P L D 1992 Supreme Court 595 (PLP)

NASIM HASAN SHAH, J.

As the question arising in the abovementioned two appeals is the same they have been heard together. The main question that arises for determination in these appeals is whether Article 2A, which was inserted by President's Order No.14 of 1985 in the Constitution of Pakistan, 1973 and made a substantive part thereof has resulted in denuding the President of the power of commuting the sentence of death passed in respect of persons found guilty of murder despite the powers conferred on him by Article 45 of the 1973 Constitution to do so and whether the provisions of the said Article 45 to this extent have become ineffective? This question has arisen in the following circumstances: On 7th/8th December, 1988, very soon after Mohtarima Benazir Bhutto assumed the office of Prime Minister, the President of Pakistan, acting on the advice of the Prime .Minister issued the following Order (hereinafter referred to as the "Commutation Order") in purported exercise of the powers vested in him, under Article 45 of the Constitution: (a) to commute all death sentences awarded by the Military or other Courts up to the sixth of December, 1988, to imprisonment for life; (b)to grant pardon to all women prisoners, except those convicted for murder who are undergoing imprisonment under sentences awarded by the Military or other Courts; (c) to remit the sentences of all persons who have been convicted and sentenced under MLR 31 in absentia; such persons will, however, have to face trial for the substantive offences for which they may be charged; (d) to remit the sentences of convicts who are above sixty years of age and have undergone imprisonment for five years or more under sentences awarded by the Military or other Courts; (e) to remit the sentences of all persons, other than members of the Armed Forces convicted and sentenced by Military Courts for offences not involving drugs, smuggling, corruption, embezzlement, bank fraud, robbery, dacoity, murder, rape or unnatural offence; the cases of the Members of the Armed Forces will be reviewed by the competent authorities of the Armed Forces; (f) to grant to all convicts in Pakistan a remission of three months in their sentences, whether awarded by the Military, other Courts; (g) to grant remissions from the dates of their imprisonment, to all persons convicted and sentenced by Military Courts to whom? remissions have so far been denied; and (h) to direct that in computing the total period of imprisonment to be undergone by prisoners convicted and sentenced by Military Courts, the period served as under-trial prisoners be included." The perusal of para. (a) of the above Commutation Order shows that all death sentences awarded by Military Courts or other Courts up to 6th December, 1988, were to be commuted to imprisonment for life. The terms of this para being quite general and the wholesale commutation granted to every person awarded the sentence of death up to 6th December, 1988 caused great resentment to and aggrieved a large number of persons whose near and dear ones had been murdered, by the beneficiaries of this extraordinary Order. And, indeed, it is 'this action taken, purportedly under the provisions of para. (a) of the aforesaid Order which is, inter alia, responsible for these appeals. Thus, in Civil Appeal No. 39 of 1992, the death sentences awarded to respondents Nos.10 and 11. (Akram Beg and Altaf Beg) on 21-1-1988 by the Special Court for Speedy Trials, Gujranwala were commuted to life imprisonment, even though their appeals were still pending in the High Court, due to the issuance of the President's Order dated 7th/8th December, 1988; while in the other appeal (Civil Appeal No.28 of 1992: Hakim Khan and others v. Government. of Pakistan etc.), the appellants, who had been sentenced to death on 28-6-1984, which sentences were confirmed, on appeal and reference, by the High Court (on 6-7-1986), got the benefit of the Commutation Order while their cases were pending adjudication before this Court. A large number of Constitutional Petitions were, therefore, filed in the High Court to question the validity of para. (a) of the "Commutation Order". Since these petitions raised, inter alia, the question of the "interpretation of Article 45 of the Constitution and its scope in the light of Article 2A of the Constitution", a Full Bench (consisting of Sh. Riaz Ahmed, Raja Afrasiab and Malik Muhammad Qayyum, JJ.) was constituted by the learned Chief Justice of the Lahore High Court and all such matters referred to it for consideration. The learned Judges in the High Court after hearing of these matters at some length proceeded to deliver judgment on 14-1-1992. Two learned Judges constituting of the Full Bench (viz. Sh. Riaz Ahmad and Malik Muhammad Qayyum, JJ.) delivered a common judgment, while the third learned Judge (Raja Afrasiab, J.), who while agreeing with the conclusion arrived at by his learned brethren added a considered note of his own. In the leading judgment delivered by Sh. Riaz Ahmad and Malik Muhammad Qayyum, JJ. it was observed:- "Precisely, the question of vital importance is whether in those cases, in which, death sentences have been awarded as Hadd, and whether the principles of isas are attracted when the President of Pakistan commuted such sentences of his own, because under the administration of criminal justice, .as envisaged by Islam it is only Walis of the deceased who can waive their right of Qisas and not the Head of the State:" Thus, according to the learned Judges, the vital question arising in these cases was whether the President could even now waive the right of Oisas when, under the Injunctions of Islam, this power could be exercised by the Walis of the deceased alone, despite the provisions of Article 2A which "conferred overwhelming position, on the law of Allah" and made "the manmade law subordinate to it" and also "made all measures which conflict with the ideology, aim and object of the country and nation" reviewable with reference to it? The learned Judges also went on to opine that the provisions of Article 2A had become "in control of the Constitution" and could not be "violated, defied or defeated". And as for the question which fell for determination before them the learned Judges observed: "The President of Pakistan had no such power to commuted the death sentences awarded in matters of Hudood, Qisas and Diyat Ordinance. In this view of the matter, we are of the considered view that the power of pardon in such cases only vests with the heirs of the deceased; therefore, the cases in which death sentences have been awarded, the President had no power to-commute, remit or pardon such sentences. However, the cases would be on different footings, if a person has been punished by way of ja'zir as in such cases, the Head of the State has the power to pardon the offender and that too in public interest." The third learned Judge, Raja Afrasiab Khan, J. also arrived at the same conclusion though on somewhat different reasoning. The question before us now, therefore, is whether the High Court rightly construed the amplitude of the provisions of Article 2A, especially their effect on the other provisions of the Constitution, such as Article 45 thereof? Article 2A, it will be recalled, was inserted in the Constitution of 1973 by President's Order No.14 of 1985. It reads as under: "2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly." The Annex in question reads as under - ANNEX (Article 2A) The Objectives Resolution (In the name of Allah, the most Beneficent, the Most Merciful) Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah; Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed. Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the judiciary shall be. fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land sea and air shall be safeguarded. So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity." The Objectives Resolution, which has been made a substantive part of the Constitution, was presented before the Constituent Assembly on 7th March, 1949 and adopted by it on 12th March, 1949. It was incorporated as a preamble to the Constitution of 1956, the Constitution of 19(2 (through an amendment made in 1964), the Interim Constitution of 1972 and the Permanent Constitution of 1973. It was hailed as a landmark in the Constitutional history of Pakistan as having laid down for the first time, the Ideological foundation of Pakistan. The question as to the status enjoyed by the Objectives Resolution pointedly came up for consideration for the first time in the case of Asma Jilani PLD 1972 SC

