|
For the petitioner:
In person.
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.8 OF 2007
Watan Party through its President. …Petitioner.
Versus
President of Pakistan through Cabinet
Secretariat and others. …Respondents.
|
|
For the petitioner:
Barrister Zafar Ullah Khan, AS with
Mr. G. N. Gohar, AOR.
On Court’s notice:
Mr. Makhdoom Ali Khan,
Attorney General for Pakistan
with
Raja Abdul Ghafoor, AOR.
For the respondents:
Sahibzada Ahmed Raza Kasuri, Sr. ASC
Malik Muhammad Qayyum, ASC
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.10 OF 2007
Adliya Bachao Committee through
Convenor, and others. …Petitioners.
Versus
Federation of Pakistan and others. …Respondents.
|
|
For the petitioners:
Dr. Farooq Hassan, ASC
Mr. Abdur Rasheed Qureshi, ASC and
Malik Shakeel-ur-Rehman, ASC.
On Court’s notice:
Mr. Makhdoom Ali Khan,
Attorney General for Pakistan
with
Raja Abdul Ghafoor, AOR.
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Mr. Shaukat Ali Mehr, ASC,
Mr. Abdul Sattar Chughtai, ASC,
Mr. Abdul Hameed Rana, ASC and
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.11 OF 2007
Muhammad Ashraf Khan. …Petitioner.
Versus
Pervaiz Mushraf and others. …Respondents.
|
|
For the petitioner:
In person.
For the respondents:
Not represented.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.12 OF 2007
M. A. Ghani Chaudhry. …Petitioner.
Versus
Federation of Pakistan
through
President of Pakistan.
…Respondents.
|
|
For the petitioner:
In person.
For the respondents:
Not represented.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.15 OF 2007
Amjad Malik. …Petitioner.
Versus
President of Pakistan
through
Secretary Law and another. …Respondents
|
|
For the petitioner:
Mr. Muhammad Akram Sheikh, Sr. ASC
Mr. Abdul Rehman Siddiqui, ASC,
Mr. Arshad Ali Chaudhry, AOR.
Assisted by Mr. Mohsin Kamal and
Mr. Azid Nafees, Advocates.
(under special permission granted by this
Court)
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.16 OF 2007
Communist Party of Pakistan
through
its Chairman. …Petitioner.
Versus
Federation of Pakistan
through
Secretary Cabinet and another. …Respondents.
|
|
For the petitioner:
Engineer Jamil Ahmed Malik (In person).
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.18 OF 2007
Muhammad Ahsan Bhoon. ...Petitioner.
Versus
Federation of Pakistan
through
Secretary Law. …Respondents.
|
|
For the petitioner:
Mr. Muhammad Akram Sheikh, Sr. ASC with
Mr. Arshad Ali Chaudhry, AOR
Assisted by Barrister Natalya Kamal and
Mr. Ahmed Ahsan, Advocates
(under special permission granted by this Court)
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.19 OF 2007
Muhammad Rafi Siddiqui. …Petitioner.
Versus
Federation of Pakistan
through
Secretary Cabinet and another. …Respondents
|
|
For the petitioner:
Dr. Farooq Hassan, Sr. ASC with
Malik Shakeel-ur-Rehman, ASC and
Ch. Arshad Ali, AOR.
For the respondents:
Not represented.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.22 OF 2007
Barrister Zafarullah Khan. …Petitioner.
Versus
President of Pakistan through Secretary
Law Justice and Human Rights
Division and others. …Respondents
|
|
For the petitioner:
In person.
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Mr. Pervaiz Alamgir, ASC,
Mian Ehsan-ul-Haq Sajid, ASC and
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.23 OF 2007
Pakistan Bar
Council through its
Vice Chairman. …Petitioner.
Versus
President through its Secretary
and others. …Respondents
|
|
For the petitioner:
Mr. Hamid Khan, Sr. ASC with
Mirza Aziz Akbar Baig, ASC and
Mr. M. S. Khattak, AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Mr. M. Siddique Mirza, ASC,
Mr. Khalid Mahmood Farooqi, ASC,
Mr. Shabbir Lali, ASC and
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.24 OF 2007
Supreme Court Bar Association through
its President and another. …Petitioners.
