Constitutional Matters Precedents

Short Order of Supreme Court of Pakistan on NRO?

IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Present

Mr. Justice Iftikhar Muhammad Chaudhry, CJ.

Mr. Justice Javed Iqbal

Mr. Justice Sardar Muhammad Raza Khan

Mr. Justice Khalil-ur-Rehman Ramday

Mr. Justice Mian Shakirullah Jan

Mr. Justice Tassaduq Hussain Jillani

Mr. Justice Nasir-ul-Mulk

Mr. Justice Raja Fayyaz Ahmed

Mr. Justice Ch. Ijaz Ahmed

Mr. Justice Muhammad Sair Ali

Mr. Justice Mahmood Akhtar Shahid Siddiqui

Mr. Justice Jawwad S. Khawaja

Mr. Justice Anwar Zaheer Jamali

Mr. Justice Khilji Arif Hussain

Mr. Justice Rahmat Hussain Jafferi

Mr. Justice Tariq Parvez

Mr. Justice Ghulam Rabbani

CONSTITUTION PETITION NOS. 76 TO 80 OF 2007 & 59/2009,

AND

CIVIL APPEAL NO. 1094 OF 2009

(On appeal from the order dated 15.1.2009 passed

by High Court of Sindh at Karachi in

Const.P.No.355 of 2008)

AND

HRC NOS.14328-P TO 14331-P & 15082-P OF 2009

Dr. Mobashir Hassan (Const.P.76/07)

Roedad Khan (Const. P.77/07)

Qazi Hussain Ahmad (Const.P.78/07)

Muhammad Shahbaz Sharif (Const.P.79/07)

Muhammad Tariq Asad (Const.P.80/07)

Syed Feroz Shah Gillani (Const.P.59/09)

Fazal Ahmad Jat (C.A.1094/09)

Shaukat Ali (H.R.C.14328-P/09)

Doraiz (H.R.C.14329-P/09)

Zulqarnain Shahzad (H.R.C.14330-P/09)

Abid Hussain (H.R.C.14331-P/09)

Manzoor Ahmad (H.R.C.15082-P/09)

… … … Petitioners.

Versus

Federation of Pakistan, etc.

… … … Respondents.

Const. P.76/2007, etc.

2

For the petitioners : Mr. Abdul Hafeez Pirzada, Sr. ASC.

Mr. Suleman Akram Raja, ASC.

Mr. Ejaz Muhammad Khan, AOR.

Assisted by:

Abdul Mujeeb Pirzada, Sr.ASC

Mr. M.Afzal Siddiqui, ASC

Mian Gul Hassan Aurangzeb, ASC

Mr. Sikandar Bashir Mohmand, ASC

Barrister Feroze Jamal Shah, Adv.

Mr. Hameed Ahmeed, Adv.

Mr. Mustafa Aftab Sherpao, Adv.

Mr. Sameer Khosa, Adv.

Mr. Umar Akram Chaudhry, Adv.

Malik Ghulam Sabir, Adv.

(in Const. P. 76/2007)

Mr. Muhammad Ikram Ch. ASC.

Mr. G. N. Gohar, AOR.

(in Const. P. 77/2007)

Dr. Farooq Hassan, Sr.ASC

Mr. Hashmat Ali Habib, ASC

Ch. Muhammad Akram, AOR

(in Const.P.78/07)

Mr. Ashtar Ausaf Ali, ASC

(In Const.P.79/07)

Mr. Tariq Asad, ASC (in person)

(In Const.P.80/07)

Mr. A.K. Dogar, Sr. ASC

(In Const.P.59/09)

Mr. Shahid Orakzai (in person)

(In CMA 4842/09)

Raja Muhammad Ibrahim Satti, Sr. ASC

(in CA.1094/2009)

NEMO

(in HR.Cases)

For the Respondents:

For M/o Law : Mr. Kamal Azfar, Sr. ASC. Assisted by

Mr. K.K. Agha, ASC.

Raja Abdul Ghafoor, AOR.

(in Const.P.76-77/07)

Raja Abdul Ghafoor, AOR.

