(ORIGINAL JURISDICTION) PRESENT: Mr.Justice Sh.Riaz

was a party tovariouslegislativeandexecutive actionsof the presentgovernment;He did not launchany protest whenhe ceased to holdoffice;After he ceasedto hold the officeof President, heacceptedtheretirementbenefits of thatoffice and thusacquiesced in hisceasing to holdthe office;Thepetitionsuffersfromlaches inasmuchas the formerPresident left theoffice on 20thJune2001whereasQaziHussain Ahmedfiled ConstitutionPetitionNo.15/2002 in thisCourt on 2ndApril 2002, i.e.after a lapse ofabout 10 months;The issuance ofwritofquowarrantoisdiscretionary innature and asheld in Sabir AliShah’s case (PLD1994 SC 738),suchawritcannot be issuedincollateral

proceedings.11. We have heard the learned counsel for the partiesat great length. In view of the peculiar facts andcircumstances of the present case, we are notpersuaded to hold that a case for issuing the writ of quowarranto prayed for in Constitution Petitions No. 15and 22 of 2002 has been made out. We, therefore, holdthat the Chief Executive’s Orders No. 2 and 3 of 2001have been validly issued by the Chief Executive ofPakistan in exercise of his powers under theProclamation of Emergency of the 14th day of October1999 and the Provisional Constitution Order No. 1 of1999 as validated by this Court in Syed Zafar AliShah's case. Consequently, these petitions qua theissuance of writ of quo warranto are dismissed.12. As far as the legal status of the Referendum Orderis concerned, suffice it to say that it has been issued bythe Chief Executive and the President of the IslamicRepublic of Pakistan in exercise of the powersconferred upon him by this Court in Syed Zafar AliShah's case while validating the Proclamation ofEmergency of the 14th day of October 1999 and theProvisional Constitution Order No. 1 of 1999 and ithas rightly been conceded by the learned counsel forthe respondents that the said Order does not have theeffect of amending the Constitution of Pakistan.13. As regards the grounds of challenge to theconsequences flowing from the holding of referendumunder the Referendum Order, apparently thesequestions are purely academic, hypothetical andpresumptive in nature and are not capable of beingdetermined at this juncture. Accordingly, we would notlike to go into these questions at this stage and leavethe same to be determined at a proper forum at theappropriate time. Since no relief can be granted inthese proceedings at this stage, the ConstitutionPetitions are disposed of being premature.14. In view of our findings in the above petitions, noorder is required to be passed in Civil Petition forLeave to Appeal No. 512/2002, which is disposed ofaccordingly.”

