P L D 1976 Supreme Court 57 (PLP)

"Gandhiji was moved by the appeal and said that he would raise the matter with Lord Mountbatten. He did so when he met the Viceroy and told him that he would not be able to support the plan for Partition till he was satisfied that the Muslim League would deal fairly with the Khudai Khidmatgars. How would he desert those who had always stood by the Congress in the days of difficulty and stress ?" The Viceroy agreed to discuss this matter with the Quaid-e-Azam. He Aid so and the Quaid agreed to meet Khan Abdul Ghaffar Khan. They met at Delhi but nothing came out of this meeting. Subsequently, when the Khan brothers, after making their exit from -the Congress, returned to Peshawar they raised, what the Maulana calls "the slogan of Independence for the Frontier" and the question of its inclusion in the Referendum proposed under the Mountbatten plan to be held in the N.-W. F. P. The Congress Working Committee itself later endorsed their decision and authorised Khan Abdul Ghaffar Khan to take whatever action he thought necessary to deal with the situation in the province and it was in this way that the Frontier Congress, led by Khan Abdul Ghaffar Khan, demanded the creation of a free Pathan State and wanted that the plebiscite proposed to be held in the N.-W. F. Province "should not be on the basis of a choice between Pakistan and India, but that there should be a third alternative of an independent Pakhtoonistan". This decision was taken at a joint meeting of the Khudai Khidmatgars, the Pakhtoon Zalme (the Youth Organization of the Khudai Khidmatgars), the Frontier Province Congress Committee and the Congress Parliamentary Party, held at Bannu on the 2 ! st June, 1947. This meeting was presided over by Amir Mohammad Khan, the President of Frontier Province Congress Committee and it adopted the following resolution unanimously :- "That a free Pathanistan of all Pakhtoons be established. The Consti tution of the State will be framed on the basis of Islamic conceptions, democracy, equality and social justice. This meeting appeals to all Pathans to unite for the attainment of this cherished goal and not to submit to any non-Pakhtoon domination". (Exh. RAW 19/9). The learned Attorney-General suggests that there was behind this move something more than a mere verbal blessing to the Frontier Congress plan by the All-India Working Committee, Mr. Gandhi and the Congress must have secretly, it is suggested, also agreed to support the movement in a more concrete form. Pyarelal in his book "Thrown to the Wolves", at page 48, states that on the 3rd June, 1947, when the Congress had accepted the principle of the Partition plan. Khan Abdul Ghaffar Khan stated to Mr. Gandhi that "a terrible fate awaits us in the N: W. F. Province. We do not know what to do ?". On this Mr. Gandhi declared :- "Khan Sahib, non-violence knows no despair. It is the hour of your trial . . . . . .. You can declare that Pakistan is altogether unacceptable to you and brave the worst. What fear can there be for those who are pledged to do or die." Even after Mr. Gandhi and Khan Abdul Ghaffar Khan parted on the 30th July, 1947, never to meet again, the affairs of the N: W. F. Province continued to agitate the Mahatma's mind and on the 26th September, 1947, in the course of a post-prayer address, Mr. Gandhi, according to Pyarelal remarked that although "he had been an opponent of all warfare, but if there was no other way of securing justice from Pakistan, if Pakistan persistently refused to see its proved error and continued to minimize it, the Indian Union Government would have to go to war against it". Again, according to Pyarelal, on the 17th November, 1947, the Mahatma wrote to Khan Abdul Ghaffar Khan "to leave the Frontier Province and develop the non-violent technique from India" and concluded with the advice that "this you can do here with me or otherwise. What the otherwise can be, I do not know". These, according to the learned Attorney-General, clearly indicate that the inspiration came from across the border and that it was not confined merely to verbal encouragement and support but extended, if necessary, to something more. This seems to find support also from what Pyarelal has stated at page 108 of his book that Khan Sahib (Khan Abdul Ghaffar Khan) had disclosed to him that :- "At the time of Partition Gandhiji had told him that independent India would not fail to come to their help if they were oppressed. That promise had not been kept. Gandhiji would never have let this happen if he had lived. India owed it to them and to Gandhiji to make kafara (expiation) for it." At this meeting, according to Pyarelal, Khan Sahib (Khan Abdul Ghaffar Khan) had also recalled that in the Working Committee meeting of the Con gress, when the Partition decision was taken, Gandhiji had told him that "if they were not given a fair deal or were victimized, India would fight and it might become the duty of the Indian Government to treat it as causus bedi if Pakistan did not mend its ways". Gandhiji is reported to have repeated that to a near kinsman of Khan Saheb Khan Abdul Ghaffar Khan, who saw him in Delhi after Independence. When Khan Saheb (Khan Abdul Ghaffar Khan) was asked by Pyarelal as to what were his immediate plans, Khan Saheb (Khan Abdul Ghaffar Khan) told him that "he was planning to restart Khudai Khidmatgar Movement with the consent and cooperation of the Afghan Government". According to Pyarelal, Khan Abdul Ghaffar Khan also told him during his interview with him at Kabul in 1966, that :- "In virtue of the solemn pledge that Gandhiji had given them at the time of Partition, India was morally bound to do for them all that she would do in an issue of vital concern to herself." (Vide page 111) Khan Abdul Ghaffar Khan also reiterated this in his address before a joint session of the Parliament of India on the 24th November, 1969, when he was on a visit to India on the occasion of the Gandhi Birth Centenary. The Khan, according to the official record of the speech published by the Secretary, Ghaffar Khan (Sarhadi Gandhi), Salgirah Samiti, New Delhi (Exh. RA W 19/10), stated that :- "In the Working Committee, Gandhiji and I opposed Partition to the last, But nobody listened to us. After the decision in favour of Partition was taken I said to Gandhiji 'you have thrown us to the wolves'. It was then that Gandhiji told me 'if you are unjustly treated or oppressed, India will fight for you'. I do not wish to describe here in detail what followed, you know it as well as we. But may I ask whether, it was not your moral duty to help us ?'' To conclude this Chapter, the learned Attorney-General points out that the speeches to which reference has been made earlier spell out as to what the real concept and aim of the Pakhtoonistan Movement is-the establishment of a completely independent State or at least such a State as would be in a position to enter into an agreement with other States to form G a larger union for the purposes of defence, foreign affairs and currency. If this was the real intention of the founders of the Pakhtoonistan Movement, whether with or without the help of foreign countries, then such a movement was clearly aimed at the fragmentation of Pakistan and this could only be achieved by destroying the sovereignty and integrity of who is now left of Pakistan, In a pamphelt entitled "Bullet for Bullet" (Exh., RAW 6/9), published by the Overseas Office of the Revolutionary Democratic Front, London, an organ of the N. A. P., by Mr. Ajmal Khattak, who describes himself at page 1 of this pamphlet as the 'General Secretary of Pakistan Awami Party', it is stated as follows :- "Pakhtoons and Baluchs have no choice except to launch their struggle for self-determination-without waiting for the final decision of their Sindhi brothers and regardless of the designs and machinations of self-seeking and exploiter clique of Punjab . . . . . . . . . . This struggle of the Baluchis and Pakhtoons is a struggle for national self -determination. It is a struggle against the agents of Imperialism and representatives of reaction ; it is a struggle against a strong, blood-sucking and suffocating Centre and for the political and economic liberation of the different nations inhabiting Pakistan . . . . .. We neither desired nor desire conflict and confrontation. It were the military rulers of Pakistan who compelled us to resort to active revolutionary struggle. We want to declare that if any eminent personality, nation or organization is prepared to intercede and use their good offices with the rulers of Pakistan and persuade the latter through talks to accept our national rights, we are always and anytime prepared for resolving all our problems through nego tiations." In a resolution passed by the Provincial Council of the Sarhad National Awami Party at a meeting held at Peshawar sometime in December, 1974, according to RAW-5, Mustafa Kamal, who was the printer of the said pamphlet (Exh. RAW 5/2), the Sarhad National Awami Party, after charging that those who had created Pakistan were the 'Gomashtas' of the British and were working in the interest of the British, alleges that the smaller Provinces have been kept enslaved by the rulers of Pakistan and then goes on to demand that such a political order should be established in the country which would give every individual the freedom to set up the political and sccial order he wants, that the results of the 1970 elections should be accepted and on their basis the Governments of the Provinces of Baluchistan and N.-W. F. P. should be restored. It finally concludes with an assurance to the Baluchis that the Provincial Council of the Sarhad National Awami Party will render full support to the Baluchis in their struggle and in the achievement of their goal. According to the learned Attorney-General all this also- discloses that there has been no change in the concept of Pakhtoonistan even now. It remains what it was-the demand far an independent State. The contention of the Party and Mr. Abdul Wali Khan in their respective written statements that the demand of Pakhtoonistan is in no way inconsistent with or prejudicial to the integrity of Pakistan does not appear, therefore, to find support from the public utterances of the N. A. P. leaders. Even the resolutions of the Provincial Council of the Sarhad National Awami Party, if carefully read, conveys the same sense, although more -cleverly worded to conceal the real object. A careful examination of this claim of the Party that the Pakhtoonistan Movement merely seeks the renaming of N.-W. F. P. will reveal that this is a wholly untenable claim. As earlier pointed out, this Pakhtoonistan Movement contemplates firstly the carving out of a new Province from H put of the territories which now constitute N.-W. F. P. and Baluchistan wherein, according to the protagonists of the Movement, live Pakhtoons and then to give it the right of complete self Government with only three subjects left to the Centre. This is not a mere renaming of a Province. The contention advanced by the learned Attorney-General that if this claim was confined merely to the renaming of the Province, then such a proposal could easily have been initiated when the N. A. P. and J. U.1. coalition Governments were in power in these two Provinces is not without substance. The fact that this was not done, clearly shows that something more than mere renaming was intended. Be that as it may, even the carving out of a new province out of the two Provinces and giving it a new name will not be possible unless clause (2) of Article 1 of the Constitution is amended. Nor can the Legislature of any single Province force such a decision, which would affect the territories of another Province. Therefore, we are unable to accept the contention of the N. A. P. and of Mr. Abdul Wali Khan that this was nothing more than the renaming of a Province. It has, in our view, more sinister implications, as rightly contended by the learned Attorney-General. The real intention appears to be to carve out anew State from out of the territories of Pakistan. The proposal of leaving only three subjects to the Centre conjures up a picture of the consequences which flowed in the recent past as a result of a similar demand of the six points programme of the Awami League of East Pakistan. Anything, therefore, which has the tendency of disrupting the Federal structure set up under the unanimously adopted Constitution would be a matter affecting not only the Constitution but also the integrity of Pakistan and much more so if the result contemplated is a dismemberment of the country which flows directly from the freedom to opt out as claimed by the founders of the Pakhtoonistan Movement. The Movement was conceived as an alternative to the merger of N: W. F. P. in Pakistan and we have no doubt in our minds that its supporters now aim to reverse the verdict given by the people of this area in favour of Pakistan by taking the area again out of Pakistan. Sovereignty also covers the external sovereignty and, therefore, to talk of shifting the International boundary line like the Durand Line from one place to another would be a question vitally affecting the sovereignty of Pakistan. We are of the further opinion that on the evidence to which reference has been made above, the Referring Authority has been able to establish beyond any reasonable doubt the first and the second points in issue or topics, as the learned Attorney-General has called them. We are of the view that there is enough evidence to show that the National Awami Party and its leaders have consistently sought to create doubts about the people's belief in the ideology of Pakistan and thereby to destroy the concept which farmed the very basis for the creation of this country by ridiculing and falsifying the concept and even suggesting that after the secession of East Pakistan the concept had disappeared or been drowned in the Bay of Bengal. We are also of the opinion that the evidence to which reference has already been made sufficiently discloses that the top leaders of the N. A. P. are still not fully reconciled to Pakistan's existence and still think, as Maulana Azad said in his autobiographical notes, 'India Wins Freedom', that their "only chance of retaining their leadership in the N.-W. F. P." Is by the propagation of this concept. The 1974 Resolution (Exh. RAW 5/2) of the Provincial Council of the Sarhad National Awami Party giving assurances of full support to the Baluchis then engaged in a violent conflict with the Government established by law further indicates that not only the leaders but also the Party as such was similarly operating and for a similar purpose. The charge regarding the subversion of the Constitutions more or less admitted by the Party and its leaders in their respective written statements. Mr. Abdul Wali Khan and his co-leaders after taking the oath of loyalty under the new Constitution, which contains a solemn pledge to maintain the territorial integrity of Pakistan, could not, in our view, claim the right to repudiate the Constitution merely on the ground that some one else was also doing so. We have already adverted to the counter allegations ragarding the unjust treatment of the Provinces of N.-W. F. P. and Baluchistan. It now remains only to say that his other justifications for repudiating the, Constitution are equally baseless. He claims that Mr. Bhutto and his Party have not been acting according to the Tripartite Accord and Agreement (Exhs. R. A. W. 20/5 and 6), because, Mr. Bhutto and his Cabinet Ministers have been trying to divide the N. A. P. itself and to divide -the N. A. P. and the J. U. 1. and to divide the Frontier Province from Baluchistan by their intrigues and politicking. This is not a defence in law and it is hardly a ground on which any responsible political leader can claim the right to repudiate a Constitution. If Mr. Bhutto and his Cabinet Ministers are politicking it is for Mr. Abdul Wali Khan and his co-leaders of the N. A. P. to counter such politics by more astute moves. If they cannot do that and prevent the breaking up of their own Party then they must admit that there are inherent weaknesses in their own Party and its programme. If a Party is not united together by any strong motivating force or is not composed of loyal adherents then it is not the fault of the other Party. It is the fault of Mr. Abdul Wali Khan and his Party itself that they cannot hold together and prevent their rank and file from becoming preys to such intrigues. We cannot help observing that the demand for Pakhtoonistan is not such a motivating factor that it can keep the people of these Provinces cemented together. The Party also seems to lack devoted workers as was demonstrated even in this Court when Mr. Abdul Wali Khan had actually to ask for funds to get proper legal aid. It was a matter of no little surprise to us that the Party could not muster together a few of its lawyer members-to our own knowledge there are a number of lawyers in the Party-to assist in the defence of the Party. Be that as it may, we do not think that Mr. Abdul Wali Khan can complain before a Court of Law that because politically be has failed to keep his Party together he has a right to repudiate the Constitution. Everything, as has often been said, is fair in war and politics and if Mr. Wali Khan seeks to play politics he should learn the art of meeting Intrigue by counter moves of a more effective nature. Before we proceed to take up for consideration the third topic enumerated by the learned Attorney-General, it may be appropriate at this stage to mention that another justification put forward by the Leader of the N. A. P. for repudiating the Constitution is the dismissal of the Baluchistan Government and the Governors of the two provinces of Baluchistan and K-W. F. P. by the Central Government. Under Article 100 of the Interim Constitution and Article 101 of the Permanent Constitution, the Governor is to be appointed by the President and he holds office "during the pleasure of the President" and under Articles 146 of the Interim Constitution and 145 of the Permanent Constitution, it appears that in respect of "certain areas in the Federation which are not included in any province, the Governor also acts as the "agent" of the President. Similarly under Article 148 of .the Interim Constitution, and Articles 148 and 149 of the Permanent Constitution, a province is required to exercise its executive authority in such a manner as to secure compliance with Federal Laws which apply in that province and not to hinder or prejudice the exercise of the executive authority of the Federation. The Federation has also the right to issue such directions to a Province as may appear to the Federal Government to be necessary for that purpose as also for the purpose or carrying into execution any federal law which relates to a matter specified in the concurrent legislative list. Again, under Articles 136 and 149 of the Interim Constitution, the Federation has, after a proclamation of emergency has been declared, the power to issue directions to a Province as to the manner in which the executive power thereof is to be exercised and even to make laws for the province within the provincial field, and under Article 136 of the Interim Constitution, the President on being satisfied from information received from any source that a situation had arisen in which the Government of a province cannot be carried on in accordance with the provisions of the Constitution, has the power to assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and to make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to such assumption of power. Under Article 234 of the Permanent Constitution, the President has also been given similar power if lie is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution or if a resolution in this behalf is passed at a joint sitting of the Parliament to assume to himself or dirt ct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exerciseable, by anybody or authority in the province, other than the Provincial Assembly. The question as to whether under these provisions the dismissal of the Provincial Government was jusdhea or not came up for consideration in a writ petition for que warranto to proceedings filed in the High Court of Sind & Baluchistan by one, Mir Abdul Baqi sa:uch, to challenge the validity of the appointmont of Jam Mir Ghulazn Qad:r Khan of Lasbela as the Chief Minister of Baluchistan after the removal of the N. A. P. Government in that Province and of two other persons, who were appointed Ministers for Education and Information and for Communications & Works respectively by the President. A Full Bench of the High Court of Sind & Balochistan, consisting of five lea*i,ea Judges, has dismissed the petition and an appeal from the said judgment of the High Court is actually pending in this Court (being Civil Appeal No. K-5 of 1974). In the circumstances, it would not be proper for us in these proceedings to deal with the same question. We would accordingly express no opinion as to either the constitutionality or unconstitutionality ct the action of the Federal Government which g was purported to have been taken under Article 136 of the Interim Constitution. We would, however, like to point out that even If there be substance in the allegation that the action of the Federal Government was unconstitutional that by itself would not give any right to the dismissed Government or to the Party to which the dismissed Government belonged, to start a movement of insurrection and open hostility against the agencies of the Federal Government or the new Government appointed under the directions of the Federal Government after such taking over of power for the reasons which we have already pointed out earlier. In our view the dismissed N. A. P. Government and its supporters should have awaited the result of the appeal pending in this Court and not resorted to direct action on their own. If they have done so notwith standing the pendency of the appeal in this Court, they have deliberately taken the risk of counter-measures being adopted by the Federal Government to check the insurrection, for, no civllised Government can allow any political party, for any cause whatsoever, to resort to violence and endanger not only the property of the Government and the lives of its officials but also the lives and properties of innocent citizens who are more often than not the victims of the acts of violence committed by the alleged insurrectionists. It is the duty of every civilised Government,,] as long as it does not abrogate its power, to take timely and necessary action to stop such acts of sabotage and insurrection and prevent a state of rebellion spreading in the country, no matter the reason for this may be. Even the people who gather to demenstrate or protest against any illegal or unfair action of the Government run the risk of being dispersed by the use of force, if they. in addition, commit acts of violence or sabotage and cause loss of life and property, then even upon the principles propounded by Sir Maurice Gwyer, C. J., in the case of Niharendu Dath "'"'i Majumdar (AIR 1942 F C 22) the Government of the day is duty bound to take measures to suppress the insurrection. The Government established by law has full right, in such circumstances, to meet force by force. Its failure to do so might result in graver consequences as we have had the misfortune of experiencing in East Pakistan in March. 1971. We cannot help feeling that even in that part of the country, if timely and appropriate measures had been taken before the 25th March, 1971, the situation which developed later might have been avoided. We now proceed to take up for consideration the third topic formulated by the learned Attorney-General, namely, that the N. A. P. and its leaders have been preaching the doctrine of four/five nations in the country with a view to preparing ground for secession of N.-W. F. P. and Baluchistan from Pakistan on the basis of the right of self-determination of the Pakhtoons and Baluchis. While discussing the first two topics we have had occasion to quote from various speeches of Mr, Wali Khan and some of the other leaders of the Party, such as, Sardar Khair Baksh Mari, Mr. Ghaus Paksh Bizenjo and Sardar Ataullah Mengal to show that they have in fact been propagating, that Pakistan is a multi-national State consisting of 415 nationalities/nations. It is unnecessary to requote them. We have already come to the conclusion that the intention of the N. A. P. appears, from the material referred to earlier, to be to carve out a new province from cut of the present provinces of N.-W. F. P. and Baluchistan on the basis of racial affinity and that the demand for the right of self-determination was really a camouflage for the original demand of an independent State. The repeated threats of removing the chain from Torkham to Marghala Hills and from Chaman to Sibbi or Jacobabad give an indication of the real thinking of the leaders. It is not without significance that, according to a report carried by the 'Guardian' London, on the 6th November, 1973 (Exh. R. A. W. 27/22) Mr. Wali Khan, while describing his concept of Pakhtoonistan, said that it was "an autonomous area within a loose Pakistani federation". Then added: "Real independence for Pakhtoonistan would be a last resort". This is not much different from the statement attributed to the late Sh. Mujibur Rahman, as reported in the Pakistan Times of the 27th November, 1970 when asked by some foreign correspondents to clarify whether hem wanted autonomy or secession, he first said, "autonomy" then after am pause added "Independence?-no, not yet". Khan Abdul Wali Khan's rebuke to his father in the course of a speech at a public meeting at Chowk Yadgar, Peshawar, on the 19th October 1973, asking him to stop talking of non-violence, as the Government was "after your blood and my blood" and then adding that "politics of non violence-merely preaching is no longer valid", also confirms that the aim was "Independence" (vide transcript of the speech Exh. RAW-3/M-2). Apart from the inferences which we think can be legitimately drawn from the speeches of the leaders of the N. A. P. to which we have adverted earlier, let us examine as to how this question of the right of "self-determina tion of Pakhtoons" can now arise. The idea of Pakhtoonistan came into the minds of the Khan brothers (Khan Abdul Ghaffar Khan and Doctor Khan Saheb), as we have indicated earlier, in 1947, when the Indian National Congress decided to accept Lord Mountbatten's Partition Plan of India and "threw the Khudai Khidmatgars to the wolves". This partition plan contemplated a referendum in the N.