P L D 1998 Supreme Court 1445 (PLP)

AJMAL MIAN, C J.--On 15-5-1998 we disposed of the above petitions for the reasons to be recorded later on by the following short order:- "For the reasons to be recorded later on, we dispose of the above cases as under:- (i)???????? Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon; (ii)??????? section 40 of the Anti-Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search; (iii)?????? section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid; (iv)?????? sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words "High Court" in place of!,, "Appellate Tribunal"; (v)??????? section 26 of the Act is not valid in its present form as it makes,, admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate'; (vi) that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act; (vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government; (viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary. Pursuant to the above short order, we intend to record our reasons. Before doing so, we may state the brief facts leading to the filing of aforementioned cases.

2. The petitioner in C.P.L.A. No.251 of 1998 was tried by Special Anti Terrorist Court-I, Lahore, under the provisions of Anti-Terrorism Act, 1997 (Act . No.XXVII of 1997), hereinafter referred to as the A.T.A., for causing death of 23 persons and injuries to 55 persons by exploding a detonating device through remote, control in the compound of District Courts at Lahore, when Maulana 7.ia-ur-Rehman Farooqi (now deceased) and Maularia Azam Tariq, Chairman of Sipah-e-Sihaba Pakistan, were brought from Kot Lakhpat Jail to the Court of a learned Additional Sessions Judge, Lahore, in a criminal case. He was convicted through two judgments dated 15-9-1997 under the provisions of P.P.C. as well as under the Arms Ordinance, 1965, and the Explosive Substances Act, 1908, by Special Anti-Terrorist Court-I, Lahore. He was awarded death sentence on 23 counts and R.I. of various terms inter alia under section 324, P.P.C. on 55 counts and under the Arms Ordinance, 1965, and Explosive Substances Act, 1908. He filed Criminal Appeals Nos.20 and 21 of 1997 against above convictions and sentences before the Appellate Tribunal constituted under section 24 of the A.T.A. The Appellate Tribunal disposed of Criminal Appeal No.20-G of 1997 (which related to the offences inter alia under sections 302 and 324, P.P.C.) by a separate judgment in the following terms:- "The upshot of the above discussion is that the prosecution has been able to establish its case beyond reasonable doubt against the appellant. As already discussed, judicial confession can safely be relied upon which finds corroboration from the recovery of remote control and other explosive substance at the instance of the appellant. The prosecution version is also corroborated from the conduct of the appellant before and immediately after the occurrence. The last contention of the learned counsel for the appellant that postmortem reports of only three deceased persons were produced therefore he could not be convicted on 23 counts has been considered by us and we accept it. Prosecution neither produced the post-mortem examination reports of 20 persons nor the doctors who examined the deceased were produced. In such circumstances, the appellant cannot be held responsible for their murders. Therefore, while dismissing the appeal, we confirm the death sentence of the appellant on three counts only. The convictions and sentences for other offences are, however, maintained. " Against the above judgment, the petitioner filed Writ Petition No.25713 of 1997, which was disposed of alongwith eight other Writ Petitions through a common judgment dated 9-3-1998 by a Full Bench (comprising 5 learned Judges) of the Lahore High Court. There was difference of opinion among the learned members of the Bench in the ratio of 4:

1. The majority view held that the A.T.A. was competently enacted. However, it was also held by the majority view that certain provisions of the A.T.A. required to be amended in order to validate the same, namely, section 14 relating to appointment of the Presiding Officers should provide security of service to them. As regards section 26 of the A.T.A., which makes a confession before a police officer admissible in evidence, it was held that the confession should be recorded in presence of a Deputy Superintendent of Police but if he is not available for some reasons which will have to be stated by the Police Officer the confession shall be recorded in the presence of a Superintendent of Police who shall not be from the same Division in which the investigation was being carried out. (There seems to be variation on this point between the short order and the judgment containing reasons inasmuch as instead of "Division", the word "area" has been substituted). As regards section 31 of the A.T.A. (which provides finality of the judgment of the Special Court subject to the result of an appeal), it has been held that Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, is not whittled down and remains available against the judgments and orders of the Appellate Tribunal. In this regard, the learned Attorney-General's statement to the effect that where judgment of the trial Court is reversed by the Appellate Tribunal, a further right of appeal would be made available both to the State and also to the convict by making suitable amendment in the law, was recorded. Regarding section 16 of the A.T.A. (which provides oath by the Presiding Officers of Special Courts), it has been held that the oath prescribed for non-Muslim Judges requires modification inasmuch as they cannot be asked to decide the cases according to their religious belief which may come in conflict with the Injunctions of Islam or the Constitution. It was, therefore, held that section 16 of the A.T.A. should be suitably amended. In case of non-Muslim Judges, it was held that they will decide the cases in accordance with the Constitution, law and their conscience. However, the convictions and sentences awarded to the petitioner, Mehram Ali, have been upheld. Adverting to the question of trial of an accused in absentia under section 19(10) of the A.T.A., it has been observed that the learned Attorney General had conceded before the Court that no trial in absentia could be held and appropriate measures shall be taken within a period of two months to amend or repeal aforesaid section of the A.T.A. Whereas in the minority view sections 5(2)(iii), 10, 13, 14, subsections (10), (11) and (12) of section 19 sections 24 and 25 of the A.T.A. and the constitution of Special Courts and the Appellate Tribunals have been declared ultra vires and the trials conducted by such Courts have been declared as having been vitiated being coram non judice. The petitioner, Mehram Ali, has therefore filed aforementioned C.P.L.A. No.251 of 1998 against the judgment of the majority view of the Lahore High Court. Whereas C.P.L.A. No.1129 of 1997 has been filed against the dismissal order dated 13-10-1997 of a Division Bench of the Lahore High Court passed in Writ Petition No.22366 of 1997 filed by the above petitioner, Mrs. Tayyaba Yusuf Ali, assailing the trial of her husband by Special Court-II, Lahore, under sections 295-A, 295-B, 295-C, 298, 298-A, 505(2), 508, 406, 420, P.P.C. and section 16 of the Maintenance of Public Order, 1960, pursuant to F.I.R. No.70 of 1997 dated 29-3-1997 on the ground of want of jurisdiction. Whereas C.P.L.A. Nos.423 of 1998 to 431 of 1998 have been filed.by the Federation of Pakistan against the above judgment dated 9-3-1998 of the Full Bench of the Lahore High Court. Constitution Petitions Nos.20 of 1997, 21 of 1997 and 26 of 1997 have been filed under Article 184(3) of the Constitution for assailing the A.T.A. by Hakim Ali Zardari, Asif Ali Zardari and Abdul Latif Ansari, respectively, who are facing trial before the Special Court at Hyderabad under A.T.A. pursuant to F.I.R. No.70 of 1997 lodged by one Muhammad Ramzan at Police Station Qasimabad, Hyderabad, under section 302/324/109/427/34, P.P.C. Constitutional Petitions Nos. 15 of 1997, 36 of 1997 and '61 of 1997 have been filed under Article 184(3) of the Constitution by one Taufiq Asif, an Advocate; Syed Munawar Hasan, Secretary-General, Jamat-i-Islami Pakistan; and Joint Action Committee against Anti-Terrorism Act; respectively, for challenging the vires of A.T.A. All the above Petitions for Leave to Appeal and Constitutional Petitions were heard together and were disposed of by the above quoted short order dated 15-5-1998.