139. Herein, the parties were seeking reconsideration of this Court's judgment in Dosso's case PLD 1958 SC

533. Some important observations in this connection were made by Chief Justice Hamoodur Rahman, who observed, inter alias- "In any event, if a grund norm is necessary for us, I do not have to look to the Western legal theorists to discover one. Our own? grund ground norm is enshrined m our doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949." Encouraged by these observations a learned Judge of the Lahore High Court sought to highlight their significance in the case of Zia-ur-Rehman v. The State PLD 1972 Lah. 382 in the following words:-- "The State of Pakistan was founded through the expression of will of the Muslims of the sub-continent. The emergence of this State cannot be delinked from its ideology for the preservation of which all our past and future generations are equally involved. No one generation, community, organ or individual in this State has any power to undo the same or weaken its foundation in so far as its basic realities are concerned. This underlying philosophy has been stated in a sura Constitutional instrument to which not only our founding fathers but also the people at different times of our short history have assented. It is the Objectives Resolution passed in 1949. All the Constitutional documents intended to work as permanent Constitutions were purported to have been based on this Supra "Constitution." (Underlining is mine). However, this interpretation given by the Lahore High Court of his observations, in the case of Mst. Asima Jilani, however, was not approved by him (Hamoodur Rahman, C.J.), in State v. Zia-ur-Rehman PLD 1973 SC 49 who explained his position as follows:- "So far as the Objectives Resolution of 1949 is concerned, there is no dispute that it is an important document which proclaims the aims and objectives sought to be attained by the people of Pakistan; but it is not a supra-Constitutional document, nor is it enforceable as such, for, having been incorporated as a preamble it stands on the same footing as a preamble. It may be looked at to remove doubts if the language of any provision of the Constitution is not clear, but it cannot override or control the clear provisions of the Constitution itself." The learned Chief Justice Hamoodur Rahman went on to add:- "So far, therefore, as this Court is concerned, it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to. interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... .. ... ... ... ... ... ... ... ... Having said this much about the Constitutional position of the Courts and their relationship with the other equally important organ of the State, namely; the legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can in the exercise of its Judicial owner strike down any provision of the Constitution itself either because it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof, it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document." While summing up the discussion the learned Chief Justice was? to observe:- "It was expected by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the Objectives Resolution did not envisage that it would be a document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March, 1949, stands on a higher pedestal than the Constitution itself. The views of the minority of the learned Judges in the High Court, in so far as they have sought read into the judgment of this Court something which is not there, cannot, therefore, be supported. In this connection, I would also like to point out that even if the Objectives Resolution is treated as a document from which the makers of the Constitution must draw inspiration and seek guidance, then too, there is nothing in the Interim Constitution to show that any of the ideals laid down in the Objectives Resolution has been violated. Indeed, the Interim Constitution itself more-or-less faithfully reproduces the Objectives Resolution of 1949 as its own preamble in the same manner as the Constitution of 1956 did. It cannot, therefore, be said that any provision of the Interim Constitution of 1972 is in violation of the Principles of the Objectives Resolution of 1949." These observations of the learned Chief Justice are open to differing interpretations: Thus, for some they mean that the Objectives Resolution was not a Supra-Constitutional document and that Courts being the creatures of the Constitution could not strike down any of its provisions and, therefore, it was not open to a Court to countenance any prayer to that effect. While others understood these observations to imply that in case the Objectives Resolution got incorporated into the Constitution and became its substantive part, it then could control the other provisions of the Constitution. But to add to the variety of interpretations possible of his Lordship's observations were the observations made by him in the final part of his judgment namely that there was nothing to show that any ideals laid down in the Objectives Resolution had been violated by the provisions of the Interim Constitution of 1972 (wherein incidentally the power of pardon, reprieve, commutation of sentence is conferred on the President (under Article 262 thereof) in the same terms as it is conferred on the President under Article 45 of the 1973 Constitution) which observations tend to render all the earlier discussion somewhat academic. The status and import of the Objectives Resolution continued to remain in this somewhat uncertain and unsettled state when on July 5, 1977, the Constitution of 1973 itself was put in abeyance by the imposition of Martial Law in the country. This state of affairs continued to persist until March 2, 1985; when President General Muhammad Ziaul Haq, while reviving the Constitution aforesaid through the Revival of Constitution Order (President Order. No.14 of 1985) decided also to considerably modify it and inter alia added Article 2A therein according to which the principles and provisions set out in the Objectives Resolution, 1949 were to become a substantive part of the Constitution. As a result of addition made in the 1973 Constitution the old controversy about the true import and status again revived, but now in a much more pointed and vigorous form. It began to be urged that now when the principles and provisions of the Objectives Resolution have become a substantive part of the Constitution (vide Article 2A) the said Resolution has clearly acquired the status of a supra-Constitutional document. Resultantly, any of the existing provisions of the Constitution which conflicts with its terms and is inconsistent or repugnant to its principles and provisions has become inoperative and of no legal effect and can be so declared by the Courts. And indeed the impugned .judgment of the Lahore High Court by declaring that Article A. has "an overwhelming position in the Constitution" and is now "in control of the Constitution" has manifestly endorsed this point of view declaring that the Objectives Resolution is now a supra-Constitutional? and that it is in control of the Constitution. The question before us is whether this is really so? ,To answer this question it is necessary to go back to Monday, the 7th March, 1949, when the Constituent Assembly of Pakistan met in the Assembly Chamber, Karachi at Four of the Clock in the evening to take up the motion, re: Aims and Objects of the Constitution and Mr. Liaquat Ali Khan, the then ; Prime Minister, rose solemnly in his seat to move the Objectives Resolution "embodying the main principles on which the Constitution of Pakistan is to be based" (the text whereof has already been reproduced in an earlier part of this judgment). In introducing this Resolution he said "Sir, I consider this to be a most important occasion in the life of this country, next in importance only to the achievement of independence, because by achieving independence we only won an opportunity of building up a country and its polity in accordance with our ideals. I would like to remind the house that the Father of the Nation, Quaidi-Azam, gave expression to his feelings on this matter on many an occasion, and his views were endorsed by the nation in unmistakable terms. Pakistan was founded because the Muslims of this sub-Continent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today." And concluded his speech with these memorable words : "This Objectives Resolution is the first step in the direction of the creation of an environment which will again awaken the spirit of the nation. We, whom Destiny has chosen to play a part, howsoever humble and insignificant it, in this great drama of national resurrection, are overwhelmed with the magnitude of the opportunities which are before us. Let us use these opportunities with wisdom and foresight. and I have not the least doubt that these humble efforts will bear fruit far in excess of our widest expectations, through the help of a Providence which has brought Pakistan into existence. It is not ever day that great nations come into their own; it is not every day that peoples stand on the threshold of renaissance; it is not every day that Destiny beckons the down-trodden and the subjugated to rise an( greet the dawn of a great future. It is the narrow streak of light heralding the brilliance of the full day, that we salute in the form of this Resolution." (See Vo1.V--1949, Official Report of the Fifth Session of the Constituent Assembly of Pakistan Debates). The Resolution was debated for five days, in which debates beside; the leading members of the Government, a large number of non-Muslin members, especially from East Bengal took a prominent part and who expressed grave apprehensions about their position and role in the new polity The leading members of the Government in their speeches not only re-assure e them that their position was quite safe and their rights were not being impaired but also gave clarifications with regard to the import of the Resolution. Thus Sardar Abdur Rab Nishtar, the Deputy Leader of the House, in his speech stated : "It was remarked .by some Honourable Members that the interpretation which the mover of this Resolution has given is satisfactory and quite good, but Mr. B.C. Mandal says: "Well, tomorrow you may die, I may die, and the posterity may misinterpret it". First of all, I may tell him and those who have got some wrong notions about the interpretation of this Resolution that this Resolution itself is not a Constitution. It is a direction to the Committee that will have to prepare the drift that they should prepare the draft keeping in view these main features. The matter will again come to the House in a concrete form, and all of us will get an opportunity to discuss it." (Emphasis supplied). Again Sir Muhammad Zafrullah Khan the Foreign Minister in his speech reiterated this position declaring: "An apprehension was expressed that the explanations and assurances furnished and given on the Floor of the House may be adequate, but may be disregarded and ignored by the successors of those by whom they are being furnished and given. But this overlooks the procedure that is proposed to be followed. As soon as the Resolution is adopted, the House will be invited to set up a Committee for the purpose of formulating concrete proposals based upon the Resolution, embodying the main principles on which the Constitution is to be framed. Those proposals will then come before the House and after the House has adopted those proposals with such modifications as it chooses to make, further steps will be taken to draft the Constitution in accordance with those proposals. It should thus be clear that the explanations furnished and the assurances given during the course of this debate will be reflected in the concrete proposals which the Committee soon to be set up by the House will frame; such proposals will in turn be translated into the provisions of the Constitution itself." The character and nature of the Resolution was explained by another Minister of the Government (Ch. Nazir Ahmad Khan) as follows: "This Resolution is merely in the nature of a Preamble. It is, so to say, the terms of reference to this Assembly under which they have to frame their future Constitution. It is neither the official legislation nor even the Constitution itself and, therefore, some of the objections and misgivings that have been expressed on the Floor of this Honourable House regarding the implications of this Resolution are premature, if not entirely incorrect." (Emphasis added). Accordingly, on the conclusion of the debate and adoption of the Motion re-aims and Objects of the Constitution on the 12th March, 1949, Mr. Liaquat Ali Khan moved a motion for the appointment of a Committee consisting of 24 members, including himself and two non-Muslim members, to report: "as early as possible, in accordance with the motion adopted by this Assembly on Aims and Objects, on the main principles on which the Constitution of Pakistan is to be framed." Pursuant to this decision, the Basic Principles Committee submitted two interim reports; one in 1950 which was submitted by Mr. Liaquat Ali Khan. It is interesting to note that herein the powers of clemency were conferred on the President in the following terms: "

