regard to all the relevant factors involved in the case three years period has been allowed to the Chief Executive with effect from the date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives and to appoint a date, not later than 90-days before the expiry of the aforesaid period of three years, for holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan. We have stated in paragraph No. 267 of the judgment under review that though initially the status of the present Government was de facto, but in view of the validation it has attained the status of a de jure Government.? The validation and legitimacy accorded to the present Government is conditional and inter-linked with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by this Court leading to restoration of the democratic institutions.? ?6.??????????????????? Accountability is an on going process and the same shall continue with a view to completing it even by the successive governments.? We would refrain from dilating further on this issue, in that, legality or otherwise of National Accountability Bureau Ordinance, 1999 is sub judice before a Bench of this Court.? Same is the position with regard to the exit of the former Prime Minister to Jaddah, which having been challenged in the Lahore High Court, Lahore is a sub judice matter.? Any expression of opinion on the said issue will tantamount to pre-empting the ultimate result thereof.? ??????????????????????? ?7.??????????????????? There is no glaring omission or patent mistake floating on the surface in the judgment under review.? Nothing has been over-looked by the Court nor it has failed to consider any aspect of the attending matters.? The situation prevailing on or before 12th Oct., 1999 and for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, maintenance of peace and order, economic stability, justice, good governance and to safeguard the integrity and sovereignty of the country dictated by the highest considerations of state necessity and welfare of the people.? ?8.??????????????????? The petitioners cannot be permitted to re-argue the case and seek reversal of conclusions earlier reached by this Court after full application of mind deliberatively and consciously in the judgement sought to be reviewed.? ?9.??????????????????? The argument advanced on behalf of the petitioners is that none of the alleged grievances against the removed government, including the charges of corruption and lack of good governance, was such which could not have been redressed within the four corners of the Constitution because laws and machinery to redress such a grievance was already in existence and, if as alleged, the government 0f the day did not take appropriate steps it was open to this Court to direct the taking of specific steps in exercise of powers under Article 184(3) of the Constitution read with Article 187 thereof, therefore the observation 0f this Court that Law 0f Necessity could validly be invoked to suspend the Constitution as it had no answer to the situation that had arisen, needs to be reviewed.? ??????????????????????? ?271.?????? An overall view of the whole spectrum of circumstances prevalent? on or before 12th October, 1999 reveals that the representatives of the people who were responsible for running the affairs of the State were accused of corruption and corrupt practices and failed to establish good governance in the country as a result whereof a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof. The process of accountability carried out by the former government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence. ??????????? ??????????????????????? ?We have also noted with concern that all institutions of the State including Judiciary were being systematically destroyed in the pursuit of self-serving policies.?????? We uphold the plea raised on behalf of the Federation that the democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purposes for which they were established stood defeated by their passive conduct.?? ?11.????????????????? The rampant corruption was only a cumulative reason for the validation of the military action of 12th October, 1999, which resulted into the suspension of Assemblies and removal of the government as succinctly explained in paragraph No. 234 of the judgment under review, which reads thus: ??234.????? Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif (PLD 1993 SC 473) and Benazir Bhutto (PLD 1998 SC 388) (supra). In the first case, it was observed by Shafiur Rehman, J.? that corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of along with other more relevant grounds, which are by themselves sufficient to justify the action taken.? In Mian Muhammad Nawaz Sharif?s case (supra), it was observed that ?if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the constitutional machinery completely, it may have nexus with the above provision?. In the third case of Benazir Bhutto, this Court took notice of enormous corruption and treated it as an independent ground on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire government/ administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation has? pointed out? Sharifs? ownership of Cayman Island, an offshore company through Al-Towfeek Co. and the case of huge quantity sugar export to India - receiving heavy amounts in rebate. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots.? No doubt, this is an age of ?corruption eruption?, but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes.? ?12.????????????????? As to the plea that the members of Parliament and Provincial Assemblies cannot be condemned as a class because of real or imaginary allegations against a small minority out of nearly eight hundred members, especially in view of this Court?s view in a number of cases that no adverse comments can be made against persons who are not parties before the Court and thus had no opportunity to answer the charges against them, therefore, the observation condemning the Parliamentarian as a class requires re-consideration, suffice it to say that it was clearly stated in paragraph No. 235 of the judgment under review that the observations made therein were not intended to condemn en bloc the politicians and parliamentarians.? The findings recorded in the judgment under review were confined to the controversies involved in these cases alone as is apparent from a bare perusal of paragraph No. 2 of the operative part of the Short Order, reproduced above as well as paragraph No. 235 of the judgment under review, which reads thus: ??235.????? The observations made herein and in the Short Order are not intended to condemn en bloc the politicians and parliamentarians as a class.? Undoubtedly, there are good, honest and upright as well as corrupt people in every group of persons.? These observations are confined only to the situation which is being attended to in these cases.? Any proceedings commenced against any person including the parliamentarians or politicians or members from the general public under the laws of the country will, no doubt, be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings without being influenced by any observations made in this judgment.? Put differently, it will be only after the finalisation of the proceedings as above that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisite for good governance.? This situation has also been recognized by the Commonwealth Finance Ministers Meeting held on 21-23 September, 1999 at Grand Cayman, Cayman Islands.?? ?237.?????? We now take up another allied issue relating to economic condition of the country. It was alleged on behalf of the Federation that the former Prime Minister and his business associates exported sugar produced in their sugar mills to India by rail and earned millions of rupees as profit.? It was pointed out that several SROs were promulgated by the then government to claim export rebate on sugar and thereby the former Prime Minister and his predecessor committed breach of faith with Pakistani banks/overseas and resident Pakistanis by removing 11 billion dollars lying in their accounts in the banks in Pakistan without their consent and utilized the same for unauthorized purposes, which remain unexplained till today.? It was further stated that the former government froze the FEBC accounts and misappropriated the foreign exchange belonging to resident and non-resident Pakistanis, which not only brought bad name to the Pakistani banks but also to Pakistan as a country and the responsibility of this huge fraud lies heavily on the former Prime Minister.? It was pleaded that this misconduct was further compounded by unlawful transfer of a huge sum of nearly 500 million dollars by the former Prime Minister and his associates between 6.5.1998 to 28.5.1998, to the detriment of the country.? Even after the decision to freeze the foreign currency accounts the former Prime Minister and his associates removed huge amounts of foreign currency after banking hours.? In this process the then Director General, FIA stopped Mr. Mujeeb-ur-Rehman, the brother of Senator Saifur Rehman from removing large amount of foreign exchange in cash at the Islamabad Airport, as a result of which Major General (Retd) Inayatullah Niazi, the Director General, FIA was illegally removed by the former Prime Minister.? Our attention was also drawn to the ?Qarz Utaro Mulk Sanwaro? Scheme to demonstrate that it was designed to deprive the Overseas Pakistanis of their hard earned money in the name of debt retirement.? It was pleaded that the former Prime Minister? and his family established a Sugar Mill in Kenya which caused great public discontent.? It was also pleaded that the former Prime Minister and his associates did indulge in money laundering at a large scale and acquired four flats in Park Lane, London as also an area of about 400-Acres in Raiwind etc.? The learned Attorney General also contended that the former Prime Minister installed party MNAs and Senators and favourites as heads of statutory bodies like Ehtesab Bureau, Privatization Commission, Board of Investment, PTV, banks, financial institutions, etc. for wrongful gains, which went a long way in further deteriorating the Economic Position. ?238.?????? We have gone through the material placed by the Federation on the above issue.? While this Court has already lamented over the decision of the former Prime Minister freezing foreign currency accounts in the case reported as Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 S.C. 1026), the fact remains that this step of the deposed Prime Minister shattered the confidence of the overseas Pakistanis, who had deposited their savings in Pakistan in preference to banks abroad for the benefit of the nation. After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former government was the total collapse of the country?s economy inasmuch as GDP growth during the past three years had hardly kept pace with the growth of population and Pakistan has a debt burden which equals the country?s entire national income.? We also take judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous regime, the industrial sector had suffered a great setback.?? ?Additionally, this Court never held that the collapse of economy was the only ground for the intervention of Armed Forces.? As a matter of fact, the material relied upon and remarks made by this