3. Adverting to the merits of the case it may be observed that Messrs Asghar Khan Rokri, Muhammad Ikram Chaudhry and Syed lftikhar Hussain Gilani have vehemently contended that the A.T.A. in its present form is ultra vires to the various Articles of the Constitution inasmuch as the Special Courts envisaged by the A.T.A. are in fact parallel Courts which are not contemplated under Articles 175, 202, 203 and 212 of the Constitution. The petitioner in C.P.L.A. No.61 of 1997 joined the above learned counsel in their above submission. Sh. Khizar Hayat, learned Advocate Supreme Court who appeared in Constitutional Petition No.36 of 1997, contended that the A.T.A. is violative of Articles 2A and 27 of the Constitution particularly the provisions of sections 5(2)(i), (ii) and (iii), 10 and 26 of the A.T.A. On the other hand Ch.Muhammad Farooq, learned Attorney-General, has pointed out that terrorism has attained global magnitude. This is a menace which is not confined to Pakistan but is being faced by many other countries like India, Ireland etc. He narrated the brutal killings of the innocent people in Punjab and Karachi in 1997 including high officials, namely, Commissioner, Sargodha Division, a Secretary of the Punjab Government, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C. He also pointed out that Punjab was taken over by sectarian rifts to such magnitude that this Court took suo motu cognizance under Article 184(3) of the Constitution and notices were issued to the Attorney-General, Interior Minister etc. He also invited our attention to the fact that in some other countries statutes more or less identical to A.T.A. have been enacted to cope with terrorism. In this behalf he invited' our attention to The Northern Ireland (Emergency Provisions) Act, 1973, The Prevention of Terrorism (Temporary Provisions) Act, 1974 and The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA). He further submitted that TADA was examined by the Indian Supreme Court inter alia in the case of Kartar Signh v. State of Punjab (1994) 3 Supreme Court Cases 569) and the majority view was that except section 22 which allowed the identification of a declared proclaimed offender in a terrorist case on the basis of his photograph, all other provisions of TADA were found intra vires. Above section 22 was struck down. Miss Yasmin Saigol, Assistant Advocate-General Punjab, and Mr. M. Iqbal Radd, Additional Advocate-General Sindh, joined Ch.Muhammad Farooq, learned Attorney-General in support of his submission and contended that the enactment of A.T.A. was warranted by the situation obtaining in Pakistan.

4. The basic question is, as to whether the provisions of A.T.A. in their present form fit in in the Constitutional framework relating to Judiciary. It has been repeatedly pointed out inter alia by this Court that our Constitution is founded on the theory of trichotomy of power between the three limbs/organs of the State, namely, the Legislature, the Executive and the Judiciary. It delineates the functions of each of the organs. It envisages that each organ of the State shall function/operate within the bounds specified in the Constitution. Though one can say that the Judiciary is the weakest organ as it does not have the resources or power as the Legislature or the Executive enjoy but it has been assigned by the Constitution very important and delicate role to play, namely, to ensure that none of the organs of the State or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of work entrusted to Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. The same was not only provided in the Preamble of the Constitution (which has now become part of the Constitution through Article 2A) by providing that "the independence of the judiciary shall be fully secured" but this was also manifested by the Constitution-makers by providing the judicial framework in the Constitution to ensure the same. In this regard, it may be observed that clause (1) of Article 175 of the Constitution provides that "There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law". Whereas clause (2) lays down that "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". It may further be noticed that clause (3) of above Article envisages that "The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day". It may be highlighted that originally the period specified was 3 years, which was substituted by 5 years through The Constitution (Fifth Amendment) Act, 1976 (Act LXII of 1976), and then to 14 years by President Order No. XIV of 1985. It may be observed that the latter clause, namely, clause (3) of Article 175 of the Constitution is of great significance as it envisages separation of Judiciary from the Executive, which concept runs counter to the ordinary meanings of the term "Judiciary" given inter alia in Black's Law Dictionary, Fifth Edition, which defines the same as under:- "Judiciary": Pertaining or relating to the Courts of justice, to the judicial department of Government, or to the administration of justice." ??????????? "Judiciary": That branch of Government invested with the judicial power; the system of Courts in a country; the body of Judges; the Bench. That branch of Government which is intended to interpret, construe and apply the law." It is evident from the above quoted dictionary meaning that in general parlance the Judiciary is considered as a part of the Government, which meaning is contrary to what is envisaged in clause (3) of Article 175 of the Constitution, namely, that the Judiciary shall be separated from the executive. The object of providing above clause (3) in Article 175 by the framers of the Constitution seems to be to ensure independence of Judiciary in order to enable it to perform its functions according to the mandate of the Constitution. It is a matter of common knowledge that in spite of expiry of 14 years' period specified in above clause (3) of aforesaid Article, no action was taken by various Governments in power to separate Judiciary progressively from the Executive. In view of above default on the part of various Governments, Constitution Petitions were filed in the High Court of Sindh for a direction to the Federal and Provincial Governments to implement the above mandate of the Constitution contained in aforesaid clause, which were allowed through a common judgment titled Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through the Prime Minister and another (PLD 1989 Karachi 404) by a Full Bench comprising one of us (Ajmal Mian, C.J.) and six companion Judges. The operative portion of the judgment is contained in para. 12 of the main opinion, which reads as follows:- " 12.1 would, therefore, allow the above two petitions in the following terms;- (A)?????? The respondent in the first petition i.e. respondent No.2 (i.e. the Province of Sindh) in the second petition is directed-- (i)???????? to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No.XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control of the High Court within a period of six months; (ii)??????? to issue necessary Notification under sub -rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978, and Rule 4 of the Sindh Civil Services (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days, (iii)?????? to initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution. (B)?????? Respondent No. l (i.e. the Federation of Pakistan) in the Second Petition is directed to initiate all legislative/administrative steps/measures to bring the existing laws relating to or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months."

6. Against the above judgment the Provincial Government of Sindh and the Federation of Pakistan filed appeals in this Court, which were disposed of through a common judgment reported in PLD 1994 SC 105 (Government of Sindh through Chief Secretary to the Government of Sindh, Karachi and others v. Sharaf Faridi and others), in which Dr. Nasim Hasan Shah, J. (as his Lordship then was) who rendered the main opinion, dilated as to the meaning of "the independence of judiciary" as under:- "Now according to the consensus of the jurists, the independence of the judiciary means-- (a)??????? that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and (b)??????? that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature. In our Constitution, the specific provision designed to secure this independence is contained in clause (3) of Article 175 by enacting that: "The Judiciary shall be progressively separated from the Executive .. . ... " It may be observed that Article 202 of the Constitution provides that "Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it. " It may also be observed that Article 203 of the Constitution lays down that "Each High Court shall supervise and control all Courts subordinate to it. " It may further be observed that Article 212(1) of the Constitution contemplated the establishment of one or more administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- "(a)?????? matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including. disciplinary matters; (b) - matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c)??????? matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. Whereas clause (3) thereof provided a right of appeal to this Court by laying down that "An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal". It may be pointed out that under the original scheme of the Constitution the Courts as provided in Article 175 or the Administrative Courts or Tribunals as envisaged in clause (1) of Article 212 could have been established and no other Courts. It may further be noticed that the expression "and such other Courts as may be established by law" used in clause (1) of Article 175 of the Constitution after referring to the establishment of Supreme Court and a High Court for each Province, is relatable to subordinate Courts referred to in Articles 202 and 203 of the Constitution. However, by President Order No.l of 1980 i.e. The Constitution (Amendment) Order, 1980, a new Chapter as 3-A under the caption "Federal Shariat Court" was added. Article 203-A provided that "The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution". The above Article with non obstante provision was incorporated in the Constitution in order to facilitate the establishment of Federal Shariat Court and Shariat Appellate Bench of this Court as otherwise the same would not have fit in? the original framework of the Constitution. Similarly, by The Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), which was enforced with effect from 27-7-1991, the establishment of Special Courts and Supreme Appellate Courts for heinous offences were provided for a period of three years by Article 212-B of the Constitution. The above Constitutional provision was incorporated in the Constitution as in the framework of the Constitution as obtaining in 1991, the above Special Courts and Supreme Appellate Courts could not have been established under clause (1) of Article 175 of the Constitution. Reference may also be made to Article 225 of the Constitution which envisages the establishment of Election Tribunals in respect of election disputes.