Versus
President of Pakistan through its
Secretary and others. …Respondents.
|
|
For the petitioner:
Mr. Hamid Khan, Sr. ASC with
Mr. Rasheed A. Rizvi, ASC,
Mr. Shafqat Abbasi, ASC,
Hafiz Abdul Rehman Ansari, ASC and
Mr. M. S. Khattak, AOR.
For respondent No.2:
Mr. Ahmed Raza Kasuri, Sr. ASC
Malik Muhammad Qayyum, ASC
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.25 OF 2007
Abdul Majeeb Pirzada. …Petitioner.
Versus
Federation of Pakistan through Secretary
Cabinet Division and others. …Respondents
|
|
For the petitioner:
Mr. Abdul Majeeb Prizada, Sr. ASC
Ms. Mehreen Anwar Raja, ASC and
Mr. M. S. Khattak, AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Naseer Ahmed, ASC and
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.27 OF 2007
Dr. Tariq Hassan. …Petitioner.
Versus
Federation of Pakistan through
Secretary Law and others. …Respondents.
|
|
For the petitioner:
Mr. Muhammad Akram Sheikh, Sr. ASC,
Mr. Arshad Ali Chaudhry, AOR assisted by
Barrister M. Kamram Sheikh,
Mr. Rahat Kaunain, Advocate.
(under special permission granted by this
Court)
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
C.M.APPEAL NO.22 OF 2007
Athar Minallah and another. …Appellant.
Versus
Registrar, Supreme Court of Pakistan. …Respondent.
|
|
For the appellant:
Syed Mansoor Ali Shah, ASC with
Mr. Yahya Afridi, ASC,
Mr. Athar Minallah, ASC and
Mr. M. S. Khattak, AOR.
For the respondent:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
C.M.APPEAL NO.27 OF 2007
Muhammad Shoaib Shaheen. …Appellant.
Versus
Federation of Pakistan through Secretary
Law and Justice Division and others. …Respondents.
|
|
For the appellant:
In person.
For respondent No.1:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.30 OF 2007
Chaudhry Muhammad Ashraf. …Petitioner.
Versus
Federation of Pakistan through Secretary
Law and others. …Respondents.
|
|
For the petitioner:
Mr. Arshad Ali Chaudhry, ASC/AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.31 OF 2007
Abrar Hassan, President Sindh
High
Court Bar
Association. …Petitioner.
Versus
President of Pakistan
through
its Secretary. …Respondents
|
|
For the petitioner:
Mr. Rasheed A. Rizvi, ASC with
Mr. Abrar Hassan, ASC and
Mr. M. S. Khattak, AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.32 OF 2007
Lahore High
Court Bar
Association
through its President. …Petitioner.
Versus
President of Pakistan
through
its Secretary. …Respondent.
|
|
For the petitioner:
Mr. Ahmed Awais, ASC with
Mr. M. S. Khattak, AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.33 OF 2007
Balochistan Bar Association through
its President. …Petitioner.
Versus
President of Pakistan
through
its Secretary. …Respondent
|
|
For the petitioner:
Mr. Fakhar-ud-Din G. Ibrahim, Sr. ASC with
Mr. Tariq Mahmood, ASC and
Mr. M. S. Khattak, AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.34 OF 2007
Ch. Naseer Ahmed Bhutta. …Petitioner.
Versus
Federation of Pakistan.
…Respondent.
|
|
For the petitioner:
Ch. Naseer Ahmed Bhutta, ASC.
For the respondent:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.35 OF 2007
High Court Bar Association D.I. Khan
through its President and another. …Petitioners.
Versus
President of Pakistan and others. …Respondents.
|
|
For the petitioner:
Mr. Arshad Ali Chaudhry, ASC/AOR.
For respondent No.2:
Malik Muhammad Qayyum, ASC with
Ch. Akhtar Ali, AOR.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.38 OF 2007
Syed Fakhar-e-Imam. …Petitioner.