(in Const.P.78-80/07 & 59/09)

For the NAB : Dr. Danishwar Malik, PG.

Mr. Abdul Baseer Qureshi, Addl: PG

Dr. Asghar Rana, ADPG,

Ch. Akhtar Ali, AOR.

Mr. Naveed Ahsan, Chairman NAB

Const. P.76/2007, etc.

3

On Court Notice : Mr. Shah Khawar,

Acting Attorney General for Pakistan.

Assisted by:

Agha Tariq Mehmood Khan, DAG.

Mr. Dil Muhammad Alizai, DAG.

Raja Aleem Abbassi, DAG.

For Govt. of Balochistan : Dr. Salahuddin Mengal, AG.

For Govt. of NWFP. : Mr. Zia-ur-Rehman, A.G.

Mr. Zahid Yousaf, Addl. A.G.

Mr. Naveed Akhtar, A.A.G.

For Govt. of the Punjab : Mr. M. Hanif Khattana, Addl: AG.

Ch. Khadim Hussain Qaiser, Addl: AG.

For Govt. of Sindh : Mr. Yousaf Leghari, AG.

On Court’s Call: : Malik Muhammad Qayyum, Sr. ASC

Former Attorney General for Pakistan

Mr. Justice (R) M. Riaz Kiani

Secretary Law & Justice.

Dr. Riaz Mehmood, Sr. Joint Secretary.

Syed Nasir Ali Shah, Solicitor General.

Mr. M. Salman Faruqui,

Principle Secretary to the President.

Amicus Curiae : Mian Allah Nawaz, Sr. ASC.

Mr. Shaiq Usmani Sr. ASC.

Mr. M. Sardar Khan, Sr. ASC.

Assisted By Mr. Idrees Ashraf, Adv.

Dates of hearing : 07

th -10th & 14th – 16th December, 2009.

O R D E R

IFTIKHAR MUHAMMAD CHAUDHRY, CJ. –

Constitution Petitions have been filed under Article 184(3) of the

Constitution of Islamic Republic of Pakistan [hereinafter referred to as ‘the

Constitution’] challenging the constitutionality of the National

Reconciliation Ordinance (No.LX) 2007 [hereinafter referred to as ‘the

NRO’], while HR cases and Civil Appeal, by leave of the Court, have been

filed by the applicants/appellant for extension of benefit of the NRO to

them.

The above titled

Const. P.76/2007, etc.

4

2.

on 5th October, 2007, the President of Pakistan, in purported exercise of

powers conferred by clause (1) of Article 89 of the Constitution, issued the

NRO, whereby, certain amendments have been made in the Criminal

Procedure Code, 1898, the Representation of the People Act, 1976 and the

National Accountability Ordinance, 1999 [hereinafter referred to as “the

NAB Ordinance”]. By means of Section 2 of the NRO, Section 494 of

Cr.P.C. has been amended. Likewise, vide Section 3 of the NRO, Section

39 of the Representation of the People Act, 1976 has been amended.

Similarly, Sections 4, 5 & 6 of the NRO amended Sections 18, 24 and 31A

of the NAB Ordinance, respectively, whereas by means of Section 7 of the

NRO, Section 33F has been inserted in the NAB Ordinance.

3. The NRO came under challenge, as stated above, before this Court,

through listed petitions. These petitions came up for hearing before the

Court on 12

petitioners, the Court proceeded to issue notices to the respondents as well

as to Attorney General for Pakistan, for a date in office after three weeks,

while making the following observation:-

Succinctly stating the facts, giving rise to instant proceedings, are thatth October, 2007 when after hearing the learned counsel for the

“however, we are inclined to observe in unambiguous terms that

any benefit drawn or intended to be drawn by any of the public

office holder shall be subject to the decision of the listed petitions

and the beneficiary would not be entitled to claim any protection of

the concluded action under Sections 6 and 7 of the impugned

Ordinance, under any principle of law, if this Court conclude that

the impugned Ordinance and particularly its these provisions are

ultra vires the Constitution”.