Court were in response to the assertions made by the petitioners in the their original petitions.? ?14.????????????????? The observations with regard to the principle of joint and ministerial responsibility were made through paragraph No. 243 of the judgment under review after considering the arguments of Ch. Muhammad Farooq alone and repelled on objective assessment of the material placed on record as also in view of the arguments advanced by the parties that the very purpose for which the representative institutions were established under the Constitution stood defeated either directly or indirectly.? We also observed and reiterate here that no one could disagree that we must have democracy and any obstacles in respect of achieving that goal must be overcome.? ?15.????????????????? When the country was faced with a grave crisis, the constitutional maintenance demanded that we interpret the Proclamation and the PCO in such a way as to authorise whatever powers and measures are necessary to cope with the emergency.? Mr. Khalid Anwar, while summarising his arguments at the time of hearing of the Constitutional Petitions, rightly submitted that ?he will not request this Court to do the impossible?. ?16.????????????????? After validating the action of 12th October, 1999 on the touchstone of ?doctrine of necessity? we thoroughly considered the question as to whether the Chief Executive should be given the power to amend the Constitution and if so to what extent?? Mr. Khalid Anwar vide paragraph 281 of the judgment under review, ?emphasised that in case the army action is condoned/validated this Court must succinctly state whether the Chief Executive has the power to amend the Constitution and if so, subject to what limitations. He emphasised that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto?s case (supra) should be re-visited. In case this Court follows the dictum of Begum Bhutto?s case (supra), the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated.?? After thorough consideration, we observed as follows: ????We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai?s case (supra), 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?.? We have stated in unambiguous terms in the Short Order that 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 in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6.? ?In view of the above categorical stand taken by Mr. Khalid Anwar, this Court laid down the limitations on the power to amend the Constitution as stated above, therefore, learned counsel for the petitioners cannot be allowed to set up a totally new case in these proceedings. ?17.????? ??????????? Put differently, the petitioners cannot be allowed to re-agitate the points in review petitions, which were earlier raised, duly considered and repelled by this Court before it proceeded to validate the Military Action and allow the Chief Executive to amend the constitution subject to stated limitations/conditions for the ordinary orderly running of affairs of the State during the transitory period to advance or promote the good of the people, clearly holding that the 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.? ?18.????????????????? Regarding time-frame for the restoration of democratic institutions, submissions were made by Mr. Khalid Anwar, Mr. Haleem Pirzada and Mr. S.M. Zafar, amicus curiae, which have been recorded in paragraph No. 285 of the judgment under review as follows: ?285.?????? Towards the close of his arguments, Mr. Khalid Anwar submitted that this Court should lay down a roadmap with a timetable for the return of constitutional governance.? Mr. Haleem Pirzada, President, Supreme Court Bar Association submitted that 12 months? time from now may be provided to the Armed Forces so that they do the cleansing and go back.? During the course of his arguments, Mr. S.M. Zafar, amicus curiae stated that prolonged stay of the Armed Forces in the political arena would damage its professionalism, hence they should retreat to their Barracks as early as possible??? ?19.????????????????? It was observed in paragraph No. 43 of the judgment under review, that the reason for granting the period of three years was not merely the preparation of the electoral rolls but many others as pointed out by this Court in paragraph No. 286, wherein it was noticed that besides, ?updating the electoral rolls, time was also required for objections and delimitation process?. The period was granted by this Court after taking into consideration all the relevant factors and practical realities and the same is based on the sound assessment of the attending circumstances.? Reference to the Electoral Rolls Act, 1974 is also irrelevant as it refers to the updating of such rolls only.? As a matter of fact, there are also other factors involved now as, for example, the age limit for voting has been reduced to 18 years from 21 years as a result of which millions of new voters have to be registered by the National Database Registration Authority. Several Federal as well as local authorities are working on this process.? ?20.????????????????? Mr. Sharifuddin Pirzada, learned Senior ASC, appearing on behalf of the Federation, on instructions, in response to the Court?s query makes the following statement: ??????????? (i)??????????? ?Your lordship has asked about the date of the proposed elections and restoration of the democratic institutions. First, I refer to your lordship?s judgment. How careful your lordships have been. And this is a departure from Nusrat Bhutto?s case. ??????????? Paragraph 16 and 17 at page 313 of the above judgment read as under : ?16.??????????? That having regard to all the relevant factors involved in the case including the one detailed in paragraphs 14 and 15 above three years period is allowed to the Chief Executive with effect from the date of the Army take-over i.e. 12th October, 1999 for achieving his declared objectives. ?17.??????????? That the Chief Executive shall appoint a date, not later than 90-days before the expiry of the aforesaid period of three years, for holding of a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan.? ??????????? ?(ii)???????? So the date is to be appointed not later than 90 days before the expiry of aforesaid period of three years. Now this was accepted by General Musharraf in the Press Conference on 25.5.2000 at Islamabad, when the Short Order was already announced, relevant portion whereof reads thus: ??????????????????????? ?Ans.?????????????????????? Timeframe, you see, it is a Supreme Court Decision which we accept in its right spirit.? It is a balanced judgment.? They have given this timeframe according to their own judgment.? And,? as I said we will try our level best to meet this timeframe, and if there occurs any fluctuation then we will see it afterwards.? With our best efforts we will certainly meet the timeframe since this is the decision of the Supreme Court. ??????????????????????? ?Q.?????????????? Will you give us perhaps a ?Yes? or ?No? answer as to whether you will accept the three year?s deadline? ???????????????????? ?Ans.????????????? Yes. ??????????????????????? ?Q.?????????????? Will you hand back powers to civilians within three years? ??????????????????????? ?Ans.?????????????????????? Yes, Obviously, this is the Supreme Court judgement which has to be accepted.? ??????????? ?(iii)??????? The Federal Cabinet on Wednesday last? resolved to complete the government?s agenda, including the establishment of a true democracy within three years as stipulated in the May 12 verdict of the Supreme Court. ?(iv)??????? I take the liberty and seek indulgence to refer to the news item today, an interview was given to Khalij Times wherein General Pervez Musharraf reaffirmed that the schedule will be adhered to.? This has been reproduced in the Daily ?Jang? of today?s issue also.? My Lord so far as the date is concerned, very pertinently you lordship asked the question? but it was reflected in your lordship?s considered judgment and this has been accepted.? ?(v)???????? I have sought the instructions.? Under instructions from the competent authority, I reaffirm the assurances which have been given and which I have read out earlier.?? ?21.????????????????? So far reference to C.P. No. 15/1996 is concerned, it was only occasional and not the basis for granting such time, therefore, the so-called error pointed out in the review petitions, is insignificant and has no bearing on the decision of this case. Needless to observe that emergencies are promulgated all over the world, especially in Asia, Africa and Latin America.? Through the judgment under review we have endeavoured to minimise the continuance of emergency and induced the Government to restore the democratic institutions within the time frame laid down therein, having regard to the peculiar and extra-ordinary circumstances of the case, by providing a solution to meet the exceptional situation prevailing on 12th October, 1999.? ?22.????????????????? There is no error apparent on the face of the record warranting review; the petitioners cannot be allowed under the law to re-agitate and reargue the same points which have already been heard and decided by this Court; some factual controversies have been raised at the Bar which cannot be permitted to be raised under the law; certain fresh material has been filed with the review petitions which existed even prior to the filing of the original petitions and no reason has been advanced as to why the same was not produced with the latter or during the course of hearing of the same, therefore, such material cannot be considered by this Court unless strong reasons are mentioned for its non-production at the relevant time which are lacking.? In any event, fresh documents have no bearing on the conclusion already recorded in the judgment under review leading to validation of action dated 12.10.1999.? ?23.????????????????? For detailed reasons to succeed, the petitions are disposed of in terms of the above Short Order.? 44.?????????????????? All the points taken by the learned counsel for the petitioners have been dealt with at length after scrutiny of evidence on record and the attending circumstances.? Each and every aspect of the matter now attempted to be re-argued by the learned counsel for the petitioners has been dealt with in the judgment under review as stated above.? This Court stated, in unequivocal terms, that the incident of 12th October, 1999 would have led to the creation of dissension and dis-unity in the Armed Forces and endangered the safety and existence of the State itself.? The concept of State Necessity/State survival and avoidance of civil war and the application of the doctrine of State necessity in the instant case have been dealt with at length vide paragraphs-252, 253 to 256 of the judgment under review.? They cannot be reviewed on the pleas raised by the petitioners now. 45.?????????????????? We may reiterate by way of emphasis that a bare perusal of the judgment under review shows that adequate answers have been given in relation to all the questions raised by the learned counsel for the petitioners in our well considered findings contained in paragraphs-203 to 286 of the judgment under review.? For facility of reference a summary of the above paragraphs as also reproduction of some of them in extenso makes the following reading