18. Discretionary powers of the Head of the State. The following powers should be exercised by the Head of the State in his discretion: (1) powers of clemency, and (2) appointment of Election Tribunals." and the other in 1953. Neither of them could be adopted. However, the subsequent report submitted by the Basic Principles Committee proved more productive and was adopted on 6th October, 1954 but before its provisions could be formally enacted, the Constituent Assembly itself was dissolved on 24th October, 1954. Accordingly, the Constituent Assembly which adopted the Objectives Resolution in 1949 could not itself frame a Constitution for the State of Pakistan. The question that now arises is, has the role of the Objectives Resolution as envisaged by the movers of the Resolution been so radically altered that it has become from merely a direction to the Committee to formulate concrete proposals based upon the Resolution, embodying the main principles on which the Constitution is to be framed, a supra-Constitutional document controlling the entire Constitution on account of being made a substantive. part of the Constitution? The word "substantive", according to Black's Law Dictionary, means an essential part or constituent or relating to what is essential. Since the Objectives Resolution has been made a substantive part of the Constitution it has undoubtedly become an essential or integral part of the Constitution possessing the same weight and status as other Articles of the Constitution which are already a substantive part thereof. In other words, the Objectives Resolution has become from merely a preamble of the Constitution, declaring the objectives and ideals which the Constitution-makers were expected to reflect in the substantive part of the Constitution by framing appropriate provisions to carry into effect those objectives and ideals, a substantive, binding, integral provision of the Constitution. This is now its undeniable position. It is, therefore, necessary to examine once again what this Resolution exactly provides? Its first clause states:- "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust." The above declaration epitomises the belief of every Muslim regarding the true nature of an Islamic polity with regard to the extent of power exercisable by them in their State as also the mode in which this power shall be exercised. ' The second clause declares:- "This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan." This clause refers to the resolve of the people of Pakistan to frame a Constitution for Pakistan. In the context of a Constitution having been framed already namely the Constitution of 1973 of which Constitution the newly-added Article 2A is to form an integral part, a difficulty arises in comprehending as to what the true import and significance of this clause, in the present context, is? Does it imply that a Constitution is yet to be framed for the sovereign independent State of Pakistan and that the said Constitution will be framed in the light of the principles enunciated in the clauses of the Objectives Resolution that follow? Or can it be construed to mean that in the changed context these Objectives will he fulfilled by the provisions of the existing Constitution of the sovereign independent State of Pakistan? And in case the existing provisions thereof do not measure up to them or are repugnant to the principles and provisions set out in the Objectives Resolution, the said provisions can be declared by the Courts to be inoperative to the extent of the repugnancy? . Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions;, the Court should harmonise them, if possible (See Reference b the President f Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 219 at p.235). ?????????? This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra- Constitutional provision. Because, if this be its true status then the above- quoted clause would require the framing of an entirely new Constitution. And even if Article 2A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only "within the limits prescribed by Him". Thus all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law regarding political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed, the very basis on which the Constitution is founded namely the tracheotomy of powers i.e. that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, alongwith all the ancillary provisions embodied in the 1973-Constitution in relation thereto. Thus, instead of making the 1973- Constitution more purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form. This presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2A in the Constitution under the Revival of the Constitution Order, 1985 (President's Order No.14/1985). It certainly was not the intention of the law-makers who enacted Article 270-A (vide section 19 of the Constitution (Eighth Amendment) Act, ?1985] which provision affirmed and adopted, inter alia, P.0.14/1985 (whereby Article 2A was inserted in the Constitution). Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substantive provisions of the Constitution. In case any inconsistency was found to exist between the ?provisions of the 1973-Constitution and those' of the Objectives Resolution would, they expected, be harmonised by the Courts in accordance with the well-established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualised that they could not annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article 2A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject of "the Shariat Bill and its implications" PLD 1986 Journal 327, "The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut the tree on which they arc perched". The learned Chief Justice, in the same discourse, in which he made the above observation, proceeded to observe that "the objection in respect of the un-Islamic character of the Constitution is more ill-advised. It was passed by a Parliament consisting of renowned Ulema representing all our ' politico religious organisations all of whom approved it. This is sufficient certificate for its Islamic character. If someone thinks that some of its provisions are contrary to Sharia, he should raise the issue in the Majlis-i-Shoora (Parliament)". Obviously, these observations flow from him Finding that it is not open to Courts to invalidate a provision of the Constitution, being creatures of the same Constitution. According to him, even if the inconsistency alleged is in relation to an Islamic Injunction, the issue should be raised in the Majlis-iShoora and the remedy obtained through it (Parliament) rather than from the Courts. In this connection, the submissions made before us by Dr. Abdul Basit (learned counsel for respondents Nos. 10 and 11 in Civil Appeal No.39 of 1992) are very pertinent. According to him the concept of divine sovereignty enunciated in the Objectives Resolution namely that all sovereignty vests in Allah Almighty which has been delegated to the State of Pakistan through its people to be exercised through his chosen representatives shows that idea of State, in the Objectives Resolution, has been linked with that of people and this, in turn, is linked with that of "Chosen Representatives". Thus, the only authentic expression of the Delegated Sovereignty is expressed through the chosen representatives of the People of Pakistan. The result in the ultimate analysis is that the Legislative body, becomes the exclusive repository of the delegated Divine Sovereignty in Pakistan, since this is the body which has been elected on the basis of adult franchise and consists of the chosen representatives of the people. Thus, in the above concept (in relation to the exercise of sovereignty in the State of Pakistan) the people's representatives having been made the repository of the Divine Sovereignty the Courts do not have the jurisdiction to declare any law invalid on the ground of it not being within the "limits prescribed by Allah Almighty". The submission of Dr. Basit is that while the Superior Courts undoubtedly will continue to exercise the power and have the jurisdiction to declare laws void on the basis of the other criterion as provided for in the Constitution, but the particular criterion contained in Article 2A of ensuring that no man made law transgresses the limits prescribed by Allah and is invalid if it does so, is not within the scope of judicial review. In other words, if an Article of the Constitution or any existing statutory provision is alleged to fall, outside the limits prescribed by Allah and needs to be invalidated on that score, such a plea would furnish a ground for legislative but not judicial review, because the limits to be observed in this regard have been addressed to the chosen representatives of the people and not to the Courts. Hence they furnish grounds for legislative and not judicial review. However, the Courts shall retain full powers to identify and apply the proper law to concrete fact situations which are brought before them for adjudication. This submission undoubtedly has force. In an Islamic polity all the three limbs of the State namely Executive, Legislature and Judiciary can exercise the delegated functions of the divine sovereignty within their respective spheres and the reference in the Holy Qur'an to the obedience of? is equally applicable to the members of the judiciary. In this connection, it is pertinent to note that Maulana Maududi in his work entitled Tafheemul Our'an observes; the original is in Urdu and the English rendering thereof below is somewhat as under:- "The concept of `Oolilamr'? comprises of persons who are in charge of the collective affairs of the Muslims. They may be Ulema offering guidance on religious matters, or the political leaders, the civil servants running the administration or judges deciding disputes in Courts etc..." Interpreting the same verse Maulana Amin Ahsan Islahi in Tadabbar Qur'an? observed: "Since at the time of Revelation of this verse there was no question of any State or caliphate, the expression "Oolilamr" referred to in that context to the prominent leaders of the Muslims in various fields." This shows that the judiciary too can exercise the delegated divine sovereignty. But here we are concerned with the mode and manner of its exercise as visualised in the Objectives Resolution. It has already been pointed out that immediately upon the adoption of the Objectives Resolution a Basic Principles Committee was set up for framing the provisions of the Constitution in conformity with the principles enunciated in the Objective's Resolution. These provisions were eventually to be adopted by the Constituent Assembly after examining that they indeed complied with the principles enunciated in the Objectives Resolution. The Courts could neither participate in this process nor had any role therein. The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect indeals and the objectives set forth therein. Thus, whereas after the adoption of the Objectives resolution on 12th March, 1949, the Constitution-makers were expected to draft such provisions for the Constitution which were to conform ; to its directives and the ideals enunciated by them in the Objectives Resolution h and in case of any deviation from these directives, while drafting the proposed provisions for the Constitution the Constituent Assembly, before whom these draft provisions were to be placed, would take the necessary remedial steps itself to ensure compliance with the principles laid down in the Objectives Resolution. However, when a Constitution already stands framed (itt 1973) by the National Assembly of Pakistan exercising plenary powers in this behalf wherein detailed provisions in respect . of all matters referred to in the Objectives Resolution have already been made and Article 2A was made a mandatory part thereof much later i.e_ after 1985 accordingly now when a question arises whether any of the provisions of the 1973-Constitution exceeds to any particular respect, the limits prescribed by Allah Almighty (within which His people alone can act) and some inconsistency is shown to exist between the existing provision of the Constitution and the limits to which the man made law can extend; this inconsistency will be resolved in the same manner as was originally envisaged by the authors and movers of the Objectives Resolution namely by the National Assembly itself. In practical terms, this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself. This brings us to the question posed at the outset of the judgment namely that in case the Constitution-makers of 1973 in enacting the provisions of Article 45 of the Constitution of 1973 in their present form have indeed transgressed the "limits prescribed by Allah Almighty"; can the Courts invalidate the aforesaid provisions of Article 45 to the extent of the transgression? Now expressions like "the limits prescribed by Allah" or the principles of "democracy, freedom, equality, tolerance and social justice, as enunciated by Islam" which according to another clause of the Objectives Resolution shall form the basis of the Constitution are rather vague, general and flexible concepts which are capable of different interpretations at different times. Keeping this in view the authors of the Objectives Resolution appear to have thought given this flexibility and suppleness of these concepts and further conscious of the fact that the Constitution is the fundamental law of the land cannot be allowed to remain in a state of suppleness and uncertainty as in the words of Mr. Liaquat Ali Khan (in the speech referred to earlier) the 1- Constitution is to govern the people not only for generations but for centuries' and "the Constitution, once framed is scarcely changed or modified" that making the validity of its provisions dependent on the result of the interpretations placed on these concepts by Courts of law from time to time pursuant to controversies raised about them every now and then would render the Constitution unstable and make it uncertain. They, accordingly, opted for saddling the responsibility of giving effect to the true intent of these concepts on the chosen representatives of the people as the chosen representatives were the ones who had to frame the Constitution and were also the ones empowered to amend it (subject, of course, to'the Divine limitation). Indeed, no objection can be taken to adopting this course because the members of the Parliament (Majlis-i-Shoora) are equally accountable to God Almighty as are the members of the Court or any other body of persons falling under the category of (~'' J I J 91) (Ulul-amr). Accordingly, now if any question is raised in connection with the validity of any existing provision of the Constitution on the ground that it transgresses the limits prescribed by Allah Almighty (within which His people were competent to make laws) such a question on only be resolved by the Majlis-i-Shoora (Parliament), which can, if the plea is well founded, take the necessary remedial action by making suitable amendments in the impugned provision in order to bring it within the limits prescribed by Allah Almighty. Accordingly, in the instant case, if the High Court considered that the existing provision of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the Parliament which alone was competent to amend the Constitution, and could initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam. We must also mention that Dr. Abdul Basit, so far as the merits of his appeal is concerned, pointed out that the impugned judgment of the High Court was liable to interference on yet another ground, namely, that under para. (a) of the President's Commutation Order, the relief could be granted only to political prisoners and other persons convicted by the Military Courts and that the said Order did not cover cases of persons awarded death sentence by ordinary Courts. But commutation was granted, by the Authorities charged with implementing this Order, to all persons awarded death sentences prior to 7-12-1988 and that this wholesale benevolence was liable to be set aside on the basis of the grounds urged by him in the writ petition. Accordingly, it was not at all necessary for the High Court to examine this case on the touchstone of Article 2A of the Constitution and it had fallen into error in resting its entire judgment thereon. It was, therefore, submitted that the case deserved to be remanded to the High Court for adjudication and decision of the grounds urged in the writ petition in support of this last-mentioned plea. We are inclined to agree that this aspect of the case deserved consideration but has not been adverted to at all. Accordingly, the matter must be remanded back to the High Court for decision of this and other relevant pleas namely, to examine whether the terms of the Commutation Order applied to the cases to which its terms had erroneously been extended and whether the orders of commutation passed by the Jail Authorities in such cases were not liable to be set aside? Before concluding, we would like to express our deep appreciation for the great labour and industry exhibited by the learned counsel for the parties the learned Attorney-General, the learned Advocate-General, Punjab, Dr. Abdul Basit and Dr. Khalid Ranjha. We are also most grateful to the learned counsel who appeared to assist the Court as Amicus Curiae at our request namely Mr. S.M. Zafar and Mr. Ijaz Hussain Batalvi; their assistance was indeed invaluable and we are deeply indebted to them. We are also very grateful to the learned Advocate-General, Balochistan, Raja Muhammad Afsar and the learned Additional Advocate-General, N.-W.F.P., Mr. Hamid Saeed, who appeared before us in pursuance of the Notice issued to the Advocates-General of all the four provinces and helped us in unravelling several knotty questions. In the result, these appeals are allowed and the cases remanded to the High Court for re-decision in the light of the observations made above. (Sd.) NASIM HASAN SHAH, J. SHAFIUR RAHMAN, J.--I agree that the appeals be accepted and the matter remanded for the limited purpose indicated in separate opinion recorded by me. SAAD SAOOD JAN, J.--I agree. ABDUL SHAKURUL SALAM, J.--I agree that the appeals be allowed and matter remanded for reasons recorded in my separate judgment. MUHAMMAD AFZAL LONE, J.--I agree. SHAFIUR RAHMAN, J.