We now propose to give hereinafter detailed reasons for the above order.2. Through these Constitution Petitions jurisdiction of this Court has been invoked under Article 184(3)of the Constitution in the post-October 1999 scenario. The petitions are primarily directed against theChief Executive’s Order No. 12 of 2002 (hereinafter called the Referendum Order) under which theChief Executive/President of Pakistan has decided to hold a referendum seeking people’s democraticmandate to serve the nation as President of Pakistan for a period of five years to enable him, inter alia, toconsolidate the reforms and the reconstruction of institutions of State for the establishment of genuineand sustainable democracy including the entrenchment of the local government system, to ensurecontinued good governance for the welfare of the people and to combat extremism and sectarianism forthe security of the State and the tranquillity of society. The validity of the Chief Executive’s Order No. 2of 2001 and the Chief Executive’s Order No. 3 of 2001 (hereinafter referred to as “the CE Order No. 2 of2001” and “the CE Order No. 3 of 2001” respectively) has also been challenged in two petitionscollaterally.3. Before proceeding further, we are constrained to mention that in the year 2002, i.e. after 54 years ofthe creation of our country, we are again at the crossroads. In fact, we must observe that we havemiserably failed to evolve a system of governance, transfer of power and to follow the constitutional pathfor achieving the welfare of the people and establishment of democratic institutions as envisaged by theConstitution. This is not a crisis but a dilemma, therefore, while deciding these petitions we have torecall the series of crises and turmoils which this Court had to deal with on all those occasionsUnfortunately, ever since the dissolution of the Constituent Assembly by Governor General GhulamMuhammad in 1954 till the takeover of the government by General Pervez Musharraf in October, 1999all political questions which should have been dealt with and resolved elsewhere, have been brought tothis Court. However, this Court cannot shirk its responsibility as an institution and being the apex Courtwe proceed further to adjudicate the controversy arising in these petitions.4. From 1947 till 1954 the Constituent Assembly, which was also the legislature of the country, failed togive a Constitution to the nation. Nothing was done beyond the passing of the Objectives Resolution bythe said Constituent Assembly. Failure to give a Constitution to the nation coupled with palace intriguesand the musical chair game for power and with a view to having absolute powers Governor GeneralGhulam Muhammad dissolved the Constituent Assembly. This act of the Governor General waschallenged by Moulvi Tamizuddin Khan, President of the Assembly, in the Chief Court of Sindh. TheSindh Chief Court allowed the petition and declared the dissolution of the Assembly as illegal. Thejudgment of the Sindh Chief Court was successfully challenged in the Federal Court and by virtue of thejudgment reported as Federation of Pakistan v. Moulvi Tamizudding Khan (PLD 1955 FC 240), theFederal Court reversed the judgment of the Sindh Chief Court and held that assent of the GovernorGeneral was necessary to all the laws and the amendments made in the Government of India Act, 1935which was the interim Constitution. According to the Court, section 223-A conferring power on the HighCourts to issue writs had not received assent of the Governor General and the Chief Court could not haveissued writ holding the act of the Governor General as invalid. Therefore, by means of the EmergencyPowers Ordinance, 1955 (Ordinance No. IX of 1955) issued under section 42 of the Government of IndiaAct, 1935 the Governor-General sought to validate such Acts by indicating his assent with retrospectiveoperation. The Federal Court in Usif Patel's’ case (PLD 1955 FC 387), however, declared that the Actsmentioned in the Schedule to the aforesaid Ordinance could not be validated under section 42 of theGovernment of India Act, 1935, nor could retrospective effect be given to them. A noteworthy fact wasthat the Constituent Assembly had ceased to function, having been already dissolved by the GovernorGeneral by a Proclamation on 24th October, 1954 and no Legislature competent to validate these Actswas in existence. The Governor-General made a Reference to the Federal Court under section 213 of theGovernment of India Act, 1935 asking for the Court’s opinion on the question whether there was anyprovision in the Constitution or any rule of law applicable to the situation by which the Governor-