7. It may be pertinent at this juncture to refer to the case of Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (PLD 1984 Lahore 69), wherein the vires of certain provisions of the Banking Companies (Recovery of Loans) Ordinance (XI of 1979) were examined by Gul Muhammad Khan, J. (as he then was). In the discourse of the judgment he highlighted material change which has been brought by Article 175 of the Constitution as under:- "

7. There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the constitution of Tribunals for purposes expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted with the Indian Constitution. Article 136(1) of that Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause or matter, passed or made by any Court or Tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises I jurisdiction. Thus, while the Indian Constitution recognises existence of Tribunals sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution. This appears to be a very important departure from the previous Constitutional. position as even Article 98(5) of the 1962 Constitution recognise Tribunals alongwith Courts. Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for Tribunals as in the Indian Constitution. It is thus clear that the 1973 Constitution of Pakistan recognises only such specific Tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial Tribunal is relieved of the duty of deciding a matter before it justly, fairly, equitably and objectively. The only difference is that a Tribunal is not as much bound by the rules of procedure and the evidence as the Courts of law are. " As regards the effect of the above change he opined as follows: "

33. Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i.e. a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, 'the such other Courts' must necessarily be inferior to the High Courts. " It was concluded that the position in the pre-partition India before 1935 and after the enforcement of its Constitution in 1950 has been that the High Courts had both administrative and judicial superintendence for the Courts subordinate to them and that the power under Article 227 of the Indian Constitution was thought to be superior but co-extensive with the ordinary revisional power wherever it was available. It was further concluded that the Courts in Pakistan also rightly treated similar powers given to them under Article 177 of 1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right of administrative as well as judicial superintendence over the subordinate Courts. 8.The above view was reiterated by a Division Bench of the Lahore High Court in the case of Altaf Hussain v. The State (PLD 1985 Lahore 10):-- "On the contrary, the Article 175 of the 1973 Constitution does place the entire judicial power under the High Court, subject to such specific exclusions which are expressly noted in some other Article like 212 etc. Reference be again made to Abdul Hafeez v. The State, Article 175(3) further states that the judiciary shall be progressively separated from the executive within the given time. No such provision existed in the 1962 Constitution. It is, therefore, quite evident that whereas the previous amalgam of the executive and judicial powers must be separated within the given time, no new judicial function, other than the ones expressly mentioned in the Constitution, shall be conferred on any executive authority, after the commencing date. This Court has already taken the same view in Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (PLD 1984 Lahore 69). Thus the Legislature cannot be considered to have given such power to a persona designata or any other executive authority in a 1984 Ordinance. The Special Court, therefore, as it is also so named, is a Court constituted under the Constitution, and is inferior to the High Court. " Incidentally it may be mentioned that the above latter judgment was also rendered by Gul Muhammad Khan, J. who was heading the Bench.

9. In the case of Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others (PLD 1996 Lahore 542) the vires of certain provisions of Offences in Respect of Banks (Special Courts) Ordinance (IX of 1980) and of the Suppression of Terrorist Activities (Special Courts) Act, 1975, were examined by a Full Bench of the Lahore High Court headed by Khalil-ur-Rehman Khan, C.J. (as he then was). After examining inter alia Articles 175 and 203 of the Constitution it has been held that sections 3, 4 and 4-A of the Offences in Respect of Banks (Special Courts) Ordinance, 1980 and sections 3, 4 and 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, are unconstitutional as the same erode the independence of judiciary. Consequently, the notifications appointing the Presiding Officers to the Special Courts were quashed. In the body of the judgment it has been held that "So, wherever judicial power vests in a body/forum, whether designated as a Court or Tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/forum/Court or Tribunal under the mandate of the Constitution has to vest in the High Court. It will also be noted that express power has been conferred by the Indian Constitution to constitute/establish Tribunals alongwith the Courts in respect of matters/subjects enumerated in Articles 323-A and 323-B which also provide for the exclusion of judicial review by the High Courts and the theory of separation of Judiciary as is enshrined in Pakistan Constitution is not contemplated in Indian Constitution". Against the above judgment, the Federation filed appeals with the leave of this Court, namely, Civil Appeals Nos. 1552 and 1553 of 1996, but the same were dismissed on 12-6-1997 as having become infructuous on the basis of statement of the learned Deputy Attorney-General that the relevant law was amended in the light of above High Court judgment. We may also refer to the case of Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). In the above case certain provisions of the Banking Tribunals Ordinance, 1984, were assailed on the ground of their being violative of inter alia Article 25 of the Constitution. A Full Bench of the Lahore High Court held that section 4 of the above Banking Tribunals Ordinance providing for establishment of the Banking Tribunals was ultra vires of the Constitution and the Banking Tribunals constituted thereunder, were illegal and unlawful for the reasons recorded in Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542) (supra) decided by it. Consequently, the notifications constituting and appointing Presiding Officers to the Tribunals concerned were quashed. The Court also declared section 6(6) and the first proviso to section 9 of the Banking Tribunals Ordinance, 1984 (as amended by Act VII of 1990) to be ultra vires of the Constitution. 10. (a) Reference may also be made to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). In the above case an appeal with the leave of this Court was filed by the Government of Balochistan against the judgment of the High Court of Balochistan declaring the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance No.II of 1968) being violative of Articles 2, 21, 9, 14, 25 and 175 of the Constitution. This Court while maintaining the above judgment has observed as to the effect of Article 175 of the Constitution as follows:- "Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well. The lower judiciary' is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and 'High Court shall supervise and control all Courts subordinate to it'. Such .control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. Separation of Magistracy is the first step towards separation and independence. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people. " It may also be advantageous to quote another extract from the above judgment on the above aspect, which reads as follows:- "Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the Executive Officers. This is merely a semblance of establishing Courts which are authorised to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. " In the above report after referring to the cases of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Karachi 404), Syed Abul A'la Maudoodi (PLD 1964 SC 673 at 710) and Ms. Benazir Bhutto (PLD 1989 SC 416), the following observation as to the right of access to justice has been made:- "The right of 'access to justice to all' is a well recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol.II at page 1709 where the term 'due process of law' has been summarised as follows:- '(1)?????? He shall have due notice of proceedings which affect his rights. (2)??????? He shall be given reasonable opportunity to defend. (3)??????? That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and (4)??????? That it is a Court of competent jurisdiction. It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and Tribunal. Unless au impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it'. " (b) It will. be advantageous to reproduce an extract from para. 23 of the judgment in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324), wherein it has been pointed out that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary, which reads as under:- may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of judiciary. At this juncture, it may be stated that a written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country _ and its people. Thus the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context. " (c) Reference may be made to the following extract from the opinion of one of us (Ajmal Mian, C J) from the case of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Karachi 404) (supra), wherein the expression "the supervision and control over the subordinate judiciary" used in Article 203 of the Constitution has been construed as under keeping in view Article 175 thereof:- "I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or a notification empowering any executive functionary to, have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides, it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution. " The above judgment has been upheld by this Court through the judgment reported under the title Government of Sindh through Chief Secretary to the Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105) (supra). (c) We may also refer to an Urdu Book udder the title: by Shamsul Ulema Allama Shibli Nomani (1997 Edition) referred to by Mr. Muhammad Ikram Chaudhry as to the concept of separation and independence of Judiciary introduced by Hazarat Umer Farooq ( ~V,r .;,'?????????? ) (May Allah be pleased with him) during his Caliphate:-- In the above biography the author has quoted Arabic version of Hazrat Umer Farooq's above ( ~~j ) and has deduced the following principles therefrom:

11. From the above case-law the following legal position obtaining in Pakistan emerges:- (i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law. (ii)??????? That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof. (iii)?????? That our Constitution recognises only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. (iv)?????? That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vest in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation. (v)??????? That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution. (vi)?????? That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. (vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their K tenure and other terms and conditions. 12.?????? We will have to examine the various provisions of the A.T.A. in the light of the above legal principles deducible from the case-law referred to hereinabove. However, before doing so we may refer to the submission of Ch.Muhammad Farooq, learned Attorney-General, that the terrorism has attained global magnitude and that in Punjab and Karachi there were very grave incidents of terrorism involving brutal killings of innocent persons inter alia on sectarian basis inter alia at the places of worship. According to him, the A.T.A. is founded on reasonable classification having nexus with the object for which it was enacted. In this regard, it may be pertinent to mention that in the case of I.A. Sharwani and others v. Government of Pakistan (1991 SCMR 1041) this Court while dealing with certain Constitutional petitions under Article 184(3) of the Constitution filed on behalf of the old pensioners assailing discriminatory treatment meted out to them by the Government, the following principles of law on the question of classification were deduced after referring the case-law of foreign jurisdiction as well as of Pakistani origin-- (i)???????? that equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii)??????? that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii)?????? that different laws can validly be enacted for different sexes, persons of different age groups, persons having different financial standard and persons accused of heinous crimes. (iv)?????? that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v)??????? that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi)?????? that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based- (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. The above quoted principles were reaffirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) (supra). Indeed under above quoted sub-para. (iii), it has been laid down that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing and persons accused of heinous crimes. However, this does not mean that a parallel judicial system can be created in violation of Articles 175, 202 and 203 of the Constitution. There can be Special Courts trying heinous crimes expeditiously, but the same should be within the framework of the Constitution.

13. Ch.Muhammad Farooq, learned Attorney-General, has heavily relied upon the provisions of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) besides referring to the provisions of the Northern Ireland (Emergency Provisions) Act, 1973, and the Prevention of Terrorism (Temporary Provisions) Act, 1974. He has also referred to the following cases: - (i) Usmanbhai Dawoodbhai Memon and others v. State of Gujarat (AIR 1988 SC 922); The facts of the above case were that an appeal with the special leave was filed before the Indian Supreme Court against the judgments and orders of the Gujarat High Court and the orders passed by the various Designated Courts (i.e. Special Courts) in the State constituted under section 9(1) of TADA. Two questions were agitated before the Supreme Court, firstly, whether there was jurisdiction and power with the High Court to grant bail under section 439 of the Code of Criminal Procedure or by recourse to its inherent powers under section 482, and secondly, as to the nature of restraint placed on the powers of the Designated Courts to grant bail to such persons in view of the limitations placed on such powers under section 20(8) of TADA. The High Court had taken the view that there was total exclusion of its jurisdiction and, therefore, it could not entertain an application for grant of bail under section

439. In other cases, the persons under detention had applied for grant of special leave under Article 136 of the Constitution against the orders passed by the various Designated Courts in the State refusing to grant bail on the ground that the power of a Designated Court to grant bail is circumscribed by the limitations prescribed by section 20(8) of-the Act. The Supreme Court upheld the orders of the High Court dismissing bail applications but set aside the orders of the various Designated Courts dismissing the bail applications and directed them to consider each particular case on merits in terms of section 3 and/or 4 of the Act. As regards the object and scope of TADA the following observations were made:- "

15. Before dealing with the contention advanced, it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails.

16. As a matter of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section

482. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act and those contained in the Code. Under the Code, the High Court is invested with various functions and duties in relation to any judgment or order passed by criminal Court subordinate to it. Those powers may be briefly enumerated, namely, the jurisdiction and power to hear an appeal under section 374 against any judgment or sentence passed by the Court of Session, the power to hear an appeal against an order of acquittal by a criminal Court including the Court of Session under section 378, the power to hear a reference as to the validity of any Act, Ordinance or Regulation or any provision contained therein made by a Criminal Court under section 395, the confirmation of a death sentence on a reference by a Court of Session under sections 366-367 and section 392, the power to grant bail under section 439 subject to certain limitations, the inherent power under section 482 to make such orders as may be necessary or to prevent abuse of the process of. the Court to otherwise secure the ends of justice. Undoubtedly, the High Court has the jurisdiction and power to pass such orders as the ends of justice require in relation to proceedings before all criminal Courts subordinate to it. " (ii) An unreported judgment of the Indian Supreme Court dated 7-8-1990 in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, in which the Indian Supreme Court was seized of three appeals filed by the convicts against their convictions under TADA inter alia for murders. While maintaining the convictions and sentences recorded by the Special Court under TADA, Ahmadi, J. (as his Lordship then was) inter alia pointed out that the provisions of TADA are drastic in that they provide minimum punishments and in certain cases enhanced punishments; make confessional statements made to a police officer not below the rank of Superintendent of Police admissible in evidence and mandates raising of a rebuttal presumption on proof of facts stated in clauses (a) to (d) of subsection (1) of section

21. It was also observed that provision was made with regard to identification of an untraceable accused through photographs. It was highlighted that the above provisions were special provisions introduced in TADA with a view to controlling the menace of terrorism and that they were a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. (iii) Kartar Singh v. State of Punjab [(1994) 3 Supreme Court Cases 569]; In this case vires of the various provisions of TADA were assailed. In the above case a number of Writ Petitions, Criminal Appeals and Special Leave Petitions were filed challenging the vires of the Terrorist Affected Areas (Special Courts) Act No.61 of 1984), the Terrorists and Disruptive Activities (Prevention) Act (No.31 of 1985) and the Terrorists and Disruptive Activities (Prevention) Act, 1987 (No.28 of 1987) commonly known as TADA Acts. The case was heard by a Bench comprising five learned Judges. The majority (4 to 1) held that all the provisions of TADA were intra vires except that section 22 (which provided that "where a person has been declared a proclaimed offender in a terrorist case, the evidence regarding his identification by witnesses on the basis of his photograph shall have the same value as the. evidence of a test identification parade") was ultra vires. Consequently the same was struck down. There is elaborate discussion as to the factum of terrorism and disruptive activities going on in the world and the justification for enactment of TADA inter alia in para. 22, which reads as under:- "

22. Thus, terrorism and disruptive activities area worldwide phenomenon and India is not an exception. Unfortunately in the recent past this country has fallen in the firm grip of spiralling terrorists' violence and is caught between the deadly pangs of disruptive activities. As seen from the Objects and Reasons of the Act 31 of 1985, 'Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh' and then slowly they expanded their activities to other parts of the country i.e. Delhi, Haryana, U.P. and Rajasthan. At present they have outstretched their activities by spreading their wings far and wide almost bringing the major part of the country under the extreme violence and terrorism by letting loose unprecedented and unprovoked repression and disruption unmindful of the security of the nation, personal liberty and right, inclusive of the right to live with human dignity of the innocent citizens of this country and destroying the image of many glitzy cities like Chandigarh, Srigarh, Delhi and Bombay 6y strangulating the normal life of the citizens. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. " In para. 68 of the above judgment a comparison has been made between terrorism contemplated by TADA and mere disturbances of public order disturbing the even tempo of life of community of any specified locality in the following words:- "

68. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public order' disturbing the 'even tempo of the life of community of any specified locality' in the words of Hidayatullah, C.J. in Arun Gosh v. State of W.B. but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity." Indeed in the above case the establishment of the Special Courts under TADA has been upheld and even the provision contained in section 15(1) making a confession made by a person before a police officer not below the rank of Superintendent of Police has been held intra vires. But in the minority view this has been held as ultra vires.