4. Pending decision of these petitions, on 3

emergency was proclaimed in the country by the then President of Pakistan

and also the Chief of Army Staff and under the garb of Provisional

Constitution Order, 2007, Provisional Constitution (Amendment) Order,

rd November, 2007,

Const. P.76/2007, etc.

5

2007 was issued, whereby, Article 270AAA was inserted in the

Constitution, which provided protection to all the laws including the

Ordinances in force on the day on which the Proclamation of Emergency of

3

amendment, the apparent interest was that the NRO should attain

permanence. The Proclamation of Emergency as well as other extraconstitutional

instruments were challenged before this Court in the case of

rd November 2007 was revoked. As a result of above constitutional

Tikka Iqbal Muhammad Khan v. General Pervez Musharraf

2008 SC 178), when the Court declared the Proclamation of Emergency of

3

Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order,

2007 and the President’s Order No.5 of 2007, to be validly enacted.

However, this Court, vide its judgment dated 31

(PLDrd November, 2007, the Provisional Constitution Order, 2007, Provisionalst July 2009, in the case of

Sindh High Court Bar Association v. Federation of Pakistan

2009 SC 879) declared all the above five instruments to be unconstitutional,

illegal and void

from the Constitution. Consequently, the NRO, as well as 37 other

Ordinances, which were meant to be protected, were shorn of the

permanency purportedly provided under Article 270AAA of the

Constitution and sanctified by the judgment passed in

Muhammad Khan’s case

this Court, while supporting the doctrine of trichotomy of powers, as

envisaged in the scheme of the Constitution and to prevent any disruption,

enabled the Parliament to reconsider and, if thought fit, to enact, all the 37

Ordinances including the NRO, as Acts of Parliament. For this purpose the

life of the Ordinances stood extended for another 120 days (in case of

Federal Legislation) and 90 days (in case of Provincial Legislation). This

(PLD

ab initio, as a result whereof Article 270AAA stood deletedTikka Iqbal(ibid). However, through the same judgment,Const. P.76/2007, etc.

6

constituted an opportunity to the democratic Government at the Centre and

in the Provinces to legitimize the acts, actions, proceedings and orders,

initiated, taken or done, under those Ordinances, by placing them before the

Parliament, to make them enactments of Parliament, with retrospective

effect.

5. In pursuance of above judgment of 31

placed before the Standing Committee of the National Assembly on Law &

Justice, in its meeting held on 29

discussions and deliberations, some of the members did not agree with the

decision of the Committee and left the proceedings in protest. However,

ultimately, on 2

the proposed amendments in the Bill for enacting the NRO, the same may

be passed by the Assembly. It is pertinent to mention here that despite

finalization of the report of the Standing Committee on NRO and before its

approval by the Chairperson of the Committee, the Minister concerned

withdrew the Bill under Rule 139 of Procedure & Conduct of Business in

the National Assembly, 2007. As a result, the NRO could not be passed by

the Parliament, within its extended life, therefore, it lapsed.

6. The petitioners in these Constitution Petitions have challenged the

vires of the NRO with the prayer that the same may be declared

st July, 2009, the NRO wasth & 30th October, 2009. During thend November, 2009 the Committee recommended that, after

ultra viresthe Constitution, viod

prayer made in Constitution Petition No. 76 of 2007, filed by Dr. Mubashir

Hassan, is reproduced herein below: –

ab initio and of no legal effect. For convenience, the“1) Section 2, 4, 5, 6 & 7 of the NRO may kindly be declared

to be void

Constitution, in particular Articles 25, 62, 63 and 175

thereof.

ab initio, of no legal effect and ultra vires theConst. P.76/2007, etc.

2) During the pendency of the instant petition, the respondents

may kindly be restraint from taking any action under or in

terms of the impugned Ordinance. The respondents may in

particular, be restrained from withdrawing any request for

mutual assistance and civil party, letters rogatory and like

issued to any Foreign Government, Court or other

Authority or Multilateral Organization.

3) Any other order deemed beneficial to the interest of Justice

and equity, may also kindly be made.

