IN THE SUPREME COURT OF PAKISTN  
(ORIGINAL JURISDICTION)  
 
 
 
 
 
 
 
 
 
PRESENT: 
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ 
 
 
MR. JUSTICE JAVED IQBAL 
 
 
MR. JUSTICE MIAN SHAKIRULLAH JAN 
 
 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
 
  
 
MR. JUSTICE NASIR-UL-MULK 
 
 
MR. JUSTICE RAJA FAYYAZ 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 JAFFERY 
 
 
MR. JUSTICE TARIQ PARVEZ 
 
 
MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
 
 
MR. JUSTICE GHULAM RABBANI 
 
 
 
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY 
 
 
CMA NO. 2981 OF 2010  
 
 
[REPORTS ALLEGING THAT GOVERNMENT IS 
CONSIDERING 
WITHDRAWAL 
OF 
THE 
NOTIFICATION OF RESTORATION OF JUDGES 
DATED 16.03.2009]  
 
 
 
 
IN  
 
CONSTITUTION PETITION NO. 9 OF 2009 
 
Sindh High Court Bar Association v. Federation of Pakistan 
 
 
… …  
 
 
 
On Court notice:   
 
Moulvi Anwarul Haq 
 
 
 
 
 
Attorney General for Pakistan 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
2 
 
Mr. Mushtaq Ahmed Malik  
Chairman PEMRA  
 
Voluntary appeared:  
 
Qazi Muhammad Anwar, Sr. ASC 
 
 
 
 
 
President, Supreme Court Bar  
 
 
 
 
 
Association 
 
Malik Manzoor Hussain, Vice President, 
Supreme Court Bar Association 
 
Mr. 
Ahsanuddin 
Sheikh, 
Additional 
Secretary, 
Supreme 
Court 
Bar 
Association 
 
Mr. Sanaullah Zahid, Finance Secretary, 
Supreme Court Bar Association  
 
Mian Abdul Quddus, President  
Lahore High Court Bar Association 
 
Syed Zulfiqar Abbas Naqvi, President, 
High 
Court 
Rawalpindi 
Bench 
Bar 
Association 
 
Khan 
Afzal, 
Member, 
Executive 
Committee, Pakistan Bar Council 
 
Malik 
Ghulam 
Mustafa 
Kandwal, 
Member, Punjab Bar Council 
 
Malik Waheed Anjum, President, District 
Bar Association, Rawalpindi 
 
Mr. Jan Muhammad, ASC 
 
 
Date of hearing:   
 
15.10.2010 
 
 
ORDER 
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. -  Listed application 
has been placed before this Bench in pursuance of office note put up 
by Registrar on 14.10.2010. Necessity was felt for bringing into the 
notice of the Court about the events going on for the last few days i.e. 
the reports published in print media and also aired on electronic 
media, thus the Government of Pakistan is contemplating to withdraw 
notification/executive order dated 16.03.2009 restoring the Chief 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
3 
Justice of Pakistan and other Judges of the Supreme Court of Pakistan 
and Chief Justices and Judges of High Courts. In view of the 
importance of the matter, it was considered to hear the Attorney 
General for Pakistan and after knowing his viewpoint, matter should be 
disposed of. It is not only in the recent past such information was 
passed on to print and electronic media, but prior to it as well, 
whenever judgment in some important case is pronounced by this 
Court, or the Court is seized of an important matter and is likely to 
decide the case, attempts are made to pressurize the judiciary by 
spreading news that since the Chief Justice and the Judges were 
restored in pursuance of an executive order, which has not yet been 
sanctified by the Parliament, therefore, all the concerned members of 
the judiciary must take note of it inasmuch as a similar statement was 
made by a highest constitutional functionary in the Parliament.  
2.  
 