14. However, we may point out that if we were to compare the provisions of TADA with the Act, it becomes evident that there is a marked difference on material aspects. For example: (i) That under section 9(4) of TADA it has been provided that "a Designated Court shall be presided over by a Judge to be appointed by the Central Government or, as the case may be, the State Government, with the concurrence of the Chief Justice of the High Court." Whereas under subsection (2) of section 14 of the Act, it has been laid down that the Federal Government shall make appointments to the post of Judges of Special Courts after consultation with the Chief Justice of the High Courts. Though in India in the case of Supreme Court Advocates-on-Record Association and another v. Union of India (AIR 1994 SC 268) and in Pakistan in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324) (supra), it has been held that the word 'consultation' used in the relevant Articles of the Constitution for the appointment of the Judges in the superior Courts connotes that it should be effective, meaningful, purposive, consensus oriented, leaving no room for complain of arbitrariness or unfair play, but one cannot deny that there is a lot of difference in the import and scope between the words "consultation" and "concurrence". In other words, in India no Presiding Officer can be appointed without the concurrence of the Chief Justice of the High Court concerned. (ii) That under subsection (6) of section 9 of TADA, it has been expressly provided that "A person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State". In other words, the Designated Courts are to be manned by the persons, who are members of the judicial hierarchy provided under the framework of the Indian Constitution. Whereas in section 14 of the Act even an outsider, an advocate having not less' than ten years' practice or a retired Sessions Judge can be appointed. (iii) That since under TADA, the serving Sessions Judges and Additional Sessions Judges are to be inducted to man the Designated Courts, they have the security of tenure; whereas under section 14 of the Act, there is no security of tenure of the Judges to be appointed from outside the subordinate judiciary. . (iv) That TADA under section 19, it has been provided that notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from arty judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law. Whereas in section 24 of the Act, the appeal has been provided to a Tribunal consisting of one or two Judges of the High Court to be nominated by the Chief Justice of the said High Court and to be notified by the Government. The effect of the above difference in the above two provisions of the two Acts is that in India Special Courts/Designated Courts remain within the ambit of judicial review and the framework provided in the Indian Constitution, whereas section 24 of the Act excludes the jurisdiction of the High Court as a High Court but provides constitution of a Tribunal or more than a Tribunal, which may comprise one Judge or two Judges of the High Court concerned. This provision is to be read with section 31 of the Act, which lays down that a judgment or order passed, or sentence awarded, by a Special Court, subject to the result of an appeal under this Act shall be final and shall not be called in question in any Court. It may further be noticed that under section 19 of TADA the appeal has been provided as a matter of right both on questions of fact and law. In other words, the entire case of a convict is liable to be reopened and reappraised by the Indian Supreme Court; whereas, there is no such right conferred on a convict under section 24 of the Act. (v) That another important distinguishing feature is that under section 27 of TADA the Supreme Court has been empowered to make such rules, if any, as it may deem necessary for carrying out the provisions of the Act relating to Designated Courts, whereas under section 35 of the Act the Government has been empowered to make such rules, if any, as it may deem necessary for carrying out the purposes of the Act through a notification. Neither the High Court nor the Supreme Court has any say in the framing of the rules. It may be pointed out , that though under section 28 of TADA the Government has also been given power to frame rules but it is without prejudice to the powers of the Supreme Court contained in section

27. In other words, if there be any conflict between the rules framed by the Supreme Court and the Government, the former shall prevail. (vi) Another striking feature of the Act is that the apex Court has been totally excluded in matters of judicial review and also in respect of administrative matters like appointment of Judges.

15. We may also refer to another Indian Supreme Court judgment in the case of S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386) in which the mode of appointment of Administrative Tribunal in service matters was assailed. It was held by the Indian Supreme Court that the provision relating to the appointment of the Chairman, Vice-Chairman and administrative members of the Tribunal under Act was ultra vires. Bhagwati, C.J. in his concurring note held that so far as the appointment of Chairman, Vice-Chairman and administrative members of the Tribunal is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the impugned Act and that there is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular procedure in this behalf. It was further held that the result is that it is left to the absolute and unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice-Chairman and administrative members of the Administrative Tribunal and, therefore, the above provision is ultra vires to that extent.

16. Ch. Muhammad Farooq, learned Attorney-General, has also referred to the treatise under the caption "Constitutional and Administrative Law" (9th Edition) by E.C.S. Wada and G.Godfrey Phillips, wherein the authors have referred to the Prevention of Terrorism (Temporary Provisions) Act, 1976, and have made the following comments:- "C. Prevention of Terrorism (Temporary Provisions) Act, 1976. Special powers to deal with threats to security have long been known in Northern Ireland. It was under the Civil Authorities (Special Powers) Act, 1922 passed by the Northern Ireland Parliament that internment of suspected terrorists was introduced in 1971. That Act was eventually replaced by the Northern Ireland (Emergency Provisions) Act 1973, passed by the United Kingdom Parliament and amended in 1975. It was only when serious bomb attacks were made by the IRA in Birmingham in 1974 that Parliament within a few hours passed the Prevention of Terrorism (Temporary Provisions) Act, 1974 to give additional powers to the police and the Home Office for dealing in Great Britain with suspected terrorists. The 1971 Act was re-enacted in 1973 with modifications, after fuller consideration from Parliament than had been given to it in 1974. Part I of the Act restricts the freedom of association in Great Britain, making it an offence to belong to, collect money or invite support for, or to arrange or to speak to a meeting in support of, any proscribed organisation (section 1). The Act itself proscribes the IRA, but the Home Secretary may by order proscribe any other organisation that appears to him to be promoting or encouraging terrorism in the United Kingdom and connected with affairs in Northern Ireland. It is an offence to wear in public any item of dress or to display any article (for example, a badge) demonstrating support for a proscribed organisation (section 2). Part Il restricts the freedom of movement within the United Kingdom by authorising the Secretary of State to issue exclusion orders to those suspected of being concerned with terrorist acts. The Secretary of State may use these powers 'in such way as appears to him expedient to prevent acts of terrorism (whether in the United Kingdom or elsewhere) designed to influence public opinion or Government policy with respect to affairs in Northern Ireland' (section 3(1)). An exclusion order may (a) prohibit persons from being iii or entering Great Britain (but such an order may not be made against a U.K. Citizen who has been ordinarily resident in Great Britain for 20 years or was born in Great Britain and has always been ordinarily resident there); (b) prohibit persons from being in or entering Northern Ireland, subject to a similar restriction; and (c) prohibit any person who is not a citizen of United Kingdom (sections 4--6). Where an exclusion order is served on a person, he or she may within four days submit written representations to the Secretary of State; such representations are referred by the Secretary of State to a person nominated to act as an adviser (section 7). The adviser will grant an interview to the subject of the exclusion order if he or she requests one, but the procedure is not meant to have a quasi judicial form. An ,exclusion order empowers the person named to be removed from Great Britain. Northern Ireland or the United Kingdom as the case may be (section 8). Such an order could, for example, have the drastic effect of expelling from Great Britain a native of Northern Ireland who for 15 years has been employed and resident in England and against whom no criminal convictions have been recorded. " There is no doubt that under the above Act the Home Secretary of United Kingdom has been given wide powers to take effective steps including the power to impose restriction on the formation of association or to prohibit entry of any person or to deport any person from the territory of U.K. However, we should not overlook the fact that terrorism had been going on in England for several decades on account of the political controversy about Northern Ireland, and, secondly, we will have to examine the provisions of the Act in the light of our Constitution. In our view, simpliciter the fact that other foreign countries have also enacted certain Acts to cope with the menace of terrorism will not warrant enactment of an Act in Pakistan, which may be violative of the Constitution. We may point out that this Court is not oblivious of the factum that the law and order situation has been considerably deteriorated and new types of terrorism have emerged due to tremendous progress made in the field of technology. This Court in more than one cases has held that the approach of the Court while considering criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the Court's conscience is satisfied that factually the convict was guilty of the offence. In this regard, reference may be made to the following observations of one of us (Ajmal Mian, CJ) in the following two cases:- (i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1); "

2. Before touching upon the merits of the case, I may observe that there cannot be two opinions that the duty of the Court is to administer the laws as are operative in the country and if such laws fail to achieve?????? the desired result, then it is the duty of the Legislature to make necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that while applying a particular law, the Court should take into consideration the object for which it has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law.