7

7. The instant petitions came up for hearing before this Bench on

7

Pakistan, placed on record a written statement on behalf of Federation of

Pakistan. Relevant paras therefrom are reproduced herein below: –

th December 2009, when Mr. Shah Khawar, Acting Attorney General for

“2. That the Federation believes in supremacy of the

Constitution of 1973 and the Parliament.

3. That the National Reconciliation Ordinance, 2007 was

promulgated by the previous regime and I am under

instruction not to defend it.”

8. Mr. Kamal Azfar, learned Sr. ASC appearing on behalf of the

Federation of Pakistan, through Ministry of Law & Justice, filed Civil

Misc. Applications No. 4875 & 4898 of 2009 in Constitution Petitions

No. 76 & 77 of 2007. Contents of paras at page 11 & 12 of the said

applications are reproduced herein below: –

“If however, this Hon’ble Court wishes to rule upon wider issues

other than those raised in the petition and prayer the Federation requests

that fresh petitions be filed precisely stipulating these issues whereupon

the Federation will seek instructions on such new petition.

Pak Today is poised at the cross roads. One road leads to truly federal

democratic welfare sate with the balance of power between an

Independent judiciary, a duly elected Govt. representing the will of the

people a determined executive which is fighting the war against terrorism

and poverty. The second road leads to destabilization of the rule of law.

The people of Pakistan await your verdict.”

Const. P.76/2007, etc.

8

When we confronted the learned counsel with above contents of his

applications, he requested that the same may be treated as deleted. In this

behalf, he, however, filed a written statement, contents whereof are

reproduced herein below for ready reference:-

STATEMENTIn Compliance of the orders of the Hon’ble Supreme Court

of Pakistan to appraise the Hon’ble Court as to how the Federation

would interpret the wording “the second road leads to the

destabilization of the rule of law”, it is submitted as follows:-

(1) There is no mention of the wording ‘threat to democracy’

in the Statement.

(2) The Federation supports the Prosecution, in accordance

with law, of persons alleged to have done wrong doing. The

Federation does not oppose the Petitions seeking a

declaration that the National Reconciliation Ordinance

2007 (NRO) is illegal and unconstitutional.

(3) With regard to the “wider issues” mentioned in paragraph

No.9 these refer to those matters which were raised by the

Petitioner’s counsel during oral arguments and which find

no mention whatsoever in the Petitions. For example,

submissions made in respect of Articles 89 (in particular

the alleged concept of “implied Resolution”) and A.264 on

the effect of Repeal.

(4) The Federation’s view is that those who have benefited

under the NRO should be proceeded against under the

appropriate laws before the courts having the competent

jurisdiction. As factual matters need to be determined by

the trial courts.

(5) So far as my comments made yesterday before this Hon’ble

Court concerning the threat from GHQ, the CIA and the

contents of paragraph 9 of the CMA are concerned these

were my personal views and were not made on the

instructions of the Federation of Pakistan. As such I

withdraw the same, which should not be considered by this

Hon’ble Court in any manner whatsoever and the same

should be deleted and expunged from the record.

(6) It is emphasized that the Federation of Pakistan holds this

Hon’ble Court in the highest esteem and has the greatest

respect for the same.”

9. Learned Advocates General of Punjab, Sindh, NWFP and

Balochistan appeared and supported the stance taken by the Attorney

General for Pakistan.

Const. P.76/2007, etc.

9

10. We have heard the learned counsel for the parties at length and have

also gone through the material placed on record in support of their

submissions.

11. As it has been noted above that challenge to NRO was thrown by the

petitioners, no sooner same was promulgated by the President and

admission order dated 12

following questions:-

th October, 2007, was passed, to examine

“2. Mr. Salman Akram Raja, learned counsel appearing on

behalf of petitioner in Constitution Petition No. 76 of 2007 argued

that:–

a)

in nature amounts to legislative judgment,

which is impermissible intrusion into the exercise of

judicial powers of the State and thus falls foul of

Article 175 of the Constitution which envisages

separation and independence of the judiciary from

other organs of the State.