203. The basic question, which needs to be resolved is whether the restriction imposed by the PCO I of 1999 on the jurisdiction of this Court does in any way restrict the power of judicial review of this Court whereunder it has an inherent power to interpret any provision of the Constitution or any other legislative instrument or law, even if that particular provision is a provision which seeks to oust the jurisdiction of this Court.

204. The learned counsel appearing for the parties as well as learned amicus curiae were all one on the point that the legislative instrument promulgated by the Chief Executive are subject to scrutiny by this Court for determination of the present controversy.? However, Mr. Aziz A. Munshi expressed his reservations about the maintainability of the petitions and pleaded ouster of jurisdiction of this Court by means of the Proclamation of Emergency as also the PCO I of 1999.

205. It was the unanimous stand, endorsed by the Court, that no form of oath taken by or administered to the Judges of the Superior Courts can restrict the judicial power and derogate from the legal position that the Courts, as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law means or does not mean even if that particular provision is one seeking to oust jurisdiction of the Court. 206.???? The Objectives Resolution (Article 2A) and Declaration of Quaid-i-Azam about democratic set up and social justice envisage independence of judiciary.

207. Reference to English rendering of? verses 135-36 of Sura Al-Nisa.

208. Reference to letter sent by Hazrat Umar to Abu Musa Al-ash?ri, Governor/Chief Qazi Basra.

209. Reference to Beijing Statement of Principles of the Independence of Judiciary.

210. Analysis of Constitutional provisions regarding independence of judiciary? and the rulings of the Court (Sharaf Faridi, Malik Asad Ali, Al-Jehad Trust, Mehram Ali, Liaquat Hussain)

211. The Judiciary is entrusted with the responsibility for enforcement of fundamental rights. 212.???????????????? Exclusive power/responsibility of the Judiciary to ensure the sustenance of system of separation of powers based on checks and balances.

213. Reference by Syed Sharifuddin Pirzada to observations of Chief Justice of Pakistan in the inaugural address to the conference of Board of Directors, Asian Ombudsmen Association. 214.???? Reference to the book ?The Federalist Papers? by Alexander Hamilton-James Madison-John Jay.

215. Reference to the case of Imtiaz Ahmad (1994 SCMR 2142)

216. Concept of Judicial power with reference to Mehram Ali?s, Sh. Liaquat Hussain?s cases and William Marbury, ?Spirit of Law?.

217. Contention of Attorney General that after new Oath, the Judges are bound to defend the PCO, was repelled in the light of Begum Nusrat Bhutto?s case, wherein it was clearly stated that on no principle of necessity could the power of judicial review be taken away.

218. Reference to the book ?Principles of Revolutionary Legality? by J.M. Eekelaar. 219.???? Reference to British Case law (Chief Justice Coke), ?The Evolution of Judicial Power is coterminus with the evolution of civilization and this is because judicial power has to check the arbitrary exercise of powers by any organ or authority?; Scope of PCO vis-?-vis the Constitution; Book titled ?Constitution Legitimacy?.

220. After the Army take-over, the superior Courts retain the power of judicial review.

221. Removal of COAS during his absence from country, appointment of Lt. Gen. Ziauddin, attempt to create dissension among the Armed Forces, criminal conspiracy hatched by the former Prime Minister and others.

222. Reference? to speech of 13th October, 1999 made by the Chief Executive; Article by Kamran Khan in the News dated 14.10.1999 titled ?Ambitious Ziauddin Butt steered Nawaz to political disaster.? ??????????? Intervention validated on the doctrine of state necessity and the principle salus populi suprema lex.

223. Allegations of corruption against the former Prime Minister and his colleagues, disappearance of public faith in the integrity and honesty of the Government which eroded the constitutional and moral authority of the former government, a situation somewhat similar to the one prevalent in July, 1977.

224. Since the government was being run contrary to the provisions of the Constitution, the Armed Forces were compelled to move in as a last resort to prevent any further destabilization.? Reference to Press Clippings regarding defaults etc. Transcript of BBC Television Documentary on Corruption in Pakistan.

227. Reference to debate in the House of Lords on Military intervention in Pakistan.

228. Corruption, absence of good governance are recognized grounds for imposition of Martial Law. 229.???? Reference to a study on ?Corruption and Government, Causes, Consequences and Reforms? by Susan Rose Ackerman from Cambridge University.