On 14.10.2010 when after 8.00 p.m. private TV channels 
aired this news, a denial was also issued from the office of Prime 
Minister, saying that there is no truth behind the said news and the 
Government has no such intention to withdraw the notification of 
restoration of Judges. But contrary to it, the news item flashed in 
various private TV channels, including AAJ, GEO, ARY, etc., was to the 
effect that the Government of Pakistan, in consultation with one of the 
leading lawyers of the country and the Law Minister, had taken the 
decision to withdraw the notification. As has been pointed out 
hereinbefore, that it is not for the first time that such a news/rumour 
has been spread, but it so happens whenever a high profile case is 
being heard by the Court. It may not be out of context to note here 
that before and after 13.10.2010, when the case pertaining to the 
hearing of the review petition filed by the Federation of Pakistan in the 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
4 
case of Dr. Mubashir Hasan, judgment of which was announced on 
16.12.2009, such news items were being discussed everywhere all 
around. Therefore, to impress upon the constitutional functionaries of 
State in the country that what has already been decided on 
31.07.2009 in the case of Sindh High Court Bar Association v. 
Federation of Pakistan (PLD 2009 SC 879), Moulvi Anwarul Haq, 
Attorney General for Pakistan was served with a notice along with the 
copy of CM Application under consideration, wherein the facts noted 
hereinabove 
have 
been 
mentioned 
categorically. 
The 
relevant 
paragraph from the judgment of this Court in Sindh High Court Bar 
Association's case was also reproduced. Learned Attorney General for 
Pakistan appeared in Court and when questioned by the Court that 
after the judgment in the Sindh High Court Bar Association's case, 
what authority is left with the Government or any of its functionaries 
to withdraw the restoration order of the judiciary, he could not answer 
it satisfactorily despite the fact that we called upon him to clarify his 
position as well as the position of the Federation to whom he 
represents as the Chief Law Officer. Anyhow, he sought time to obtain 
a statement from the constitutional head of the Government, i.e. Chief 
Executive (Prime Minister) to clarify the position. At his request, case 
was postponed till 11.30 a.m. In the meanwhile, from his office a 
message was communicated to the Registrar that the Prime Minister 
was busy in some meeting, therefore, he would be in a position to 
place a statement on record at 12.30 p.m.  
3.  
 
The Court again assembled at 12.45 p.m. and when the 
learned Attorney General for Pakistan was clarifying his position, he 
could not answer except saying that he has established a contact with 
the Secretary to the Prime Minister who shall be informing him after 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
5 
some time. Again, some time was consumed in further deliberation 
with him and ultimately he came out with a statement that case be 
postponed for tomorrow, i.e. 16.10.2010 (Saturday). Whatever has 
been pointed hereinabove clearly indicates that the Government or any 
of its constitutional heads is reluctant to make the statement and is 
trying to find time for one or the other reason. The anxiety of the 
Bench at this stage, underpins its constitutional mandate and resolve 
to defend, protect and preserve the Constitution of Pakistan. The 
judiciary, which is one of the most important organs of the State, 
cannot be allowed to be throttled in such a manner.  
4.  
 
This is not for the first time that the judiciary has to pass 
an order. Even in the month of November 2007, when a high profile 
case (Wajihuddin Ahmed v. Chief Election Commissioner of Pakistan) 
was under consideration  on 02.11.2007, an application was submitted 
by Mr. Aitzaz Ahsan, learned Sr. ASC appearing for the petitioner 
wherein he had informed about the purported action, which the then 
Government was contemplating to take to sack the judiciary, but his 
application was kept on record because Malik Muhammad Qayyum, the 
then Attorney General for Pakistan, who was appearing in the Court, 
made a statement at the bar that there was no such thing as was 
being apprehended by the learned counsel for the petitioner, but his 
apprehension proved to be correct, as on 03.11.2007 (Saturday), 
“emergency plus” was imposed in pursuance whereof all the members 
of the judiciary except few who agreed to take oath under the PCO, 
were made dysfunctional, but such unconstitutional and illegal order 
was nipped in the bud immediately through a restraint order passed by 
a 7–Member Bench, which was circulated widely to all and sundry, 
informing them that no action shall be taken nor any Judge shall take 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
6 
oath under the PCO as Chief Justice or Judge of High Court, and 
ultimately matter came to an end when the judiciary sacked by the 
then Government was restored on 16.03.2009 by an executive 
order/notification issued by the Government.  
5.  
 