3. It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice." (ii) Zeeshan Kazmi v. The State (PLD 1997 SC 267); "

8. We may observe that it has now become common that the accused involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond for example, under section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it has been provided that the bail amount would not be less than twice of the amount involved in the commission of the offence. Keeping in view the above bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances."

17. We may now revert to the provisions of the Act. (i) It may be stated that subsection (1) of section 5 of the Act provides that any police officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of subsection (2) thereof empowers a police officer or member of the above forces after giving prior warning to use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to use force, or to order the firing upon any person or persons against whom he is authorised to use force in terms thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no person shall be deprived of life or liberty save in accordance with law. The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. We are, therefore, of the view that the aforesaid provision in its present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him. (ii) That it may be observed that section 10 of the Act empowers an officer of the police, armed forces or civil armed forces on his being satisfied that there are reasonable grounds for suspecting that a person has in his possession some written material or recording in contravention of section 8, he may enter and search the premises where it is suspected that the material or recording is situated and may take possession of the same. This is directly in conflict with Article 14 of the Constitution, which confers a fundamental right as to the dignity of man by inter alia laying down that the dignity of man and, subject to law, the privacy of home shall be inviolable. No doubt, that the above right of privacy is subject to law but such law is supposed to be reasonable and in conformity with the constitutional mandate. In this regard, reference may be made to section 165 Cr.P.C., which authorises an officer in charge of a police station or a police officer making an investigation, if he is satisfied that reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, he may after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station. The above provision is in consonance with Article 14 of the Constitution and, therefore, in our view, section 10 of the Act in its present form is not in accordance with law. The same should be suitably amended in order to provide that the concerned officer of police, armed forces or civil armed forces shall record and serve on the person of the premises concerned a copy of such reasons before conducting such search. (iii) Though most of the learned counsel for the petitioners assailed section 19 as a whole, but we are of the view that only clause (b) of subsection (10) of section 19 is violative of the fundamental right of access to justice. The above clause (b) of subsection (10) of section 19 authorises a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matter. This Court has already held in the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) (supra) and Al-Jehad Trust v. Federation of Pakistan (PLD',, 1996 SC 324) (supra) that the right of access to justice is a well recognised and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal practitioner of his choice in case he is arrested and detained. We, therefore, declare the above provision as violative of the above constitutional provision and having no legal effect. (iv) On the basis of the above case-law, we have held hereinabove that the constitutional framework relating to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals, which are not under the judicial review and administrative control and supervision of the High Court. It may be pointed out that where the Constitution makers wanted to provide judicial forums other than what is envisaged by Articles 175, 202 and 203, they have expressly provided for the same in the Constitution. In this regard reference may again be made to Article 212 of the Constitution, which envisages the establishment of administrative Courts or Tribunals in respect of (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. It may be stated that under Article 225 of the Constitution, it has been provided that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). Under the above provision also Tribunals or Special Courts can be constituted which may be outside the purview of Articles 175, 202 and 203 of the Constitution. It may again be pointed out that in 1991 by the Constitution (Twelfth Amendment) Act, 1991, by incorporating Article 212-B in the Constitution, Special Courts were established for a period of three years with effect from 27-7-1991. The above Courts were also outside the ambit of the above Articles i.e. Articles 175, 202 and 203 of the Constitution and, therefore, special provision was incorporated in the Constitution. Lastly, it may again be observed that by the Provisional Constitution, Federal Shariat Court was established by incorporating Chapter 3-A, as the same was to act independently from the judicial hierarchy contemplated by Articles 175, 202 and 203 of the Constitution. In the present case the establishment of the Special Courts is through an Act of the Parliament and is not founded on a constitutional provision and, therefore, if any of its provision or provisions are in conflict with the constitutional provisions, the same cannot be sustained. It will not be out of context to mention again that even under Article 212 of the Constitution, which envisages establishment of administrative Courts or Tribunals for adjudicating upon the disputes relating to the matters specified under sub-clauses (a) to (c) of clause (1) of the above Article, an appeal is provided to the Supreme Court. Similarly, under the relevant election law, namely, Representation of People Act, 1976, an appeal against an order of an Election Tribunal lies to the Supreme Court. In the present case an appeal is provided to an appellate Tribunal and not even to the High Court as such. We are, therefore, of the opinion that sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest appropriate powers in the High Court instead of Appellate Tribunal. The words "High Court" in place of the words "Appellate Tribunal", wherever they appear, be substituted. (v) That section 26 of the Act provides that notwithstanding anything contained in Qanun-e-Shahadat Order, 1984 (President's Order 10 of 1984), a confession made by a person accused of any offence punishable under section 7 or section 8 of the Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape, before a police officer not below the rank of a Deputy Superintendent may be proved against such person. The above provision seems to be violative of Articles 13(b) and 25 of the Constitution. It may be observed that clause (b) of Article 13 of the Constitution confers a fundamental right by providing inter alia that no person shall, when accused of an offence, be compelled to be a witness against himself. Indeed a judicial confession is recorded by a Magistrate which is admissible as a piece of evidence, but keeping in view the state of affairs obtaining in the police force, we cannot equate a police officer with a Magistrate. Additionally, there are very strict requirements which a Magistrate is required to comply before recording a judicial confession of an accused person. These requirements do not find place in the impugned section of the Act. It is true that it will be for the Special Court concerned or for the Appellate Tribunal to accept or not to accept a confession recorded by a police officer specified in the above section, but the fact remains that such a confession is not in consonance with the law and the Constitution. At this juncture, it will not be out of context to refer to a treatise titled "Kitab-ul-Fiqa" (Volume 5) by Abdur Rehman Al-Jaziri, translated by Manzoor Ahsan Abbasi, in which it has been highlighted that under Islamic Jurisprudence a confession cannot be accepted lightly and that it has certain mandatory requirements. In this regard, the following extract from the above book may be instructive:- A perusal of the above quoted extract would indicate that under Hanfi School of thought a confession is admissible if an accused person admits his guilt/crime four times at four different places. The author has referred to a Hadith attributed to Hazrat Abu Huraira (May God be pleased with him) that our Holy Prophet (Peace be upon him) was not inclined to accept the confession of a person for having committed Zina with a woman and asked him to go away, but he came back four times and made confession and even then our Holy Prophet (peace be upon him) asked him certain questions in order to ascertain, whether the person was in fact guilty of Zina in order to award punishment of Hadd. We are, therefore, of the view that the above section 26 cannot be sustained, the same requires to be suitably amended by substituting the words "police-officer not below the rank of a Deputy Superintendent of Police" by the words "Judicial Magistrate". (vi) It may be observed that the learned counsel for the petitioners urged with vehemence that the power given under section 34 of the Act to the Government to amend the Schedule to the Act so as to add any entry thereto or modify or omit any entry therein by a notification is ultra vires the Constitution. It has been further urged by them that the above power has been abused inasmuch as many offences have been included which have no nexus with the object of the Act or with the offences covered by sections 6, 7 and 8 thereof. In this regard, it may be pertinent to mention that delegation of such power to the Government by the Legislature is not an unusual phenomenon. In order to implement the object of a statute or to work out certain detail, such power is normally delegated. In this regard, reference may be .made to the case of Zaibtun Textile Mills Ltd v. Central Board of Revenue and others (PLD 1983 SC 358). In the above case, the Legislature had conferred power on the Central Board o1 Revenue to formulate guidelines to determine rate of production, capacity tax and even to levy tax under section 3(4), (5), (6), (7) of the Central Excises and Salt Act, 1944, as amended by the Finance Act, 1966. The above provision was assailed but this Court held that the Legislature was competent to employ proper agency to accomplish its legislative purpose. Reference may also be made to the case of Muhammad Hussain Gulam Muhammad and another v. The State of Bombay and another lshwarbhai Becharbhai and others. Interveners (AIR 1962 SC 97), in which also such delegation was upheld by the Indian Supreme Court. However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon (PLD 1993 SC 341) (supra), of which certain relevant portions have already been quoted hereinabove in para. 10(a). It will be instructive to quote the following observation of the issue of nexus:- "Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by Special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation." We may also refer to the case of Darvesh M. Arbey v. Federation of Pakistan (PLD 1977 Lahore 846), wherein a Full Bench of the Lahore High Court comprising the then Chief Justice and four companion Judges while considering Constitution (Seventh Amendment) Act, 1977, and the amendment in the Army Act has dealt with the question of nexus as under:- "