I have had the benefit and the privilege of going through the opinion recorded by my learned brother, Mr. Justice Dr. Nasim Hasan Shah. Out of the three conclusions drawn therein, as hereunder, I fully agree and endorse the first, but as regards the other two, with utmost respect, I have some reservations. The three conclusions reached are as hereunder:- (i)?????? "Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substantive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of the 1973 Constitution and those of the Objectives Resolution would, they expected, be harmonised by the Courts in accordance with the well established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualised that they could annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article 2A) as no Court, operating under a Constitution, can do so ... .... ... ... ... ... ... ... ... ... ... According to him, even if the inconsistency alleged is in relation to an Islamic Injunction, the issue should be raised in the h Shoora and the remedy obtained through it (Parliament) rather than from the Courts. (ii)?????? Accordingly, in the instant cases, if the High Court considered that the existing provisions of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the Parliament which alone was competent to amend the Constitution. We have no doubt in our mind that the Parliament would not have ignored the views expressed by the High Court but would have given due consideration to them and initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam. , (iii)????? We are inclined to agree that this aspect of the case deserved consideration but has not been adverted to at all. Accordingly, the matter must be remanded back to the High Court for decision of this and other relevant pleas namely, to examine whether the terms of the Commutation Order applied to the cases to which its terms had erroneously been extended and whether the orders of commutation passed by the Jail authorities in such cases were not liable to be set aside?" 2.??????? The factual background of Civil Appeal No.39 of 1992 is that the predecessor-in-interest of the respondents Nos.l to 9 (writ petitioners) was brutally murdered on 13th of February, 1987. There were others injured. Akram Beg and Altaf Beg (respondents Nos. 10 and 11) alongwith others were tried for the offence, convicted and sentenced by the Special Court for Speedy Trials. They were both sentenced to death on 21-1-1988. Their appeal against conviction and sentence was pending in the High Court. So was a Revision Petition filed by the complainants. On 7th of December, 1988, the President of Pakistan passed an order which was taken to be an order under Article 45 of the Constitution, though not so expressed. It was treated as commuting sentences of death into life imprisonment. The Inspector-General of Prisons and the Home Secretary of the Punjab gave effect to it treating thereafter the convicts sentenced to death and placed in death cell as sentenced to life imprisonment. They were taken out of the death cell. This prompted the heirs of the deceased victims of the murder to institute a Constitution Petition. The commutation of the death sentence was challenged on numerous grounds. The more relevant for the disposal of this appeal are grounds No.(i) and (vi) which were to the following effect:-- "(i)????? As shall be seen from the very description of the subject, the Communication, dated 7-.12-1988 attached above as Annexure `I1' is confined to grant of Relief to Political Prisoners and other persons convicted by Military Courts. It cannot be construed as having afforded any relief to any prisoner convicted by ordinary Courts after due process of law. (vi)????? In any case Article 2A having become a substantive part of the Constitution, there is no lawful authority in any respondent or for that matter any other authority in Pakistan to commute the death sentence awarded by a Court. In terms of the Rule laid down in Gul Hassan's case reported as PLD 1980 Pesh. 1, the power to commute death vest either in the Courts or in the heirs of the deceased persons by way of Di a for Qisas. It does not vest in any other person or authority. Neither the Federal nor the Provincial Governments have any such authority. This is a settled proposition in the law of Sharia and any provision in all existing statutes which run counter to the- said proposition already stand declared as repugnant to the Injunctions of Islam. Thus, neither the Federal nor the Provincial Government has the. lawful authority to issue the impugned directions. The above position is reinforced by the Shariat Enforcement Ordinance which has the status of touchstone for the validity of even the Constitutional provisions in terms of the Constitution itself."