Section 7 of the impugned Ordinance being selfexecutory

b)

Parliament. [

Narain

Legislative judgment cannot be enacted by the

Smt. Indira Nehru Gandhi v. Raj(AIR 1975 SC 2299)].c)

Ordinance, Article 63(1)(h) and 63(1)(l) of the

Constitution have been made ineffective, as regards

chosen category of people, therefore, it is ultra vires

the Constitution as it amounts to defeat the

constitutional mandates.

By promulgating Section 7 of the impugned

d)

particular class of people i.e. public office holders

from proceedings, actions and orders passed by the

competent authorities, whereas no such powers are

available to the Parliament or, for that matter, to the

President of Pakistan under Federal or Concurrent

Legislative List. Further; the President is empowered

only to pardon an accused person, under Article 45 of

the Constitution, after passing of sentence by a Court

of law, whereas by means of impugned Ordinance, the

President has been empowered to indemnify or pardon

an accused, against whom proceedings are pending

before Investigating Agency or a Court of law or in

appeal by giving a blanket cover.

Impugned Ordinance exhorts about or indemnifies a

e)

Article 25 of the Constitution because it is not based

on intelligible differentia, relatable to lawful objects,

therefore, deserves to be struck down.

The impugned Ordinance violates the provisions of

f)

The impugned Ordinance is against the public policy

Const. P.76/2007, etc.

because it also provides protection against future

action in terms of its Section 7 and it had also

rendered Articles 62 and 63 of the Constitution

ineffective.

10

g)

added by means of impugned Ordinance are contrary

to provisions of Sub-section (1) of Section 494 of

Cr.P.C. where it has been provided that cases can only

be withdrawn with the consent of the Court, whereas,

in newly added Sub-Sections, powers of the “

have been conferred upon the Review Boards of the

Executive Bodies, therefore, these Sub-sections are

also contrary to Article 175 of the Constitution.

Sub-sections (2) and (3) of Section 494 of Cr.P.C.

Courtand

No criteria has been laid down as to why the cases

falling between the 1

12

these provisions, inasmuch as definition of political

victimization has not been provided in these Subsections,

as a result whereof it has been left at the

subjective consideration of Review Board/ Executive

Bodies to determine the same. Thus such provisions

cannot exist in any manner.

st day of January 1986 toth day of October 1999 have been covered under

h)

colorable exercise of Legislative powers and its

various provisions have created discrimination among

ordinary and classified accused, therefore, all these

provisions tantamount to malice in law.

The impugned Ordinance has been promulgated in

i)

overbroad that these have provided blanket cover to all

the holders of public offices, including chosen

representatives and ordinary employees, therefore, the

object of national reconciliation cannot be achieved by

allowing it to exist.

The provisions of impugned Ordinance are so

j)

Ordinance are highly discriminatory in nature,

therefore, are liable to be struck down.

The provisions of Sections 4 and 5 of the impugned

k)

basic principles relating to annulment of judgments,

even if passed in absentia, in accordance with existing

law, according to which unless the basis for the

judgment, in favour of a party, is not removed, it could

not affect the rights of the parties, in whose favour the

same was passed but when the Legislature

promulgated the impugned Ordinance, in order to

remove the basis on which the judgment was founded,

such judgment shall have no bearing on the cases.

[

Pakistan

the impugned Ordinance as a whole are against the

concept of equality of Islamic Injunction, provided

under Article 2A of the Constitution, therefore, on this

score as well, deserves to be struck down being ultra

Section 6 of the impugned Ordinance is contrary to the

Facto Belarus Tractor Ltd. v. Government of(PLD 2005 SC 605)]. Hence, provisions ofConst. P.76/2007, etc.

vires the Constitution.

3. Mr. Muhammad Ikram Chaudhry, learned Sr. ASC for

petitioner in Constitution Petition No. 77 of 2007, while adopting

the above arguments, added that :-

11

i)

period specific, therefore, violates Article 25 of the

Constitution.