-W. F. P. to enable the people of that province to decide as to whether they would opt for Pakistan or for India. The Khan brothers then wanted a third option, namely, as to whether they would like to form a separate independent State. This was not acceptable either to the British or to the Muslim League. The Khudai Khidmatgars then decided to boycott the referendum. Notwithstanding the boycott, the referendum was held and the people of the settled areas bf N.-W. F. P. opted for Pakistan. The right of self-determination was, therefore, exercised by them. After that no further question of the right of self-determination could, in our opinion, arise. Soon after the partition when the Quaid-e-Azam visited the Frontier Province the tribal Sardars came and pledged their loyalty to the Quaid-e-Azam and the whole of the province of N.-W. F. P.-the settled areas as N well as the tribal areas all opted for Pakistan and became part and parcel. of Pakistan, as has already been held by this Court in the case of Superin tendent, Land Customs v. Zewar Khan (PLD 1969 SC 485). In this background what does the right of self-determination now mean?-Does it still mean the right to form an independent State, because, that was the original demand or does it mean, as Mr. Wali Khan now seeks to maintain, the right to full autonomy within a loose federation. It is patent that if such a loose federation were to come into existence, the sovereignty and integrity of the State of Pakistan, as now prevailing, would no longer be there. In either view of the matter, therefore, we are of the opinion that what the demand really amounts to is a breaking-up of the existing structure of Pakistan and its remodelling, even according to the concept now being propounded by Mr. Wali Khan. A more or less independent unit cannot come into being unless the sovereignty and integrity of Pakistan. as it now exists, is radically changed. If this is the real object and if it is found that this is sought to be achieved, if necessary, by force. then we cannot find any escape from the conclusion that the leaders of the party, at any rate, are operating in a manner which is prejudicial to the sovereignty and integrity of Pakistan. The learned Attorney-General has also relied on certain Intelligence reports submitted by Col. Aslam (RAW 7) regarding Mr. Wali Khan's activities and speeches in Afghanistan in 1974 to support his contention that the real intention of the leaders of the N. A. P. behind this demand, is to create a new State of Pakhtoonistan and merge it with Afghanistan. Hence the Afghan support. Since the sources have neither been disclosed nor called to give evidence, these reports are mere hearsay and, therefore, not admissible in evidence. Col. Aslam was himself located at Peshawar. He was not in Afghanistan at the relevant time, therefore, he had no personal knowledge of what happened in Afghanistan. However, certain copies of the 'Kabul Times' containing news items regarding Mr. Wali Khan's activities have also been produced by Mr. Sethi (RAW 21). These newspaper reports can, in our view, be referred to, particularly, since the newspaper is a foreign newspaper and it gives an account of the activities of Mr. Wali Khan. Unfortunately neither extracts of his speeches nor the gist thereof has been reproduced in these newspapers. We have, therefore, no material before us from which we can ascertain as to what Mr. Wali Khan said at the various meetings he addressed in Afghanistan or as to what reply he gave to the addresses of welcome presented to him at various places there. The learned Attorney- General has also relied on the evidence of Mr. Bashir Riall (RAW 9) and Rasib (RAW 12) to bring on the record facts, which according to him show that in 1971, when Khan Abdul Wali Khan was on a visit to London, he was preaching secession and supporting Sh. Mujibur Rahman and the Awami League in what they were doing in East Pakistan at that time. It has also been suggested by Rasib (RAW 12) that Mr. Wali Khan was even trying to instigate the Azad Kashmiris resident in U. K. to achieve their independence firstly by breaking away from Pakistan and then from India, if necessary, by force. The evidence of Bashir Riaz is again mostly hearsay and is not of much value. In any event, this witness has not created a favourable impression upon us. He has implicated a large number of other persons living in London at that time in some kind of a conspiracy to assist Mr. Wali Khan in disintegrating Pakistan. Most of these persons, so Implicated, either filed affidavits or statements denying the allegations of Bashir Riaz and asking to be examined as witnesses in this Reference. We have not considered it necessary to do so, as none of them is on trial before us nor do we propose to make any comments, adverse or otherwise, against them: Their affidavits and statements have, however, been placed on the record. In-these circumstances we have found it difficult to place any reliance whatsoever on the evidence of this witness even with regard to the matters regarding which he spoke from his personal knowledge. So Arr as Rasib (RAW 12) is concerned, if there is any truth in his story, then he must be treated as an accomplice, as rightly pointed out by Mr. Sardar Khan, amicus curiae. It is inconceivable that a seasoned politician like Mr. Wait Khan would have taken such a person, who was not known to him from before, in confidence and actually proposed to him to set up an organization for launching a violent movement for an independent Kashmir and even offered to supply arms at any place in or outside Azad Kashmir for the purposes of achieving this goal. He could only have done so if fully satisfied with the credentials of Rasib himself. Rasib must have, therefore, by his words or deeds, won the confidence of Mr. Wali Khan and those who introduced him to Mr. Wali Khan as one who held the same views with regard to Azad Kashmir. We have also before us documentary evidence (Exhs. RAW 13/4 and 5) to show that Rasib was being employed as an agent for obtaining secret information for the Pakistan High Commission in London and, therefore, Rasib's evidence is also to be treated with great caution. This much, however, must be said that the above-mentioned exhibits do disclose that Rasib did give similar reports to the agency employing him even at that time. To that extent his evidence does receive some corroboration. Apart from this, there is yet another reason for which we cannot place much reliance on this evidence regarding what Mr. Wali Khan said or did in 1971 in London, because, whatever was said or done then is not relevant for our present purposes. A state of rebellion was then prevailing in East Pakistan, assisted by some foreign powers and it is not unlikely that people like Mr. Wali Khan, who were never firmly wedded to the Ideology of Pakistan, may have been wishfully thinking about the ultimate results in East Pakistan. It is also quite possible that they may have been in possession of information through their friends in Kabul which provided them with justification for thinking that Pakistan may disintegrate and if it did disintegrate then it was just another step forward to hope that the split would, as prophesied by Mr. Wali Khan in his article, published in the "Round Table" of January 1972 (Exh. RAW 15/4), under the pseudonym of "an-Analyst", be a "Three Way Split". Whether it behoved a loyal Pakistani to act as such a "prophet of doom" is, of course, another matter? The author of this article, as it has now been established beyond doubt through the oral testimony of Mr. Nasim Ahmad, Secretary, Ministry of Information and Broadcasting, Government of Pakistan (RAW 15), supported by a written acknowledgment (Exh. RAW 15/3) from the Editor of the journal, was Mr. Wah Khan. In this article he propounded the theory that the British had committed a mistake in partitioning India, because, thereby they had undone all the good work that they had done as o empire builders for over two centuries. Mr. Wali Khan then opined that o "undoing (the partition) would point to a reunification of the Pathans (Pakhtoon or Pashtoons) and a greater Afghan State coming into being" (the underlining' is ours). The importance of this quotation lies in the emphasis placed on the 'undoing of partition' and the emergence of a `greater Afghan State' as a result thereof. Is this not what 'Pakhtoonistan' stands for? The learned Attorney-General maintains, and we think rightly, that even of this is not strictly relevant for the decision of the question before us it can be referred to at least for ascertainment of the state of mind of the author of the article. We might have done so, but we have considered it unnecessary, because, apart from this, there is abundant material in the shape of more recent utterances of the leaders of the Party which furnish us with enough reliable data for coming to the conclusion, to which we have already arrived, namely, that the real intention of those who wanted the right of self-determination for Pakhtoons and Baluchis was to set up a separate independent State called Pakhtoonistan, which might or might not form a larger State with Afghanistan. In either event, it would, in our opinion, be against the sovereignty and integrity of Pakistan. This brings us to the consideration of the next topic. The 4th topic, enumerated by the learned Attorney-General, is that the N. A. P. and its leaders have been openly advocating violence to subvert the Constitution, rule of law and democratic institutions with a view to undermining the integrity of Pakistan. The learned Attorney-General has endeavoured to establish this again from the utterances of the leaders of the N. A. P. He has referred us to a speech of Mr. Wali Khan at Chowk Yadgar, reproduced in the Pakistan Times of the 16th February 1973 [txh. RAW 28/2(175)), in which Mr. Wali Khan declared that there was no dearth of arms in the N.-W. F. Province and if Pakistan was destroyed, it would not be their (N. A. P's) responsibility. Again, according to another speech reported in the 'Jang' Quetta, dated 29-6-1973 [Exh. RAW 28/2(182)], Mr. Wali Khan boasted that "we turned out the Britishers, what worth can the others have"?-and went on to say that the Army was being used in Baluchistan for political purposes. He, accordingly, warned that "if the situation is not improved soon, fate like that of Bangla Desh will be repeated". In another speech (Exh. RAW 11/1) made at Shahi Bagh, Peshawar on the 3rd October 1973, which has been proved by Mr. Ghulam Mustafa (RAW 11) of the Special Branch, who attended the meeting, took notes and prepared the transcript, Mr. Wali Khan is reported to have advised his audience:- "Spread from house to house and hold meetings and tell the people that the political battle was over, and now the battle of personal vendetta had started; wherever the Muslim League flags were flying, remove those flags and put up the flags of Pakhtoonistan, and join the National Awami Party so that we may attain the rights of Pakhtoons. " Again on 4-10-1973 (Exh. RAW 19/2) at another public meeting at Nowshera, Mr. Wali Khan exhorting his audience, old and young, said as per transcript (Exh. RAW 19/2) that "they should form themselves in small groups and meet the people and tell them: "Brothers, Mr. Bhutto has put an end to politics and now it is the question of personal vendetta. If Bhutto's men assault you, they are compelling you that you should assault Bhutto. The whole thing is clear. Now politics is over. Bullet will settle the issue." He further went on to say that: "Today the politics of the country reached a stage where either we will exist or they will exist and we will quit." In this speech, the transcript of which exhibited as RAW 19/2, was produced by Mohammad Isa (RAW 19/2), from a tape-recording (Exh. RAW 3/M-1) made of this speech at that time, he also told the audience that he had warned the then Governors of Baluchistan and N.-W. F. P. that they too would meet the same fate as Dr. Malik, because, "persons who play traitor to/the nation will not be forgiven by N. A. P. because, N. A. P. has now changed its politics-those who were to be forgiven have been forgiven and now none will be forgiven. Subsequently, on 10th October 1973, at a public meeting at Mansehra, which was also attended by one of the sources of the Deputy Director Intelligence, Peshawar Bureau who tape-recorded the speech and subsequently transcribed the same (Transcript is Exh. RAW 19; 3 and tape is Exh. RAW 19/M-1), Mr. Wali Khan stated in vernacular - LY`_' ci~f' 211 Z L- - V.~Y ::,j41 L c)y 1' and then exhorted his audience to come out in the open for achieving their rights. In this speech, he also warned the public servants as follows:- "You cannot run away, you and your children have to live in this country. I would ask you if you are personal servants of Bhutto or you are servants of this country. If you receive your salary from Larkana out of the personal property of this Wadera, you may well obey his orders, but if you are drawing your salary from the national exchequer, you are under another obligation. You are protectors of the country and the nation. Third thing is that you must try to understand the object for which we are struggling today, you should also join in that." Similarly in his speeches at public meetings at Abbottabad on 11-10-1973. (Transcript, Exh. RAW 19/4 and Tape Record Exh. 19/M-1), then at Chowk Yadgar on 19-10-1973 (transcript Exh. RAW 19/5 and Tape Exh. RAW 3/M-2) and at Masjid Ghazi Gul Baba in Charsadda on 28th October 1973 (Exh. RAW 2ts/2 (53), Mr. Wall Khan is reported to have said that "if people of Baluchistan and N.-W. F. P. are not given their rights, then he will not be responsible for disintegration of Pakistan." This speech which has also been reported in the Nawa-i-Waqt of the lot November 1973, ascribes to Mr. Wali Khan the following statement:- "Now Pakhtoons and Baluchis will secure their rights by use of force." Even in 1974, Mr. With Khan continued in the same vein when address ing his political workers and public servants. According to a speech reported fn the Nawa-i-Waqt of the 28th July 1974 [Exh. RAW 28/2 (189)], he called upon the public servants "not to cooperate with those who are usurpers of the nation, otherwise they should bear it in mind that the nation will take account from them". In this connection reference has also been made to a report published in an Afghanistan daily newspaper called 'Nangrahar' from Jalalabad on the 20th November 1974 (Exb. RAW 21/ t2) wherein the Khan is reported to have told his audience at Chowk Yadgar. Peshawar that "The Pakhtoons should forsake the talk of being oppressed and suppressed, they should choose the path of sacrifice and bravery for the attainment of their rights and show to the World that how they can get their rights from usurpers and the state of Pakhtoons and Baluch being oppressed has reached its climax." In the report of another interview published in the 'Dawn' of the 28th December, 1974 [Exh. RAW 28/2(44)], Mr. Wali Khan is alleged to have said : "If they (Pakhtoons) want their democratic rights back, the ballot will not come to their rescue and, therefore, the alternative is that the bullet will have to settle the issue". In the same meeting, according to another report carried in the Morning News of the 28th December 1974 [Exh. RAW 28/2(45)], Mr. Wali Khan declared "We will not cringe, because we have been fighting the British for the liberation of our motherland, and we have not cringed nor bowed our heads to any dictator; after the British left, we stood, and we will fight back and we will fight for our rights." The learned Attorney-General has also placed on the record a number of other speeches in which Mr. Wali Khan held out direct threats to the late Mr. Hayat Muhammad Khan Sherpao. He has also referred to a speech of Sardar Ataullah Mengal delivered at a public meeting at Mastung on the 22nd April, 1973 [Exb. RAW 28/2 (208)]. In this he characterised the Government then in power as unconstitutional and warned those Government servants who acted upon the orders of the said Government of the consequen ces. He said : "If our companions, friends and students are not released then the officers incharge of the Jails will have to face the wrath of the people". Then again at a press conference held on the 18th July 1973, reported in the 'Jang', Quetta of the said date (Exh. RAW 6/35), Sardar Ataullah Mengal declared that :- "The Government has violated the Constitution and denied the democratic rights of the people, we shall settle matter in the mountains (underlining is ours). Now our struggle will not be in the Assembly." After this, it is said, the insurgency in Baluchistan started. On the 21st July 1973, Sardar Khair Baksh Marri, according to the Jang, Quetta [Exh. RAW 28/2 (Ih3)] warned the Government in the course of his speech at the Ayub Stadium, Quetta, that the people will be compelled to take up arms against the Government. The full text of the speech and the tape recording thereof have also been exhibited as RAW 26/1 and RAW 26/M-1. In a press statement published in the 'fang' Quetta, dated l1th February, 1973 [Exh. RAW 28/2 (180)], Sardar Khair Bakah Marri is reported to have deceared :- "I want to make it clear to Nawab Akbar Bugti and his corterie that the enemy would be buried in the mountains of Baluchistan. All attempts to deny to the people of Baluchistan their democratic rights shall be com bated strongly. We shall fight for every inch of Baluchistan till final victory (Underlining* is ours). By deploying the armed forces in Balu chistan, Bugti and Qayum, despite the support of Bhutto coterie, cannot escape dire consequence". We have already referred to the report in the Nawa-i-Waqt of the 9th January 1973 [Exh. RAW 28/2(65)] to show that Khan Abdul Ghaffar Khan had also advised the leaders of the N.A.P. that they should "prepare themselves to launch the struggle for the establishment of Pakhtoonistan, the boundaries of which will be "up to river Jhelum and this was the need of the hour". We have also referred to his address to the public at Chowk Yadgar reported in the Nawa-i-Waqt of 21st February 1.973 [Exh. RAW 28/2(176)] to the effect that "the Pakhtoons would be doomed if they did not unite and strive for independence like the Bengalis". He made a speech of a similar nature at Charsadda on the 8th January 1973 and on this, the Pakistan Times wrote an Editorial on the 3rd February 1973 vide [Exh. RAW 28/2(177)]. Reliance has also been placed in this connection on a closed door meeting, said to have been held at the Chief Minister's House at Quetta four days after the dismissal of the Government of Sardar Ataullah Mengal. At this meeting, it is alleged, the N. A. P. leaders met to discuss their intention of creating widespread disturbances in the Province. This meeting was attended by Sardar Khair Baksh Marri, who was then the President of the Baluchistan, N. A. P., Mr. Hashim Ghilzai and Mr. Abdul Wahid Khurd, who were members of the Senate of Pakistan and also members of the Working Committee of the N. A. P. According to an intelligence report, the persons named on a list prepared by the leaders (Exh. RAW 19/52) at this meeting, were to be eliminated by the Pakbtoon Students Federation and the Pakhtoon Zalme. The first name on this list was of Abdus Samad Achakzai, who was, in fact, killed in his own house subsequently. Learned Attorney-General has also relied on the pamphlet issued by Mr. Ajmal Khattak in England under the title "Bullet for Bullet", wherein Mr. Ajmal Khattak has claimed credit for as many as 113 incidents of sabotage and bomb explosions which had taken place in Pakistan. The learned Attorney-General stated that out of these, the Referring Authority confirms 48 and a list of the bomb-blasts and other acts of sabotage, which have been confirmed, has been filed as (Exh. RAW 1/3). This list, which is for the period January 1974 to 10th February 1975, catalogues 590 Incidents as follows ;- (1) Explosions in N; W. F. P and tribal areas ... 180 (2) Firing and other acts of sabotage/terrorism in Baluchistan, Mengal and Marri areas ... 136 (3) Incidents in other areas of Baluchistan ... 34+19 (4) Explosions in Punjab ... 21 (5) Explosions in Baluchistan ... 17 (6) Explosions in Sind ... 1 (7) Disruption of means of communications in Baluchistan ... 59 (8) Firing and other acts of sabotage/terrorism in N.-W. F. P. and tribal areas ... 122 Another consolidated list (Exh. RAW 19/103) has also been filed giving details of 43 incidents of bomb blasts and acts of sabotage from the 6th February 1975 to the 21st March 1975. In some of theme cases, as already stated, persons involved have been tried and convicted, but since appeals from such convictions are pending in various Courts, we do not wish to make any further comment about them. Judgments in such cases, as already pointed out, are relevant only for a limited purpose and they do, even in that limited respect, establish that such incidents did take place and some persons were convicted for being involved in them. As regards the involvement of the Party itself reliance is placed on a pamphlet (Exh. RAW 5/2) containing a resolution of the Working Committee of the Sarhad N. A. P., in which the late Mr. Sherpao has been threatened with dire consequences for a speech of his in which he said that the police would search the house of any political worker if he is suspected of a crime. According to the learned Attorney-General this shows that the N. A. P. as a party was also approving of the acts of violence which were taking place in that province and, therefore, pit is not a case merely of some individual members supporting such acts of terrorism. Some monitored reports of the Kabul Radio, particularly, a report of 13th January 1975, has also been relied upon to show that the Kabul Radio also claimed that the bomb explosions in the region were taking place in retaliation of the oppression launched by the party in power and Mr. Sherpao. Mr. Sherpao was also warned in a Kabul broadcast [Exh. RAW 21/15 (2)] that "his life en the soil of Pakhtoons will be impossible because of the enmity of the nation which has now started giving flames." Mr. Sherpao was also warned that "he should stop eating flesh of the nation for the sake of Mahajir Punjabi group or he should shift to Islamabad to live in the streets of his masters". It is contended that it is not a mere coincidence that the Kabul Radio had also been broadcasting such threats against Mr. Sherpao on behalf of the Pakhtoon "nation". it is an agreed pattern, which, according to the learned Attorney-General, establishes the link and shows that the N. A. P. is receiving consistent support and encouragement from the said country. The extracts of the speeches referred to above do, in our opinion, establish without any doubt that the N. A. P. and its leaders were in fact openly advocating resort to violence particularly since the dismissal of the Governors of N: W. F. P., and Baluchistan and this could not but be prejudicial to the sovereignty and integrity of Pakistan. The Referring Authority has, of course, claimed that the said leaders of the party and the party did not confine themselves merely to advocating violence but also started a large scale guerilla campaign and insurrection with the aid of a neighbouring country which did not confine itself merely to verbal encouragement, but actually gave much material help and support to the guerilla terrorists. It may be appropriate at this stage, therefore, to deal with the evidence relating to the support coming from the said country, which has been introduced as 5th topic by the learned Attorney-General. The 5th topic as -propounded by the learned Attorney-General is that the ~