It is equally important to note that all the actions taken by 
the then President as Chief Executive commencing from 03.11.2007 to 
15.12.2007, including the Proclamation of Emergency, issued by 
General Pervez Musharraf, as Chief of Army Staff, as he then was on 
03.11.2007, the Provisional Constitution Order No. I of 2007, issued 
by him on the same date in his said capacity, the Oath of Office 
(Judges) Order, 2007 issued by him also on the same day, and 
Proclamation of Emergency and Provisional Constitutional Orders 
issued by him subsequent thereto, etc., came up for consideration 
before a 14 – Member Bench of this Court in the Sindh High Court Bar 
Association's case. The Government of Pakistan was represented by 
the Attorney General for Pakistan who made a categorical statement 
not to support or endorse any of those actions of the then Chief of 
Army Staff/President of Pakistan, inasmuch as after the elections, 
which were held on 18.02.2008, the sitting Parliament had also not 
confirmed/endorsed/authenticated 
any 
of 
his 
such 
actions 
or 
instruments. Details of the same shall be reproduced hereinafter: -  
“13.  
The learned Attorney General stated that the 
acts and instruments of 3rd November 2007 of General 
Pervez 
Musharraf, 
which 
were 
obviously 
extra-
constitutional, were not accepted, rather were objected to 
by all the democratic political parties except Pakistan 
Muslim League (Quaid-e-Azam), hereinafter referred to as 
“PML (Q)”, which had tabled a resolution in the National 
Assembly to endorse the said actions and got it passed. He 
unequivocally declared that neither he was supporting 
General Pervez Musharraf’s actions of 3rd November, 2007 
nor he would defend him in the instant proceedings. He 
made the following arguments: -  
 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
7 
(1) 
The present democratic government had never 
accepted extra-constitutional promulgation of Orders 
and/or any other repressive measures. The respect 
for judiciary had always been hallmark of its ideology 
and judicial process was resorted to by their leaders 
even in the most trying circumstances. The verdict in  
Tikka Iqbal Muhammad Khan’s case was affirmed in 
review by a 13 – member Bench of the Supreme 
Court whereby the acts of 3rd November 2007 were 
validated on the principles of state necessity and 
salus populi est suprema lex, which even otherwise 
ceased to exist on revival of the Constitution on 15th 
December 2007.”  
 
6.  
 
In the meanwhile, on the petitions filed by the Sindh High 
Court Bar Association and others, the actions of imposing the 
Emergency and sacking the Judges of the superior judiciary including 
Chief Justice and Judges of the Supreme Court and Chief Justices and 
Judges of High Courts, etc., were considered, and the Court in its 
judgment dated 31.07.2009, pronounced a unanimous verdict, holding 
therein that all the actions taken by the then Chief of Army 
Staff/President were unconstitutional. It also included the sacking of 
the members of the superior judiciary. A detailed discussion has been 
made in the said judgment. For convenience, Paragraphs 21 and 22 
with items (i) to (v) are reproduced below: -  
“21. The Proclamation of Emergency issued by General 
Pervez Musharraf as the Chief of Army Staff (as he then 
was) on November 3, 2007; the Provisional Constitution 
Order No.1 of 2007 issued by him on the same date in his 
said capacity; the Oath of Office (Judges) Order of 2007 
issued by him also on the same date though as the 
President of Pakistan but in exercise of powers under the 
aforesaid Proclamation of Emergency and the Provisional 
Constitution 
Order 
No.1 
of 
2007; 
The 
Provisional 
Constitution (Amendment) Order, 2007 issued by him like-
wise on 15.11.2007; the Constitution (Amendment) Order, 
2007 being President’s Order No.5 of 2007 issued on 
November 
20, 
2007; 
the 
Constitution 
(Second 
Amendment) Order, 2007 being the President’s Order No.6 
of 2007 issued on 14th December, 2007; the Islamabad 
High Court (Establishment) Order 2007 dated 14th 
December 2007 being the President’s Order No.7 of 2007; 
the High Court Judges (Pensionary Benefits) Order, 2007 
being President’s Order No.8 of 2007; the Supreme Court 
Judges (Pensionary Benefits) Order, 2007 being President’s 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
8 
Order No.9 of 2007 dated 14th December, 2007 are hereby 
declared to be un-constitutional, ultra-vires of the 
Constitution and consequently being illegal and of no legal 
effect. 
 