230. Reference to ?Commonwealth Finance Ministers? Meeting?; Observations in Nawaz Khokhar?s case.

231. Reference to the book ?Money Laundering?

232. Former Government failed to eradicate corruption from the society.

233. Corruption defined.

234. Corruption as a ground for dissolution as discussed in Kh. Ahmad Tariq Rahim, Nawaz Sharif and Benazir Bhutto.

235. The observations made herein and in the Short Order are not intended to condemn en bloc the politicians and parliamentarians as a class.? Undoubtedly, there are good, honest and upright as well as corrupt people in every group of persons.? These observations are confined only to the situation which is being attended to in these cases.? Any proceedings commenced against any person including the parliamentarians or politicians or members from the general public under the laws of the country will, no doubt, be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings without being influenced by any observations made in this judgment.? Put differently, it will be only after the finalisation of the proceedings as above that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisite for good governance.? This situation has also been recognized by the Commonwealth Finance Ministers Meeting held on 21-23 September, 1999 at Grand Cayman, Cayman Islands. ??????????????????????? 236. ??????????????????????? The Federation has also alleged that most of the politicians/parliamentarians have misdeclared their assets both before the Wealth Tax Authorities as well as the Election Commission including the former Prime Minister, who admittedly despite owning a helicopter, did not declare the same in his declaration of assets.? It has been pleaded on behalf of the Federation that although misdeclaration of assets was a matter of record, yet the constitutional authorities failed to file references against them before the concerned fora. Thus, all such politicians/parliamentarians through their acts of commission and omission have rendered themselves ineligible for being members of the representative bodies.? In order to substantiate the above allegations, the learned Attorney General has filed voluminous record wherein specific instances of misdeclaration of assets have been given.? We have examined the relevant record only for the purposes of the present controversy and find that sufficient material exists showing, prima facie, that a large number of politicians indulged in misdeclaration of assets, which factor has a bearing on the issue in hand.? We may clarify that misdeclaration of assets or any discrepancy as to declaration of assets before the Wealth Tax Authorities qua the Election Commission may not by itself be a ground for intervention of the Armed Forces on 12th October, 1999 but this aspect of the matter when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practices becomes a relevant factor.? COLLAPSE OF ECONOMY ??????????????????????? 237. ??????????????????????? We now take up another allied issue relating to economic condition of the country. It was alleged on behalf of the Federation that the former Prime Minister and his business associates exported sugar produced in their sugar mills to India by rail and earned millions of rupees as profit.? It was pointed out that several SROs were promulgated by the then government to claim export rebate on sugar and thereby the former Prime Minister and his predecessor committed breach of faith with Pakistani banks/overseas and resident Pakistanis by removing 11 billion dollars lying in their accounts in the banks in Pakistan without their consent and utilized the same for unauthorized purposes, which remain unexplained till today.? It was further stated that the former government froze the FEBC accounts and misappropriated the foreign exchange belonging to resident and non-resident Pakistanis, which not only brought bad name to the Pakistani banks but also to Pakistan as a country and the responsibility of this huge fraud lies heavily on the former Prime Minister.? It was pleaded that this misconduct was further compounded by unlawful transfer of a huge sum of nearly 500 million dollars by the former Prime Minister and his associates between 6.5.1998 to 28.5.1998, to the detriment of the country.? Even after the decision to freeze the foreign currency accounts the former Prime Minister and his associates removed huge amounts of foreign currency after banking hours.? In this process the then Director General, FIA stopped Mr. Mujeeb-ur-Rehman, the brother of Senator Saifur Rehman from removing large amount of foreign exchange in cash at the Islamabad Airport, as a result of which Major General (Retd) Inayatullah Niazi, the Director General, FIA was illegally removed by the former Prime Minister.? Our attention was also drawn to the ?Qarz Utaro Mulk Sanwaro? Scheme to demonstrate that it was designed to deprive the Overseas Pakistanis of their hard earned money in the name of debt retirement.? It was pleaded that the former Prime Minister? and his family established a Sugar Mill in Kenya which caused great public discontent.? It was also pleaded that the former Prime Minister and his associates did indulge in money laundering at a large scale and acquired four flats in Park Lane, London as also an area of about 400-Acres in Raiwind etc.? The learned Attorney General also contended that the former Prime Minister installed party MNAs and Senators and favourites as heads of statutory bodies like Ehtesab Bureau, Privatization Commission, Board of Investment, PTV, banks, financial institutions, etc. for wrongful gains, which went a long way in further deteriorating the Economic Position. ??????????????????????? 238. ??????????????????????? We have gone through the material placed by the Federation on the above issue.? While this Court has already lamented over the decision of the former Prime Minister freezing foreign currency accounts in the case reported as Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 S.C. 1026), the fact remains that this step of the deposed Prime Minister shattered the confidence of the overseas Pakistanis, who had deposited their savings in Pakistan in preference to banks abroad for the benefit of the nation. After hearing the learned counsel for the parties and going through the record, we have gathered that the combined effect of the overall policies and methodology adopted by the former government was the total collapse of the country?s economy inasmuch as GDP growth during the past three years had hardly kept pace with the growth of population and Pakistan has a debt burden which equals the country?s entire national income.? We also take judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous regime, the industrial sector had suffered a great setback.? ??????????????????????? 239. ??????????????????????? We now advert to the plea raised by Mr. Khalid Anwar on behalf of the petitioners that various allegations of mismanagement, corruption and even hijacking (though sub judice), levelled against Mian Nawaz Sharif, the former Prime Minister, who is not even a petitioner herein do not justify that the Constitution should be condemned and the popularly elected bodies should be disbanded.?? The learned Attorney General submitted that the petitioners were not entitled to seek relief of restoration of the former government, the Parliament and the Provincial Assemblies because such reliefs were being sought to perpetuate dictatorship and misgovernance in the country by the former Prime Minister and his associates in that there were no checks and balances on the exercise of power by them.? He further submitted that the Parliament had been reduced to a mere rubber-stamp, inasmuch as, whenever it assembled it had hardly the requisite quorum and thus, failed to function and discharge its constitutional duties of legislation and were being used as instruments to establish despotism at the whims and caprices of the former Prime Minister.? He submitted that the government was being run through Ordinances though some of which had lapsed.? Even when some Bills were moved before the National Assembly or the Senate, they were hurriedly passed without proper debate about its pros and cons.? The learned Attorney General submitted that the Provincial Assemblies equally failed to discharge their constitutional duties and obligations.? He submitted that in reality all the parliamentarians, the Chief Ministers of the Provinces and the Members of the Provincial Assemblies were either associates and cronies of the former Prime Minister or had become too helpless and ineffective to perform their functions in accordance with the dictates of the Constitution, the law and their conscience and were not in a position to object to any action, which had the blessings of the former Prime Minister.? He submitted that democratic norms and polity require that government should be run by responsible and honest representatives of the people, who should be able to steer the governance of the country whereby the mandate of the people within the limits of the Constitution could be accomplished.? The learned Attorney General further submitted that the representatives of the people plundered the public wealth, acted irresponsibly and were nothing but privy to the one man rule in the country.? The learned Attorney General relied on an interview of Mr. Khalid Anwar, former law minister, given to the media, published in Daily Khabrain dated 25-3-2000 wherein he observed: He also referred to an interview of Mr. Majeed Nizami, Chief Editor of the Daily ?Nawa-e-Waqt? and ?The Nation?? given to Pakistan Digest, published in the Daily Nawa-e-Waqt, Rawalpindi, dated 30-4-2000 wherein he stated: ? While substantiating the above allegations against the members of the former government, the learned Attorney General contended that the actions of the former government were not in conformity with the maintenance of sovereignty, integrity, well being and prosperity of Pakistan because when the Chief of Army Staff was attempted to be handed over to an enemy country and he was exposed to physical annihilation and further when it tried to create dissension in the ranks of the Armed Forces, it was not safeguarding or maintaining the sovereignty of Pakistan, rather the sovereignty and integrity of the country were seriously endangered because it is the only institution, which is capable of safeguarding the integrity of Pakistan.? On the question of well-being, the learned Attorney General stated that the well being of the people is a reflection of the combined effect of sovereignty, integrity and solidarity and there can be no well being without either of sovereignty, integrity, solidarity and prosperity.? Likewise, prosperity again embodies all these ingredients and also extends to the economic prosperity of the people of Pakistan.