Versus
President of Pakistan.
…Respondent.
|
|
For the petitioner:
Syed Iftikhar Hussain Gillani, Sr. ASC with
Mr. M. S. Khattak, AOR.
For the respondent:
Not represented.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
CONSTITUTION PETITION NO.40 OF 2007
Al-Jehad Trust through its President. …Petitioner.
Versus
Chief of Army Staff. …Respondent.
|
|
For the petitioner:
Mr. Habib-ul-Wahabul Khairi, ASC.
For the respondent:
Not represented.
|
|
- - - - - - - - - - - - - - - - - -
|
|
|
|
Dates of hearing:
15th to 17th, 21st to 25th, 28th to 31st May,
2007, 1st, 4th to 8th, 11th to 14th, 18th to 21st, 25th to 28th June,
2007, 2nd to 5th, 9th to 12th and 16th to 20th July, 2007.
|
|
- - - - - - - -
|
|
|
|
ORDER
For detailed reasons to be recorded later, the
following issues arising out of this petition are decided as under:-
|
|
(I) MAINTAINABILITY OF COP NO.21 OF 2007
FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION
This petition is unanimously declared to be maintainable.
(II) VALIDITY OF THE DIRECTION (THE
REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE
CONSTITUTION.
By a majority of 10 to 3 (Faqir Muhammad
Khokhar, J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting),
the said direction (the Reference) in question dated March 9, 2007, for
separate reasons to be recorded by the Hon. Judges so desiring, is set
aside.
(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT’S
ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIDITY OF THE ORDER DATED
15.3.2007 PASSED BY THE PRESIDENT DIRECTING THAT THE CJP SHALL BE ON
LEAVE
The said President’s Order No.27 of 1970 is,
unanimously declared as ultra vires of the Constitution and consequently
the said order of the President dated 15.3.2007 is also, unanimously
declared to have been passed without lawful authority.
(IV) VALIDITY OF THE ORDER OF THE PRESIDENT
DATED 9.3.2007 AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL
COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT
AND/OR CHIEF JUSTICE OF PAKISTAN
Both these orders are, unanimously, set aside as
being illegal. However, since according to the minority view on the
question of the validity of the direction (the Reference) in question,
the said Reference had been competently filed by the President,
therefore, this Court could pass a restraining order under Article 184(3)
read with Article 187 of the Constitution.
(V) VALIDITY OF THE APPOINTMENT OF THE
HON’BLE ACTING CHIEF JUSTICES OF PAKISTAN IN VIEW OF THE ANNULMENT OF THE
TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE
CJP
The appointments in question of the Hon’ble
Acting Chief Justices of Pakistan vide notification dated 9.3.2007 and
the notification dated 22.3.2007 are, unanimously, declared to have been
made without lawful authority. However, this in-validity shall not affect
the ordinary working of the Supreme Court or the discharge of any other
Constitutional and/or legal obligations by the Hon’ble Acting Chief
Justices of Pakistan during the period in question and this declaration
is so made by applying the de-facto doctrine.
(VI) ACCOUNTABILITY OF THE HON’BLE CHIEF JUSTICE OF PAKISTAN
It has never been anybody’s case before us that
the Chief Justice of Pakistan was not accountable. The same issue,
therefore, does not require any adjudication.
All other legal and Constitutional issues raised before us shall be
answered in due course through the detailed judgment/judgments to follow.
|
|
ORDER OF THE COURT
|
|
By majority of 10 to 3 (Faqir Muhammad Khokhar,
J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), this
Constitution Original Petition No.21 of 2007 filed by Mr. Justice
Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as
a result whereof the above-mentioned direction (the Reference) of the
President dated March 9, 2007 is set aside. As a further consequence
thereof, the petitioner CJP shall be deemed to be holding the said office
and shall always be deemed to have been so holding the same.
The other connected petitions shall be listed
before the appropriate Benches, in due course, for their disposal in
accordance with law.
|
|
|
|
J.
J.
J.
J.
J.
J.
J.
J.
J.
J.
J.
J.
J.
|
|