6. It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively triable by the Military Courts by virtue of this amendment and the object for which the Armed Forces had been called :n Lahore i.e. to restore law and order. The result is that even to that extent this amendment in the Army Act, has in fact, resulted in the displacement of the ordinary criminal Courts in the District of Lahore by the Military Courts. The provision in the proviso to section 3 of Act X of 1977 that the authorised Army Officer can transfer any such case, in his discretion, to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts.

7. It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i.e. the Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1) of the Constitution. It is evident from a reading of Article 245(1) that the "laws" subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of the civil power or to bestow such powers on them that, instead of acting in aid of the civil power, the armed Forces, in fact, start acting in super session or displacement of the civil power. We are, therefore, of the view that as far as Act X of 1977, (which amends the Army Act, 1952), is concerned, the most essential pre-condition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney-General as the 2nd jurisdictional fact, is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199. " It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas, Ch.Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C. Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will Suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court as under section 23 of the Act Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence. We are, therefore, of the view that the above section 34 is not ultra vires, but the offences mentioned in the Schedule should have nexus with the object of the Act and the offences mentioned in sections 6, 7 and 8 of the Act, as held by us in the short order. (vii) It may be mentioned that section 35 of the Act empowers the Government to frame rules through a notification, which it may deem necessary for carrying out the purposes of the Act. Since we have already held that under sections 24, 25, 27, 28, 30 and 37 of the Act 'High Court' should be substituted in place of 'Appellate Tribunal' and as the Special Courts are to operate/function under the control and supervision of the High Court concerned in terms of Article 20 of the Constitution, the power to frame rules should vest in the High Court and not in the Government. We, therefore, hold that section 35 of the Act in its present form is not valid as it militates against the concept of independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended in the light of the above finding. (viii) It may be observed that section 14 of the Act which provides for composition and appointment of Presiding Officers of Special Courts does not provide for the security of the tenure of the Judges appointed thereunder. The security of tenure of Judges is a sine qua non for independence of judiciary. This has been so held inter alia in the case of AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra), where at page 499 the following observation has been made by one of us (Ajmal Mian, C.J.):- "There seems to be force in the above contention of Mr. S.M. Zafar as admittedly there is no security of tenure for an acting incumbent. We have experienced recently that Mr. Justice Saad Saood Jan, the senior most Judge of the Supreme Court, was appointed as Acting Chief Justice of Pakistan against the permanent vacancy but the notification of his appointment was withdrawn within a day without assigning any reason after about one and a half months. Same is the position of an Acting Judge of the Supreme Court as under clause (2) of Article 181, it has been provided that 'An appointment under this Article shall continue until it is revoked by the President'. The case of an Acting Chief Justice of a High Court is also identical as he can also be removed at any tipte. " In this regard, it may be pertinent to point out that when in 1991 Article 212-B was incorporated in the Constitution for a period of three years referred to hereinabove, the security of the tenure was guaranteed under clause (4) thereof as under:- "(4) A person other than a Judge of a High Court who is appointed as a Judge of a Special Court shall hold office for the period this Article remains in force and shall not be removed from office except in the manner prescribed in Article 209 for the removal from office of Judge, and, in the application of the said Article for the purposes of this clause, any reference in that Article to a Judge shall be construed as a reference to a Judge of a Special Court." The framers of the above provision of the Constitution were mindful of the fact that in the absence of security of tenure no Judge can function impartially and independently. We, therefore, hold that the above section 14 is required to be suitably amended preferably in line with above clause (4) of'' Article 212-B of the Constitution. (viii) We have not dilated upon section 16 of the Act relating to the oath by the Judges of the Special Courts as the learned Attorney-General had given an undertaking before the High Court referred to in the judgment under appeal to get the same suitably amended for the non-Muslim Judges. The above undertaking is to be complied with.

18. We may state that above declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as ordered by us in the short order. However, it was urged by Mr. M. Asghar Khan Rokri, Advocate on behalf of Mehram Ali petitioner in C.P.L.A. No.251 of 1998, that since constitution of the Tribunal itself was violative of the Constitutional provisions, the trial of the petitioner was vitiated. The above contention is not tenable. In the case of Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others (PLD 1996 Lahore 542) a Full Bench of the Lahore High Court has saved the decided cases as follows:- "

23. Before parting with the cases we may also state that the declarations made by us in this judgment shall not affect cases past and closed or invalidate the judgments, orders or sentences passed or the proceedings which may have become final. The appeals pending in the High Court shall be disposed of in accordance with law. The files of the cases pending with the Special Courts shall be transmitted to the High Court for entrustment to the Courts of competent jurisdiction for disposal in accordance with law." The same view was reiterated by the above Full Bench in the case of Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) by observing as follows:- "u. Before parting with the case we may also state that the declarations made by us in this judgment shall not affect cases past and closed or invalidate the judgments/decrees, orders, fines or sentences or proceedings which have become final. As a result of this judgment no vacuum will be created as these cases are also triable by the Courts created under the Banking Companies (Recovery of Loans) Ordinance, 1979, which can also try cases under the Islamic system of Banking after the amendment of the definition of loan by the amending Ordinance No. 58 of 1980." It may be mentioned that in the case of Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161) decided by a Bench of ten Hon'ble Judges of this Court, the above view was reiterated as under:- "