1. A. P.. and its leaders had been seeking and receiving encouragement and material assistance from a foreign power host to Pakistan t0 achieve their objective of disintegration of Pakistan. Under this topic the learned Attorney-General has endeavoured to show that after the stunt of Pakhtoonistan was started by the Khan brothers on the eve of partition of the sub-continent under the inspiration and blessing of Mr. M. K. Gandhi, they had also succeeded in getting Afghanistan interested in their nefarious design. Reference has in this connection already been made, earlier in this judgment, to several books written by prominent persons, who had first-hand knowledge of contemporary events and had themselves taken part in such events, to trace the origin of the Pakhtoonistan Movement. In his autobiography, dictated by Khan Abdul Ghaffar Khan himself to Mr. K. B. Narang, a speech of the Khan delivered on Pakhtoonistan Day from Radio Kabul on 31st August 1967, has been reproduced at page 237 of the book "My life and struggle" wherein the Khan is reported to have said that .- "It is my belief and conviction that all the people who live in the country that stretches from river Jhelum to the river Amu (Oxus), as far as Herat are Afghans. They are all Pakhtoons and this country belongs to them all." Reference has also been made to a number of other documents and addresses of Khan Abdul Ghaffar Khan to show that he was and still is hostile to Pakistan which he wanted to prevent coming into being with the help of India. He consistently maintains that Mr..Ghandhi had given him a solemn pledge that India would assist him even with "armed aid" in his endeavour to liberate the Pakhtoons from Pakistan and, in fact, in the address he delivered at the joint session of the Indian Parliament on the 24th November 1969, he reminded the Indians of this pledge and asked them as to whether it was not their "moral duty to help" him in establishing Pakhtoonistan. Loonard Mosley in his book "The Last Days of the British Raj" even suggests that the real intention was to join India at a subsequent stage (vide page 132). He quotes the then Viceroy as having reported to Whitehall that "Nehru spoke about Khan Sahib wishing to join the Union of India at a subsequent stage". Afghanistan herself, it is pointed out, has never been reconciled to the creation of Pakistan. Indeed it is a fact of history that she was the only country which opposed the entry of Pakistan into the United Nations. It is unnecessary to recount the earlier phases of this history of Afghanistan's hostil ty towards Pakistan except to point out that the Afghanistan Government has missed no occasion in the international forums to raise this issue. The present President of Afghanistan in particular has shed all pretentions and has openly declared his support of the Pakhtoonistan Movement. In an interview granted as late as the 3rd February 1974, to a representative of a French newspaper "Le Monde" (Exh. RAW 21/14(4), he Q categorically stated that :- "Kabul dots not recognise this boundary (Durand Line), which the country now shares with Pakistan." He also reiterated that Pakistan is the only country with which Afghanistan has a quarrel and categorically declared :- "We support in all areas the rights of our Pathan brothers to self -determination." When asked if this support included military support as well, his reply was :- "I cannot answer precisely, but I can tell you that when bombs fell on our brothers, assassinating them, if they ask our aid, we will not remain indifferent." To the same effect were the observations of Mr. Abdur Rahman Pazwak, the Chief Delegate of Afghanistan, to the Non-aligned Summit Meeting in Algeirs, which has been reproduced in an official publication of the Afghan Government entitled "Afghan Republic Annual 1974" (Exh. RAW 21/16) at page 58 :- "We regret, however, that there is only one country, namely, Pakistan, with which we have not been able to solve our political difference The question of Pakhtoonistan, which has emanated from a refusal by Pakistan to recognize the legitimate rights and demands of our seven million people separated by a colonial power from their fatherland. Afghanistan, still remains unsolved. We shall spare no effort in seeking and realising a solution to this question, on the basis of the will of the people and international justice." In the same issues of the Afghanistan Republic Annual, the text of the speech of the Mayor of Kabul on Pakhtoonistan Day is also reproduced and in this he said : "Pakhtoonistan is the area that in the past colonial oppression bad separated it from our country, and the people of Pakhtoonistan are the people who are our brothers in blood, language, national culture and traditions." ' Mr. Abdur Rahman Pazwak, later Ambassador of Afghanistan in India on the 26th July 1974, broadcasting from the All-India Radio, declared that the "territories of Pakhtoons and Baluchis are not integral parts of Pakistan and that the support to the cause of Pakhtoons and Baluchis was, in no way, an interference into the domestic affairs of Pakistan". In con clusion, Mr. Pazwak rearmed that "Afghanistan would maintain the policy of fully supporting the legitimate demand of the Pakhtoons and the Baluchis". [Vide monitored report Exh. RAW 22/2 (17)]. The tempo of Afghanistan's support to the cause of Pakhtoonistan has continued unabated. Indeed the Kabul Radio on the 11th February 1975 according to a Monitored report [Exh. RAW 22/5 (23)], expressed "deep interest" over the actions taken by the Government of Pakistan in dissolv ing the N. A. P. on the previous day, I.e. 10-2-1975, and arresting its leaders and declared that :- "The Government of Afghanistan believes that a solution to the pro blem can only be possible through the fulfillment of and respect to the national aspirations of the Peshtoon and Baluch people and negotiations with their national leaders." On the 13th February 1975, another Radio Broadcast, monitored in Pakistan (Exh. RAW 22/5 (25), disclosed that the Government of Afghanistan had issued an official statement over the radio to the following effect :- "The Republican Government of Afghanistan has been condemning violence in all shapes. It also strongly condemns the oppressive, unjust and undemocratic activities of Pakistan Government towards the Pakhtooas and Baluchis and its harsh and short-sighted policies in Pakhtoonistan . . . . This will increase people's hatred against them (Pakistan Authorities) day by -day and they (Pakhtoons and Baluchis) would continue to intensify their national resistance and struggle. As repeatedly stated earlier, it is now again announced that Afghanistan has been supporting and would continue to support the rights of its Pakhtoon and Baluchi brethren and she cannot remain unconcerned over these happenings." This announcement not unnaturally caused considerable concern in Pakistan and it was carried by almost all newspapers and some even wrote editorials on this. The `Dawn' in its editorial of the 12th February 1975 [Exh. RAW 28/2 (71)], actually called this Kabul Government's blatant inter ference in the affairs of Pakistan and opined that the "Kabul outcry exposes its links with N. A. P. ". On the 11th March 1975, 'London Times' (Exh. RAW 27/27), carried a report that President Daud of Afghanistan had a two-hours' talk with Mrs. Gandhi, the Indian Prime Minister, at the start of his visit to India and that he was expected during his stay in India to "press strongly for more unequivocal support in his country's quarrel with his neighbour (Pakistan)". President Daud even went so far as to call for the "restoration of the legitimate rights of our Pakhtoon and Baluch brothers in Pakistan at a Banquet speech delivered in India. This speech again became the subject of wide criticism in almost all newpapers in Pakistan (vide Exhs. RAW 28/2 217-227, 233, 234 and 240). Editorial comments were also written by a number of newspapers on the 13th, 14th and 15th March 1975, in this connection [vide Exhs. RAW 28/2 (228-242)]. Even in May 1975, another Monitored report [Exh. RAW 23/2 (45)] of Radio Kabul reiterated the stand of the Afghan Government in the following words :- "Baluch and Pakhtoons have risen for the restoration of their rights. The Baluch are calling their people to join the struggle and Pashtoons are also making similar demand. Get together and be prepared and launch struggle for your liberation. Our path is the path of bravery and courage. Masses are with us. We do not care for the bullets and bombs. We will not bow before cruelty and injustice. Our youth are determined to get 'independence' destroying the seed of cruelty and injustice. Avenge your enemy and liberate your homeland." It may be interesting also to note that even in an official textbook prepared by the Ministry of Education, Government of Afghanistan, such as a Geography book for the 4th Standard (Primary), published in 1958-59, which has been produced before the Court by Mr. Yunus Sethi (RAW 21) and is marked as (Exh. RAW 21/23) at page 20, the Persian text states to the following effect (translation) :- "Pakhtoonistan is a mountainous territory between Pakistan and Afghanistan." Again in the Afghan Republic Annual of 1975 (Exh. RAW 21/24), it 1a stated, at page 361, that : "Afghanistan is bound on the North by the Union of Soviet Socialist Republic. Turkamanistan. Uzbakistan and Tazkistan ; on the West by )ran ; on the South and East by Pashtoonistan." The Afghan Radio also broadcast every week in the evening from Radio Kabul at the end of a special Pakhtoonistan Programme, a national anthem of Pakhtoonistan, which is reproduced in an offcial publication called "VSy S 1j_,~3" (Bonds of Independence and self-determination). A copy of the same has been produced by Mr. Sethi (RAW 21) and is marked as Exh. RAW 6/13. Lt: Gen. Ghulam Jilani has also produced before the Court a map of Pakhtoonistan issued by the Afghan Government (Exh. RAW 6/14), which shows the areas of Marghala Hills in Rawalpindi District, and Jacobabad in Sind, as being included in the area of Pakhtoonistan. He has also pro duced a stamp which was issued in 1973 (Exh. RAW 6/11), by the Afghan Government carrying a picture of the Pakhtoonistan flags. The Afghan Government had also demonstrated its active support to the N. A. P.'s Pakhtooistan Movement and the insurgency in Baluchistan by cancelling the visit of Mr. Agha Shahi, the Secretary, Ministry of Foreign Affairs, Government of Pakistan, who was due to go to Kabul on the 15th February 1975, for preparatory talks for the holding of a Summit Meeting between President Daud and the Prime Minister of Pakistan. The 'Khyber Mail' of Peshawar, in its issue of the 12th March 1975, Exh. RAW 28/2 (216), carried a report that the Afghan Government had said :- "If Pakistan Government was prepared to restore the status quo as it was before the N. A. P. was banned last month, then Afghanistan was ready for talks." Not content with this, the Afghan Government actually made efforts to internationalise the situation, by writing a letter (Exh. RAW 31/1) to Dr. Kuri Waldhiem, Secretary-General of the United Nations, asking him to take steps to move the international community to take "immediate and urgent steps in order to convince the Government of Pakistan to desist from further implementation of its policy in Baluchistan, observe its obligation and responsibility regarding the maintenance of peace and security in the region and halt the violation of human rights". This letter (Exh. RAW 31/1) ended with a note that similar messages have been addressed to all the heads of Islamic States and to the Secretary- General of the Conference of Islamic Countries. The charges levelled in this letter were, of course, denied by the Prime Minister of Pakistan by his letter in reply dated 1-10-1974, addressed to the Secretary-General, United Nations (vide Exh. RAW 31/2) and the Afghan Government was charged with "actively encouraging and assisting certain disgruntled elements in Pakistan to perform acts of murder, looting, sabotage and terrorism". It further maintained that the situation in this area "arises from the continued Afghan interference in our internal affairs and its viola tion of the principles concerning respect for the territorial .integrity and sovereignty of States and non-interference in their internal affairs". Other letters, in this connection, which passed between Sardar Daud and the Secretary-General, United Nations, on the one hand and the Prime Minister of Pakistan and the Secretary-General, United Nations on the other, have also been exhibited as RAW 31/3-6. Another letter written by Mr. Aziz Ahmed, Minister of State, Ministry of Foreign Affairs (Exh. RAW 31/7) also draws the attention of the Secretary-General of the United Nations to "Afghanistan's aggressive attitude towards Pakistan and in their effort to seek U. N. cover for the totally unwarranted interference in Pakistan's internal affairs". Sardar Daud actually tried to create a false impression that the situation on the borders of Baluchistan was similar to the situation prevailing in East Pakistan in 1971 when a large number of refugees had crossed over into India. Without going into the correctness of the reports about the number of refugees who crossed into India from East Pakistan, it is necessary only to point out that there was no parallel between the two, because the number of Afghan people who had actually entered Pakistan due to the reign of terror prevailing in Afghanistan after the assumption of power by President Daud was much larger than those who had crossed over to Afghanistan. According to letter of Mr. Aziz Ahmad to Mr. Kurt Waldhiem (Exh. RAW 31/7) "well over 170,000" Afghans had crossed the border into Pakistan as against the 344 Baluchis claimed by Afghanistan to have taken shelter there (vide Exh. RAW 31 /3). The latter consisted mainly of relations and Kinsmen of the rebel Sardars of Baluchistan, who had done so in order to provide the Afghan Government with an excuse to move the International organizations. It will be apparent from what has been said above that the Pakhtoonis. tan Movement always enjoyed, according to the declarations of the Afghan Government themselves, their full support and encouragement. The question, however, is whether this support was extended only to Khan Abdul Ghaffar Khan. Mr. Wali Khan and Mr. Ajmal Khattak or even to the N. A. P. as a political Party? Mr. Wali Khan has, in his written statement, of course, repudiated that either Mr. Ajmal Khattak or his father had any connection with the N. A. P. after they left Pakistan, but we have already seen that Khan Abdul Ghaffar Khan had himself asserted that the N. A. P. became the new name of the Khudai Khidmatgars in 1957 and it was placed under the leadership of Khan Abdul Wali Khan. We have also not referred to the earlier statements of the Afghan authorities, which have been brought on the record, but have confined ourselves to the recent state ments of Sardar Daud and Mr. Abdur Rahman Paawak, the Ambassador of Afghanistan in India, issued during the years 1974-75, to show that the N. A. P. and even the present leaders of the N. A. P. enjoy this support. In fact. as we shall presently see, Mr. Wali Khan claims to be a personal friend of President Daud and recently during one of his visits to Afghanistan in 1974, was treated almost as a Head of State. He was put up in the State Guest House. President Daud himself called on him and his family there. He toured the country and visited various places. He reached Kabul on 27-5-74 at 5-30 p.m. after a reception at the Maidan, on the way, by various Ministers of the Afghan Government. He then went to Kandahar where a banquet was hosted in his honour by the Governor. This was attendo by the Commander of the Kandahar forces, the Mayor, heads of departments and resident Pashtoonistanis. On his way back to Kabul from Kandahar Mr. Wali Khan was welcomed at Kalat by the Governor of Zabel and other local officials. Thereafter he visited Ghazni. Helmand, Sharab, Nahre Siraj, Herat, Nangrahar, Laqmen and Jalalabad. At each place he was welcomed by the local Governors, Military Commanders and other high dignitaries. Banquets were hosted in his honour, meetings were held and cultural shows arranged. (vide news items published by the Kabul Times, (Exhs. RAW 21/19-22 and RAW 21/25(5). In fact, when he returned to Pakistan from Torkham, he was accompanied by a procession of some 3,000 to 5,000 people, who were raising slogans of "Pakhtoonistan Zindabad" and "Wali Khan Zindabad." Some of them were even carrying Pakhtoonistan flags. They removed the chain at Torkham border and entered into Pakistan territory carrying these flags. On this side of the Pakistan border, a recep tion committee headed by the leaders of the N. A. P. and some 2,000 odd supporters were waiting to receive Wali Khan who was given a hero's welcome. , An eye-witness account of this reception at Torkham has been furnished by Tehsildar Nasir Khan (RAW 16), who was present at that time at the Torkham border. He also corroborated the evidence of Lt: Col. Muhammad Aslam (RAW 7) in this connection. The latter had, of course, given evidence on the basis of information received from intelligence sources, whose names he was not prepared to disclose but since direct evidence has now been produced, the portions of Lt: Col. Aslam's report, which are corroborated, may, in our opinion, be also admitted and in particular the photographs filed by him [Exh. RAW 7/3 (A to J)]. These photographs clearly show that military officers accompanied the procession bringing Khan Abdul Wali Khan to Pakistan from Jalalabad and that seven to eight Pakhtoonistan flags were also being carried by the processionists. Reports of the activities of Khan Abdul Wali Khan have also been published in the Kabul Times of 26-5-1974, 28-5-1974, 8-6-1974, 15-6-74 and 16-6-1974 [Exhs. RAW 2i/19-22 and 25 (1 to 54)]. Similar reports were also broadcast from Radio Kabul and monitored in Paki!,tan on 25th May 1974, 26th May 1974, 27th May 1974, 6th June 1974, 14th June 1974 and 15th June 1974 [Exh. RAW 22/4 (1-7)]. The last monitored radio report reads as follows :- "The Chief of the Pakistan National Awami Party, Wali Khan, left Jalalabad for Peshawar iia Torkham. He was accompanied by the Governor of Nangrahar Province, Mr. Azizullah Wasfi, Military Commandar of Nangrahar, Muhammad Yunus, the General Secretary, National Awami Party Mr. Ajmal Khattak and the Pakhtoonistanis living in Jalalabad." On his arrival at Torkham, Mr. Wali Khan was welcomed by a number of tribesmen and Iwargai, who were raising slogans. Another report states that when Mr. Wali Khan reached Jalalabad at 3-4:) p.m., he was received by the Governor of Nangrahar, the Governor of Laghman Province, the military Commanders, Mr. Ajmal Khattak and the Pakhtoonistanis living in Jalalabad raising slogans of 'Long live Pakhtoonistan' and 'long live Afghanistan Republic'. Mr. Wali Khan has, of course, in his written statement, admitted his visit to Afghanistan, that his reception there was somewhat "on the high side" and that he had not received such a reception on any earlier visit to Afghanistan, but he has ascribed all these to the fact that President Daud was personal friend of his. He also admits that President Daud even embarrassed him by putting him up at the State Guest House and personally calling upon him there. Mr. Wali Khan also explains that as he went to London for his medical treatment via Afghanistan, therefore, he also returned to Pakistan via Afghanistan. If his visit, as he says, was a purely private visit for the purposes of medical treatment then why did he undertake tours of the various provinces of Afghanistan and why was he given such official receptions at every place and send-off which is perhaps not given to any one else, but a Head of State 7 Such receptions, when considered in conjunction with the official announcements issued in Afghan newspapers and the Kabul Radio and the repeatedly proclaimed attitude of the Afghan Government itself to the Pakhtoonistan Movement, clearly indicate that Walil Khan was being given this unprecedented reception not only because of -his personal friendship with President Daud but because of the fact that he was carrying out his Pakhtoonistan programme as the Afghan Government wished it to be played. This was not merely a reception to a personal friend but it was a reception to the leader of what the Afghan Government considered to be the Pakhtoonistan Nation in Pakistan who might, on the establishment of Pakhtoonistan, become the Head of that State. We find it difficult to draw any other inference from the facts which have now emerged not only from Intelligence reports but also from the un controverted direct evidence of eye-witnesses and documents. On this evidence, therefore, we are of the opinion that the Referring Authority has succeeded in establishing by over-whelming evidence the link between the N. A. P. and its leader, Mr. Wali Khan, and the Afghan Government. If the N. A. P., as a Party, was not approving of what Mr. Wali Khan was doing, it should have dissociated itself with the reception given to him at Torkham border, particularly when they saw that the Pakhtoonistan flags were being carried by the processionists coming from Afghanistan. They should have at least protested and stopped those persons from bringing the Pakhtoonistan flags into Pakistan. This was indeed the practical demonstra tion of the repeated threats that Mr. Wali Khan had been holding out of removing the chain at the boundary of Torkham and placing it in a glass box at Chowk Yadgar or putting it up at Jhelum or the Marghala Hills. It is also not without significance that Mr. Wali Khan himself has never condemned the propaganda carried out by the Afghan Authorities and the speeches made by them at the international forums interfering in the inter nal affairs of Pakistan and affirming their consistent hostility against Pakistan. Indeed, when asked at the Lahore Airport, on the 18th Septem ber 1973, to comment on the statement of Mr. Abdur Rahman Pazwak, at the Non-aligned Conference at Algiers, he not only avoided the question but even stated that he would not condemn the Afghanistan Foreign Minister for his speech (vide : Exh. RAW 28/2 (174); report of interview given in the Pakistan Times dated 18-9-1973. Even earlier, according to a report of a special interview given by Mr. Wali Khan to the 'Haywad' of Kabul and reproduced in the Nawa-i Waqt of the 2:st June, 1972 (Exh. RAW 28/2 (163), Mr. Wali Khan is reported to have stated, while referring to the existing friendship between Pakhtoonistan and Afghanistan that "Afghanistan is my ancestral home". In this interview he also referred to Pakhtoonistan as "occupied Pakhtoonistan." According to another report carried in the Nawa-i-Waqt as far back as the 3rd November. 1968 [Exh. R A W 28/2 (156)] Mr. Wali Khan had claimed that if the Government of Pakistan recognized Pakhtoonistan then Afghanistan would support this and give up the demand for the "Kabul Brand of Pakhtoonistan". But until such demand is accepted by the Government of Pakistan, he declared, the Kabul Government would continue propagating the "Kabul Brand of Pakhtoonistan" at all levels. In this press conference, Mr. Wali Khan also claimed that Ghaffar Khan had managed to make Afghanistan agree to accept the "Uthmanzai Brand of Pakhtoonis tan", but if Ghaffar Khan died then the only brand of Pakhtoonistan will be the "Kabul Brand of Pakhtoonistan". In his own written statement at page 118, Mr. Wali Khan has almost insinuated that the unusual reception he received in Afghanistan in 1974 was because of the strength with which his Party emerged in the elections of 1970. He claims that he was considered by the Afghans to be the "Official Representative" of N: W. F. P. and Baluchistan. The referring Authority claims that this evidence fully establishes the link between N.-A. P. and the Afghan Government and that Mr. Wali Khan himself has been acting as an agent of the Afghan Government for realising their claim over parts of Pakistani territories. This is the reason why he was given such a "royal reception". The inference does not appear to us to be wholly unjustified. The Referring Authority has also led evidence to show that the insur gents in Baluchistan were being supplied arms and ammunitions by the Afghan Government. Before taking, up the question of insurgency and subversion the learned Attorney-General has sought to first indicate the exact connotation of these terms by reference to various books. He has, referred us to Frank Kitson's book on Law Intensity Operations (1972 Edition), where the learned author has defined "subversion" as meaning "all illegal measures short of the use of armed force taken by one section of the people of a country to overthrow those governing the country at the time, or to force them to do things which they do not want to do". The same learned author has defined "insurgency" as covering "the use of armed force by a section of the people against the Government for the purposes mentioned above (under subversion)". According to this definition "insurgency" and "subversion" can both take place in the same country at R the same time and either or both can be supported by a foreign country which R may well provide the impetus. These definitions are vide enough, to cover "virtually every form of dis turbance up to the threshold of conventional war". In fact, the illustrations given by the same author of such subversion and insurgency which combine actions political, economic, psychological and military all seem to aim at the overthrow of establised authority in a country. The example of Chairman Mao Tse Tung of China is cited as a classic example. His scheme, of course, envisaged the overthrow of the Government by a regular revolutionary army which operated with guerrilla troops over a Frotracted period of campaign during which the population of the country was also "methodically indoct rinated and organised to support the cause." Another example cited is of General Grivas of Cyprus. In his plan of insurrectional action, his aim was to win "moral victory through a process of attrition, by harassing, confusing and finally exasperating the Government forces". He had realised that he may not be able to defeat the regular troops by guerillas but he expected that his campaign would ultimately draw the attention of the International community to the question of Cyprus. In Algeria also the original aim to defeat the French army in the field by full scale guerrilla operation was rapidly abandoned because of the heavy casualties incurred by the National Liberation Front which then changed over to the plan of General Grivas to cause as much harassment as it possibly could to the established Government Be that as it may, the demarcation line between subversion and insur gency is very thin "Subversion merges imperceptibly into insurrection, which at the one end of the scale covers the activities of small sabotage or terrorist groups by which spreads across the operational spectrum to include the activities of large groups of armed men". If these groups become numerous and so well armed as to take on the forces of the government then "insurgency merges into orthodox civil war." Another learned author, Edward Hyams, in his book called 'Terrorists and Terrorism' defines terrorism as "the use of terror by political militants as a means of overthrowing a Government in power, or of forcing that Government to change its policies". This learned author divides terrorism into two categories-direct and indirect. Indirect terrorism, according to him, consists in discrediting a Government by demonstrating that it cannot protect its own people or their property, cannot maintain law and order ; in short, is not fit to be in office at all. The terrorists create chaos by bombing buildings or setting fire to them, by robbing banks, by sabotaging industrial plant, by kidnapping foreign diplomats or other prominent people." Dr. Henry A. Kissinger in the introduction to his book on Problems of National Strategy, opines that national strategy "involves a policy for deal ing with what the West calls insurgency and the Communists define as wars of national liberation." The learned Attorney-General adopts these definitions and maintains that the N. A. P. leaders too, according to their own public declarations, are engaged in a war of national liberation. Hence, they too are guilty of in surgency and no country in the world can afford to allow such acts of insurgency to continue without taking timely steps for their prevention. In the light of the above definition the learned Attorney-General has also taken pains to point out that although as a result of the Tripartite Accord and agreement the then Government in power went out of its way to appoint Governors in Baluchistan and N.