3. The facts of Civil Appeal No. 28 of 1992 are that on the 20th of July, 1983 Saleh Muhammad, Muhammad Sultan and Ahmed Sher were murdered by firing at them. For this offence five accused were tried resulting in conviction and sentence of death by the Sessions Court to three of them. The death sentence of one of them was confirmed by the High Court on 6-7-1986 and of two others was commuted into life imprisonment. The Supreme Court dismissed their appeals and Criminal Review Petition 12-L of 1991. ,. The three convicts affected by the decision of the High Court in the writ petition filed by Mst. Sakina Bibi etc. (which decision is impugned in Civil Appeal No.39 of 1992) have filed an appeal against the decision whereby the amnesty order has been struck down. As the three convicts benefited from the amnesty order also apart from the conversion of the death sentence of two of them into life imprisonment, they filed this appeal. In this appeal also, the two grounds already reproduced, were taken up.

4. A Full Bench was constituted in the High Court- to examine the Constitutional question which was taken note of in the following words:-- " ....the precise question is; what is the effect of Article 227 read with Article 2A and the provisions and the dictates for the administration of criminal justice as envisaged by Islam on such powers of President of Pakistan. Precisely, the question of vital importance is whether in those cases, in which, death sentences have been :warded as Hadd, and whether the principles of Oisas are attracted when the President of Pakistan commuted such sentences of his own, because under the administration of criminal justice, as envisaged by Islam it is only Walis of the deceased who can waive their right of Oisas and not the Head of the State."' .

5. A Full Bench of the Lahore High Court, after examining the impact of Article 2A and the making of the Objectives Resolution hitherto a mere preamble, a substantive portion of the Constitution, came to following conclusions:

? (I) If we look at Article 2A, it will appear that the. legislature itself, conferred overwhelming position, on the Law of Allah and made the man made law subordinate to it. If that be so, can any Judge refuse to follow that position, as he is under oath to preserve, protect and defend the Constitution? If the Article 2A is effective and enforceable the sovereignty belongs not to the people or the Parliament, but Allah. Can then Article 2A be violated, defied or defeated? It must be appreciated that Article 270-A does equalize all the Articles of the Constitution, as regards their existence and enforceability and insists that they all being valid will co-exist with each other but with their own weight and importance. In that situation the application of Article 268(6) will pose no problem. (ii)?????? If any organ of the State goes beyond the limits of principles of Objectives Resolution, its action can be declared to be without lawful authority on the touchstone of limits prescribed by Allah and requirements of Islam as set out in Holy Our'sn and Sunnah. Even if the laws protected under Article 270-A of the Constitution are found repugnant to the Holy Qur'an and Sunnah, the Courts in Pakistan would be bound to ignore and overstep such a provision, its the same does not conform to the Supreme: Law of Ali-night s- Allah ?(iii)???? There is yet another very weighty argument in this behalf. 'The Supreme Court has firmly established the view that the rules of natural justice (meaning thereby law of Allah) shall be deemed to have been incorporated in every statute and violation of the tame shall ? render the proceedings null and void. In this view of the matter, we see no reason why the entire law of Allah should not be deemed to be the super law and any law, or action in violation of the same should not ??????????? be void. Further, the Supreme Court in a recent case gave preference to the "national interest" as against an action in accordance with the constitution. Will it not amount to saying that the laws of Allah are not in national interest, if we do not treat them as Supreme Law, despite the Constitutional requirement (see PLD 1989 SC 166, Federation of Pakistan v. Muhammad Saif Ullah Khan). (iv)????? In view of the above, our humble view is that Article 2A is an effective and operative part of the Constitution and no Court may refuse to enforce it. Consequently, the Federal Shariat Court shall exercise its jurisdiction assigned to it under Chap. 3A of the Constitution, whereas, the High Courts shall exercise their jurisdiction with regard to all other laws. They may declare them repugnant to the Injunctions of Islam, as contained in Our'an and Sunnah of the Holy Prophet (p.b.u.h.) and may also grant relief, as may be called for in the circumstances of the case. (v)????? The President of Pakistan had no such power to commute, the death sentences awarded in matter of Hudood Oisas and Liyat Ordinance. In this view of the matter, we are, of the considered view that the power of pardon in such cases only vests with the heirs of the deceased, therefore, the cases in which death sentences have been awarded, the President had no rower to commute. remit or pardon such sentences. However, the cases would be on different footings, if a person has been punished by way, of Tazir as in such cases, the Head of the State has- the power to pardon the offender and that too in public interest." On these findings the relief was. granted that the President could not commute the death sentences awarded to the convicts.

6. The Federation of Pakistan has in challenging the decision of the Full court taken up the following grounds:-- "(J)???? The provisions of Article 2A are not self-executory. The provisions of this Article lay down broad principles to be observed by the various organs of the State. (ii)?????? The provisions of Article 2A of the Constitution could not be interpreted by the High Court in the exercise of Constitutional jurisdiction in a manner to curtail or affect in any manner the other provisions of the Constitution. (iii) That the learned Judges of the High Court had no jurisdiction to declare Article 45 or any other provisions of the Constitution as contrary to Article 2A. (iv)????? That the provisions of Article 2A could not be applied retroactively to nullify the other provisions of the Constitution. (v)????? That the provisions of Article 2A are enabling provisions. (vi)????? That the judgment of the High Court qua interpretation of Article 2A vis-a-vis Article 45 of the Constitution cannot be maintained. (vii) That the learned High Court has erred in extending the ambit and scope of Article 2A and has misconstrued its provisions in holding inter alia that Article 2A has overwhelming position/overriding effect and that the contents thereof can override any other, provisions of the Constitution including Article 45. (viii) That the provisions of the `Objectives Resolution' as annexed to the Constitution have not been correctly construed. It is submitted that Article 2A cannot be attracted to the extent the learned Judges of the High Court have attempted to hold in the impugned judgment. (ix)????? That the interpretation of Article 2A the `Objectives Resolution' as sought to be made out in the impugned judgment, does not take into account that the provisions of the Constitution are meant for all citizens on the basis of equality, freedom to profess religion as well as other principles as embodied in the Constitution. (x)????? That the learned Judges have not fully appreciated the effect of the impugned judgment vis-a-vis other provisions of the Constitution including various Fundamental Rights contained in the Constitution while interpreting Article 2A. (xi)????? That the provisions of the Constitution are to be read as a whole and full effect has to be given to each Article to avoid any assumed repugnancy. It is submitted that the High Court has not correctly appreciated that no Article of the Constitution can be tested or struck down on the basis suggested and the ratio mentioned in the impugned judgment." 7.??????? The appellants in Civil Appeal No. 28 of 1992 who felt aggrieved by the decision of the Full Bench of the Lahore High Court challenged the same taking up the following grounds:-- (A)???? That the petitioners were never heard by the learned Full Bench of the High Court nor. were they given any notice although the Advocate General Punjab, appeared on behalf of the Provincial Government of Punjab had full particulars of petitioners' .hereabouts, before the passing the impugned judgment. The impugned judgment is bad as it offends the principle more basic than Article 2A of the Constitution i.e., `no one is to be condemned unheard'. The impugned judgment merits to be set aside being violative of the principle of `audi alteram partem'. (B)????? That Article 2A which renders preamble as part of the Constitution has been misconstrued. By virtue of Article 2A preamble has been rendered at par with the ckapter which contains principles of policy. (Articles 29 to 40). No power is conferred thereby on the Courts to hold a law ultra vires being repugnant to this preamble. The language of the preamble despite Article 2A remains unjusticiable as the Article layings down principles of policy. Article 2A is in fact nothing but legislation by reference. Even if preamble be read as part of the Constitution it cannot be treated as a self-operative part. By dint of its drafting, a preamble remains preamble despite Article 2A and no law can be set aside by bringing in aid a conflict between a law/or Act and the preamble. It is beyond the power of the High Court to declare that any provision of the Constitution is unconstitutional on any ground whatsoever. Such a finding runs counter to the powers of the High Court stipulated in Article 199 of the Constitution of Islamic Republic of Pakistan and the Oath of the Office of the High Court. (C)????? That the High Court has erred in holding that Article 2A implied by repeal other provisions of the Constitution like Article 45 and other such like provisions. (D)???? That the finding of the learned Full Bench is averse to the Article 203-D of the Constitution of the Islamic Republic of Pakistan. Article 2A cannot be treated as to achieve something indirectly what cannot be effected indirectly. (E)????? That the findings of the learned Full Bench are also not in conformity with Article of the Constitution of the Islamic Republic of Pakistan. (F)????? That the learned Full Bench has misconstrued the Constitution by holding that Article 2A washes away Article 45 of the Constitution. If this argument be carried to its logical conclusion then Article 2A would wash off most of the Constitution on grounds of its not being in conformity with the Qur'an and Sunnah. (G)????? That the Full Bench has placed lot of emphasis on the premises that with interpretation of the provision of Oisas and Diyat, the President's powers of pardon have been rendered un-Islamic. The Hon'ble High Court has failed to appreciate that at the time President's order was passed in 1988 there was no Oisas and Diyat Ordinance in the field, hence the judgment is misconceived.???? (H)???? That :6e petitioners and many identically placed have taken advantage of the Presidential Order, and thus acquired locus penitential in their release from death cells. It is against the settled law of the land sending the petitioner back to Death Cell after they have earned the bounty of State of being released from death cells. The verdict given by the Full Bench is not in keeping with doctrine of judicial, dignity inasmuch as the High Court being aware of the fact that Supreme Court was seized of this matter, High Court sought to have withheld its judgment to wait for the decision of the Supreme Court of Pakistan. I (1)??? That the present petition raises important point of public importance and interpretation of Constitution and law."

8. Through an individualized dispensation (P.O.No. 14 of 1985) which of course received subsequently the approval of the Parliament, among others, two important amendments in the Constitution of 1973 (relevant to the present discussion) were made. One such amendment (Article 2A at first sight appears to be formal, not very consequential, declaratory in nature, inoperative by itself. But in our milieu it has given rise to a controversy and a debate which has had no parallel, shaken the very Conditional foundations of the country, made the express mandatory words of the Constitutional instrument yield to nebulous, undefined, controversial juristic concepts of Islamic Fiqh. It has enthused individuals, groups and institutions to ignore, subordinate and even strike down at their will the various Articles of the Constitution by a test of what they consider the supreme Divine Law, whose supremacy has been recognized by the Constitution itself. 9.??????? The two amendments which I propose to discuss and which have made simultaneous appearance as substantive provisions of the Constitution are as hereunder: "(1)???? Article 2A--The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly." The text of the Annex has already been reproduced in extenso so it is not being reproduced here. (2) Article 239 adding two new sub-Articles (5) and (6) in the following words: "(5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever. (6) For the removal of doubt, it is hereby declared that there is no limitation? whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution."