4. Dr. Farooq Hassan, Sr. ASC appearing in Constitution

Petition No. 78 of 2007 on behalf of petitioner, while adopted the

arguments raised by Mr. Suleman Ahmed Raja, ASC contended

that:-

The impugned Ordinance is purpose specific and

i)

violative of the United Nation’s Convention Against

Corruption, enacted in 2005 and ratified by Pakistan

on 31

The impugned Ordinance is contradictory to andst of August 2007.

ii)

at all be given to any one, except granting pardon in

terms of Article 45 of the Constitution.

Under the Constitution, no indemnity or amnesty can

iii)

violative of the doctrine of trichotomy of powers.

Sections 2, 4, 5 and 6 of the impugned Ordinance are

iv)

structure of the Constitution.

The impugned Ordinance has in fact changed the basic

v)

principles of political justice and fundamental rights

because it allows plundering of national wealth and to

get away with it. More so, it tried to condone

dishonesty of magnitude which is unconscientious and

shocking to the conscience of mankind.

5. Mr. M.A. Zaidi, AOR appeared on behalf of Mr.

Muhammad Akram Sheikh, Sr. ASC in Constitution Petition

No.79 of 2007 and adopted the above arguments of the learned

counsel for the petitioners.

6. Mr. Tariq Asad, ASC appearing in Constitution Petition

No. 80 of 2007 also adopted the above arguments, while adding

that:-

The impugned Ordinance has also violated the

a)

basis of personal satisfaction of the President of

Pakistan but for extraneous reasons and to provide

indemnity/immunity to the public office holders,

therefore, is liable to be struck down.

The impugned Ordinance has been promulgated on the

Const. P.76/2007, etc.

12

12. Subsequent thereto cases remained pending except when their

hearing was fixed on 27

2007, was vacated in following terms : –

th February, 2008 and order dated 12th October,

“3. These Constitution Petitions are adjourned to a date in

office due to indisposition of the learned counsel for the

petitioners. Meanwhile, in view of the rule laid down in the case of

Federation of Pakistan vs. Aitzaz Ahsan (PLD 1989 SC 61), the

observations made by this Court in Para 8 of the order dated

12.10.2007 in Constitution Petitions No.76-80 of 2007 to the effect

that

that any benefit drawn or intended to be drawn by any of the

public office holder shall be subject to the decision of the listed

petitions and the beneficiary would not be entitled to claim any

protection of the concluded action under Sections 6 and 7 of the

impugned Ordinance, under any principle of law, if this Court

conclude that the impugned Ordinance and particularly its these

provisions are ultra vires the Constitution”

Resultantly, the Ordinance shall hold the field and shall have its

normal operation. The Courts and authorities concerned shall

proceed further expeditiously in the light of the provisions of the

Ordinance without being influenced by the pendency of these

petitions.”

“however, we are inclined to observe in unambiguous termsare deleted.13. As it has been noted above that while deciding the case of

High Court Bar Association

before the Parliament, on account of insertion of Article 270AAA in the

Constitution, were shorn of permanency, therefore, the Parliament was

asked to examine all such Ordinances within a period of 120 and 90 days,

as the case may be, commencing from 31

Bench announced judgment. The period so assigned by the Court expired

on 28

leaving for this Court to examine its constitutionality in the cases listed

above. It is a cardinal principle of jurisprudence that courts are not required

to give decisions of cases in vacuum rather it has to consider facts as well,

Sindh(ibid), all the Ordinances which were not laidst July, 2009, when a 14 Memberth November, 2009 but the NRO was taken back from the Parliament,Const. P.76/2007, etc.

13

giving a cause to a person to approach Courts. The NRO gave benefits to a

class of people, whose identification is not difficult to ascertain, namely

accused persons, involved in criminal and corruption cases, during the

period commencing from 1

classification has created a divide amongst ordinary citizens of Pakistan and

a class of alleged criminals who statedly have committed crimes of murder,

dacoity, rape, looting/plundering of money/resources of this nation.