240. The Court is faced with a situation not visualized by the Constitution. The purposes for which the representative institutions were established stand defeated directly or indirectly.

241. Democracy defined; requisites of democracy.

242. Figures of past five general elections.

243. Suspension of representative bodies validated on the ground of state necessity in view of joint and ministerial responsibility in a parliamentary system. ARTILCE 58(2)(b)

244. After deletion of 58(2)(b) checks and balances were removed and the balance of power disturbed.

245. Reference to suggestions by Justice Hamoodur Rehman regarding amendment of the Constitution in respect of powers of the President, ?Power?, it is said, ?corrupts and absolute power corrupts absolutely?.

246. Reference to Article 260 of the Draft Constitution of 1971 retaining the power of imposing Martial Law.

247. References to the case of Mehmood Khan Achakzai.

248. Reference to the British Constitution and in particular to the code of conduct for the Ministers framed by Britain; the book titled ?The Hidden Wiring?; the book ?Arthur Berriedale Keith?; the book ?The English Constitution?. ??????????????????????? 249. ??????????????????????? After careful analysis of the above material, we are of the view that it is never safe to confer unfettered powers on a person who is holding the reins of the affairs of the country as is embedded in the saying, ?power corrupts and absolute power corrupts absolutely?.? Accordingly, while upholding the judgment in Mehmood Achakzai?s case (supra) we would like to observe that probably the situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Article 58(2)(b).

250. Disparaging remarks against the judiciary crossed all limits with the rendering of judgment in Sh. Liaqat Hussain. 251.???? The decision in Sh. Liaqat Hussain was treated as a stumbling block and taping of telephones and eavesdropping were resorted to.

252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people.? The impugned action was spontaneously welcomed by all sections of the society.

253. Doctrine of State necessity examined in the light of Nusrat Bhutto?s and Liaqat Hussain?s cases. Here, the Court is faced with an extra constitutional situation and all the elements described by this Court viz. inevitable necessity, exceptional circumstances, no other remedy to apply, measure taken must be proportionate to the necessity which must be of temporary character, limited to the duration of exceptional circumstances, are present inasmuch as the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999. ???????????????????????

254. As to the plea raised by Mr. Khalid Anwar that the ?doctrine of necessity? is accepted as a defence in criminal prosecution and tortuous acts which concept is different from that of ?State necessity?, suffice it to say that this Court in the case of Begum Nusrat Bhutto (supra) approved the ?doctrine of State necessity? and laid down the conditions precedent for invoking the same.? Therefore, the distinction pointed out by Mr. Khalid Anwar regarding the concept of ?doctrine of necessity? and that of ?State necessity? is immaterial.? The fact remains that this Court is of the considered view that intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time and, therefore, there is no valid justification for not validating the extra constitutional measure of the Armed Forces on the technical distinction between ?doctrine of necessity? and the ?doctrine of State necessity?.