-W. F. P. on the recommendation of a Party which was not by any means the majority Party either in the Federal Legisla ture or the Provincial in these Provinces, yet the Governors so appointed began to follow a policy of non-cooperation with the Federal Government which later developed into a state of confrontation and open defiance. The Governors, although they had, entered into a covenant with the Federal Government to comply with certain conditions flouted these condi tions. One of these conditions was that "every effort should be made to preserve national integrity. Fissiparous tendencies are not only harmful to the nation, but also affect our international relations. Therefore, movements like the Azad Baluchistan Movement, however nebulous, should be firmly put down, and not be permitted to affect our relations with foreign powers, parti cularly friendly neighbouring countries." vide letter from the President of Pakistan to Mir Ghaus Baksh Bizenjo dated 26-4-1972 (Exh. RAW 20/2). This letter was acknowledged by Mr. Bizenjo on the next day and the condition was accepted. A Similar letter was written to the Governor of N.-W, F. P, and ho too accept the said condition. Sardar Ataullah Mengal, on becoming Chief Minister, had also thanked the then President for his action and promised full cooperation to the Federal Government. After the first meeting of the Provincial Governors and Chief Ministers a joint communique was issued on the 11th dune, 1972, whereby the Governors promised political peace in their Provinces and listed their major aims as "inter-Provincial harmony, segregation of national issues from Party dialectic and a joint policy of action to usher in an era of national prosperity and stability". Nevertheless only 9 days later i. e. on 20-6-1972, Mr. Wali Khan said "my Party and I are not bound by the Governors Agreement" and two months later on the 31st August, 1972, in a letter addressed by the Deputy Commissioner of Las Bela to the Director-General, Coastal Guards, [Exh. RAW 25/3 (1)] it was stated: "The Chief Minister of Baluchistan has directed me to inform you that s in future your force will enter Baluchistan only when an officer from S Lesbela District is informed and his permission is obtained who will accompany himself or send his representative with them, violating it action will be taken against them . . . . . . . . . . ." This letter was endorsed to the Assistant Commissioner. Hub, with a direc tion that if the Coastal Guards enter the Baluchistan area without informa tion, he may arrest the Party with the help of Police, B. R. P. and Levies. According to another report dated 2-7-1972 (Exh. RAW 6/20) some pro-N. A. P. officials of Baluchistan removed the Ticker Circuit from the local Civil Exchange with a view to avoid the sag in speech when the opera tor is listening into trunk calls. The suggestion is that this was done by the N. A. P. leaders to keep them informed of the activities of the Central Government agencies in Baluchistan. On 27-11-1972, it is alleged by the Referring Authority, about a thousand Marri tribesmen alongwith some Kacchis and Lehris, armed with automatic weapons. attacked the Punjabi settlers in the Goth Mohammad Hussain, Badar and some other villages of the Pat Feeder Canal area of Kacchi District. Several persons including children were killed, a number of women and children were kidnapped, the rest were ejected from their houses, crops were destroyed, forcible possession was taken of the settlers' land and their movable property was looted. Notwithstanding the fact that the settlers had lodged a complaint with the Provincial Government about the attacks of the tribesmen and had also met the Chief Minister in that connection, no steps were taken. To quell this state of terrorism the Federal Government at the request of the Provincial Government ordered the Frontier Corps to check the raiding tribes and on 2-12-1972 an ultimatum was given to the Marri tribesmen to surrender by the morning of 4-12-1972; those responsible for the lawless acts and to return the abducted persons and looted property. The tribesmen ignored the ultimatum and replied that they would obey only the directive of their Chief namely, Sardar,Khair'Bakhah Marri. Again on 28-11-1972 the members of the Baluchistan Students Organisation, an organization affiliated to the N. A. P., launched an attack on the non-Baluch personnel of the Pakistan Western Railway sad kidnapped a railway guard. On the next day the Zonal President of the Baluchistan students Organization in Quetta, alongwith a number of other persons, entered the Divisional Superintendent's Office, manhandled the Head Clerk and attacked the Otfice Superintendent. Two Assistant Station Masters and a pointsman of Sariab Railway Station were also kidnapped by the members of the N. A. P. It is further alleged that the N. A. P. Provincial Government in Baluchistan started arresting their political opponents without any rhyme or reason and a situation of lawlessness was brought about throughout the Province. The Jam Saheb of Lasbela and his son called a Press Conference highlighting the acts of high-handedness of the N. A. P. Provincial Government. Thereupon warrants of arrest were issued against the son of the Jam Sahab of Lasbela on 30 12-1972 and on 3-1-1973 a warrant was also issued for the arrest of the Jam Saheb himself. The son of Jam Saheb alongwith his companions was arrested on 21-1-1973 by the S. H. O. Hub Police Post and all of them were sent to Jail. A case was also registered against the said Shahzada Yousaf under sections 186 and 353, P. P. C. for obstructing public servants in the performance of their official duties. The local Jamoots took out a procession to protest against these illegal arrests of their leaders on 22-1-1973. But this procession was dispersed by the local police and levies by firing in the air. A tribunal for the trial of the arrested persons was then constituted. It met at the Bela Jail and forwarded its verdict to the Assistant Commissioner, who immediately, on 24-1-1973, convicted Sbabzada Yousaf under section 17 of the Criminal Law (Special Provisions) Ordinance, 1968 and ordered him to furnish security in the sum of Rs. one lac with two sureties of the like amount. Four other persons who were arrested alongwith him, were also convicted and sentenced to two years' R. I. each and to a fine of Rs. 1,000 each or in default to suffer R. I. for another six months. On 23rd January, 1973, incidents of cutting the telephone wires allegedly by the Jamoots were reported. The Chief Minister of Baluchistan Sardar Ataullah Mengal himself ordered that arms from the Government armoury should be supplied to private persons, presumably his supporters, and with these persons, the local levies and a newly raised Dehi Mubafiz force, the then Chief Minister personally supervised an operation against the Jamoots. The levies and these armed persons were concentrated in the area on 26th and 17th January, 1973. It is alleged that 1400 to 1500 persons armed with 7 MM or *303 rifles, besides the Debi Muhafiz force and special levies were present alongwith the Chief Minister at this stage. The private persons were from the tribes of the Mengal's, Zarakzai's, Bizenjo's Chuttas and Bangalzai's. The Referring Authority alleges that these persons constituted the private 'lashkar' of the Chief Minister. Sardar Ataullah Mengal was in command as Supreme Commander and he had appointed 18 other persons as sub-Commanders from different tribes and assigned to each different duties. These then opened an attack after blocking all exits from the area. In this way some E000 Jamoots who had fled to the mountains were surrounded, 42 persons were killed and the "Lashkass" under the Chief Minister indulged in looting. The Chief Minister also personally ordered that food supplies were not to be allowed to the Jamoots until they had surrendered. In this state of affairs, on the 31st January, 1973, the Chief Minister was requested to call off his operations and hand over the law and order situation in the district to the Civil Armed Force. The Chief Minister prevaricated and kept the operation going till 3rd February, 1973. The Federal Government had, therefore X9 90ar 4itoragtive but t9 order the Pakistan army to assunig control over the district of Lasbela under subsection (4) of section 3 of the Defence of Pakistan Rules, 1970. The command of the Federal forces was given to Col. Mohammad Khan Malik, the D. I. G., Frontier Corps. He later inspected the Uthal Armoury on 5-2-1973 but found no weapons there and on the checking of the records of the local Police Armoury, it was discovered that 260 rifles and 34,000 rounds of ammunition had been supplied to private persons without any legal sanction. The Debi Muhafiz who had been recruited and trained under the command of Lt.-Col. Sultan Mohammad Khan, real brother of Mir Gul Khan Nasir, the N. A. P. Education Minister of Baluchistan, it transpired, had also disappeared alongwith their weapons into the hills. It was, in these circumstances that on 10-2-1973 the Provincial Government had to be dismissed. A detailed report of this incident has been placed on the record by Brig. Muaaffar (RAW 1) and it had been marked as Exh. RAW 1/28. This gives the version of the local officials but it does disclose that as from this date an open revolt of the tribes of Sardar Khair Baksh Marri and Sardar Ataullah Mengal had started and a number of incidents of sabotage then began to take place in the Province in quick succession. A catalogue of these incidents has already been referred to earlier vide Exh. RAW 1/3 and it is not necessary to repeat the details here (vide page 127/ante). These Incidents do certainly disclose that the acts of subversion and insurgency were widespread and were assuming alarming proportions. Phases of Baluchistan insurgency. The learned Attorney-General has divided the insurgency in Baluchistan into three periods: (1) from 26-4-1972 to 15-2-1973. This was the period during which the N. A. P. coalition Government was in power in the Province; (2) from 15-2-1973 till the middle of June, 1974, when Mr. Wali Khan returned to Pakistan after his extensive tour of Afghanistan and, according to the Attorney-General, the acts of insurgency and subversion suddenly shot up ; and (3) from middle of June till the banning of the N. A. P. As regards the first period the evidence led is confined to showing that the leaders of the N. A. P. were inciting people to violence and subversion. This is the period also during which, according to the Referring Authority, the workers and members of the N. A. P. were being mobilised and .rained into a militant force and were being supplied with arms and ammunition. One Sher Muhammad Marri alias Sheru Marri, was appointed the Commander of this force. He was an outlaw and a staunch N. A. P. leader, enjoying the patronage of Sardar Khair Baksh Marri and Sardar Ataullah Mengal, so far so, that even when the Central Government sent a cypber messege to arrest him, he was given protection by both the said Sardars and sent away from Quetta to Kolhu with a camel load of arms and 8mmunition to his old camp at Mawand in Sibi. Tae arms were prooored at Quetta through Sardar Khair Baksh Marri. They were taken to Kolhu in a jeep and from there by camel to Thadri (vide Exh. RAW 19/59). Even the Governor Mr. Bizenjo had declared when the Federal Government Armed Forces moved into Lesbela District, that they would resist the induction of the Army units into Baluchistan by the use of force. After the dismissal of the Governor and the Government of Baluchistan the tribal lashkars, as already pointed out, decamped to the hills and started sniping at the posts of Pakistan Armed Forces. Initially most of the incidents were confined to the Jhalawan area but subsequently, the activities of the insurgents extended to other areas as well and reached alarming proportions. The details of these activities have been furnished by Mr. Mohammad Isa, RAW

19. Most of his evidence, however, is based on information collected, by the employment of overt and covert means including electronic devices. The witness being the Senior Deputy Director of the Central Intelligence Bureau at Islamabad, had of course, no personal knowledge of the incidents taking place in Baluchistan except from the information conveyed to him by the Sub-Bureaus. He has also produced a large number of documents, which consist, inter alia, of notes prepared for various Ministries and other authorities by the Central Intelligence Bureau after studying and collecting the reports received from the Serb-Bureaus located at various places, original newspaper reports, monitored radio reports, books and papers received from foreign countries. We have referred to the newspaper reports and matters collected from foreign countries by relaxing the rules of evidence, as those are contemporaneous reports of events which would be difficult to prove at this stage. Notice had also been given to the respondent-Party and its leaders that these would be used against them by annexing them to the application. Neither the respondent nor its leaders have questioned their correctness in their written statements. Another witness, Mr. Muhammad Ashraf Asghar, Tehsildar on Special Duty, Board of Revenue, Quetta (R A W 14) has, however, given us direct evidence of what he himself saw. He was posted in May 1973, as Naib-Tehsildar in Mangocbar in Tehsil Kalat. One of his duties was investigation of criminal cases in this area. While investigating the case of the looting of a bus coming from Quetta to Kalat near Sooro mountain range, on 30-6-1973, he was kidnapped by outlaws who had surrounded him. He was, according to his version, taken before the leader of the outlaws, whom he recognised as Suleman Jan son of Prince Abdul Karim of Kalat. At the camp he also recognised Khair Jan Baluch, the former President of Baluchistan '.Students' Federation: Nawab Jan Mangalzai, a resident of Kalat and about 200 other persons. These persons were, according to him, from the Mengal Tribe and they were also connected with the N. A. P. of Baluchistan. He was released the next morning. He reported the matter to the Tehsildar as well as to the Military Authorities stationed at Kalat. (Exh. R A W 14/3). In August 1973, he was transferred to Khuzdar as Naib Tebsildar and then soon after posted as Tehsildar Incharge Wadh Tehsil. Wadh is the home town of Sardar Ataullah Mengal. He was made responsible at this place for seeing that no food is supplied to the raiding outlaws in those areas. Owing to the effective steps taken by him, he had made many enemies and was transferred from Wadh to Mangochar in November, 1973. On 4-12-1973 he was called by the Deputy Commissioner, Kalat to Khuzdar. He left Mangochar by the evening bus for Khuzdar. The Deputy Commissioner there assigned to him a secret mission and directed him to again proceed to Wadh. He proceeded to Wadh on 6-12-1973 but when he was returning from Wadh to Khuzdar on 6-12-1973 on a truck owned by one Muhammad Pariah, the truck was intercepted by the outlaws near mile 19 or 20 in the area of Wabir. He was again kidnapped and after travelling on. foot and camel for three days and three nights, be was brought to a place called Dhrogi in Soorgarh area, Tehsil Orenach of District Kalat. There he was produced before the commander of the outlaws named Sardar Mehrullah Mengal, brother of Sardar Ataullah Mengal. He was on this occasion kept in custody by the outlaws for about a year. During custody he came to see many formations and recognised Sardar Ziaullah Mengal, another brother of Sardar Ataullah Mengal, Munir Ahmad son of Sardar Alaullah Mengal, Muhammad Amin and Muhammad Gichki, Sardar Ataullah Mengal's wife's brother and many others. He has stated that he saw that men were being given training and then from March-April 1974, parties of 15 men used to be sent out to different places of Baluchistan and Sind for committing acts of sabotage and subversion. On return from their missions they reported to Sardar Mehrullah Mengal. He was present when the reports were given. He also came to know that a lot of money was being received In the camp in currency notes of the denominations of Rs. 50 and Rs. 100 and this money was being liberally spent for the provision of rations and supplies to the camp. Money was also paid to those who brought informations to the camp. He saw that one Khuda Baksh Mengal used usually to bring money, rations, arms and ammunition from Wadh and from Karachi. He also heard speeches being delivered at the camp praising the services of Sardar Ataullah Mengal in getting rid of Punjabis from Baluchistan and creaking up One Unit. He learnt that the mission of these persons was now to liberate Baluchistan from Pakistan. He managed to learn all this, as he was being made to work as a cook at the camp. He consequently had considerable freedom of movement within the camp. In November 1974, however, when military action was started by the Central Government in the area, Sardar Mehrullah Mengal left the camp with a small party and proceeded towards Sind leaving instructions to the others to/ stay behind but with the increase of danger due to the military action the outlaws started moving from place to place and towards the last week of November they reached a place called Jaggi. At this time only 15-16 persons were left behind in the camp. The rest had deserted. At this stage the witness managed to escape from the camp during the night of 23/24-11-1974, as the number of persons guarding him had diminished. The witness reached a Pakistan Army Camp. where a unit commanded by Col. Yaqoob of the First Batallion, SSG, was located, on 25-11-1974. He gave a full report of his kidnapping, detention and escape before the Commander of the Batallion. This witness has also stated that when amnesty was declared by the Government over the radio on 14-4-1974 Sardar Mebrullah Mengal had told him that he had sent some men with a poster to be displayed in Wadh containing their demands. This poster was written in hand and the main demands were that their leaders should be released and the Pakistan Army should be withdrawn from the area. This witness has been cross-examined at some length by the amicii curiae and by the Court having regard to the importance of the disclosures made by him, but he stood the test well. We see no reason, therefore, to disbelieve his evidence, which has an impress of truth about it. This, alongwith the formal evidence produced by the Attorney- General through witness Mr. Muhammad Isa. R. A. W. 19, we think is sufficient to establish that what was happening in Baluchistan was insurgency if not open revolt and the Government, bad therefore, every reason to say that such revolt was gravely prejudicial to the sovereignty and integrity of Pakistan. "The first and most fundamental duty of every Government, as observed by Sir Maurice Gwyer, C. J., in the case of Niharendu Dutt Majumdar v. Emperor (AIR 1942FC22), "is the preservation of order, since order is the condition precedent to ail civilization and the advance of human happiness. This duty has, no doubt, been sometimes performed in such a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill . . . . . . . It is the answer of the State to those who, for the purpose of attacking or subverting it, seek to disturb its tran quillity, to create public disturbance and to promote disorder, or who incite others to do so." If this be the correct position with regard to the duty devolving on a Government established by law in a country for preventing insurgency and subversion, the arguments advanced in the written statements of Mr. Bizenjo and Sardar Ataullah Mengal that they were being forced to resort to lawlessness by reason of the unconstitutional actions of the Central Government itself can hardly furnish a justification. We are in agreement with the learned Attorney-General that the Provincial Government had no right to say that the forces of the Federal Government could not enter a Province in the pursuit of their ordinary duties unless permitted by the Province to do so. Such a claim is clearly unconstitutional and wholly unwarranted. Once the extent of provincial autonomy has been defined and the subjects have been distributed between the Provinces and the Centre, a Provincial Government has no right to order that the Federal Government agencies cannot enter or move within a Province in the performance of their own duties with respect to the subjects belonging properly to the Centre. To attempt to do so, would be clearly an attempt to subvert the Constitution itself or to claim total independence for the Province. We are, therefore, unable to accept the contention that the Provincial Government of Baluchistan was acting lawfully within the field of its own activities in resisting the force used by the Federal Government to quell insurgency, if not almost an armed rebellion in that province. Involvement of N. A. P. In Baluchistan Insurgency it has to be also mentioned here that the incidents of Lasbella and Pat Feeder are not denied in the written statements. In fact it is even admitted that arm, from the Police armoury were distributed to the local people but it is said that this was done to control a law and order situation created in these areas. 'The learned Attorney-General naturally asks law and order situation created by whom? If they mean by the entry of the Federal forces to preserve law and order, then what has been admitted in the written statement clearly amounts to an admission of insurgency and, therefore, establishes the case of the Referring Authority. There is, in our opinion, a great deal of force in this argument and from what has been stated above if acts of the kind alleged by the Referring Authority did, in fact, occur in Baluchistan then whatever was done there was done to subvert the Constitution and to prejudice the integrity of the country. The evidence of Mr. Muhammad Ashraf (R A W 14) has clearly established that the camp set up in the mountains, as earlier threatened by Sardar Ataullah Mengal, was really a camp of rebels who were carrying out the insurgency plan of the N. A. P. leaders in order to achieve the establishment of an independent Baluchistan. We have no hesitation, upon the evidence placed on the record in coming to the conclusion that insurgency and subversion was taking place on a large scale in Baluchistan and this was organised and guided by the N. A. P. leaders. The suggestion that only a few of the leaders of the N. A. P. might have been mixed up in this and not the N. A. P. as a Party, is also unaccept able to us, because of the evidence of Asghar, who identified most of the persons in the camp as being members of the N. A. P. and belonging to the Mengal tribe. We have also before us the resolutions of the party itself giving support to the rebels and describing them as "valiant freedom fighters". The first is a resolution of the N. A. P., Central Working Committee, which was passed at a meeting held at Quetta on the 3rd and 4th May 1973 (Exh. R A W 19/107). In this meeting, the Working Committee made a bitter attack against the Central Government for the dismissal of the N. A. P. Governments in N.-W. F. P. and Baluchistan, even though the N. A. P. Government in N.