Therefore, prima facie, to understand the nature of such beneficiaries,

Federal Government, Provincial Governments and the NAB were asked to

provide details in this behalf. In response to such query the Government of

Sindh through its Advocate General filed a large list of such like accused,

who being charged for the cases of criminal nature, benefited from the

NRO, which included heinous and minor crimes, as well. As far as the

remaining Governments and the Federating Units are concerned, they

categorically denied extension of benefits of the NRO to even a single

accused in their respective jurisdictions. However, NAB has submitted a

list containing names of 248 persons, who benefited from the NRO within

and outside the country. A cursory perusal of this list suggests that barring

the cases inside the country, huge benefit has been availed by some of the

persons in the cases pending against them outside the country. At this stage

it is to be noted that application of the NRO, beyond the territories of the

country, is a question which requires consideration on jurisdictional plane

of this Court as well. NAB has also provided a list of the persons, who were

convicted in absentia under Section 31A of the NAB Ordinance.

14. In depth examination of the NRO suggests that it has not been

promulgated to provide reconciliation on national basis as this nation has

seen reconciliation in 1973, when a Constituent Assembly gave the

st January, 1986 to 12th October, 1999 and this

Const. P.76/2007, etc.

14

Constitution of 1973 to the nation, guaranteeing their fundamental rights,

on the basis of equality and brotherhood, as a result whereof, the nation had

proved its unity, whenever it faced a challenge to its sovereignty and

existence. The representation of the people, in subsequent Legislative

Assemblies, has upheld the provi sions of 1973 Constitution, except for few

occasions when they have made amendments under peculiar circumstances.

However, salient features of the Constitution i.e. Independence of

Judiciary, Federalism, Parliamentary form of Government blended with

Islamic provisions, now have become integral part of the Constitution and

no change in the basic features of the Constitution, is possible through

amendment as it would be against the national reconciliation, evident in the

promulgation of the Constitution of 1973, by a Legislative Assembly.

Therefore, promulgation of the NRO seems to be against the national

interest and its preamble is contrary to the substance embodied therein.

Thus, it violates various provisions of the Constitution. Therefore, by

means of instant short order, reasons of which shall be recorded later, we

hold as follows:-

(i) that the NRO is declared to be an instrument void

vires

Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the

Constitution;

(ii) that as a consequence of the said declaration, all steps taken, actions

suffered, and all orders passed by whatever authority, any orders

passed by the courts of law including the orders of discharge and

acquittals recorded in favour of the accused persons, are also declared

never to have existed in the eyes of law and resultantly of no legal

effect;

ab initio being ultraand violative of various constitutional provisions includingConst. P.76/2007, etc.

(iii) that all cases in which the accused persons were either discharged or

acquitted under Section 2 of the NRO or where proceedings pending

against the holders of public office had got terminated in view of

Section 7 thereof, a list of which cases has been furnished to this Court

and any other such cases/proceedings which may not have been

brought to the notice of this Court, shall stand revived and relegated to

the status of pre-5

(iv) that all the concerned courts including the trial, the appellate and the

revisional courts are ordered to summon the persons accused in such

cases and then to proceed in the respective matters in accordance with

law from the stage from where such proceedings had been brought to

an end in pursuance of the above provisions of the NRO;

(v) that the Federal Government, all the Provincial Governments and all

relevant and competent authorities including the Prosecutor General of

NAB, the Special Prosecutors in various Accountability Courts, the

Prosecutors General in the four Provinces and other officers or

officials involved in the prosecution of criminal offenders are directed

to offer every possible assistance required by the competent courts in

the said connection;

(vi) that similarly all cases which were under investigation or pending

enquiries and which had either been withdrawn or where the

investigations or enquiries had been terminated on account of the NRO

shall also stand revived and the relevant and competent authorities

shall proceed in the said matters in accordance with law;

(vii) that it may be clarified that any judgment, conviction or sentence

recorded under section 31-A of the NAB Ordinance shall hold the field

subject to law and since the NRO stands declared as void

therefore, any benefit derived by any person in pursuance of Section 6

thereof is also declared never to have legally accrued to any such

person and consequently of no legal effect;

15th of October, 2007 position;

ab initio,Const. P.76/2007, etc.