255. It would be instructive to refer to the following passages from the book titled The Classics Of International Law, by Hugo Grotius: ?What view is to be taken in case of extreme and in other respects unavoidable necessity. I.??? ?More serious is the question whether the law of non-resistance should bind us in case of extreme and imminent peril. Even some laws of God, although stated in general terms, carry a tacit exception in case of extreme necessity. Such a limitation was put upon the law of the Sabbath by learned men in the time of the Maccabees; hence the well- known saying: ?Danger to life breaks the Sabbath.? In Synesius, again, a Jew presents this excuse for having violated the law of the Sabbath: ?We were exposed to imminent danger of death.? ?This exception was approved by Christ, as also an exception in the case of another law, which forbade the eating of shewbread. The Jewish rabbis, in accordance with an ancient tradition, admit a similar exception in the case of the law forbidding the use of certain articles of food, and in some other cases; and rightly so. This does not mean that God has not the right to oblige us to submit ourselves to certain death; it does mean that since there are some laws of such a nature, we are not to believe that they were given with so inflexible an intent. The same principle holds even more manifestly in the case of human laws.? ?2.? I do not deny that even according to human law certain acts of a moral nature can be ordered which expose one to a sure danger of death; an example is the order not to leave one?s post. We are not, however, rashly to assume that such was the purpose of him who laid down the law; and it is apparent that men would not have received so drastic a law applying to themselves and others except as constrained by extreme necessity. For laws are formulated by men and ought to be formulated with an appreciation of human frailty.? ?Now this law which we are discussing?the law of non-resistance?seems to draw its validity from the will of those who associate themselves together in the first place to form a civil society; from the same source, furthermore, derives the right which passes into the hands of those who govern. If these men could be asked whether they purposed to impose upon all persons the obligation to prefer death rather than under any circumstances to take up arms in order to ward off the violence of those having superior authority, I do not know whether they would answer in the affirmative, unless, perhaps, with this qualification, in case resistance could not be made without a very great disturbance in the state, and without the destruction of a great many innocent people. I do not doubt that to human law also there can be applied what love under such circumstances would commend.? ?3.? Some one may say that this strict obligation, to suffer death rather than at any time to ward off any kind of wrong-doing on he part of those possessing superior authority, has its origin not in human but in divine law. It must be noted, however, that in the first instance men joined themselves together to form a civil society not by command of God, but of their own free will, being influenced by their experience of the weakness of isolated households against attack. From this origin the civil power is derived, and so Peter calls this an ordinance of man. Elsewhere, however, it is also called a divine ordinance, because God approved an institution which was beneficial to mankind. God is to be thought of as approving a human law, however, only as human and imposed after the manner of men.? ?4.? Barclay, though a very staunch advocate of kingly authority, nevertheless comes down to this point, that he concedes to the people, and to a notable portion of the people, the right of self-defence against atrocious cruelty, despite the fact that he admits that the entire people is subject to the king. I readily understand that in proportion as that which is preserved is of greater importance, the equity of admitting an exception to the letter of a law is increased.? But on the other hand I should hardly dare indiscriminately to condemn either individuals, or a minority which at length availed itself of the last resource of necessity in such a way as meanwhile not to abandon consideration of the common good.????????? ?That the right to make war may be conceded against him who has the chief authority among a free people. ??????????????????????? ??????????? Then all Etruria in just anger rose;??????????????? The punishment of death forthwith demand ??????????????????????? They for their king.? ?That in case of necessity men have the right to use things which have become the property of another, and whence this right comes ?1.? Now let us see whether men in general possess any right over things which have already become the property of another. Some perchance may think it strange that this question should be raised, since the right of private ownership seems completely to have absorbed the right which had its origin in a state of community of property. Such, however, is not the case. We must, in fact, consider what the intention was of those who first introduced individual ownership; and we are forced to believe that it was their intention to depart as little as possible from natural equity. For as in this sense even written laws are to be interpreted, much more should such a point of view prevail in the interpretation of usages which are not held to exact statement by the limitations of a written form.? ?2.? Hence it follows, first, that in direst need the primitive right of user revives, as if community of ownership had remained, since in respect to all human laws?the law of ownership included?supreme necessity seems to have been excepted. ?3.? Hence it follows, again, that on a voyage, if provisions fail, whatever each person has ought to be contributed to the common stock. Thus, again, if fire has broken out, in order to protect a building belonging to me I can destroy a building of my neighbour. I can, furthermore, cut the ropes or nets in which my ship has been caught, if it cannot otherwise be freed. None of these rules was introduced by the civil law, but they have all come into existence through interpretations of it.? ?4.? Even among the theologians the principles has been accepted that, if a man under stress of such necessity takes from the property of another what is necessary to preserve his own life, he does not commit a theft.? ?The reason which lies back of this principle is not, as some allege, that the owner of a thing is bound by the rule of love to give to him who lacks; it is, rather, that all things seem to have been distributed to individual owners with a benign reservation in favour of the primitive right. For it those who made the original distribution had been asked what they thought about this matter they would have given the same answer that we do. ?Necessity,? says Seneca the father, ?the great resource of human weakness, breaks every law, meaning, of course, human law, or law constituted after the fashion of human law. Cicero in his eleventh Philippic averred; ?Cassius has set out for Syria, a province belonging to another, if men observed written laws; but since these have been suppressed, it becomes his province by the law of nature.? In Curtius we read: ?In a common disaster each man has whatever falls to his lot.? ?That the right, in case of necessity, to use things belonging to others, holds when the necessity is in no way avoidable. ?Administrations, however, must be kept in mind, that this permission to use property belonging to another may not be carried beyond proper limits.? ?The first is, that every effort should be made to see whether the necessity can be avoided in any other way, as, for example, by appealing to a magistrate, or even by trying through entreaties to obtain the use of the thing from the owner. Plato authorizes the taking of water from a neighbour?s well only in case one in search of water has dug on his own land clear to the underlying stratum of chalk. Solon gives such authorization only in case one has dug on his own land to a depth of forty cubits; in regard to Solon?s rule Plutarch adds: ?He thought to minister to need, not to show indulgence to laziness.? In his answer to the people of Sinope Xenophon said: ?Wherever the right to purchase is not granted to us, whether on Greek or on barbarian soil, we take what we have need of, not from lawlessness but from necessity.? ?That the right, in case of necessity, to use things belonging to another, holds except when the possessor has equal need. ?In the second place, this right cannot be conceded if the owner himself is under an equal necessity; for in like circumstances the position of the owner gives him the preference. ?He is not foolish?, says Lactantius, ?who has not, even for his own safety, pushed a shipwrecked man from his plank, or a wounded man from his horse; for he has kept himself from the inflicting of an injury, which would be a sin; and to avoid such a sin is wisdom.?? Cicero had said in his third book On Duties: ?should not the wise man, therefore, if he is exhausted with hunger, take food away from another man who is of no account? By no means. For my life is no more precious to me than the possession of such a spirit that I would not harm any one for the sake of my own advantage? In Curtius we read: ?The man who will not part with his own has a better case than the man who demands what belongs to another.? ?That there is, further, an obligation to restore the things of another used in case of necessity, whenever restoration shall be possible ?In the third place, restitution of another?s property which has been used in case of necessity must be made whenever this can be done.? ?There are some who hold a different opinion. Their plea is, that the man who has availed himself of his own right is not bound to make restitution. But it is nearer the truth to say, that the right here was not absolute, but was restricted by the burden of making restitution, where necessity allowed. Such a right is adequate to maintain natural equity against any hardship occasioned by private ownership.? ?Application of this right in the case of wars. ?From what has been said we can understand how it is permissible for one who is waging a just war to take possession of a place situated in a country free from hostilities. Such procedure, of course, implies these conditions, that there is not an imaginary but a real danger that the enemy will seize the place and cause irreparable damage; further, that nothing be taken except what is necessary for protection, such as the mere guarding of the place, the legal jurisdiction and revenues being left to the rightful owner; and, finally, that possession be had with the intention of restoring the place as soon as the necessity has ceased.? ?Henna was retained by an act either culpable, or justified by necessity,? says Livy; for whatever departs in the least degree from necessity is culpable. When the Greeks who were with Xenophon were in pressing need of ships, on the advice of Xenophon himself they seized the vessels that were passing by, yet took possession in such a way that they kept the cargoes unharmed for the owners, furnished provisions also to the sailors, and paid passage money.? ?The first right then that, since the establishment of private ownership, still remains over from the old community of property, that which we have called the right of necessity.? ?That men possess the right to use things which have become the property of another, for a purpose which involves no detriment to the owner. ?A second right is that of innocent use. ?Why,? says Cicero, ?when a man can do so without loss to himself, should he not share with another things that are useful to the recipient and can be spared without annoyance to the give?? Thus Seneca declares that opportunity to get a light for a fire is not to be considered a favour. In Plutarch we read the following, in the seventh book of his symposiacs: ?It is not right for us to destroy food, when we ourselves have more than enough; or to stop up or conceal a spring, when we have drunk all we wanted; or to obliterate the signs which mark the route for ships, or signs on land which have been useful to us.? ?Hence the right to the use of running water. ?Thus a river, viewed as a stream, is the property of the people through whose territory if flows, or of the ruler under whose sway that people is. It is permissible for the people or king to run a pier out into it, and to them all things produced in the river belong. But the same river, viewed as running water, has remained common property, so that any one may drink or draw water from it.? Who would forbid from lighted torch a light To take, and guarded hold in hollow sea The waters vast? Says Ovid.? In the same author Latona thus addresses the Lycians: Why water me deny? Common to all. The use of water is. ?There also he calls the waves a public blessing, that is a blessing common to mankind, using a less appropriate meaning of the word ?public?. In that sense certain things are said to be public by the law of nations; and with this meaning Virgil referred to the wave as open to all men.?

256. In the book titled A Treatise On The Law Of The Prerogative Of The Crown and the Relative Duties and Rights of the Subject by Joseph Chitty, it was observed: ?There are indeed two memorable instances on record, in which Parliament have assembled without the authority of the King; and have, when so assembled, effected most momentous revolutions in the government. I allude to the Parliament which restored Charles 2; and the Parliament of 1688 which disposed of the British Crown to William III. But in both these instances the necessity of the case rendered it necessary for the Parliament to meet as they did, there being no King to call them together, and necessity supersedes all law. Nor is it an exception to this rule, that by some modern statutes (b) on the demise of the King or Queen (which at common law dissolved the Parliament, because it could no longer consult with him who called it) (c), the Parliament then in being or otherwise the last Parliament shall revive or sit, and continue for six months after such demise, unless sooner prorogued or dissolved by the successor; that is, if the Parliament be at the time of the King?s death separated by adjournment or prorogation, it shall notwithstanding assemble immediately; or, if no parliament be then in being, the members of the last Parliament shall assemble and be again a Parliament. For in such case, the revived Parliament must have been originally summoned by the Crown.?

257. Reference to the case concerning ?The Gabcikovo-Nagymaros Project? decided by International Court of Justice.

258. Necessity defined in Corpus Juris Secundum.

259. Reference to ?Constitutional and Administrative Law? by de Smith.

260. Reference to the case from Lesotho.

261. Reference to the case of Mustafa Ibrahim

262. Reference to the case of Mitchell and others quoted by Justice Munir.

263. Emergencies are promulgated all over the World especially in Asia, Africa and Latin America but there has been an effort to minimize them and induce the authorities concerned to respect the fundamental rights; Reference to the book titled ?States of Emergency?.