-W. F. P. was not dismissed but resigned in sympathy with the dismissal of the Government in Baluchistan. It also condemned the actions taken by the Central Government In Baluchistan and characterised the Constitution as a "device to protect the rule of one man and to safeguard the imperialist and indigenous vested interests" and then, on the one hand, called upon the people "to continue to wage a struggle for the democratization of the Constitution" and on the other, called upon the Central Government to halt "the process and choas" and end the "reign of terror", which has been rampant for the past 2J months In Baluchistan. It admits, however, that whatever might be the reason, Baluchistan is in a state of "complete choas and confusion" and "a state of pandemonium" is prevailing there. The next is a resolution of the Central Working Committee of the N. A. P. held at Lahore on the 15th and 16th May 1973 (Exh. R A W 19/ 108). In this meeting, the Central Working Committee reiterated its view that the dismissal of the N. A. P. Government in Baluchistan was unconstitutional, condemned the Central Government and called for the Immediate withdrawal of the armed forces from Baluchistan. The Central Working Committee also authorised its president (Mr. Abdul Wali Khan) to announce a date for the observance of a 'Baluchistan Day' throughout the country in order to mobilise public opinion in support of their demands. Then comes the resolution of the Central Working Committee passed in a meeting held in Islamabad on the 4th of August 1973 (Exh. RAW 19/106), This concerns mainly the situation in Baluchistan after the dismissal of the pro-N. A. P. Government there. The resolution characterises the action of the Central Government in Baluchistan as "a confrontation between the army and the people of Baluchistan" and appeals to the people "to unite still more firmly and crush the 'mailed fist' of the Bhutto Govern ment and U. S. imperialism that is trying to deprive the people of their lives and liberties", and hopes that "the Baluchi people and the Pakistani people will emerge victorious from this great threat to their security and their enemies will once again have to kiss the ground". Finally there is another resolution of the Central Working Committee passed at a meeting held at Quetta on 6th, 7th and 8th July 1974, (Exh. RAW 19/!05). This meeting places on the record its deep feelings of grief on "the cold-blooded measures adopted against the people of Baluchistan", even after the 15th May 1974, when the amnesty was declared and yet "it felicitates our valiant brethern for having raised the banner of democracy aloft and defied with contempt the brutal onslaught of a blood thirsty autocratic clique". The resolution then goes on to state as follows : , "The precious blood that they are shedding will not flow in vain ; it will shaken the foundations of this dictatorial regime.. The people of Baluchistan are fighting for the cause of democracy, fundamental rights, sovereignty of people and provincial autonomy. They are thus fighting for the very existence of Pakistan and the entire people of Pakistan are behind them in this struggle. This meeting, therefore, asks them that their victory is not only certain but is now within reach. It also exhorts the people of Frontier, Punjab and Sind to follow the path of the brave Baluch people and joie: the struggle spear. headed by them in order to achieve their common goal of democracy, provincial autonomy, rule of law and sovereignty of the people." In another resolution passed at this meeting, the Central Working Committee also called upon the Government to remove the ban on the books of the following :- (1) Habib Jalib. (2) Ajmal Khattak. (3) G. M. Syed. (4) Sh. Ayaz. (5) Hyder Baksh Jatoi. (6) Mir Gul Khan Naseer and (7) Yusaf Lodhi. It will be noticed that Mr. Ajmal Khattak was and he still claims that he is the General Secretary of the N. A. P. and Mir Gul Khan Nasir is a member of the Central Working Committee of N. A. P. There is also a resolution of the Central Working Committee passed at a meeting held at Islamabad from 13th to 15th April 1 474 (Exh. RAW 10/104). This meeting also noted with grave concern tee continuance of the "army action" against the people of Baluchistan and called upon "all units of the N. A. P. to build up a formidable campaign in defence of the Baluchi people demanding that the military and other armed forces be withdrawn and all Baluchi leaders and workers be released unconditionally to establish alt atmosphere conducive for normalization of the situation," The N. A. P. also at this meeting firmly declared that :- "It has not shifted from its consistently proclaimed policy of giving the Centre only Defence, Foreign Affairs, Currency and Communications and the N. A. P. will not remain one sidedly committed to an agree ment which the other party has already violated. The N. A. P. once again warns the Government that the masses of the country and the N. A. P. will not allow any encroachment on the rights of the different Provinces of Pakistan." This meeting also called upon the Government to immediately withdraw all restrictions on the movements of Khan Abdul Ghaffar Khan. This meeting also declared that the : - "Democratic struggle of the people of Baluchistan will continue and accelerate and the Committee calls upon the entire democratic masses to line up with the fighters of Baluchistan in close solidarity with them, for their struggle is aimed against fascism etc." Ultimately the Committee gave a call to the "valiant fighters of Baluchistan to continue and accelerate their democratic struggle, because, truth and justice is on their side and their battle is assured to be crowned with victory." These reasolutions were also translated into Urdu and distributed to all members of the N. A. P. (vide : One of such translated copies filed by Muhammad Issa Khan R. W. 19, and marked as Exh. RAW 19/104. These resolutions, in our view, leave no room for doubt that whatever was happening in Baluchistan bad the Full support of the N. A. P. as a party. The Party itself saluted the "valiant fighters" of Baluchistan, assured them of all help and called upon them to carry on the struggle. Can it, therefore, be said that only a few misguided leaders of the party were indulging in these subversive activities without the knowledge or approval of the Central Working Committee and the Party? We think not. Mr. Sardar Khan., one of the amicii curiae, has suggested that the authenticity of these cyclostyled copies of the resolutions has not been proved. We have no hesitation in rejecting this contention. It is true that these are coming from the custody of the Intelligence Branch, but we see no reason to doubt that they are genuine copies of resolutions passed at meetings of the Working Committee. They were circulated to members whose list is annexed alongwith a circular letter issued by the General Secretary of the Party, Mr. Kaswar Gardezi. They were also printed at the instance of the Central Office situated at 15-Temple Road, Lahore. We see no reason, therefore, to reject this evidence. These are correct copies of the resolutions of the Central Working Committee which had been obtained by the Intelligence Branch of Police in the usual course of their duties. The claims of the party that since it is a democratic organization and; therefore, it cannot be bound by the individual acts of its leaders has also been falsified by what happened in this Court. Whilst the resolution of the party clearly directs that the Reference should be defended and does not give any p authority to the President of the Party to withdraw from the proceedings, yet, when Mr. Wali Khan walked out and withdrew from the proceedings of F the Court, the Party followed suit without any demur and without any fresh resolution approving the conduct of the President. It is futile for the Party, therefore, to say that it is not bound by the acts and utterances of its President and other leaders unless it can show that it has passed resolutions disapproving of the same or clarifying that they do not represent the views of the Party. According to the learned Attorney-General, the acts of sabotage, terrorism, disruption of means of communications and bomb explosions in the Provinces of N: W. F. P., Baluchistan, Punjab, Sind and Tribal Areas U during 1974-75, which have been detailed in Exh. RAW 1/3, were not U isolated acts, but represented a well-planned scheme of terrorism, master- U minded by Mr. Ajmal Khattak sitting at Kabul with the assistance of the Afghan Government which had openly declared that :- "Afghanistan cannot remain indifferent to Pakistan Government's use of force and arms against Pathans and Baluchis." According to this plan, Mr. Ajmal Khattak concentrated first on mobiliz ing the tribal students who were receiving education either at the Khushal Khan College or other colleges in Afghanistan against Pakistan by indoctrinat ing them with the Pakhtoonistan concept. They were then, with the assistance of the Afghan Government given training in the technique of demolishing bridges, destruction of communica tion systems, anti-aircraft measures and pro-Pakhtoonistan propaganda in Pakistan. This scheme followed more or less the pattern of the strategy adopted in 1971 for the creation of Bangla Desh. The Referring Authority has also endeavoured to establish the connec tion of the N. A. P. with these activities by pointing out that the tempo of the activities increased soon after the return of Mr. Abdul Wali Khan to Pakistan through Afghanistan on the 15th June 1974. From the middle of June 1974 till the banning of the N. A. P., according to the consolidated catalogue (Exh. RAW 1 /3), as many as 44 incidents took place in the Marri Area of Baluchistan along ; 11 incidents in the Mengal Area and 15 incidents in other areas of Baluchistan. There were 47 incidents of disruption of means of communications in Baluchistan between the 20th June 1974, and the 26th January 1975, and within three days, i.e. between 27-7-74 and 31-7-74, five bomb explosions took place in Baluchistan. The total number of incidents of sabotage and terrorism, including bomb explosions and disruption of means of communications from the middle of June 1974 to the 9th January 1975, worked out to 122 incidents in Baluchistan. According to the Referring Authority, in these incidents, up to October 1974, when the White Paper (Exh. RAW 6/44) was issued, the following casualties had taken place on the Government side :- killed wounded (1) Regular Force personnel. 87 93 (2) Civil Armed Forces. 34 79 (3) Baluchistan Reserve Police. 21 16 (4) Attached Civilians. 2 3 Large coaches of arms and ammunition were also recovered at the instance of the insurgents captured during this period from the Mastung and Zehrighat areas (vide : Exhs. RAW 6/3 and RAW 29/1). These recoveries cannot be doubted, because, the Referring Authority has actually filed photographs of these recoveries (vide - Exh. RAW 29/1). Unfortunately, the allegations of the Referring Authority regarding the part played by Mr. Ajmal Khattak in organizing and carrying out this large scale insurgency in Pakistan is based largely on source reports which we have found ourselves unable to accept on the ground that they are hearsay evidence. Some of the evidence also consists of Intelligence reports and minutes prepared by the Intelligence Department for the Prime Minister and other authorities. These being again based on information received from subordinate Intelligence Bureau, which in their turn, collected them from undisclosed sources stand on the same footing and are open to the same objection on the ground of hearsay. The catalogue of incidents, however, namely Exh. RAW 113, is a factual report of the number of the incidents which have taken place in Baluchistan. These can be safely relied upon, because, they have been prepared by officials of the Government and have been proved by a very responsible officer. The documents Exhibited as RAW 19 series, relating to insurgency in Baluchistan, to which we have adverted earlier, also stand on the same footing and can be safely relied upon. In addition to these reliance has also been placed on the pamphlet (Exh. RAW 6/9) issued by Mr. Ajmal Khattak in England under the title "Bullet for Bullet". In this Mr. Ajmal Kattak has himself claimed the credit for 113 incidents but the Government confirm only

58. These, in our opinion, adequately establish the contention of the learned Attorney-General that the insurgency was of such a large scale that no Government established by law could sit by and allow the insurgents to continue their acts of sabotage and depredation. It was the incumbent duty of the Government to check these acts even by use of force. The question, however, still remains as to whether and to what extent the N. A. P. as a Political Party was responsible or involved or implicated in these large scale acts of insurgency. We have already referred to the resolutions of the Central Working Committee of the N. A. P. to show that instead of condemning these acts, they justified them and exhorted their "valiant fighters" to continue their struggle. Apart from these, the learned Attorney-General has also relied on the judgments in the cases [Exhs. RAW 1/18 (1-19)] tried before the Special Courts in the Provinces of Baluchistan and N.-W. F. P. to show that some of the accused convicted in these cases were either members of the N. A. P. or the Pakhtoon Zalme or the Pashtoonistan Students Federation or the Baluchistan Students Federation. One of the accused who was convicted, in a recent case, namely, Case No. 17 of 1975 (State v. Nasir Muhammad Khan and others), is Asfand Yar Wali, a son of Khan Wali Khan of Shahi Bagh, Tehsil Charsadda. There are others who have been identified by some of the witnesses as being leaders of the Baluchistan Students Organiza tion forming a Youth Wing of the N. A. P. in that Province. If we could use the recitals of facts given in these judgments, then, no doubt, much of what has been said by the learned Attorney-General would have been established beyond any measure of doubt, but since we are only entitled to use these judgments, as earlier stated, for a limited purpose, namely, to ascertain who the accused were and what was the final result we cannot make use of the other material contained in these judgments. Be that as it may, we think that even after excluding these, judgments, there is enough material on the record to show that insurgency on a very large scale was launched in these Provinces, as threatened by the leaders of the N. A. P. after the dismissal of the N. A. P. Government in Baluchistan and the N. A. P. Governors of Baluchistan and N.-W. F. P. These acts of insurgency did also gather momentum from the middle of June 1974, onwards after the return of Khan Abdul Wali Khan from Afghanistan. It cannot also be doubted that large caches of arms were also recovered from various places as a result of information received from persons arrested in connection with the acts of sabotage and terrorism. We have also on record that Mr. Ajmal Khattak has, in his pamphlet "Bullet for Bullet" claimed credit for these acts of sabotage and terrorism. The Central Work ing Committee of the N. A. P., we have also now seen, instead of condemning these acts, exhorted their workers to continue the struggle and eulogised the deeds of the insurgents whom they called "valiant fighters". The insurgency, it has also been established was on such a large scale that it almost amounted to open revolt as threatened by the leaders. On this evidence, we are satisfied that the N. A. P. as a Party was conniving at and encouraging these acts of lawlessness and, therefore, was an accessory to these acts. It cannot now be hard to say that these were merely acts of some of their misguided leaders. If this was so then the Working Committee should halve, at least, condemned them and dissociated itself from such acts of insurgency and subversion. We are not concerned in these proceedings with the attitude of the Afghan Government or with the question. as to whether they were or were not encouraging insurrection in Pakistan, but the discovery of large quantities of arms and ammunition from caches hidden by the insurgents in the hills is sufficient to lead to the inference that these were coming from some foreign country. They were not manufactured in Pakistan. The claim of Mr. Wali Khan that since arms and ammunitions are manufactured in the Frontier Province itself, there was no necessity for them to procure arms from outside, cannot be accepted, because, the' arms recovered were not all locally manufactured arms. The existence of Khushhal Khan College in Afghanistan was well-known to the Government of Pakistan and it was equally well-known that young men from the Tribal areas were being sent to this College in Afghanistan to receive education. We cannot, however, accept the source report which discloses that the students of this College were being mobilised by Mr. Ajmal Khattak to fight for Pakhtoonistan, being provided with training at various centres in Afghanistan for committing acts of sabotage and the use of weapons and were being supplied with arms by a foreign Government. If Government had this information then it should have taken steps to prevent students from going to this College from Pakistan. In this connection, however, we cannot help referring to what a foreign observer, James W. Spain, has said about this College in his book published under the title "I'he Pathan Borderland". This illuminating passage reads as follows :- "In this regard, one of "Pukhtunistan's" most dangerous instruments is the Khushal Khan School in Kabul. The school is located near the tomb of the Mogul Emperor, Babur, on a hillside in the outskirts of the city. It had in 1954 about 500 students from age six to age eighteen. Another hundred older boys lived at the Khushal Khan hostel but attended the various Afghan Colleges in Kabul. Almost all of these boys receive their education, food and lodging through scholarships provided by the Afghan Government. Most of them are from Tribal Territory in Pakistan. The Khushal Khan School, unlike other Afghan educational institutions, which are under the control 'bf the Ministry of Education, is directly under the Kabaile. The facilities and the standard of teaching are probably the best in Afghanistan. The language of instruction is Pushtu and emphasis is on Pathan history, literature and tradition. The ordinary secondary subjects, as well as English and Islamiyat, are also given. All the students live together in an atmosphere steeped in Pathan culture. Boys from all the important tribes sit down together on a basis of friendly equality unknown and unthinkable to their fathers. Traditional concepts of pukhtunwali, which at home are used and understood primarily in terms of intertribal feuds, are here taught in terms of a Pathan nation. In the Khushal Khan School, at least, a real Pathan nationalism has been developed. It is being carefully nurtured, and a sense of an important and demanding mission is instilled in the boys at their most impressionable age. Some Pakistani Maliks opposed to "Pukhtunistan" admit to sending their sons to the school for s free education in their heritage better than anything they could receive on the Pakistani side of the line. These men discredit the idea that their sons can acquire any political idea opposed to their own. This belief is of doubtful validity. The boys will necessarily emerge as leaders in their home communities. As group after group leaves the school, they will constitute a force of continuing importance in their own right-far more so than the maliks who now head the "Pukhtunistan" movement and whose keenly developed sense of political expediency makes it possible for them at any time to accept a solution of the border problem satisfactorily, to either Rawalpindi or Kabul. However artificial may have been the beginnings of the Khushal Khan School, the results may well be beyond the control of anyone outside the tribes themselves." It is not necessary, however, for us to go into these questions, for it is sufficient for our present purposes to see whether acts of terrorism did, in fact, take place in Pakistan on a very large scale in pursuance to the threats held out by the leaders of the Party and that these acts were neither con demned by the Party nor did the Party dissociate itself from these acts of sabotage. We find on the material produced before us no difficulty in holding that the N. A. P. and its leaders are not reconciled to Pakistan's existence, integrity and sovereignty, that they have consistently been attempt ing to create doubts about people's belief in the Ideology of Pakistan with a y view to destroying the very concept which formed the basis of the creation v of this country, that they have always been preaching the doctrine of four/ v five nationalities/nations' to prepare the ground for the a ultimate secession of N: W. F. P. and Baluchistan on the pretext of demanding the right of self-determination for the different nationalities/nations inhabiting those Provinces and advocating a policy of subversion of the Constitution, rule of law and democratic institutions in the country, that they have for this purpose resorted to large scale acts of terrorism, sabotage and subversion within Pakistan to undermine the security, solidarity and sovereignty of the State in the areas of N: W. F. P. and Baluchistan and that the N. A. P. and its leaders had actually organized a large scale rebellion or insurgency in Baluchistan in order to coerce the Central Government and the people of Pakistan to submit to the wishes of the N. A. P. leaders in Baluchistan and N.-W. F. P. The learned Attorney-General has also pressed before us the 6th and last topic, namely, that the N. A. P. and its leaders have been causing hatred and disaffection amongst the various sections of the people in Pakistan to create strife and chaos in the country with a view to undermine the integrity of the country. We do not consider it necessary to go into this question, because, as we have already indicated earlier, the very concept of Pakistan being a multi national State and that each of the nationalities/nations living in Pakistan must have the right of self-determination is founded on the basic assumption that the Punjab, being the most populous area in what is now Pakistan is seeking to submerge the other smaller Provinces and thereby to deprive them of their legitimate right to be treated as equal partners in the Federation. The demand for Pakhtoonistan is grounded on this assumption of pre dominance of the Punjabis in all fields-political and economic. This is the proposition which Khan Abdul Ghaffar Khan propounded in 1947 as is now revealed by his own apprehensions disclosed to Pyarelal and reproduced in the latter's book, "Thrown to the Wolves". The author states that Khan Abdul Ghaffar Khan being a highlander "has strong antipathy to being dominated by plainsmen" and that this feeling "was further accentuated by the fear that a cession to Pakistan would mean domination by the Punjabi Muslim Capitalist interests, if Pathan, autonomy was not conceded". He also quotes Khan Ghaffar Khan as saying in one of his statements after the establishment of Pakistan that :- "Our Province has been swamped by the Punjabis, who are trying their level best to make the Pathans fight amongst themselves. Having lost a good portion of the Punjab through a communal division, the Punjabi Nawabs and big capitalists are now after our Province in order to make good their loss." This sentiment has been repeated even now by Mr. Wali Khan himself in his application which he filed in this Court on the 5th June 1975, for the grant of funds. In this, he expressed himself to the following effect :- "The real contest is between two units of the Federation which are by reason of their population superiority trying to submerge and swamp the other two provinces in the Federation." In his written statement also from pages 35 to 44 Mr. Wali Khan has listed the alleged grievances of the people of the Provinces of N.-W. F. P. and Baluchistan in order to give an impression that these two Provinces are being discriminated against both in economic and financial matters by the Central Government. These allegations have been refuted effectively by Sh. Abdur Rauf, the Finance Secretary, Government of Pakistan (RAE 3t1), who has cited facts and figures to expose the fallacy in these contentions. Other leaders like Mir Khair Baksh Marri and Sardar Ataullah Mengal have also expressed similar sentiments in various speeches. Mr. Ajmal Khattak in his pamphelt "Bullet for Bullet" at page 27 also maintains that because Punjab has more than half of Pakistan's population, it controls the ,destiny of the country and that is why "they preach a nationalization based merely on Ideology and try to prove that Pakistan is one nation" and it is for this reason that the "question of Punjabis joining with the Baluchis, Pakhtoons and Sindhis" does not arise. The Punjab, he claims, "supplies all the money, the bullet and the conspiracies to crush the self-determination movements in the rest of the country". The whole concept of Pakhtoonistan is built upon this propaganda of hatred against the Punjab and this is sought to be highlighted, as was done by the Awami League in East Pakistan, by alleging that the smaller provinces are being `bled white' economically and are being denied their legitimate political rights by the majority provinces. It Is unnecessary, however, to pursue this point any further, because, as has been earlier indicated, in view of the overwhelming evidence that has now come on the record the true intentions behind the Pakhtoonistan Movement and the efforts being made by the N. A. P. to achieve this objective by large W scale acts of sabotage, terrorism and insurgency, is to carve out an independent State of Pakhtoonistan. We are satisfied, therefore, that the banning W of the Party was, in every way, justified because such a State can only be established if the sovereignty and integrity of the present State is destroyed. Before concluding, however, we wish to mention that at one stage of the proceedings, after the N. A. P. had walked out, Khan Abdul Ghaffar Khan had made an application to this Court to be called as a witness, as according to him, many allegations were being made against him by the Referring Authority. We decided, however, that it was not necessary to do so, as Khan Ghaffar Khan was not on trial before us and we did not propose to use the allegations, if any, against him for the purposes of our decision in this case. Apart from this if he wished to appear as a witness on behalf of the N. A. P., it was for the Party to call him. We have referred only to some extracts of his statements which he himself dictated to K. K. Narang, his autobiographer, who has published the autobiograplyy under the title of "My Life and Struggle" and to some other authentic statements attributed to him by his earlier biographers, Mr. Pyarelal, Mr. D. G. Teadulkar and to some of the opinions of Maulana Abul Kalam Azad from his book "India Wins Freedom". These references have been made only to ascertain as to what was his concept of Pakhtoonistan and how the Pakhtoonistan concept came into being and for no other purpose. We have on these basic concepts tested the evidence to ascertain whether that concept had undergone any radical change by the process of time as now claimed by Mr. Wali Khan and the Party. These comparisons have not been made for the purpose of recording any finding against Khan Abdul Ghaffar Khan, but only to consider whether the N. A. P. as a Political Party, as it now exists, has modified its concept of Pakhtoonistan. We have, of course, come to the conclusion that the concept has not undergone any radical change for the reasons which we have given earlier. We feel it necessary also before we conclude to place on record our appreciation of the assistance rendered by the learned Attorney-General and his learned juniors in the presentation of the Government's case and the amicus curiae for the valuable assistance they have rendered in spite of handicaps to put before us the other point of view and to help us evaluating the oral evidence by cross-examining the witnesses, even though they had no such instructions as are usually necessary for such cross-examination. They did all that could possibly be done on the basis of the written statement filed in the case. The Reference was one of the most difficult cases that has come before this Court and it is a pity that the Political Party sought to be barred, in i spite of its Working Committee's resolutions to defend that matter, decided F` to follow its leader and walked out of the Court. This made our task still more difficult. We had, therefore, of necessity ourselves also, on many occasions, to intervene in the cross-examination of the witnesses. In the light of our findings, which we have recorded earlier, we see no escape from the conclusion that the National Awami Party was, within the meaning of subsection (1) of section 6 of the Political Parties Act (III of 1962), operating in a manner prejudicial to the sovereignty or integrity of Pakistan, and therefore it made itself liable to be dissolved under the said Act. We answer the Reference accordingly. MUHAMM AD GUL, J.-I agree subject to my note.