10. What does the Objectives Resolution contain. It has three separate distinct components. The first is purely structural feature of it that the sovereignty of Almighty descending on the people of Pakistan constituting State of Pakistan is to be exercised through their chosen representatives. So the people operating through their chosen representatives and the Almighty Allah at the Appex exhaust the pristine, devolution, distribution and sharing of Divine sovereignty. The individuals, the authorities, the institutions, the Courts, do not figure in this structure. They make their appearance on terms, with limitation, as a result of further delegation of authority expressly made or impliedly conferred. The second is its qualitative feature. The sovereignty shared or enjoyed is delegated, capable of further delegation, is by its very nature a sacred trust and has to be; exercised within the limits prescribed by the Almighty Allah. ' The third is its normative feature. The norms, the goals, the ideals, mostly mundane in nature arc spelt out with particularity which have to be achieved through the Constituent Assembly and by the process of framing a Constitution.

11. Nowhere in the Objectives Resolution, either expressly or impliedly do I rind either a test of repugnancy or of contrariety, nor empowering of an individual or of an institution or authority or even a Court to invoke, apply and declare Divine limits, and go on striking everything that comes in conflict with it by reference to Article 2A. Such an interpretation of Article 2A of the Constitution and appropriation of authority so to do amounts to usurpation. It would indeed be so when the amplitude of power reserved for the Parliament in the same Constitutional instrument is kept in view.

12. Apart from these broad features noted by me, there are settled, classic, accepted principles of interpretation of Constitutional provisions. They should not be lost sight of, ignored or violated in our euphoria for instant Islamization of Constitution, Government and society.

13. Article 2A of the Constitution came up for consideration in one form or the other in the following cases before this Court:- (1)????? Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad (PLD 1991 SC 290; (2)????? Messrs Mumtaz Industries through Haji Karim Bakhsh and 2 others v. Industrial Development Bank of Pakistan and another (PLD 1991 SC 729); (3)????? Mst. Resharn Bibi and 4 others v. Mst. Elahi Sain and 8 others (PLD 1991 SC 1034); (4)????? Messrs Macdonald Layton Constrain Limited, West Wharf, Karachi v. Punjab Employees' Social Security Institution, Lahore and 2 others (PLD 1991 SC 1055); (5)????? Mian Aziz A. Sheikh v. The Commissioner of Income .Tax, Investigation, Lahore (PLD 1989 SC 613); (6)????? Ahmad v. Abdul Aziz (PLD 1989 SC 771); (7)????? Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287); (8)????? Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). In the Lahore High Court this Article 2A came up for consideration in the following cases:- (1)????? Government of Pakistan through Secretary, Ministry of Religious Affairs, Islamabad and 3 others v. Zafar lqbal and 3 others (1992 CLC 219 (Lah.)); (2)????? Allah Ditta v. The State (PLD 1992 Lah. 45); (3)????? Muhammad Ashraf v. National Bank of Pakistan and others (1991 CLC 1018); (4)????? The State v. The Senior Superintendent of Police, Lahore and others (PLD 1991 Lah. 224); (5)????? Ittefaq Foundry v. Federation of Pakistan (PLD 1990 Lah. 121); (6) Massu and 27 others v. United Bank Limited (1990 Monthly Law Digest 2304 (Lah.)); (7)????? Allah Banda v, - Mst. Khurshid Bibi and 2 others (199() CLC 1683 (Lah.)); (8)????? Malik Ghulam Mustafa Khar and others v. Pakistan and others (PLD 1988 Lah. 49); (9)????? Muhammad Sharif v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (PLD 1987 Lah. 58). This Article 2A came up for consideration before the High Court of Sindh in the following cases:- (1)????? Sindh High Court Bar Association, Karachi and another v. The Islamic Republic of Pakistan through the Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and another (PLD 1991 Kar. 178); (2) Tyeb v. Messrs Alpha Insurance Co. Ltd. and another (1990 CLC 428 (3)????? Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others (PLD 1990 Kar. 9); (4)????? Miss Farhat Jaleel and others v. Province of Sindh and others (PLD 1990 Kar. 342); (5)????? Saghir Ahmad Warsi v. Industrial Development Bank of Pakistan (1989 Monthly Law Digest 968(Lah.)); (6) Jagan and others v. The State (PLD 1989 Kar. 281); (7)????? Aijaz Haroon v. Inam Durrani (PLD 1989 Kar. 304); (8)????? Messrs Yaseen Sons v. Federation of Pakistan and another (PLD 1989 Kar. 361); (9)????? Habib Bank Limited v. Messrs Waheed Textile Mills Limited and 5 others (PLD 1989 Kar. 371); (10) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Kar. 404); (11) Shaukat Hussain v. Mst. Rubina and others (PLD 1989 Kar. 513); (12) Mirza Oamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar. 169); (13) Bank of Credit and Commerce International v. Messrs Ali Asbestos Industries Ltd. and 5 others (1988 Monthly Law Digest 2088); (14) Algemens Bank Nederland N.V. v. Fort Super Pakistan Ltd. and 3 others (1989 Monthly Law Digest 1058 (Kar.)); (15) The Muslim Commercial Bank Limited v. Messrs Republic Industrial Corporation and 4 others (1987 Monthly Law Digest 2794 (Kar.)); (16) Muhammad. Bachal Memon v. Government of Sindh through Secretary, Department of Food and 2 others (PLD 1987 Kar. 296); (17) Messrs Bank of Oman Ltd. v. Messrs East Trading Co. _ Ltd. and others (PLD 1987 Kar. 404); (18) Irshad H. Khan v. Mrs. Parveen Ajaz (PLD 1987 Kar. 466); r (19) Habib Bank Limited v. Muhammad Hussain and others (PLD 1987 - Kar.612). It (Article 2A) also came up for consideration before the Federal Shariat Court in the following cases:- (1)????? Muhammad Salahuddin and others v. Government of Pakistan (PLD 1990 Federal Shariat Court 1); (2) Muhammad Sarwar and another v. The State (PLD 1988 FSC 42). (3) Muhammad Naseer v. The State (PLD 1988 FSC 58).

14. The view taken in the Supreme Court decisions so far is that Article 2A of the Constitution did not subordinate Chapter 3-A of Part VII of the Constitution (Ahmed v. Abdul Aziz PLD 1989 SC 771); that it could not be adopted as a rule of repugnance for defeating the other Articles of the Constitution (Sardar Ali's case PLD 1988 SC 287); it could be utilised for correcting and reviewing the orders of judicial and quasi-judicial tribunals as held in the case of Mian Aziz A. Sheikh (PLD 1989 SC 613). The Lahore High Court has however, taken very contradictory views with regard to the effect of Article 2A of the Constitution. For example, in the impugned judgment the High Court has declared even Constitutional provisions repugnant, striking them down where found not in conformity with Injunctions of Islam and that this jurisdiction covers the field left over from the jurisdiction of the Federal Shariat Court under Chapter 3-A of Chapter VII of the Constitution. In another case, case of Massu (1990 MLD 2304) it was held that no statute, no provision of the Constitution could be declared by the High Court to be ultra vires or struck down by reference to Article 2A of the Constitution.