264. Reference to the book titled ?From Military to Civilian Rule?

265. Reference to the Book titled Democracy, the Rule of Law and Islam.

266. It will be seen that the ?doctrine of necessity? is not restricted to criminal prosecution alone.? However, the invocation of the doctrine of State necessity depends upon the peculiar and extraordinary facts and circumstances of a particular situation.? It is for the Superior Courts alone to decide whether any given peculiar and extraordinary circumstance warrant the application of the above doctrine or not.????? This dependence has a direct nexus with what preceded the action itself.? The material available on record generally will be treated at par with the ?necessity/State necessity/continuity of State? for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy.? It was in this context that the arguments were addressed on behalf of the petitioners, except Mr. Shahid Orakzai, Syed Iqbal Haider and Mr. Habib-ul-Wahab-ul-Khairi to the effect that only the ex-Prime Minister was responsible for the present situation. However, what meets the eye is that all the Parliamentarians, the Chief Ministers of the Provinces and the Members of the Provincial Assemblies were not in a position to object to any action, which had the blessings of the former Prime Minister.

267. Survey of the case law on the subject.? Initially the status of the present Government was de facto but in view of the validation, it has attained de jure status. ??????????? VALIDATION OF THE PROCLAMATION, ??????????? PCO 1/99 & ORDER 1 OF 2000.

268. The validity of the Proclamation dated 14th October, 1999 and other succeeding documents falling in the same category depends upon a tentative assessment of the situation to be made with a view to giving effect to the attending circumstances.? It is common ground between the petitioners, who have appeared in person, the learned counsel appearing on behalf of some of the petitioners, Syed Sharifuddin Pirzada, learned Sr. ASC, as well as the learned Attorney General for Pakistan appearing on behalf of the Federation, Dr. Farooq Hasan, appearing on behalf of the Lahore High Court Bar Association as also Mr. S.M. Zafar, learned Sr.ASC appearing as amicus curiae, that the situation created and/or which preceded the Proclamation dated 12th October, 1999 is the basis for the extra-constitutional measure.? However, M/S Shahid Orakzai and Syed Iqbal Haider were of the view that the Proclamation and the other instruments issued by the Chief Executive are in accordance with the Constitution.? It is not necessary to deal with the latter contention of M/S Orakzai and Syed Iqbal Haider, which is ex facie untenable. Mr. Khairi?s contention was that the Proclamation to the extent it impinges on the independence of Judiciary is not valid.? We are also inclined to the same view.

269. It was argued that the Proclamation and the entire super structure thereon is outside the contemplation of the Constitution.?

270. There is no cavil with the proposition advanced by Ch. Muhammad Farooq regarding the constitutional position as also the role of the Army and the functions which the Armed Forces, the Prime Minister and Parliament/Assemblies perform under the Constitution.? Be that as it may, admittedly the impugned action has not been taken under any constitutional provision, but is the result of an extra-constitutional measure and therefore reference to the above constitutional provisions is of no consequence.? The sole question for consideration is whether the extra-constitutional measure taken by the Armed Forces could be validated on any ground or not.? Recognition of a situation of whatever magnitude does call for remedial measures to be considered/contemplated with a view to purging the situation on the ground.? All that is required to be considered is? that the action should have a? nexus with the facts on the ground. Such consideration can be undertaken only by the Superior Courts in the exercise of their powers under Articles 199 and 184 of the Constitution. It is the duty of the Superior Courts that they recognize the evil, suggest remedial measures therefor and lay down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible. If those responsible for achieving these objectives fall short of the measure within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil.? The action of 12th October, 1999 being what it is, qualifies for validation on the ground of State necessity/survival.? It is for the representatives of the people to see to it that everything is in order and no body can raise his little finger when their actions are in line with the fundamentals of the Constitution.? No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary.? We are firmly committed to the governance of the country by the people?s representatives and we reiterate the definition of the term ?democracy? to the effect that ?it is government of the people, by the people and for the people? and not by the? Army rule for an indefinite period.? It has already been emphasized in the Short Order that prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and that civilian rule in the country must be restored? within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive dated 13th and 17th October, 1999, which necessitated the military takeover.

271. The representatives of the people were accused of corruption and failed to establish good governance. The process of accountability carried out by the former government was shady as it was directed against the political rivals. All institutions including judiciary were being systematically destroyed in pursuit of self serving policies and the democratic institutions were not functioning in accordance with the Constitution.

272. Had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of the Armed Forces were fighting against others.

273. Reference by Shahid Orakzai to Articles 46, 48, 90 and 99 is irrelevant, which do not provide a solution to an extra constitutional situation. IMPORT OF THE TERM ?CHIEF EXECUTIVE?

274. While running the affairs of the country, as nearly as may be, in accordance with the Constitution, General Musharraf is practically performing the functions of Prime Minister, he holds the position of Chief Executive in the scheme of the Constitution.

275. After having validated the action of 12th October, 1999 on the touchstone of the doctrine of State necessity, it is necessary to consider the next very important and allied question as to whether the Chief Executive should be given the power to amend the Constitution and if so, to what extent?? We have taken pains to examine the pros and cons of this issue, which is definitely of far reaching consequences.? Mr. Khalid Anwar vehemently opposed the conferment of such a power on the Chief Executive on the ground that it is opposed to the doctrine of separation of powers, which has evolved through the history of civilization.? He submitted that all men, be they wise such as Socrates, the most knowledgeable such as Aristotle and the most virtuous such as Imam Abu Hanifa, need be subject to the limits of checks and balances to prevent tyranny.? He submitted that the Chief Executive himself has pledged to preserve the Constitution, inasmuch as it is the case of the Government itself that they have not proclaimed Martial Law and only Emergency has been proclaimed for a transitional period to save the system and thus the Court should restrict him within the legal/constitutional limits. 276-277,

279. Distinction between coup d?etat and revolution was drawn by Mr. S.M. Zafar with reference to the nature of powers that may be conferred on the incumbent in presenti.? Present change of government, being in the nature of coup d?etat and not revolution, minimum and limited powers to run the affairs of the state should be conceded to the Chief Executive for the transitional period to enable him to restore the democratic process in the country at the earliest.

278. Mr.S.M.Zafar has tried to distinguish between coup d?etat and revolution with reference to the nature of powers that may be conferred on the incumbent in presenti. ?He was of the view that the present change of government in the country was in the nature of coup d?etat and not revolution and, therefore, minimum and limited powers to run the affairs of the state should be conceded to the Chief Executive for the transitional period to enable him to restore the democratic process in the country at the earliest. In the context of the submission made by Mr.S.M.Zafar reference may be made to a leading work on Revolution and Political Change by C. Welch & Bunker Taintor, who say : ?Revolution involves the rapid tearing down of existing political institutions and building them anew? on different foundations. On Revolutions, by H. Arendt it is said: ?Coups d?etat and palace revolutions, where power changes from one man to another, from one clique to another, depending upon on the form of government in which the coup d?etat occurs have been less feared because of the change they bring about is circumcised to the sphere of Government itself and carries a minimum of unquiet to the people at large?

280. The above distinction is hyper technical and the two terms, in the context of the present case, are interchangeable and nothing substantial would turn on considering the same from one angle or another.

281. After considering the pros and cons of the question of grant of power to amend, in the light of the opposing stances taken by the learned counsel for the parties, the Court reiterated that 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 can not be altered even by the Parliament.