MUHAMMAD GUL, J.-The precise questions that fall for decision in this Constitutional Reference are (i) whether the National Awami Party (hereinafter referred to as N. A. P.), has, vide Notification S. R. O., 176(1)/75 dated the 10th February 1975, issued under subsection (1) of section 6 of the Political Parties Act, 1962 (Act III of 1962), been rightly declared as "operating in a manner prejudicial to the sovereignty and integrity of Pakistan"; (ii) and if so,' whether N. A. P. has been rightly dissolved by Notifica tion S. R. O., 17(1)/75 of even date, besides suffering forfeiture of its properties and funds to the Federal Government ? I had the advantage of reading the elaborate opinion recorded by my Lord the Chief Justice in answering the Reference by the Federal Govern ment and I entirely agree that on the evidence produced, by the Referring Authority, N. A. P. is proved to be "operating in a manner prejudicial to the sovereignty and integrity of Pakistan'". Prominent N. A. P. leaders have been openly preaching for virtual secession of N.-W. F. P. and Baluchistan under the attractive phrases, "full autonomy" and "right of self -determination". The article published in the quarterly journal "The Round Table", in its issue of February 1972 under the caption "Pakistan from Within a Three-way Split" is particularly revealing. It is written under the pen name "Analyst", but its authorship is traced to Mr. Abdul Wala Khan. This, he did not deny in his written statement though a copy of the x article was annexed with the Reference. A sense of sombre satisfaction over the cataclastic events then taking place in East Pakistan, is clearly discernible in the article. It unequivocally condemns the creation of Pakistan. It also condemns the British for undoing the good work done by their earlier generations during the two centuries British rule over the sub-continent, for having agreed to the Partition of the sub-continent. This is a clear pointer to the author's Innate hostility to Pakistan. In some of his recent utterances, Pakistan as a Political entity is aberrated, as if the four provinces exist in isolation and if there is any unison, it is between N: W. F. P. and Baluchistan against the other two. Direct evidence has also been produced to show that some N. A. P: leaders have of late been openly preaching resort to violence to secure what has been euphemistically described as "democratization of the Constitution" and just rights for Pakhtoons and Baluchis. I also agree, that though the evidence produced mainly concerned the prejudicial activities of certain top leaders of N. A. P. and not of rank and file of its membership, yet in the absence of any averment in the written statement filed on behalf of N. A. P., that the party as such or the rank and file of its membership had at any time repudiated such activities of its leaders, it will be only fair to infer that the party and the generality of its members had acquiesced in such activities. There is no substance in the counter charges that the Federal Govern ment has been guilty of violating the Constitution first, or that in actual practice the Provincial autonomy has been reduced into a farce, which has forced the N. A. P. to wage the struggle for real autonomy for the Provinces. In this behalf particular reference is made in the written statements filed in the case to the dismissal of N.-W. F. P. and Baluchistan Governors and also of the Provincial Cabinet in the latter province. At the relevant time, the Interim Constitution, 1972 held the field and the validity of the above allegations will have to be adjudged in the light of that Constitution. Under Article 100 ibid, the Governor held office at the pleasure of the President" and therefore in Law could be dismissed by him at any time without any cause being assigned. Similarly, upon certain conditions being satisfied, Article 136 ibid, empowered the President to assume to himself, or direct the Provincial Governor to assume on the President's behalf "all or any functions of the Government of the Province . . . . . . : ' The Referring Authority has produced ample evidence to show that the President was obliged to dismiss the Provincial Cabinet in Baluchistan because it was responsible for the creation of general state of lawlessness in the Province. This evidence has gone wholly unrebutted. The threat conveyed to the D. G. Coast Guards vide letter dated 31-8-1972 (Exh. RAW 25/3) at the behest of the N. A. P. Chief Minister is a classical instance of the attempt to stultify the Federal authority in Baluchistan. Coast Guards are Federal organization set up under the Pakistan Coast Guards Act, 1973 "to effectively check smuggling of any kind across the frontiers of Pakistan . . . . . . and to deal with persons in a manner projudicial to the defence and security of Pakistan" in coastal areas of Arabian Sea. This is plainly a Federal responsibility under the Constitution, and the Provincial Government was in serious breach of its Constitutional obligation under Article 148(1) of the Interim Constitution when it wrote the above-mentioned letter to D. G. Coast Guards. Article 148(1) of the Interim Constitution read :- "The executive authority of every Province shall be so exercised. as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend Y to the giving of such directions to a Province as may appear to the YY Federal Government to be necessary for that purpose." Therefore, on the evidence produced, which has gone absolutely unrebutted, the declaration made in Notification 176(1)/75 was wholly justified. But the question whether N. A. P. has been lawfully dissolved and its assets forfeited under the contemporaneous Notification 178(11/75 and if so as to from what point of time, remains. On this aspect of the case I regret and say so, with the greatest respect, my views are somewhat different. What follow deal with that aspect of the matter and also the constitutionality of section 6(1) of the Political Parties Act, 1962 as amended by Act XXI of 1975, and also the "two-nation theory" and the related questions namely Pakistani nationhood raised in the written statements filed on behalf of N. A. P. and by its leaders to explain the Political philosophy underlying the N. A. P.'s demand for what is described as "complete provincial autonomy". Incidentally one should have thought that this vexed question has been finally settled by the Constitution, which has the majesty of being passed by the unanimous vote of the National Assembly elected on the basis of adult franchise, to frame the Constitution. It will be convenient to deal with the vires of constitutionality of section 6 of Act as amended at this stage. Mr. Sharifuddin Pirzada, learned Amicus curiae, who addressed the Court on the Law points only, stated at the outset that clause (2) of Article 17 of the Constitution as substituted by Act XIII of 1974 was perfectly constitutional. He thought it necessary to make that statement, because of the doubt created by the majority judgment in Golak Nath's case (AIR 1967 SC 1943) decided in Indian jurisdiction, though the majority view In that case was modified by the majority judgment of a larger Bench in the later case of Kasavnauda (AIR 1973 SC 1461). It is unnecessary to refer to the ratio decidendi of the conflicting views in these two cases, because so far as this country is concerned, the law is firmly laid down by this Court in Zia-ur-Rahman's case (PLD 1973 SC 49) that a constitutional amendment cannot be challenged on the ground of being "repugnant to what are stated as national aspirations", so long as the amendment is duly passed in accordance with the procedure laid down by the Constitution. Mr. Sharifuddin Pirzada, however, submitted that the consequential replacement of original clause (1) of section 6 of the Political Parties Act, 1962 (Act III of 1962) by the new clause inserted by Act XXI of 1975 in so far it provides for the dissolution of a Political Party and forfeiture of its properties and funds, goes beyond the mandate of the Article 17(2) of the Constitution and is therefore, ultra vires. The argument was that clause (2) of Article 17 envisages the making of a declaration simpliciter upon the satisfaction of the Federal Government and goes no further. It was stressed that since clause (2) was designed to abridge a Fundamental Right conferred by the Constitution, it should be construed strictly to prevent an unwarranted erosion of that right. Article 17(2) of the Constitution and section 6 of the Political Parties Act, respectively read :- "Article 17(2).-Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a Political Party, subject to any reasonable restrictions imposed by Law in the interest of the sover eignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any Political Party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final". Section 6 (1).-Where the Federal Government is satisfied that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2), stand dissolved, and all its properties and funds shall be forfeited to the Federal Government. (2) Within fifteen days of making a declaration under subsection (i), the Federal Government shall refer the matter to the Supreme Court whose decision, on such reference shall be final." The argument overlooks the fact that we are here concerned with the interpretation of a Constitutional provision, which as pointed out by the Privy Council in James v. Commonwealth of Australia (1936 A C 578 (614)) is not to be inter preted in any "narrow and pedantic sense". Earlier in interpreting the Canadian Constitution, the Privy Council observed in British Coal Corporation v. The King (A I R 1835 P C 158):- "In interpreting a Constituent or organic statute, that construction most beneficial to the widest amplitude of its power must be adopted." Moreover, right conferred by Article 17(2) of the Constitution is itself subordinated to "the interest of sovereignty and integrity of Pakistan". Not only that : it also enjoins the enactment of a remedial provision in respect of a political party engaged in prejudicial activity of the relevant kind. 7here fore, looking at the substance of the Article 17(2), it is equally remedial and would therefore, bear an extended interpretation, so as to advance the remedy and suppress the mischief. It is plain that merely declaring a political party as being engaged in prejudicial activity of the relevant kind, without any further compulsive and prohibitory action will make the declara tion simpliciter, otiose. Accordingly, I agree with the learned Attorney- General, that Article 17(2) should be read as comprehending within its ambit rt what may be necessary to suppress the mischief effectively. Therefore, section 6(1) of the 1962 Act as amended by the 1975 Act is perfectly constitutional : and a fortiori the notification declaring N. A. P. as "operat ing in a manner prejudicial to the sovereignty and integrity of Pakistan", is unassailable on any legal or Constitutional ground. But the vires of the second notification, namely S. R. O. 178(1)/75 which purports to dissolve N. A. P. and orders forfeiture of its assets is open to serious question. Section 6 (1) of the Act provides, inter alia, that upon the publication of the declaration, the offending political party "shall, subject to the provisions of subsection (2) stand dissolved". Subsection (2) envisages the making of reference by the Federal Government within 15 days of the declaration, and the finality of decision by the Court on such reference. The question that arises for consideration is, whether, sec tion 6(1) of the Act expressly or by necessary implication empowers the Federal Government to issue notification for the dissolution of the Party and forfeiture of its assets contemporaneously with the declaration as has been done in the instant case? The learned Attorney-General at one stage of his arguments took the position that though subsection (1) of section 6 of the Act does not in terms empower. the Federal Government to order dissolution of an offending political party, that power is implicit in the section. Later, he however, conceded that the section empowers the Federal Government only to make the declaration and to publish it in the official Gazette. He, however, contended that upon the publication of the declaration in the official Gazette, N. A.. p. stood automatically dissolved by operation of law. On that premise it was submitted that the second notification namely S. R. O. 178(1)%75 was a mere surplusage and therefore, it would be idle to determine its Ares. The reason given was that the dissolution of N. A. P. had taken place quite apart from notification, by operation of sub section (1) of section 6 subject however to the decision of this Court on this reference. In other words, the argument was that the publication of declaration in the official Gazette automatically brought about the dissolu tion of the offending party ad interim, subject however to the decision of this Court. It must be conceded readily that upon the plain language of section 6(1), the dissolution of an offending party takes place by operation of law, for which publication of a separate notification in the official Gazette is unnecessary. The efficacy of the second limb of the argument namely, whether the dissolution is contemporaneous with the publication of the declaration by the Federal Government, or is postponed until the decision by this Court under subsection (2) of section 6 of the Act, however requires careful consideration. An answer to this part of the argument, in my humble view, turns upon the legal meanings of the words "upon" and "subject to the provisions of subsection (2)" occurring in section 6(1) of the Act. In R. v. Arkwright ((1948) 12 Q B 970) Benman, C. J. relying on a number of earlier decisions observed that "the word 'on' or 'upon' may either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require, with reference to the context, and the subject-matter of the enactment". In Folkard v. Metropolitan Railway Company ((1873) L R 8 C P 470) (referred to in Butterworth's "Words and Phrases" Legally Defined, Vol. V, at page 260), the Mayor's Court of London Procedure Act, 1857, S. 8 (repealed) which provided, inter alia, that leave (to move in any superior Court) must be given 'upon the trial' came in for interpretation: Bovill, C. J. observed that this phrase "clearly does not mean during the trial, but . . . . . . it must mean within a reasonable time afterwards". According to Corpus Juris Secundum 67 Volume (page 495) the words on" and "upon" are frequently employed as prepositions to denote or indicate time, and when so employed they have many meanings and several definitions. They are used to indicate a certain date or the time at which something occurs or happens, and may mean before, after, or simul taneously with the fact to which they relate . . . . . . ". The terms "on" and "upon" are variously defined as meaning at or at the time of; during; in; coincident with; when; within; as soon as; contemporaneously with or shortly after; after; following". From above it will, therefore, be clear that the preposition "upon" in the relevant context does not necessarily signify that the dissolution L of the offending party and forfeiture of its assets must be contemporaneous with the publication of the declaration in the official Gazette. It would be no violence to language to hold that these results could follow the publication of the declaration. The other phrase "subject to the provisions of subsection (2)" is also a pointer in the same direction. Subsection (1) of section 6 of the Act envisages the making of reference within 15 days of the declaration by the Federal Government and a decision thereon.. In Messey Harris Co. v. Strasburg ((1941) 4 DLR 620) (a Candian case referred to in Butterworth's "Words and Phrases Legally Defined" Vol. 5, p. 134), it was held that when a provision in a statute is "subject to" another provision requiring something to be done, "the first provision is conditional upon the performance of what is required by the provision referred to". According to Corpus Juris Secundum. Volume 83 (page 555) "the expres sion "subject to" is "a term of qualification, employed usually to qualify "something substantially already created, and embodying command that the act shall not be effective until the condition is complied with . . . . . " It has also been defined "conditional upon or dependent upon" or exposed to (some contingent action) being under the contingency. On the above construction of the words "upon such publication" and "subject to the provisions of subsection (2)", in my humble opinion, the dissolution of a political party and, forfeiture of its assets is postponed until after the reference by the Federal Government and the decision of the Supreme Court. This pie-eminently accords with "reason and good sense with reference to the context" as will be seen presently. On the other hand, if we were. to hold that the amended statute intends that upon the publication of declaration in official Gazette, interim dissolution and forfeiture, shall take place contemporaneously albeit subject to the final decision by the Supreme Court, then at times certain incon venient results are likely to occur, which in the absence of compellable reason, the Court must, according to well-established principles of interpretation, seek to avoid. The possibility cannot entirely be excluded that after the publication of declaration in the official Gazette, the Federal Government for any reason declines to make or delays reference under sub section (2) or it may well be, that the Supreme Court negatives the allegation that the party is acting in a manner prejudicial to the sovereignty A or integrity of Pakistan. This would indeed create an awkward situation which is by no means an impossibility. Under section 6 of the Act, prior to its amendment by Act XXI of 1975, dissolution of an offending party took place only after a decision by this Court followed by a notification in the official Gazette. By the amended section, the only change brought about in the law is to enable the Federal Government to declare in the official Gazette in anticipation of making the reference that the party is engaged in prejudicial activities of the relevant kind and it is also laid down the outer limit of 15 days within which to make the reference to this Court. If the intention bad been to bring about interim dissolution of the party forthwith and to forfeit its assets pending the making of reference to this Court, then having regard to the original provision, one would have expected the Legislature to use forthright language to demonstrate beyond doubt, the intention to bring about an anticipatory dissolution pending reference to this Court. In effect that would amount to investing the Federal Government with power to dissolve a political party by an executive fiat, which apparently is not the intention. Such a radical departure from the earlier dispensation could not have been allowed to rest on a possible implication in the language. This is all the more so because of the penalties provided in section 8 of the Act. Another good reason, against dissolution would be that it is now conceded that the statute does not in terms empower the Federal Govern ment to order dissolution of a party or forfeiture of its assets. What the Federal Government cannot do directly, can hardly procure to be done by indirect method viz. the publication of declaration in the Gazette. I am perfectly conscious of the two variant interpretations of Article 17(2) of the Constitution and section 6(1) of the Act despite the apparent similarity of language in the two provisions. The reason for the two variant constructions is not far to seek. As pointed out already Article 17(2) is part of the Constitution itself and therefore, will admit of a beneficial interpretation of wide amplitude, more so. when it empowers the Legisla ture to making a law on the given subject. Section 6(2) on the other hand is not Constitutional legislation but is a penal statute and therefore has to be construed strictly. In the words of the Privy Council in Edwards v. Attorney-General for Canada:- "There .are statutes and statutes and their strict construction deemed proper in the case for example of a penal or taxing statute or passed to regulate the affairs of English, Parish would often be subversive to the Parliament's real intention if applied to an Act passed to ensure the peace, order and good Government of a British Colony." Section 6(1) is a statute of the 1st kind while Article 17(2) is of the 2nd kind. Incidentally, I have also considered the question, whether in the event of an imminent danger to the sovereignty or integrity of Pakistan, the Federal Government will be without a remedy to avert the danger by immediate preventive action pending a proceeding under section 6(2) of the Act, which, as in the instant case, is likely to be long drawn out. In my opinion the Federal Government have ample powers to take immediate remedial action under section 10(1) of the Security of "Pakistan Act, 1952. The section reads: "(1) Notwithstanding anything contained in the Political Parties Act, 1962, or in any other law for time being in force, where the Central Government is satisfied with respect to any association that there is danger that the association may act in a manner or be used for purposes prejudicial to the defence or external affairs f the security of Pakistan, or of any part thereof, it may, by written or notified order, direct the association to suspend its activities for such period not exceeding three months as may be specified in the order . . . . . . " It overrides the provisions of the Political Parties Act and specifically empowers the Federal Government to take immediate steps of interim nature. The word "association" has been used in a generic sense and in the absence of any qualifying words will in my view, cover a political party. The Legislature must be presumed to be fully aware of this provision when enacting Act XXI of 1975. It is highly improbable that in the face of this express provision directly bearing on the situation, the Legislature had intended to invest the Executive with the like power and that too by implication. Besides, Article 187(1) of the Constitution gives plenary power to this Court to meet a particular situation once it is seized of the reference. For all foregoing reasons, in my humble opinion, the decision of this Court under section 6 (2) of the 1962 Act is a condition precedent for the dissolution of an offending political party and for the forfeiture of its assets and therefore, there cannot be any 4nticipatory dissolution or forfeiture of property. The result is that during the pendency of these proceedings, the constitution of N.A. P. as a political party remained unaffected, though under a mistaken belief it was treated as having been automatically B dissolved. It will stand dissolved by operation of law immediately on B a decision by this Court when its property will also be forfeited to the Federal Government. "Two-Nation Theory" In the written statements filed on behalf of N. A. P., and by Messrs Abdul Wali Khan, Ghaus Bakhsh Bazenjo, and Khair Bakhsh Marti, an attempt has been made to scotch the "two-nation theory" as the basis for the creation of Pakistan as an ideological State. The two-nation theory was characterized as a spurious slogan raised a few years before Partition of India to enthuse the Musalmans inhabiting the sub-continent to seek partition of British India. But once that objective was attained in the establishment of Pakistan, the "two-nation theory" ceased to be of any validity. Mr. Abdul Wall Khan, has at pp. 129-30 of his written statement also quoted from the speech made by the Quaid-e-Azam on the 12th August 1947 as the Ist President of the Pakistan Constituent Assembly by which he gave certain assurances to non-Muslim minorities in the new State of Pakistan. From the excerpt an inference was sought to be drawn that once the struggle for' Pakistan had fructified, the Quaid-e-Azam recanted his views about the polity in Pakistan and desired it to be a secular State. Thus, according to Mr. Abdul Wali Khan, it is a misnomer now to call Pakistan an ideological State. If I may, say so, it is a complete distortion, of the speech to suggest that the Quaid-e-Azam had retracted from the "two nation theory" or bad otherwise intended Pakistan to be a secular State. The crux of the speech was to allay lurking fears in the minds of minorities, that Pakistan will be a theocratic State wherein the non-Muslim minorities, will be persecuted and decimated. By that speech the minorities were assured on a solemn occasion, of freedom of conscience, and equality of C opportunity in all spheres of life, in unambiguous terms. It is wholly C wrong as also unfair to suggest that the Quaid-e-Azam fabricated the "two-1 nation theory" to procure partition of pre-Independence India, and once that was achieved he repudiated it or otherwise allowed it to lapse or to become obsolete. On the other hand the judgment of my Lord the Chief Justice refers to a number of later speeches underlining the "two-nation theory" as the raison d'etre for the creation of Pakistan which is also a sine qua non for its preservation. To suggest that that Hindu and Muslim inhabitants of pre-Independence India were at any time united as one nation is to turn a blind eye to the stark facts of Indian history. Centuries ago Ashoka, the tolerant Maurvian Emperor tried to unite Hindus and Buddhists to form an empire based on justice and tolerance. The attempt failed. Later the great Moghal Emperor Akbar similarly tried to unite Hindus and Muslims. Again the attempt failed. Still later after the British Crown took over the administration of British India from British Indian Company in 1858, until Independence, made sedulous efforts to unite Hindus and Muslims. These efforts again failed: indeed the story of British failure is the story of Pakistan's emergence. Richard V. Weeks in hp book "Pakistan" printed in 1964 in the opening paragraphs of Chapter 2 writes :- "No single element in the lives of Pakistanis plays a more pervasive role than religion. It affects the way they work, their adjustment to hardship, the course of their Government. Religion helps determine what they eat, whom they marry, what they learn in school and how they develop their society. For millions, religion is the very reason they are Pakistanis at all, rather than Indians. Religion was responsible for the creation of Pakistan and contributed greatly to its success in remaining independent and united. Economics played a part as did the personal ambitions of some politicians. But religion lay at the heart of the Pakistan movement in the years before 1947, creating the drive and longing necessary to tear apart the popular dreams of a united Indian sub-continent." Similar observations by contemporary writers and historians can be multiplied ad infinitem. The preambles to the four Constitutions we have had since Independence, are also eloquent testimony of the affirmation of Pakistan ideology. Part IX of the Constitution enjoins the State to bring all existing laws into conformity with the Divine Laws and forbids the State from enacting any E law repugnant to injunctions of Islam. This establishes the supremacy of E the Divine Laws and to that extent the legislative powers of Legislatures in Pakistan are abridged. This is in accord with the express Quranic injunctions "5 : 44 And whoever judges not by what Allah has revealed, those are the disbelievers." "5 : 48 And we have revealed to thee the Book with the truth, verifying that which is before it of the Book and a guardian over it, so judge between them by what Allah has revealed, and follow not their low desires (turning Away) from the truth that has come to thee." This clearly negatives the supremacy of the Legislature in Pakistan. In a secular State, the Legislature is supreme and laws are made in accordance with the will of the majority, free from any outside curbs. Recently legislation was reported to have been introduced in one of the Scandinavian countries to legalise marriage between a brother and his sister. This would be an impossibility in Pakistan, even if the measure is passed P by a unanimous vote, because of the Quranic injunctions. This brings into F bold relief the distinction between a secular State and an ideological State. F According to this concept the supreme authority vests with the Holy Qur'an. The suggestion that the two-nation theory was given a go-by after the creation of Pakistan also proceeds on ignorance of the Islamic precepts as ordained by the Qur'an, concerning the broad division of the society. The following verses of the Holy Qur'an bear on the point "64 : 3 He it is who created you, but one of you is a disbeliever and one of you is a believer. And Allah is Seer of what you do." "9 : 23 O you who believe, take not your father and your brothers for friends if they love disbelief above faith. And whoever of you takes them for friends, such are the wrongdoers." "3 : 27 Let not the believers take the disbelievers for friends rather than believers. And whoever does this has no connection with Allah." Perhaps even more decisive is the Divine admonition to Prophet Noah when he invoked the Divine mercy to enable his drowning son -a non. believer-to embark on the Ark earlier built by Noah under the Divine Command "11 : 45 and Noah cried to his Lord and said : My Lord, surely my son is of my family, and Thy promise is true, and Thou art the Justest of the Judges." "11 : 46 He said : O Noah, he is not of thy family ; he is (an embodiment of) unrighteous conduct. So