General could, by order or otherwise, declare that all orders made, decisions taken, and other acts doneunder those laws, should be valid and enforceable and those laws, which could not without danger to theState be removed from the existing legal system, should be treated as part of the law of the land until thequestion of their validation was determined by the new Constituent Convention. The answer returned bythe Federal Court (by majority) to the Reference by H. E. The Governor General (PLD 1955 FC 435)was that in the situation presented by the Reference, the Governor-General has, during the interimperiod, the power under the common law of civil or state necessity of retrospectively validating the lawslisted in the Schedule to the Emergency Powers Ordinance, 1955, and all those laws, until the questionof their validation was decided upon by the Constituent Assembly, were, during the aforesaid period,valid and enforceable in the same way as if they had been valid from the date on which they purported tocome into force.5. The Constituent Assembly, reconstituted as per the guidelines given by the Federal Court, with greatefforts and pains, framed the 1956 Constitution wherein Pakistan was declared an Islamic Republic.Unfortunately, the political stability could not be achieved and frequent changes of the government,apathy on the part of the legislators to the problems of the country, killing of the Deputy Speaker of theEast Pakistan Assembly, beating up of the Speaker and desecration of national flag in Dacca led to theabrogation of the 1956 Constitution and imposition of first Martial Law in the country in October, 1958.The central and provincial governments were dismissed, the national and provincial assemblies weredissolved, the political parties were abolished and General Muhammad Ayub Khan, the Commander-inChief of the Army, was appointed as the Chief Martial Law Administrator, who later became the FieldMarshal. It was declared that a Constitution more suitable to the genius of the Muslim people would bedevised.6. On 10th October, 1958, the President promulgated the Laws (Continuance in Force) Order, 1958wherein it was, inter alia, provided that notwithstanding the abrogation of the Constitution, Pakistanshall be governed, as nearly as may be, in accordance with the 1956 Constitution, all Courts in existenceimmediately before the Proclamation shall continue in being, the law declared by the Supreme Courtshall be binding on all Courts in Pakistan, the Supreme Court and the High Courts shall have power toissue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, etc.7. Under Clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958, all writ petitionspending in the High Courts seeking enforcement of Fundamental Rights stood abated. Interpretation ofclause (7) of Article 2 was debated in the Supreme Court and in the famous case reported as State v.Dosso (PLD 1958 SC 533), the Supreme Court held that if the Constitution was destroyed by asuccessful revolution, the validity of the prevalent laws depended upon the will of the new law-creatingorgan. Therefore, if the new legal order preserved any one or more laws of the old legal order, then awrit would lie for violation of the same. As regards pending applications for writs or writs alreadyissued but which were either sub judice before the Supreme Court or required enforcement, the Court inthe light of the Laws (Continuance in Force) Order, 1958 held that excepting the writs issued by theSupreme Court after the Proclamation and before the Promulgation of the Order, no writ or order for awrit issued or made after the Proclamation shall have any legal effect unless the writ was issued on theground that any one or more of the laws mentioned in Article 4 or any other right kept alive by the neworder had been contravened. To sum up, the Supreme Court, on the basis of the theory propounded byHans Kelsen, accorded legitimacy to the assumption of power by General Muhammad Ayub Khanholding that coup d’etat was a legitimate means to bring about change in the government andparticularly so when the new order brought about by the change was accepted by the people.8. In 1959 the Basic Democracies Order was promulgated and 40,000 basic democrats from eachprovince, i.e. the West Pakistan and the East Pakistan were elected, who formed the electoral college forelection to the office of the President. General Muhammad Ayub Khan sought referendum and more

than 94-95 percent of the basic democrats voted in his favour and thus he assumed the office of thePresident of Pakistan. The basic democrats were then entrusted with the task of electing national andprovincial assemblies ultimately leading to the framing and promulgation of the 1962 Constitution.9. War between India and Pakistan in 1965, the Tashkent Declaration of 1966, dissatisfaction over thetremendous Presidential powers as against the helplessness of the National Assembly and a clamour forrestoration of the Parliamentary system in which the Government was controlled by the Legislature andanswerable to it, gave rise to agitations by the political leaders in both wings of the country. Resultantly,Field Marshal Ayub Khan had to descend from power. However, instead of transferring power to theSpeaker of the National Assembly in accordance with the 1962 Constitution, he called upon GeneralAgha Muhammad Yahya Khan to take control of the affairs of the country, who proclaimed MartialLaw, abrogated the