142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principles of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However, in the present cases only the acts done and orders passed by respondent No.2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan. " ??????????????????????? It may also be pointed out that Bhagwati C.J. in the case ,of S.P. Sampath Kumar v. Union of India and others (AIR 1987 SC 386) (supra) while holding that the provision relating to appointment of Chairman, Vice-Chairman and Administrative Members of the Administrative Tribunal was violative of the Constitution observed that "I would, however hasten to add that this judgment will operate only prospectively and will not invalidate appointments already made to the Administrative Tribunal. But if any appointments of Vice-Chairman or Administrative Members are to be made hereafter, the same shall be made by the Government in accordance with either of the aforesaid two modes of appointment". In this view of the matter, we reiterate our above short order that the above declarations will not affect the trials already concluded and convictions recorded under the Act and pending trials may continue subject to the above. 19 Before concluding the above discussion, we may observe that Mr. M Asghar Khan Rokri, learned counsel for the petitioner Mehram Ali in C.P.L.A. No.251 of 1998, contended that the Special Court committed serious irregularities in the trial of the case inasmuch as the charge was wrongly framed and 'the evidence was not recorded in terms of section 304, P.P.C. and, therefore, the conviction and sentence cannot be sustained. It will suffice to observe that the above alleged irregularities cannot be urged in the above petition for leave as it has arisen out of the dismissal of the petitioner's Constitutional petition. The aforesaid alleged irregularities could have been urged before the trial Court and/or before the Appellate Tribunal. Even otherwise, this Court would not like to interfere with the impugned judgments on the, above technical ground. Reference may be made to the judgment of this Court in the case of State v. Farman Hussain (supar) 'referred to hereinabove in Para 16, wherein it has been emphasised that if a Court is satisfied about the guilt of the accused person concerned, the technicalities should be overlooked without causing any miscarriage of justice. The Special Court found the petitioner as guilty in respect of an explosion resulting into death of 23 persons and causing injuries to 55 persons. The Appellate Tribunal has affirmed the above finding with the modification that on account of want of post-mortem reports of 20 victims, it has modified conviction in respect of murders inasmuch as it affirmed the conviction on 3 counts only.

20. The above Constitutional petitions and Petitions for Leave to Appeal stand disposed of in the above terms. (Sd.) Ajmal Mian, C.J (Sd.) Saiduzzaman Siddiqui, J respectfully agree in its entirety. However, a brief note is added (Sd.) Irshad Hasan Khan (Sd.) Raja Afrasiab Khan, J (Sd.) Muhammad Bashir lehangiri, J IRSHAD HASAN KHAN, J.

I am in respectful agreement with the illuminative judgment proposed to be delivered by the Hon'ble Chief Justice. I would, however, add that 'Efficiency in the Courts' is serious national problem, an expression of greater public concern than even the threat of war. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure 'inexpensive' and 'expeditious justice'. Thus visualized, speedy resolution of civil and criminal cases, is an important constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law. Viewed in this perspective, no objection can be taken to the establishment of Special Courts for speedy trials and prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997 Act No.XXVII of 1997) (hereinafter referred to as the Act). The Special Courts are, therefore, validly constituted Courts but they have to perform judicial functions under the Constitution and the provisions contained in the Act except those which have been declared ultra vires in the ', proposed judgment of the Hon'ble Chief Justice.

2. The solution of the problem of Court-delay does not necessarily lie in a large scale addition of new Judges or creation of Special Courts but delay in the disposal of cases can be reduced only by Judges who are willing to insist that the lawyers/prosecutors/parties meet reasonable dead-lines for the conclusion of the trial. This effort will require concern and commitment on the part of the Judges. Judges will probably receive considerable "heat" from lawyers/prosecutors understandably upset by changes in their scheduling prerogatives. Be that as it may, delay in disposition of cases can be eliminated to a larger extent through good Court management and not necessarily by creation of new Courts' and increase in the strength of Judges. I would emphasise that it is for the Presiding Officer of the Court to evolve strategies within the parameters of the law/procedure for accelerating the. pace of disposition of civil and criminal cases, resulting in reduction of delay and clearance of backlog. However, 1 would add a note of caution that sacrifice of justice to obtain speedy disposition of cases could hardly be termed as justice. A balance ought to be maintained between the two commonly known maxims, "justice delayed is justice denied" and "justice rushed is justice crushed". I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice.

3. It would be advantageous to reproduce the following passage from the book entitled "JUSTICE DELAYED" (a publication of the National Center for State Courts in cooperation with The National Conference of Metropolitan Courts), by Thomas Church, Jr., which reads thus:- "The Resource-Workload Nexus: Adding Judges or Decreasing Filings. Serious empirical research on trial Court delay began in 1959 with delay in the Court, a study that was grounded on the proposition that, 'while study is indispensable for disclosing the exact Additional Judge power needed to cure delay, it needs no ghost come from the grave to tell us that delay can be cured by adding more Judges'. This assumption was accepted in most of the Courts we visited in 1977; the one constant theme was an alleged need for more Judges, a reduction in caseload through various diversion programmes, or both. This research provides no basis by which to assess the objective need for additional Judges in any Court. It is probable that real differences in jurisdiction, organization, and procedures across Courts would make the attempt at such an analysis unfruitful. The preceding analysis, however, sheds some light on the likely success of adding Judges or reducing filings as a cure for Civil or Criminal Court delay. The date indicates enormous variation from Court to Court in productivity or case output per Judge. Even allowing for inter-Court differences in record keeping, case complexity, and the like, this wide variation strongly suggests (a) considerable differences in the amount of effort Judges expend in these Courts, or (b) variation in the efficiency or productivity of that effort, or (c) both. No matter which conclusion is reached, it would appear that the case output per Judge of at least the low productivity Courts could be improved. This conclusion is supported in an empirical study of case productivity of Federal District Courts. This study found, after analysis of aggregate data on all Federal District Courts over a five-year period, "that Courts produce more output with no additional resources when the demand for Court services increases (thereby implying) the existence of underutilized judicial resources in the District Courts."

4. I would also reiterate the view taken by the Hon'ble Chief Justice in his proposed judgment that a Special Court is a Court subordinate to the High Court. It has to act under its supervision and control. The learned Chief Justice has made some references to the case of Iftikhar Ahmed v. The Muslim Commercial Bank Ltd. (PLD 1984 Lah. 69). I would also emphasise the following passages in the report:- "The result seems to be that the High Court has unlimited Constitutional discretionary power to supervise and control all such forums, by whatever names called, if they exercise judicial power in the Province and this jurisdiction, would encompass the judicial decisions as well as the administrative actions so that the particular judgments and orders as well as the main stream of justice are kept pure and clean and the Courts are directed to remain within the bounds laid down by law and the superior Courts. The High Court may even go to the extent of taking disciplinary action against the delinquent officers as is supported hereinafter. Thus, the position in the pre-Partition India before 1935 and after the enforcement of its Constitution in 1950 has been that the High Courts had both the administrative and judicial superintendence over the Courts subordinate to it. The power under Article 227 of the Constitution was thought to be superior but co‑extensive with the ordinary revisional power, wherever it was available. The Courts in Pakistan as discussed above, therefore, also rightly treated the similar powers given to them under Article 177 of the 1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right of administrative as well as judicial superintendence over its subordinate Courts. The result is that this application is maintainable under Article 203 of the Constitution, but as the Special Court withdrew its previous order on the commitment of the petitioner that he will pay the balance amount in lump sum within the period specified, and there is no miscarriage of justice or an illegality calling for interference, this application has no merit."

5. Before concluding I may observe that as a result of proposed judgment by this Court no vacuum will be created, in that, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), which is a self‑contained Code for the holding of criminal trials, has been made applicable to the proceedings before a Special Court and for the purpose of the said provisions of the Code, a Special Court shall be deemed to be a Court of Session by virtue of section 32 of the Act. It may also be observed that by virtue of Article 1(2) of the Qanun‑e-?Shahadat, 1984 (Act 10 of 1984), its operation extends to the whole of Pakistan and applies to all judicial proceedings in or before any Court, including a Court?martial, a Tribunal or other authority exercising judicial or quasi‑judicial powers of jurisdiction, but does not apply to proceedings before an arbitrator. ????? 6.??? Above are the reasons in addition to the exhaustive reasons given by the Hon'ble Chief Justice in his proposed judgment in support of the short order. (sd) Irshad Hasan Khan, J M.B.A./M‑165/S ????????????????????????????????????????????????????????? Order accordingly