15. Similarly, the High Court of Sindh has given contradictory judgments on the subject. For example, in the cases of M/s. Bank of Oman Limited (PLD 1987 Kar. 404) and Irshad H. Khan (PLD 1987 Kar. 466) Article 2A was held to be supra-Constitutional and paramount and except to the extent of its subordination of Chapter 3-A of Part VII of the Constitution it was adopted as a test of repugnancy of any other provision of the Constitution. The diametrically opposite view fords expression in the cases of Sharaf Faridi and 3 others (PLD 1989 Kar. 404) and Abdul Mujeeb Pirzada (PLD 1990 Kar. 9 at page 132).

16. As regards the nature of the Constitutional provision, Bindra's Interpretation of Statutes, Seventh Edition-1987 observes as follows:- "A Constitutional provision is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced without the aid of a legislative enactment. It is within the power of those who adopt a Constitution to make some of its provisions self-executing, with the object of putting it beyond the power of the Legislature to render such provisions nugatory by refusing to pass laws to carry them into effect. Where the matter with which a given section of the Constitution deals is divisible, one clause thereof may be self executing and another clause or clauses may not be self-executing. Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given or the enforcement of a duty imposed. That a right granted by a Constitutional provision may be better or further protected by supplementary legislation does not of itself prevent the provision in question from being self-executing, nor does the self-executing character of the Constitutional provision necessarily preclude legislation for the protection of the right secured. A Constitutional provision which is merely declaratory of the common law is self-executing. A Constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on Legislature. ?Constitutional provisions arc not self-executing if they merely indicate a line of policy or principles, without applying the means by which such policy of principles are to be carried into effect, or if the language of the Constitution is directed to the Legislature, or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. Provisions of this character are numerous in all Constitutions and treat of a variety of subjects. They remain inoperative until rendered effective by supplemental legislation. The failure of the legislation to make suitable provision for rendering a clause effective is no argument in favour of self-executing construction of the clause. Self-enforcing provisions are exceptional. The question whether a Constitutional provision is self-executing is always one of intention, and to determine intent, the general rule is that Courts will consider the language used,. the objects to be accomplished by the provision, and surrounding circumstances. Extrinsic matters may be resorted to where the language of the Constitution itself is ambiguous."

17. The ascertainment of the absolute principles of Islamic Law with regard to political power, its distribution and delegation and financial institutions is itself a matter requiring detailed study, thorough research and meaningful debate before acquiring concrete shape so as to be adopted as a test of repugnancy of the Constitutional provisions. It cannot summarily be done. Such an exercise can more appropriately be undertaken under the control and supervision of the legislature and the expert bodies like the Islamic' Ideology Council and Islamic Research Institute. The provisions of Article 2A were never intended at any stage to he . elf-execlitory or to he adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution (Article 45).

18. The Court's primary duty is to adjudicate by reference to positive law? in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided. The Court should not undertake examination of theoretical academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the Constitution. If the introduction of Article 2A of the Constitution as a substantive provision of the Constitution does not by itself authorise the Court to adopt it as a test of repugnancy with regard to the other Constitutional provisions it would be better for the superior Courts not to undertake this exercise or to record opinions on merits with regard to such repugnancy. That would be a commitment not conducive to the purely judicial functions that the Courts are required to perform under the Constitution.

19. As regards the merits of the question involved in the case, the punishments of death awarded were not by way of i a . The sentences of death awarded were under Tia'zir. Just as a sentence of Ta'zir is imposed on State's command and not as a right of the individual under God's law, the State as represented by the President, has and continues to have in respect of Ta'zir punishments, the right of commutation, remission etc.

20. As regards the remand of the matter for deciding whether the dispensation was restricted only to Martial Law convicts and to political cases and not to ordinary cases, we have already a number of cases pending awaiting decision of this Court wherein the arguments have concluded and wherein the power of amnesty actually exercised, that is, whether it related to a particular category of cases or to a particular type of convictions and sentences and not the others is directly in issue. In view of pendency of those connected cases (Criminal Appeal No.49 of 1991 etc.), it may not be necessary to remand the present matter to the High Court. All the same, as the writ petitioners are not parties in those cases and have necessarily to be heard on the question left unexamined by the High Court technically, there can be no objection to remand as is suggested by my learned brother Mr. Justice Dr. Nasim Hasan Shah.

21. I would, therefore, accept the appeals, set aside the judgment of the High Court leaving the scope of amnesty to be determined in the other cases that are awaiting decision i.e. Criminal Appeal No.49 of 1991 etc., and remand the case for limited purpose indicated in paragraph

20. ABDUL SHAKURUL SALAM, J.--Having had the honour and privilege of going through the final judgments of my learned brothers Mr. Justice Dr. Nasim Hasan Shah and Mr. Justice Shafiur Rahman, I wish to say my piece as the issue is of immense importance. I entirely agree with my learned brother Dr. Nasim, Hasan Shah, J. in the illuminating historical perspective of passing of the Objectives Resolution and its incorporation as Article 2A in the Constitution of the Islamic Republic of Pakistan. I also agree that if any Article of the Constitution is in conflict with Article 2A the appropriate procedure is to have it amended in accordance with the prescribed provision for the purpose. However, it does not absolve the Courts of their duty to give effect to the provisions of Article 2A as it has been made "substantive part of the Constitution". A Constitution is an organic whole. All its Articles have to be interpreted in a manner that its soul or spirit is given effect to by harmonising various provisions. Having said this, let me examine the impugned provision of the President's Order dated 7th/8th December, 1988, by which all sentences of death by a certain date have been commuted to imprisonment for life. The Order was passed on the advice of the Prime Minister by the President, in exercise of power under Article 45 of the Constitution. A perusal of the provisions of the Objectives Resolution, as incorporated in Article 2A already quoted by my learned brother Dr. Nasim Hasan Shah, J., shows that in no manner the President's Order contravenes any of its terms. In the leading judgment of the High Court, "the crucial question" formulated was "whether regardless of the date on which the punishment was awarded and the date on which the President of Pakistan issued the order impugned, in view of the provisions of Article 2A of the Constitution of the Islamic Republic of Pakistan, does the President of 'Pakistan enjoy such powers? Our answer to this question in the light of the judgments and principles of the Holy Book as laid down in the Oisas and Diyat Ordinance s in the negative. The President of Pakistan had no such power to commute the death sentences awarded in matters of Hudood. Oisas and Diyat Ordinance. In this view of the matter, we are of the view that the power of pardon in such cases only vests with the heirs of the deceased. Therefore. the cases in which death sentences have been awarded, the President had no Rower to commute. remit or pardon such sentences. However. the cases would be on different footings. if a person has been punished by way of Ta'zir as in such cases, the Head of the State has the power to pardon the offender and that too in public interest". It may however, be noted that in the cases in hand the President had commuted the sentences of death to imprisonment for life which. were imposed not as ISBS but as Ta'zir under the ordinary criminal law before the enforcement of the Oisas and Diyat Ordinance. Therefore, there was no occasion per the formulation to annul the President's Order. In view of the above, I will allow the appeals. However, for the reasons recorded in the judgment of my learned brother Mr. Justice Shafiur Rahman I agree that the cases may be remanded in terms of para. 21 of the said judgment. M.BA./H-151/S?????????? Order accordingly.