1962 Constitution and promulgated Provisional Constitution Order, 1969 on 25th March, 1969. Thiswas followed by the Legal Framework Order, 1970 under which general election was held in boththe wings of the country on the basis of adult franchise.10. As a result of the general election, Awami League led by Sh. Mujeebur Rehman swept polls inthe East Pakistan while in two provinces, namely, Sindh and Punjab, Pakistan Peoples Party wonmajority of the seats but in the other two provinces, namely, NWFP and Balochistan, Peoples Partycould not secure majority seats. Though it is not the subject of this judgment, yet to complete thenarration of the events, the transfer of power to the elected representatives did not take place andsession of the Assembly summoned for 3rd of March, 1971 at Dacca was adjourned, which led toviolent agitation in the East Pakistan. With a view to controlling the situation, the Armed Forceswere deployed in the East Pakistan. The Government of India, taking advantage of the fragilesituation in the East Pakistan, invaded Pakistan, which led to the fall of Dacca on 16th December1971 and consequently the East Pakistan became Bangladesh.11. It may be mentioned here that the imposition of Martial Law by General Yahya Khan andassumption of the office of Chief Martial Law Administrator by him was challenged in AsmaJillani’s case (PLD 1972 SC 139) wherein this Court held that the doctrine of legal positivismfounded on Hans Kelsen’s theory and recognized in Dosso’s case was inapplicable, General YahyaKhan was termed as a usurper and all actions taken by him except those in the welfare of the peoplewere declared to be illegal.12. In December 1971, Yahya Khan resigned and handed over the Government to Mr. Z. A. BhuttoChairman, Pakistan Peoples Party, who had won majority seats in two provinces. He assumed poweras the first civilian Chief Martial Law Administrator, which was necessitated for transfer of powerfrom the military commander. On 14th April, 1972, Interim Constitution was passed by the NationalAssembly and Martial Law was lifted. The National Assembly after painstaking efforts framed the1973 Constitution, which was promulgated on 14th August, 1973.13. In 1976 Mr. Zulfiqar Ali Bhutto announced general election in the country and after the pollswere held in 1977 an agitation started alleging that the election had been rigged. There were largescale demonstrations, law and order became worse and there was arson, loot and plunder. Theparleys between the ruling party and the opposition failed although it was said that an understandinghad been reached. At that juncture, Article 96-A was inserted in the Constitution to provide for areferendum for a vote of confidence in the Prime Minister. It may be advantageous to reproduce thesaid provision, which read as follows:“96-A. Referendum as to confidence in PrimeMinister.- (1) If at any time the Prime Ministerconsiders it necessary to obtain a vote ofconfidence of the people of Pakistan through areferendum, he may advise the President to causethe matter to be referred to a referendum inaccordance with law made by Parliament.(2) The law referred to in clause (1) shall providefor the constitution of a Referendum Commissionand the manner and mode of holding a

referendum.(3) On receipt of the advice of the Prime Ministerunder clause (1), the President shall call upon theReferendum Commission to conduct a referendumamongst the persons whose names appear on theelectoral rolls for the immediately precedinggeneral election to the National Assembly asrevised up-to-date(4) Any dispute arising in connection with thecounting of votes at a referendum shall be finallydetermined by the Referendum Commission or amember thereof authorised by it and, save asaforesaid, no dispute arising in connection with areferendum or the result thereof shall be raised orpermitted to be raised before any Court or otherauthority whatsoever.(5) If, on the final count of the votes cast at thereferendum, the Prime Minister fails to securemajority of the total votes cast in the matter of theconfidence of the people of Pakistan, he shall bedeemed to have tendered his resignation withinthe meaning of Article 94.”However, no referendum could take place because of the volatile situation in the country and thisprovision being time-specific ceased to be part of the Constitution in September, 1977.14. Nevertheless, in the absence of agreement between the government and the opposition parties,General Ziaul Haq, the then Chief of Army Staff, on 5th July 1977 imposed Martial Law and heldthe 1973 Constitution in abeyance.15. The imposition of the third Martial Law was challenged in Nusrat Bhutto’s case (PLD 1977 SC657) wherein, keeping in view the ground realities and the objective conditions, this Court declaredthe imposition of Martial Law as valid on the doctrine of State necessity, but this Court observedthat the power of judicial review was available to it to examine the legality or otherwise of theactions of the government and particularly the Court would also see whether the necessity continuedto exist or not. Notwithstanding the judgme

Mr.Justice Sh.Riaz Ahmed, HCJ Mr.Justice Munir A.Sheikh Mr.Justice Iftikhar Muhammad Chaudhry Mr.Justice Qazi Muhammad Farooq Mr.Justice Mian Muhammad Ajmal Mr.Justice Syed Deedar Hussain Shah Mr.Justice Hamid Ali Mirza Mr.Justice Abdul Hameed Dogar Mr.Justice Muhammad Nawaz Abbasi CONSTITUTION PETITION NO.15 OF 2002