281. The question arises whether the Chief Executive can be granted unfettered powers to amend the Constitution.? Mr. Khalid Anwar emphasised that in case the Army action is condoned/validated this Court must succinctly state whether the Chief Executive has power to amend the Constitution and if so, subject to what limitations. He emphasised that in the first instance power to amend the Constitution should not be conceded to the Chief Executive and Begum Nusrat Bhutto?s case (supra) should be re-visited. In case this Court follows the dictum of Begum Bhutto?s case (supra), the power to amend the Constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated.? Mr. S. Sharifuddin Pirzada? argued that once the Army action through extra-constitutional measure is validated, the Chief Executive should be given the power to amend the Constitution. Same view was expressed by the learned Attorney General and Dr. Farooq Hassan.? We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai?s case (supra), 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?.? We have stated in unambiguous terms in the Short Order that 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 in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6. ??????????????????????? 282. ??????????????????????? We have held in the Short Order that the cases of learned 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. ??????????????????????? 283. ??????????????????????? 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 practice law and thereby acquiesced in the action. Furthermore, the appropriate course of action for this 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 principle is well-settled? that 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 this Court to reopen the cases of the above Judges which have become final. On the question of legislative power in relation to Court?s declaration of law, the matter stands concluded by the judgment of this Court in Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another (PLD 1968 SC 101) in the following terms: ????? ?This judgment was delivered on the 2nd November 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement Authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act.?

284. We, therefore, declare that 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) are hit by the doctrine of past and closed transaction and cannot be reopened.

285. Towards the close of his arguments, Mr. Khalid Anwar submitted that this Court should lay down a roadmap with a timetable for the return of constitutional governance.? Mr. Haleem Pirzada, President, Supreme Court Bar Association submitted that 12 months? time from now may be provided to the Armed Forces so that they do the cleansing and go back.? During the course of his arguments, Mr. S.M. Zafar, amicus curiae stated that prolonged stay of the Armed Forces in the political arena would damage its professionalism, hence they should retreat to their Barracks as early as possible.? On this issue, the learned Attorney General made the following statement: ?That the Federation intends to restore true representative democracy in the country as early as possible.? It is however not possible to give specific timeframe for the above among others for the reasons that the authorities/Government require time for: b)???????? Completion of the process of accountability; c)???????? Recovery of huge plundered national wealth including bank loans running into billions of rupees and foreign exchange abroad worth billions of US dollars; d)???????? The task of unavoidable electoral reforms including preparation of fresh electoral rolls; e)???????? Ensuring harmonious and efficient working of the important organs of the State, stable and good governance including maintenance of law and order, to prevent abuse of power, and to ensure and safeguard smooth functioning and enjoyment of democracy by the people.?

286. We are not in favour of an Army rule in preference to a democratic rule. There were, however, evils of grave magnitude with the effect that the civilian governments could not continue to run the affairs of the country in the face of complete breakdown. The remedy to the said evil was the holding of fair and impartial elections by the Chief Election Commissioner at the earliest possible time, but the same could not be achieved till the electoral rolls are updated. Ordinarily, we would have allowed minimum time for holding of fresh elections as contemplated under the Constitution, but the learned Attorney General made a statement at the Bar that as per report of the Chief Election Commissioner, updating of the electoral rolls could not be done before two years and thereafter objections and delimitation process etc. were to be attended to. Mr.Sartaj Aziz, Senator, and the M.Q.M. in their respective petitions Nos.15 and 53 of 1996 had also taken the stand that in the absence of proper and authentic electoral rolls, millions of people will be disenfranchised. This statement of the learned Attorney General was not rebutted. This being so, there is no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the public representatives under the Constitution. 46.?????????????????? The Country has a chequered political history eversince it attained its legal birth and freedom with the adoption of Government of India Act, 1935 as an interim Constitution along with the Indian Independence Act, 1947.? Unfortunate as it is, after the demise of Quaid-e-Azam Muhammad Ali Jinnah, there has been a political vacuum in the country and mal-functioning of the institutions giving rise to military intervention in the civil affairs of the country time and again. Irrespective of the causes for military intervention, its prolonged involvement in the civil affairs will not only politicise it but would also affect its professionalism in defending the borders of Pakistan.? Such a course can never be countenanced by this Court.? However, Syed Sharifuddin Pirzada, learned Senior ASC, appearing on behalf of the Federation has reaffirmed the positive assurance made by the Chief Executive in respect of holding of general elections within the time frame laid down by this Court for restoration of democratic institutions. 47.?????????????????? We also hereby reaffirm by way of emphasis that the validation and legitimacy accorded to the present Government is conditional, inter-linked and intertwined? with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by this Court leading to restoration of the democratic institutions. 48.?????????????????? Since the Chief Executive was claiming in the Oath of Office (Judges) Order, 2000 (Order No. 1 of 2000), legislative power to amend the Constitution, in the absence of appropriate representative institutions, it was the duty of this Court to place checks on it.? After considering all the attending circumstances, limited powers of amendment were conferred as highlighted in the judgment under review and reaffirmed in the Short Order dated 7.2.2001. 49.?????????????????? The matter was heard for months together in which over twenty-five learned Advocates of this Court including learned senior Advocates and learned amicus curiae addressed the Court.? The judgment under review was rendered after threadbare consideration of each and every aspect of the matter, the case law cited at the Bar as also the pleadings of the parties vide reasons assigned in paragraphs No. 221 to 287, which does not suffer from any error or flaw whatsoever warranting interference. 50.?????????????????? These are the detailed reasons for our Short Order dated 7th February, 2001. ??? ??????????????????????????????????????????????????????????????????????????????????????????? S.d ???????????????????????????? Mr.Justice Irshad Hasan Khan, CJ ??????????????????????????????????? ??????????????????????????????????? ?????????????????????????????S.d????????????????????????? ????????????????? ???????????Muhammad Bashir Jehangiri J. ??????????????????????????????????????????????????????????????????????????????????????????????? ??????????????????????????????????????????????????????????????????????????????????????????????? S.d ??????????????????????????????????????????????????????????? Abdur Rehman Khan J. ??????????? ??????????????????????? ??????????????????????????????????? ?????????????????????????????????????????S.d ??????????? ????????????????????????????????????????? Sh.Riaz Ahmad ????? J. ????????????????????????????? ????????????????????????????????????????? ???????????????????????????????S.d ????????????????????????????????????????????????? Muhammad Arif J. ??????????????????????????????????????????????????????????????????????????????????? ?????????????????????????? S.d ????????????????????????????????????????????????? Munir A. Sheikh J. ?? ??????????????????????????????????????????????????????????????????????????????????????????????????????????? S.d?????????????????? ??????????????????????????????????????????????????????????????????????????????????????????????? Rashid Aziz Khan J. ??????????????????????????????????????????????????????????????????????????????????????????????????????????? S.d ??????????????????????????????????????????????????????????? Nazim Hussain Siddiqui J. ??????????? ??????????????????????? ??????????????????????????????????????????????? ????????????????????????????????????????S.d ??????????????????????????????????????? Iftikhar Muhammad Chaudhry J. ??????????????????????? ??????????????????????? ??????????????????????????????????? ??????????????????????? ????????????????????????????S.d ??????????????????????????????????????? Qazi Muhammad Farooq J. ??????????????????????????????????????????????????????????????????????????????????????????????????????????? S.d?????????????????? ???????????????????????????????????????? Rana Bhagwandas J. ???????????????????????????????????????????????????????????????? Order accordingly.