ask not of Me that of which thou hast no knowledge. I admonish thee lest thou be of the ignorant." The above verses directly bear on the genesis of the "two-nation theory". This then is the raison d' etre for the creation of Pakistan. These verses have the force of eternal truths. It is a fact of history that in the early period of Islam, this remained the basis for the broad division of the society, so far believers were concerned any differences of caste, colour or race, notwithstanding. Acceptance of Islam spelled a complete rupture of closest blood relationship in a society which was then wholly tribal, and the entire gamut of human relations was organized on that basis. Any division of a Muslim society on the basis of race, language, colour or other ethnic considerations will thus be an anti-thesis of Islamic percepts as enjoined by the Holy Quran. Another common point stressed in the various written statements was that Pakistan though a nation was inhabited by four nationalities cor responding to four Provinces each with a distinct culture, language and a way of life. Mr. Abdul Wali Khan and Mr. Ghaus Baksh Bazenjo also ridiculed the concept of Pakistan' ideology as the basis of common nationhood as vague, unreal and fictitious, which according to them had a different meaning at different times during pre-Independence days. Mr. Abdul Wali Khan enunciated his own thesis in the following words :- "Tlp N. A. P. believes that there is one Nation in this country and that is Pakistani Nation-And, that this Pakistani Nation is composed of nationalities-who have their own distinct language and culture . There is no contradiction in the two, but these nationalities are like flowers who with their distinct colour, and fragrance blend into a bouquet-manifesting their unity in diversity." This is an exercise in terminology. The words "nation" and "nationality" are synonymous and have been used interchangeably, though the concept of those two words has sometimes been subject to two interpretations to which I will presently refer. Etymologically 'nation' and its derivative 'nationality' are derived from the Latin word nation which means a people descended from a common stock. It indicates a body of people united by common descent. But race and nation are entirely two distinct terms. In the modern times, however, it is fantastic to claim purity of blood for any modern nation. The population of U. S. A. consists of many races of different origin and is of mixed blood, yet U. S. A. is a nation, by any definition of the term. The example of Swiss people is more in point. They do not speak the same language nor do they profess the same religion and are of French, German or Italian origin. Nevertheless, they are a nation and according to the political concept of nationality there is a definite Swiss nationality based on membership of Swiss State. According to this concept, nationality implies the formal adherence of an individual to the State. Thus we speak of German nationality, French nationality, Swiss nationality and so also of Pakistani nationality. This is what is known as "political concept of nation and nationality". Pursuant to this concept the laws of most modern C States provide for acquisition of nationality by naturalization by aliens who G have no blood relationship with the individuals comprising the main body 3 of national community. Cultural or linguistic affinity is not a condition for acquisition of nationality by naturalization. In contrast to the political concept of nationality, there is the view of the nation as a more ethnic or cultural phenomenon. Differences in language and culture etc. result in the formation of social groups which, independent of political boundaries, constitute fundamental national units. "Nationality" according to this concept signifies adherence to a people rather than to a State. This is "nationality" in the concrete sense. Thu, according to the political concept of nationality, there is a definite Swiss nationality based entirely on the membership of the Swiss State. According to the other view, every Swiss citizen is of German, French or Italian nationality. (Macmillan : Encyclopedia of Social Sciences, Vols. XI-XII, pp. 231-232). But these are views of political theorists. To what extent they are relevant to Pakistan remains to be seen. It was pointed out by this Court in Asma Jillani's case (P L D 1972 S C 139) that Courts do not decide cases on the basis of Political theories. Cases are decided in accordance with law or accepted principles of law as enforced by superior Courts. Secondly, nationality is determined under the Municipal law, and in our case by the Pakistan Citizenship Act, 1951. Barker's definition is more realistic. According to him, a nation is body of persons inhabiting a definite territory and thus united together by the primary fact of living together on a, common land. They are drawn from a number of races and they come from different breeds .... But there is the common will to live together for the future, freely and independently . . . . (cf. Principles of Social and Political Theory referred to in Principles of Political Science by A. C. Kapoor, pp. 41-42). Historically what makes a group of people a nation is not necessarily a community of race, language or even of religion. It is a sentiment of common consciousness or like-mindedness. The outstanding fact of con temporary history for the relevant purpose is that the Muslims of pre- Independence India, by an overwhelming majority expressed a feeling of oneness, irrespective of any social or ethnic variations or the administrative units (Province) where they lived. This led to the creation of Pakistan by a democratic process, par excellence, which was given effect to by means of a legal Instrument, called the Indian Independence Act, 1947. It speaks of "two successor States" to what was then British India, in which any mention of provinces as symbolic of any particular nationality is conspicuous by its absence. As a result, a new body politic which lay geographically in two regions called Pakistan, was established. The concept of the provincial adminis tration was retained despite the common feeling of oneness, not became of ethnic differences but because the provinces bad already existed since the British Crown took over the administration from British East India Company in 1858. It would be a travesty of fact to suggest that the provinces continued to remain because they were inhabited by separate "nationalities". The fact that until 1901 what is now N: W. F. P. remained part of the then province of the Punjab, and until the commencement of the Government of India Act, 1935, Sind remained part of Bombay Presidency, militates against any claim of separate nationalities on the basis of residence in these provinces or for that matter any other province in Pakistan. Needless to point out that N.-W. F. P. was separated from the Punjab entirely because of the strategic and political importance of the area now forming N: W. F. P. because of its nearness to U. S. S. R. and certainly not because the inhabitants of this area formed a separate ethnic group. Similarly, Sind was separated from the Bombay Presidency not because the inhabitants of Sind had a different nationality from those inhabiting Bombay Presidency In the concrete sense but because , the population of this area was predominantly Muslim. According to Ballentine's Law Dictionary (Third Edition, p. 830) "nation" signifies a body politic or society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength, occupying a definite territory and politically organized under one Government . . . . .". In the same compilation the expression "nationality has been interpreted to mean "belonging and owing allegiance to a nation through being a citizen thereof by birth or naturalization . . . . . . . (Page 831 ibid). In Butterwortho' "Words and Phrases Legally Defined", Vol. 3, pp. 306-7 concept of nationality has been explained t "Nationality is the most frequent and sometimes the only link between an individual and a State, ensuring that effect be given to that individual's rights and obligations at international law. It maybe defined as the status of membership of the collectivity of individuals whose acts, decisions and policy are vouchsafed through the legal concept of the State representing those individuals. One of the best passages descriptive of the status is that contained in the judgment of the British-Mexican Claims Commission in Re Lynch. "A man's nationality forms a continuing state of things and not a physical fact which occurs at a particular moment. A man's nationality is a continuing legal relationship between the sovereign State on the one hand and the citizen on the other. The fundamental basis of a man's nationality is his membership of an independent political community. This legal relationship involves rights and corresponding duties upon both-on the part of the citizen no less than on the part of the State. "Most of the rules as to the nationality are the sole concern of municipal law. It has long been conceded that it is the prerogative of each State to "determine for itself, and according to its own constitution and laws that classes of persons shall be entitled to its citizenship" (Starke's International Law (6th Edn.) 291). Thus it will be seen that legal meaning of the words "nationality" and "citizenship" are synonymous. Indeed under the Pakistan Citizenship Act, 1951 nationality is recognized or is conferred on all Pakistan basis and not Province-wise, where individuals concerned may be resident. Domicile in Province may be relevant, where citizenship is conferred by reason of naturalisation. Again if we view in retrospect the Constitutional evolution of the sub continent since 1858 when the British Crown took over the Government from the British East India Company, we will find that right from the take over till the commencement of the Constitution Act of 1935, the Govern ment of India was unitary and highly centralized. True there were provinces but they had no constitutional status comparable to the provinces of today and the Provincial Governments were merely agents of the Imperial H Government at the Centre directly responsible to the Governor-General H who in turn was answerable to the Secretary of State for India and thus K to the British Parliament. Even when the principle of decentralisation was introduced later firstly in 1908-9 and again in the year 1919, the position remained more or less the same, notwithstanding the introduction of dyarchy in the Provinces under the Government of India Act, 1919. It was for the first time under the Government of India Act, 1935 that the Provinces in pre-Independent India, were conceded provincial autonomy in certain specified subjects. Throughout these Constitutional changes, the population inhabiting the Provinces had the status of British Indian subjects, common to all of them. Against the background of this Constitutional history, it is difficult to understand how a claim of separate nationality in relation to the population of each province which has the effect of placing the citizenery of Pakistan into four watertight compartments, as if they have nothing in common between them, which is of value in life, is tenable ? I am perfectly aware that under the American. Constitution, an American is a citizen not only of the United States i.e. the Federation but also of the State in which he resides, and both the Federal and State Governments, each independent of the other, operate directly upon an American citizen who is thus subject to two Governments and owes allegiance to both. But this is provided by the Constitution of that country. It is also important to point out that the American Constitution makes a logical division of I everything essential to the sovereignty and creates a dual polity, with dual citizenship, a double set of officials and a double set of Courts to administer Federal and State laws respectively. There is no such logical division or bifurcation under our Constitution. The same set of officials and Courts administer both Federal and Provincial laws. Even the services to all intents and purposes are common. The reason for this sharp difference lies in the differences in the political history of the two countries. When the American Colonies began their resistance to Britain, they drew up in 1777, the Articles of Confederation, as self-governing Colonies. This was a Covenant between thirteen "co-equal sovereign wills" to form an association called Confederation. But under this arrangement "the general Government" was dependent upon the regional Governments for funds, even as respect matters, which were within the purview of the `general Government'. The result was an ineffective "general Government". The solution was ultimately found in the Federal Constitution of 1887, whereby the regional Governments "agreed" to surrender part of their sovereignty in favour of the Federation, including well-defined fiscal powers. Thus the American Federation is the product of a Covenant between what were then self-governing colonies. In our case the political history has moved in diametrically opposite direction. As pointed out already, under the Government of India Act, 1858, the Government was not only unitary, but highly centralized. By slow and halting process of decentralization only limited autonomy was conceded to the Provinces under the Constitution Act, 1935. The same pattern was retained under the Indian Independence Act in the relevant fields. This makes analogy of the American system wholly inapt to our case. In our case, the Provinces never had the status of self-governing colonies, nor did they enter into any Convent to instal a Central or Federal Government conceding specified subjects to that Government. On the above review of the Constitutional history of the country and the nature of Pakistan's polity, any claim for a separate nationality for citizens of Pakistan on the basis of their residence in different Provinces is as unreal historically as it is untenable under the Corpus Juris of Pakistan. And I entirely agree with my Lord the Chief Justice that the ultimate object underlying the sinister cry is further dismemberment of the country. Indeed it is impossible to avoid the impression that the N. A. P. leaders are only trying to emulate the late Mujibur Rahman. In the discussion on the subject of Nationalism and Nationality, the learned compiler of Encyclopedia of the Social Sciences, Volumes XI-XII observed at pp. 234 and 235 "Indeed the restriction of national feeling to a local region may lead to eventual dissolution of the greater national unity . . . . . . . . . . . . The encouragement of dialect is somewhat analogous to the regionalist cult of the local homeland. Its exaggeration leads to a dissolution of the nation into smaller component parts, which may remain independent for a longer or shorter period and thus jeopardize the greater national idea." What gave a fillip during the recent decades to this concept of "restricted nationality" is explained at p. 237 ibid thus "The principle has since gained such wide influence that Wilson's programme of "Self-determination of peoples" in Europe was interpreted and utilised as a licence for the most unrestrained kind of nationalism at the expense of the defeated nations." This then explains why the cry of separate nationalities corresponding to Provincial boundaries has suddenly become so loud in the country since the tragic events in what is now Bangla Desh and it is no wonder that among its protagonists are those who opposed the creation of Pakistan. For the foregoing reasons, I am in respectful agreement with the various conclusions reached by the learned Chief Justice save on the limited point as to the point of time from which N. A. P. stands dissolved and its assets forfeited to the Federal Government. In my humble view upon a proper interpretation of section 6 of Political Parties Act, as amended, the critical point for the dissolution of an offending party and forfeiture of its assets is the "decision" by this Court and not the publication of the declaration by the Federal Government in the official Gazette. In other words, the Court's decision on the propriety or validity of the declaration by the Federal Government is in the nature of a condition precedent for the dissolution of a party and forfeiture of its assets. These shall take effect as from the dicision herein. ANNEXURES Let this be placed on the file. In paragraph 1 (a) of the written statement filed on behalf of the former N. A. P. (hereinafter referred to N. A. P.), an objection has been taken to the sitting of two of us on the Bench because during three years past we have dealt on the executive or advisory side, with matters germane to the present enquiry as Law Secretary, on the Advisory Board. On a similar objection orally taken by learned counsel for the respondent earlier, my Lord the Chief Justice observed that he would leave matter to the Judges concerned to decide. Later I informed my Lord the Chief Justice, that I saw no reason to withdraw from the case and the proceedings in the case continued before the Full Court. The objection has now been repeated formally, if I may say so, in disregard of the dignity and decorum` of the Court. However, that may be I deem it appropriate to clarify the position both in law and on facts. Under the Supreme Court Rules which have their source in the Constitution itself, the Chief Justice of Pakistan has the exclusive right to constitute benches of the Court. No person or a party to a case can ques tion the manner in which that right is exercised. Having regard to the nature of the case, my Lord the Chief Justice, has in his wisdom decided that the Full Court shall hear it. Therefore, it became my duty, no less than that of any other Judge of the Court to hear and decide the case, unless for any personal reason I have a conscientious objection to hearing it, or it affects my personal interests or interests of any person whom I regard and treat as my relative or close friend. In the former case, it is entirely a matter between my conscience an sense of duty under the oath of office to which I have subscribed. But once I v; olds to sit, no person has the right to object to my so doing. In the latter case, a Judge of the superior Court is expressly forbidden by Article IV of the Code of Conduct to hear the case. But the objection is not on that count. These are well established norms relating to the functioning of superior Courts in all recognised judicial systems, To concede to a party, whatever be its status in life, the right to object to or concur in the constitution of the Bench will reduce the Judges to the position of private arbitrators, a position which no judicial system can countenance. On the factual side, the objection is as much based on misunderstanding at it is misconceive,. During the period I acted as the Law Secretary, so far as I can remember and I trust my memory does not failure, no detention order was issued on my advice. This equally applies to the case of retired Major-General Gaulam Jilani specifically referred in the objection. In that case, I was consulted during the pendency of the writ petition by the detenu on a point which arose in the course of the proceedings in the High Court. As regards proceedings before the Review Board of which I am the Chairman, cases of detenus are examined in the light of specific allegations against each detenu and the supporting material on which the detention order is based. Association with a political party per se has never been treated as sufficient ground for preventive detention. It would be instructive to point out that since September last, of the 95 detenus the majority of whom were members of N. A. P. and whose cases were examined by the Board, the detention of only ten persons was approved and of remain ing 85 disapproved by the Board. Those whose detention was not approved included the Secretary-General of N. A. P., President of its Punjab Branch and number of other office-holders. It is important to point out that the cases of some of them were reviewed even after declaration dissolving the party and filing of the Reference. This would indicate that the nature of proceedings before the Board is wholly different from the present case. Lastly, save in the cases covered by stare decisis, there is nothing to prevent a Judge to enter a reasoned dissent from his earlier opinion more so when opinion is expressed in administrative proceedings and such instances are not wanting. Judges by their experience and training have the ability to bring to the task of decision making an objective mind that can rise above considerations of personal conviction and private feeling or extraneous influences. These considerations have weighed with me, not to withdraw from the case. MUHAMMAD AFZAL CHEBMA, J.--Reference No. 1 of 1975 is rather unique and unprecedented, having been based on the Constitutional provision incorporated for the first time in clause (2) of Article 17 of the Permanent Constitution vide Act XXXIII of 1974. The new provision empowers the Government to frame a law enabling the Federal Government to declare that any political party has been formed with the object or is operating in a manner prejudicial to the sovereignty and integrity of Pakistan. The relevant law is available in the form of the Political Parties Act of 1962 as amended by Act XXI of 1975. In exercise of its powers vesting in the Federal Government, the latter on 10-2-1975 made a declaration that the National Awami Party stood dissolved for having operated, to the satisfaction of the Government. in a manner prejudicial to the sovereignty and integrity of Pakistan. It is in compliance with the mandatory requirement of the Constitution that the Federal Government has made this Reference to the Supreme Court, which, as stated earlier, is the first of its kind. In view of the extraordinary importance of the Reference My Lord the Chief Justice was pleased to constitute a Bench of the Full Court for hearing the same. When the case came up for hearing for the first time on 12-4-75 Mian Mahmood Ali Qasuri, learned counsel for the respondents, suggested to the Court in his opening address that Judges, who had served as Law Secretary to the Federal Government and might have advised on or dealt with the cases of the N. A. P leaders or matters otherwise germane to the Reference, should consider the propriety of withdrawing from the Bench. The insinuation obviously referred to me and Justice Muhammad Gul as only the two of us had served as Law Secretary. My Lord the Chief Justice left the matter to the good conscience of the Judges concerned and both of us having given our anxious consideration to all the relevant aspects and implications of this rather delicate matter, decided to stay on the Bench and informed the Chief Justice accordingly. Since then both of us have continued to sit on the Bench and have been participating in the hearing of the Reference. The same point has now again been raised by the respondents in their written statement and exception has been taken in writing to the participation of both of us as Members of the Bench. My reasons for deciding to sit on the Bench, notwithstanding the objection are as follows :- No doubt .in my capacity as Law Secretary I have been dealing with some cases of the leaders of the defunct N. A. Y. but these were confined to individual allegations of criminal nature against some of them in their personal capacity. The view expressed by me was confined to the limited question as to whether a particular allegation fell within the mischief of a criminal offence, whereas the question under reference is wholly different and distinguishable from matters on which I was called upon to give my opinion in a different capacity. The allegations levelled by the Federal Government against the defunct National Awami Party are in substance those of preaching secession, four nationalities, trying to demolish the concept of Pakistan, advocating violence and subversion, causing hatred and strife in the country, resorting to insurgency, terrorists, with the blessings of the Afghan Government, etc. In my opinion the principal question to be determined by the Court would be as to whether on the basis of the evidence placed before the Court, it could reasonably come to the conclusion that the N. A. P. as a political party had in fact been constituted with objects or operating in a manner prejudicial to the sovereignty and integrity of Pakistan, so as to justify the action taken by the Federal Government. This question had never been referred to or examined by me as Law Secretary in any form whatsoever. Even otherwise being under an oath of office and bound by the Code of Conduct I can state with confidence that I am capable of dealing with the case with an open mind and in a detached and objective manner, without any embarrassment. As regards the invocation of the principle that "justice should not only be done but should manifestly be seen to be done", it may be observed with respect that surely "appearance of justice having been done" is relatively a very minor consideration as compared to the dispensation of justice itself which is really of the essence, and I doubt whether the withdrawal of two Judges of the Supreme Court in the midst of the case, on the basis of mere suspicion would be a step towards the advancement of Justice. The matter is not however devoid of precedent and there have been cases where allegations of bias as a disqualification for a Judge to sit on a particular Bench have been unsuccessfully urged in this Court. In the well known judgment of this Court in Asma Jillanis case while overruling the contention that Chief Justice Muhammad Munir being personally associated with the drafting of the Laws (Continuance in Force) Order, 1958 was disqualified from sitting on the Bench in Dosso's case, My Lord the Chief Justice observed as follows :- "I am pot inclined to agree with this view, for, having regard to the long experience of the learned Chief Justice as a Member of the various Benches of superior Courts in this country and his vast judicial experience I am certain that he was, notwithstanding his association in the drafting of the Order, quite capable of keeping an open mind and expressing his independent judgment." In M. H. Khondkar v. The State (PLD 1966 SC 140) it was observed by Cornelius, C. J. as follows : "(1) It is open to the litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be a superior or a subordinate Court. If such a plea is not raised before the Court as soon as the facts on which it is based come to the knowledge of the litigant, he may find himself barred against relief under the provisions of Article 98 of the Constitution, in respect of the ultimate decision. (2) The plea of bias involves criticism of a superior Court in point of its capacity to do justice, confidence in which is (a) vital to its proper functioning and even to the continuous existence of the Judiciary as at present constituted, and (b) essential therefore to the public interest. Consequently, such an action brings the agent within the range of contempt jurisdiction, unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him. (3) Mere apprehension in the mind of a litigant that he may not get justice, such as is based on inferences drawn from substantial indica tions will not justify the raising of the plea. The facts must be such that the conclusion of bias follow necessarily therefrom. On no weaker ground can any person be permitted to attack the impartiality of a superior Court and subsequently should the proof fail to satisfy the requisite standard, he may be found in contempt." Disagreeing with the first proposition formulated by Cornelius, C. J. S. A. Rahman, J. observed as follows "That the only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity of interest with a party as makes hire a Judge in his own cause. Even In such a case, the objection must be confined to a statement of facts on which the disqualification is based without imputing motives to the Judge concerned." In the same context My Lord the Chief Justice who was also a Member of the Bench made the following observation :- "The propositions are too widely worded and need some further qualifica tion. According to his Lordship even though a litigant or his counsel has a right to raise a plea of bias in the face of the Court, it has to be remembered that there is an equally important duty cast upon all persons, whether parties or not, to refrain from saying or doing anything which might have the effect of scandalising the Court or imputing to it motives or judicial dishonesty or holding up Its conduct to ridicule. The omission to observe this salutary restraint would equally expose the persons responsible for doing any act calculated to bring about any of the aforesaid harmful tendencies to the liability for committal for contempt of Court." In the cast of Mr. Akhlaque Hussain v. Pakistan (PLD 1969 SC 201) a similar objection was taken against Muhammad Munir, C. J. on whose report proceedings were initiated against Mr. Akhlaque Hussain but it was overruled. Again !n The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585) a similar disqualification was alleged against the Supreme Judicial Council on the ground that it was on the basis of a report of the Supreme Judicial Council itself that the cases had been referred to it by the President but the objection was overruled. It would not be out of place to mention in this context to the "Explanation" added to section 556, Cr. P. C. wherein the personal interest of a Judge or a Magistrate in a case disqualifying him from trial or committal has been explained. According to this provision even an inquiry made by a Judge or a Magistrate in a different capacity does not disqualify him from dealing with the case. 7 here is ample authority for the proposition that it is only a direct interest or relationship of a Judge that would operate as a disqualifi cation. I would refrain from saying anything as to the scope of the privilege of a party or its counsel to bring allegation of bias against a Judge of a superior Court and the precise limit where it ends, which if transgressed would amount to contempt of Court. HAMOODUR RAHMAN, C. J.