(viii) that since in view of the provisions of Article 100(3) of the

Constitution, the Attorney General for Pakistan could not have

suffered any act not assigned to him by the Federal Government or not

authorized by the said Government and since no order or authority had

been shown to us under which the then learned Attorney General

namely Malik Muhammad Qayyum had been authorized to address

communications to various authorities/courts in foreign countries

including Switzerland, therefore, such communications addressed by

him withdrawing the requests for Mutual Legal Assistance or

abandoning the status of a Civil Party in such proceedings abroad or

which had culminated in the termination of proceedings before the

competent fora in Switzerland or other countries or in abandonment of

the claim of the Government of Pakistan to huge amounts of allegedly

laundered moneys, are declared to be unauthorized, unconstitutional

and illegal acts of the said Malik Muhammad Qayyum;

(ix) that since the NRO stands declared void

actions taken or suffered under the said law are also

since the communications addressed by Malik Muhammad Qayyum to

various foreign fora/authorities/courts withdrawing the requests earlier

made by the Government of Pakistan for Mutual Legal Assistance;

surrendering the status of Civil Party; abandoning the claims to the

allegedly laundered moneys lying in foreign countries including

Switzerland, have also been declared by us to be unauthorized and

illegal communications and consequently of no legal effect, therefore,

it is declared that the initial requests for Mutual Legal Assistance;

securing the status of Civil Party and the claims lodged to the allegedly

laundered moneys lying in foreign countries including Switzerland are

declared never to have been withdrawn. Therefore the Federal

Government and other concerned authorities are ordered to take

immediate steps to seek revival of the said requests, claims and status;

16

ab initio, therefore, anynon est in law andConst. P.76/2007, etc.

(x) that in view of the above noticed conduct of Malik Muhammad

Qayyum, the then learned Attorney General for Pakistan in addressing

unauthorized communications which had resulted in unlawful

abandonment of claims of the Government of Pakistan, inter alia, to

huge amounts of the allegedly laundered moneys lying in foreign

countries including Switzerland, the Federal Government and all other

competent authorities are directed to proceed against the said Malik

Muhammad Qayyum in accordance with law in the said connection;

(xi) that we place on record our displeasure about the conduct and lack of

proper and honest assistance and cooperation on the part of the

Chairman of the NAB, the Prosecutor General of the NAB and of the

Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer

Qureshi in this case. Consequently, it is not possible for us to trust

them with proper and diligent pursuit of the cases falling within their

respective spheres of operation. It is therefore, suggested that the

Federal Government may make fresh appointments against the said

posts of persons possessing high degree of competence and

impeccable integrity in terms of Section 6 of the NAB Ordinance as

also in terms of the observations of this Court made in the case of

Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).

However, till such fresh appointments are so made, the present

incumbents may continue to discharge their obligations strictly in

accordance with law. They shall, however, transmit periodical reports

of the actions taken by them to the Monitoring Cell of this Court

which is being established through the succeeding parts of this

judgment;

(xii) that a Monitoring Cell shall be established in the Supreme Court of

Pakistan comprising of the Chief Justice of Pakistan or a Judge of the

Supreme Court to be nominated by him to monitor the progress and

the proceedings in the above noticed and other cases under the NAB

Ordinance. Likewise similar Monitoring Cells shall be set up in the

High Courts of all the Provinces comprising of the Chief Justice of the

17

Const. P.76/2007, etc.

respective Province or Judges of the concerned High Courts to be

nominated by them to monitor the progress and the proceedings in

cases in which the accused persons had been acquitted or discharged

under Section 2 of the NRO;

(xiii) that the Secretary of the Law Division, Government of Pakistan, is

directed to take immediate steps to increase the number of

Accountability Courts to ensure expeditious disposal of cases;

15. We place on record our deep sense of appreciation for the learned counsel

for the parties as also for the learned

assistance to us in these matters.

The petitions stand allowed and disposed of by this short order in terms

noted above.

18

amicii curiae who have rendered invaluableIslamabad

16.12.2009

Irshad

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APPROVED FOR REPORTING.

 

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