-[19-6-1975]-Mr. Wali Khan is produced before the Court as per directions given by this Court on the 16th June, 1975. After consultation in the Court, with his learned counsel and Advocates, he states that he would like to withdraw the powers of his learned Advocates and counsel and address the Court himself. It is explained to him that he must appreciate that he can do that but he should make up his mind as to what he is going to do because once the power is withdrawn, the learned counsel and Advocates would not be permitted to intervene. He states that he fully appreciates the consequences and makes a statement, as he says, for the purpose of explaining his difficulties. Under orders of the Court, shorthand notes of his statement have been taken and a transcript thereof is placed on the record. The burden of his statement is to impress upon the Court the difficulties with which he and his party, namely, the N. A. P. are confronted as a result of the detention of some of the important leaders of the N. A. P. the banning of the party first and a reference being made thereafter to this Court. He has pointed out that this situation has been created by the amendment of the Political Parties Act and Article 17 of the Constitution and has suggested that the Court should call upon the Government to withdraw these amendments and revert to the status quo ante as it prevailed prior to the amendments. Unless this is done, he feels that his Party will not be able to put up any effective defence as it would be fighting always from an unequal position. He has also suggested that the previous order of this Court should be reviewed and all the five leaders, who are now under detention and collected at Sihala Special Jail, should be allowed. to be present in the Court throughout the proceedings. Unless this is permitted, he thinks, the defence cannot be appropriately conducted. Although be has not complained about the inadequacy of the expenses allowed by this Court by the aforesaid order he has implied that it is inadequate but he has categorically stated :- "We do not want any cash." On the other hand, he has suggested that he would give the Court a list of counsel of his choice and the Court should ask them if they would undertake the defence of the N. A. P. in this Reference "as a contribution to the national struggle for democracy". According to him the defence of this case should be treated as a national cause by everyone, because, from his point of view, the defence of this Reference is a national cause. namely; the maintenance of the rule of law, the enforcement of the Constitution and the preservation of a democratic system in the country. To quote his own words, he says :- "My position in this particular case is very clear. I am not fighting the case of N. A. P. I am fighting for the future of this country. It is a national service and, in the circumstance, what I am doing is in the national interest." He further very strongly maintains that to discharge this function properly, he and his party should be placed on an equal footing with the Referring Authority and, therefore, they should either be set free or at least be enlarged on bail during the pendency of these proceedings so that the difficulties which they are now facing in holding consultations with their lawyers, in procuring books and otherwise preparing the defence are removed. Lastly, he has, as he says, under the instructions of his Central Committee, felt it necessary to repeat the objection to the constitution of the Bench which was taken by Mr. Mahmud Ali Qasuri, his learned counsel, on the very first day and has been reiterated in the written statement filed on behalf of the N. A. P. In view of the difficulties created by the detention of the top leaders of the N. A. P. this Court has, from the very beginning, tried to give them all reasonable facilities of meeting their counsel, holding consultations and preparing their case as would be apparent from the previous orders of this Court. The learned Attorney-General has also referred to them specifically in his reply to the two applications for directions that were moved on the 10th June, 1975, for the grant of further facilities. Nevertheless, the Court, after due consideration of all circumstances, felt that in view of the categori cal statement made from the Bar by Mr. Mahmud Ali Kasuri regarding the financial difficulties of the party that some reasonable amount should be given to them to meet at least their essential expenses. An order was made accordingly directing the Government to pay a lump sum of Rs. 10,000 for preparation of the case and Rs. 1,500 per diem for each day's appearance to the learned Advocates appearing in the case. The Government was also directed to pay the expenses of a Stenographer and Typist not exceeding Rs. 1,000 per mensem. Now Mr. Wali Khan states that he does not want any cash but he wants that public spirited lawyers should under take the defence as a contribution towards, what he calls, a national cause. The Court has indicated to him that if he furnishes the names of the lawyers, the Court will, on his behalf, request them to undertake their defence. It may be pointed out here that prior to this, almost all the facilities then asked for by the learned counsel for holding consultation with a view to the preparation of the case were granted. The detenus were collected at one place, namely, Sihala Jail and permission was given to the lawyers, two at a time, to meet them whenever they desired to do so. Permission was also granted to a stenographer to attend to the needs of the detenus at Sihala. Facilities for obtaining books were also granted. It was pointed out that if there was any difficulty, a list of books should be furnished and efforts will be made by the Court to make them available. No such list was, however, furnished. Whenever any learned Advocate appearing in this case complained of any difficulty, every effort was made to remove the difficulties and in this behalf it must be stated that the learned Attorney-General fully cooperated. Mr. Wali Khan has not complained that the Court has not given them the facilities that were asked for. As regards the presence of all the five detenus in the Court, it was pointed out to him that even in the order of 16th June, 1975, it has been stated that while Mr. Wali Khan himself will be present throughout the proceedings in the Court, the production of the others will be directed as and when found necessary. The Court has reconsidered the matter and does not think that any modification in this order is called for. As regards the repeal of the amendments made in the Political Parties Act and Article 17 of the Constitution, it has been pointed out to Mr. Wali Khan that this Court cannot give any direction in that behalf. It is the function of the Legislature and, therefore, the Legislature should be moved dircetly in that behalf. The Court cannot presume to direct the Legislature to make or unmake a law. It can only strike down the law if it is found to be unconstitutional or ultra vires the powers of the Legislature. So far as removing the ban on the N. A. P. and the release of the detenus is concerned, again it has to be pointed out to Mr. Wali Khan that this Court has no jurisdiction to do so in these proceedings. It can only declare the ban to be illegal if it comes to that conclusion after hearing the Reference. So far as the detention of the leaders of the N. A. P. is concerned, we are informed that this is under the Defence of Pakistan Rules. The validity of the detention can, if so desired, be challenged by the detenus in the appropriate High Courts. We are also informed that specific cases are pending against the above-mentioned detenu. If so then it will be for the Courts having seizing of those cases to deal with the question of bail. In these proceedings, this Court can only decide as to whether the banning of the party is lawful or not. As regards the objection taken to the constitution of the Bench, learned counsel were informed on the very first day that no party to a litigation can claim the right to be tried by a particular Judge or Judges of his choice. In the case of superior Courts, it is entirely a matter for the Judge or Judges concerned to decide a to whether they will or will not sit to that particular case. Mr. Wali khan has been informed that both the learned Judges, against whom the objection has been raised, on the record minutes m writing which have been raised, have now recorded of these proceedings to say that they do not feel embarrassed in sitting to hear this proceeding. The objection based purely on conjectures is, therefore, In our view, unwarranted. Judges concerned are fully conscious of their own responsibilities. There is nothing to show that they are is any way disqualified from sitting to hear this reference. The objection is, accordingly, overruled. In this connection it must . also be pointed out that in the case of the President v. Shaukat Ali (PLD 1971 SC 585) a similar objection was taken before the Supreme Judicial Council on the ground that the Council was disqualified from hearing the reference by reason of having earlier scrutinized the declaration of assets of the respondent. The Supreme Judicial Council took the view that since there was no complaint of any personal bias in any individual member of the Council and there was no allegation that any member of the Council was, in any way, hostile or inimically disposed towards the respondent, the objection was untenable. To quote the actual words used by the Supreme Judicial Council r in its report published co nomine President v. Shaukat Ali (PLD 1971 SC 585) :- "The mere assertion of a bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceedings it is essential that a real likelihood or bias must be shown. The mere fact that the Council had scrutinised the declara tion of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frames a charge in a trial, can ever hear that matter or conduct that trial." If bias has to be alleged against a Judge of a superior Court it must be done with great care and caution, because, such a plea of bias necessarily involves criticism of a Judge of a superior Court and brings the person raising the plea "within the range of the contempt jurisdiction unless it can be totally justified on factual grounds, the onus of establishing which lies exclusively on him", as observed by Cornelius, C. J., in his judgment in the case of M. H. Khondkar v. State (P L D 1966 S C 140): "Mere apprehension" said the learned Chief Justice, "in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias must follow necessarily therefrom. On no weaker ground cats any person be permitted to attack the impartiality of a superior Court and consequently should he fail to satisfy the requisite standard, he may be found in contempt". In the same case, S. A. Rahman, J., observed that :- "The only species of bias in a Judge of a superior Court that can be pleaded, with immunity from proceedings in contempt, is that by which the Judge is disqualified from acting by reason of such identity op interest with a party as makes him a Judge in his own cause." Kaikaus, J., emphasised that :- "It is essential for the administration of justice that Judges of superior Courts be absolutely protected from attack, for, otherwise it would be difficult for them to function at all." Again in this case of Syed Akhlaque Hussain v. Pakistan (P L D 1969 S C 201) where the petitioner, a Judge of a High Court, sought to have the judgment and order of a Bench of this Court, conducting the enquiry against him, reviewed and set aside on the ground that the then Chief Justice, for the reasons given by him in his petition, became hostile to him and took personal interest in getting the special reference made to the Supreme Court. The learned Chief Justice was, therefore, disqualified to sit on the Bench which enquired into the charges against him. Strong reliance in the case was placed by the petitioner on the observatious of Lord Hewart, C. J., in the case of Rex v. Sussex Justices Ex parte : McColly (PLD 1949 PC 108) to the effect that it "is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". This Court observed as follows :- "It is true that this proposition has been generally acknowledged and given effect to not only in England and U. S. A. but in this Sub continent too. The question that remains, however, to be considered is what interest in a judicial or quasi-judicial proceedings does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias. According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision. In the case of Reg v. Rand L R (1866) 1 Q B 230 Blackburn, J. said that there must be 'a real likelihood' of bias. In the recent case of Regina v. Camborne Justices and another, Ex parte : Pearce (1955) I Q B 41 Slade, J., has said :- 'In the judgment of this Court the right test is that prescribed by Blackburn, J., namely. that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceedings, a real likelihood of bias must be shown'." The Learned Judge then observed :.- 'Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord - Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done." Accepting this principle. this Court concluded :- "We are, therefore, of the view that mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established." The present case is also a case of mere suspicion as no facts have been placed on the record to show any real likelihood of bias. Before the learned Attorney-General could proceed to make his opening speech. Mr. Wali Khan wanted a decision on the points raised by him and when the decision, which has now been recorded, was announced to him orally, he and his lawyers withdrew from the Court. It is regrettable that in spite of the facilities given to the respondent, this decision has been taken, but in the circumstances, this Court has no alternative but to proceed with the hearing of the reference without the assistance of the respondent. *[Here in italics) Civil Miscellaneous Petition in Reference No. 1 of 1975 Yahya Bakhriar, Attorney-General for Pakistan instructed by Mushtaq Ahmad Khawaja, Advocate-on-Record for Applicant. Nemo for Respondent. Q. M. Saleem, Advocate Supreme Court instructed by Noor Ahmad Naorl, Advocate-on-Record for Maulvi Mufti Mahmood. MUmMMAD GOL, J.-[30-6-1975]-This miscellaneous petition is by Maulvi Mufti Mahmood for being made a respondent in Reference No. 1 of 1975 moved by the Federal Government under section 6(2) of the Political Parties Act, 1962 (Act III of 1962) read with Article 17(2) of the Constitution, concerning the recent dissolution of the National Awami Party by that Government. The petitioner is not a member of N. A. P. He is, however, Secretary. General of J. U. L, Senior Voice President of U. D. F., (a conglomerate of certain political parties in Opposition including J. U. L), a member of the National Assembly and acting leader of Opposition in that Assembly. The petitioner also beaded the coalition Government formed by N. A. P., and J. U. 1. in N.-W. F. P. in 1972-73. Mr. Q. M. Saleem, learned counsel for the petitioner pointed out at the outset that the petitioner has not moved this application with a view to contesting the main Reference against N. A. P., but that he has been obliged to apply to be made a party because of certain defamatory remarks in the opening address of the learned Attorney-General reflecting on the conduct of the petitioner as the former Chief Minister of N-W. F. P. charging him with nepotism, gross abuse of power and maladministration. According to learned counsel the petitioner apprehended that the Attorney-General is likely to adduce evidence to substantiate these allegations and therefore the necessity to apply to be made a party to enable him to rebut any such evidence and thereby to vindicate his position and conduct as the former Chief Minister in N: W. F. P. The learned Attorney-General intervening explained that the remarks in his address to which the petitioner has taken exception, were a sequel to the highly complimentary references in the written statements filed on behalf of N. A. P. and by Mr. Abdul Wali Khan concerning the all round achieve ments of N. A. P., and J. U. I. coalitions while in office in N .-W. F. P. and Baluchistan. This according to the learned Attorney-General was contrary to facts and therefore the relevant excerpts in the written statements had to be contradicted in the opening address. Learned Attorney-General, however, conceded that these observations were not germane to the main case under Reference. He also stated that he does not propose to adduce any evidence in support of any observations to which exception has been taken by the petitioner. It is indeed a pity that rules of pleadings have not been adhered to in the case and certain irrelevant material has fount its way on the record. How ever, that may be, on no discoverable principle can the petitioner be a proper party to the Reference much less he is a necessary party. J. U. 1. of which the petitioner ii the Secretary-General or U. D. F. of which he is the Senior Voice-President is not a party to the case and the Federal Government's notification of the 10th February 1975, dissolving the N. A. P. does not directly or indirectly affect these two Organisations. The same held good in relation to the petitioner whether as private person, a member of J. U. I. Or U. D. F. or the former Chief Minister. If the petitioner in any manner feels aggrieved by anything said in the course of oral address by the learned Attorney-General then, he, if so advised, can initiate separate proceedings for redress. Apart from that, he is certainly not a proper much less a necessary party to the proceedings in the Reference. To implead him will unduly enlarge the ambit of these proceedings. - The petition is accordingly dismissed. Civil Miscellaneous No. 82-R of 1975 in Reference No. 1 of 1975 (In the matter of impleading U. D. F., a Party in the Reference). Yahya Bakhtiar, Attorney-General for Pakistan instructed by Kh. Mushtaq Ahmad, Advocate-on-Record. Nemo for Respondent. Ijaz Hussain Eatalvi, Senior Advocate Supreme Court instructed by M. A. Rahman, Advocate-on-Record for the United Democratic Front. HAMOODUR RAHMAN, C. J.-[15-6-19751-This application, which pur ports to have been filed under Article 187 of the Constitution read with Order XLIX, rule 6 of the Rules of this Court, is by the United Democratic Front for being impleaded as a party in the Reference above-mentioned. The United Democratic Front, it is said, was formed in March, 1973, by a number of Opposition parties, including the now defunct National Awami Party. and some independent Opposition members of the National Assembly, who, while retaining their individual entities, united "with the object of maintaining and strengthening the solidarity, integrity and ideology of Pakistan, and for developing the democratic institutions and for restoration of civilized norms of political conduct and behaviour in the country". The Front claims that its objectives are set out in its declaration, which is described as the 'Islamabad Declaration', and a copy whereof is annexed to the petition. The Front also has a General Council consisting of six representatives, nominated by each constituent party. It has also a Central Action Committee, which includes Mr. Abdul Wali Khan, and eleven other office-bearers. The applicants claim that the defunct National Awami Party had been closely and actively associated with the Front, which is, as such, in the know of the activities of the said defunct Party as one of its constituents and can depose thereto. Learned counsel appearing in support of the application has also referred us to certain copies of extracts of speeches of Mr. Wali Khan, which have been filed along with the Reference itself and has claimed that these speeches of Mr. Wali Khan, complained of fn the reference, were actually delivered at meetings organised under the banner of the Front and, therefore, in a way, the Front itself was directly involved in these proceedings. .. Similarly, a number of other documents, such a:, telegrams, etc., sent -to the President of the Country by the Members of the Front, including . Mr. Wali Khan, as also the incident reported in the 'Dhanak' Newspaper, make it necessary for the Front to explain its own attitude. Learned ,counsel apprehends that if these documents are left unexplained, the image of the United Democratic Front itself as a whole may thereby be tarnished and "ground may be paved to take action against them all under the Political Parties Act".. Hence, in the larger national interest. particularly, since the decision in the Reference "is bound to affect the entire political life of the country in general", the Front "has resolved to approach this Zourt with the request that it should be impleaded as a party and be allowed to participate and depose about the defunct National Awami Party's joint activities as a constituent member of the United Democratic Front". The National Awami Party, it will be recalled, was banned by a notification, issued by the Government on the 10th February, 1975. The Reference was filed within 15 days thereof, on 24-2-1975 and the hearing of the Reference, on the preliminary points, commenced on the 14th May. 1975. On that date some of the leaders of the United Democratic Front were also present in Court, presumably interested in the hearing of the .contempt petition filed by Ch. Zahur Elahi for the committal of the Prime Minister for Contempt of Court. The matter again came up for hearing .,on the 16th June, 1975, and on the 19th June, 1975, Mr. Wali Khan himself, at his request, was permitted to be brought to the Court. After coming to the Court, he withdrew the powers of his counsel, sought leave to address the Court in person, and ultimately after making his address staged a dramatic walk-out from the Court. On this occasion too, most of the leaders of the parties. comprising the United Democratic Front, were present in Court and almost all of them followed Mr. Wali Khan out of the Court. One or two that might have stayed behind, also followed suit a few minutes later. Thereafter, an application was made on the 30th June, 1975, on behalf, of Moulvi Mufti Mahmood, one of the components of the United Democratic .Front, which had, along with the defunct National Awami Party, formed coalition Governments in 1972 in the provinces of N: W. F. P. and Baluchistan. In that application too, a request was made for impleading ,the J.U.I. as a party to these proceedings on the ground that certain allegations had been made against the said party in the opening address of the learned Attorney-General and it was apprehended that evidence might be led which might adversely affect the J.U.I. The learned Attorney -General clearly stated that he had no intention of leading any evidence against the J.U.I. or any of its leaders and whatever he had said was in reply to the written statement filed by Mr. Abdul Wali Khan himself. In view of this statement, the impleading of J.U.I. was considered unnecessary and the application was rejected. Nothing further happened till the 9th July, 1975, when the present petition was filed. In these circumstances, we cannot help observing if there was any foundation at all in the apprehension now expressed by the Front, then the realisation has dawned upon them rather late in the day. They cannot plead ignorance of these proceedings, because, not only have the daily proceedings of this matter been given wide publicity in the Press, but, as earlier indicated, leaders of the United Democratic Front have actually been present in Court from time to time in the earlier stages of these proceedings. If the defunct National Awami Party is a constituent of The United Democratic Front, then we have no reason to think that the Front did not also come to know of the nature of the allegations contained in the Reference against the National Awami Party. Indeed, we find that the learned counsel appearing in support of this application is already possessed of the first volume of the documents filed by the Referring Authority. The learned Advocate-on-Record instructing him also instructed Mr. Mahmud Ali Kasuri, at the earlier stages, on behalf of the N. A. P. Be that as it may, the question is as to whether the Front can claim to be impleaded in these proceedings as of right on the ground that it is a, necessary party, learned counsel has very frankly conceded that he cannot put his case as high as that. He concedes that since no relief is sought in these proceedings against the United Democratic Front and since the Front will not be affected by the decision of this Court, save and in so far that it might feel the impact of the decision like any other political party in the country. Nevertheless, the learned counsel does maintain that the United Democratic Front can claim to be a proper party in these proceedings, because the dissolution of one of its constituents is a matter of direct concern to the Front itself and the Front will be able to give valuable assistance to this Court in doing full and complete justice in the matter by reason of its knowledge of the activities of the defunct Party, which have taken place from the platform of the Front and in implementation of the policy of the Front. Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor an persons be added as parties so as to set up a new cause of action which does not concern the original parties. In a generic sense, every decision of this Court on a point of law is likely to affect every one in this country in whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before the Court, merely because it is likely to affect him in some future proceedings. All that the learned counsel has said in support of his case is that the decision taken in this Reference is likely to expose other political parties who are constituents of the United Democratic Front to similar action by the party in power. This, however, in our opinion, is no ground for adding them as party in these proceedings. If and when such an action is sought to be taken, they will be entitled to contest those proceedings and put up their defence, but they cannot, in our view, be considered to be proper parties in these proceedings, where no interest of theirs is being placed in immediate jeopardy. Learned counsel has lastly contended that even if the applicants cannot come in as proper parties, they might be allowed to appear as amicus curiae as distinguished from an intervener. In support of this contention. he has referred to the definition of an amicus curiae given in Volume III of the American Corpus Juris Secundum, at page 1046. The same Volume, however, on the next page, states that "One whose attitude appears to be partisan, should not be permitted to appear as amicus curiae." Under this rule, the petitioners would be disqualified even to appear as amicus curiae, because, on their own averment, they are very much interested in the cause of the National Awami Party. We are also unable to agree that in the absence of the applicants this Court will be handicapped in doing complete justice in the cause now pending before it. The offer of producing Mr. Wali Khan as a witness is no inducement at all. If the Court, at any stage. feels the necessity, it can always make an order for the purpose of securing the attendance of any person or for securing the discovery or production of any document. Even if the evidence of any of the leaders of the constituent parties of the United Democratic Front becomes necessary, this Court will have no hesitation is summoning them as witnesses irrespective of whether the Front is a party to these proceedings or not. The learned Attorney-General has, of course, vehemently opposed this application and has contended that this is not a bona fide application at all. According to him, the intention behind this application is to frustrate the proceedings of this Court. If the applicants had been genuinely interested in these proceedings, they would have moved this Court long before this day and not allowed five months to elapse before taking a decision to make such an application. The contentions of the learned Attorney-General, are not without substance, but it is unnecessary for us to go into these questions, as we are satisfied that the applicants cannot quality for being impleaded as parties in these proceedings either on the ground of being either 'necessary parties' or on the ground of being 'proper parties'. We are also not inclined to give them permission to appear as amicus curiae, as they are, on their own showing, partisans and not disinterested. In course of the hearing of the petition we had observed that Mr. Ijaz Hussain Batalvi might sit in Court and watch the proceedings on behalf of the U. D. F., and, if considered necessary, might suggest questions to the amicus curiae for being put to the witnesses. Mr. Batalvi, however, did not appear disposed to accept the suggestion. In these circumstances, this application is dismissed. S.A. H. Application dismissed.