22. 
As a consequence thereof: - 
 
i) 
the Chief Justice of Pakistan; the Judges of the 
Supreme Court of Pakistan; any Chief Justice of any of the 
High Courts and the Judges of the High Courts who were 
declared to have ceased to hold their respective offices in 
pursuance of the afore-mentioned alleged judgments or 
any other such judgment and on account of the 
instruments mentioned in Para 21 above, shall be deemed 
never to have ceased to be such Judges, irrespective of 
any notification issued regarding their reappointment or 
restoration; 
ii) 
it is declared that the office of the Chief Justice of 
Pakistan never fell vacant on November 3, 2007 and as a 
consequence thereof it is further declared that the 
appointment of Mr. Justice Abdul Hameed Dogar as the 
Chief Justice of Pakistan was un-constitutional; void ab 
initio and of no legal effect; 
 
 
Provided that subject to whatever is contained 
hereinafter, the said un-constitutional appointment of Mr. 
Justice Abdul Hameed Dogar as the Chief Justice of 
Pakistan shall not affect the validity of any administrative 
or financial acts performed by him or of any oath made 
before him in the ordinary course of the affairs of the said 
office; 
iii) 
 since Mr. Justice Abdul Hameed Dogar was never a 
constitutional Chief Justice of Pakistan, therefore, all 
appointments of Judges of the Supreme Court of Pakistan, 
of the Chief Justices of the High Courts and of the Judges 
of the High Courts made, in consultation with him, during 
the period that he, un-constitutionally, held the said office 
from 3.11.2007 to 22.3.2009 (both days inclusive) are 
hereby declared to be un-constitutional, void ab initio and 
of no legal effect and such appointees shall cease to hold 
office forthwith; 
 
 
Provided that the Judges so un-constitutionally 
appointed to the Supreme Court while holding the offices 
as Judges of any of the High Courts shall revert back as 
Judges of the respective High Courts subject to their age of 
superannuation and like-wise, the Judges of the High 
Courts, who were District and Sessions Judges before their 
said un-constitutional elevation to the High Courts shall 
revert back as District and Sessions Judge subject to 
limitation of superannuation; 
iv) 
the Judges of the Supreme Court of Pakistan, if any, 
the Chief Justices of the High Court, if any, and the Judges 
of any of the High Courts, if any, who stood appointed to 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
9 
the said offices prior to 3.11.2007 but who made oath or 
took oath of their respective offices in disobedience to the 
order passed by a Seven Member Bench of the Supreme 
Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 
in Constitution Petition No.73 of 2007, shall be proceeded 
against under Article 209 of the Constitution. The 
Secretary of the Law Division of the Government of 
Pakistan shall take steps in the matter accordingly; 
 
 
Provided that nothing hereinabove shall affect those 
Judges who though had been appointed as Judges/Chief 
Justices of any of the High Courts between 3.11.2007 to 
22.3.2009 but had subsequently been appointed afresh to 
other offices in consultation with or with the approval of or 
with the consent of the Constitutional Chief Justice of 
Pakistan; 
 
v) 
any judgments delivered or orders made or any 
decrees passed by any Bench of the Supreme Court or of 
any of the High Courts which comprised of or which 
included the afore-described Judges whose appointments 
had been declared void ab initio, are protected on the 
principle laid down in MALIK ASAD ALI’S CASE (PLD 1998 
SC 161).”  
 
7.  
 
On having gone through the above Paragraphs, there 
should not be any ambiguity in the mind of anyone that the Judges of 
the superior judiciary had never been sacked/deposed in pursuance of 
the Proclamation of Emergency, the PCO and Oath of Office (Judges) 
Order, 2007, as is evident from Paragraph 22 (i) above. Not only this, 
the appointment of Mr. Justice Abdul Hameed Dogar as Chief Justice of 
Pakistan was declared unconstitutional, holding that the office of Chief 
Justice of Pakistan never fell vacant on 03.11.2007. Suffice to observe 
that the executive order passed was an acknowledgement of the 
factual and legal position, i.e. that the order passed by the then 
President was unconstitutional and void ab initio. If now the said order 
is attempted to be withdrawn, it will be tantamount to throttling one of 
the important pillars of the State, namely, the judiciary, thereby 
subverting the Constitution in terms of Article 6. As has been noted 
hereinabove, particularly in view of the fact that when matter has 
finally been clinched/decided in view of the judgment in Sindh High 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
10 
Court Bar Association's case (supra), no functionaries of the 
Government, including the head of the State or head of the 
Government or any of their other functionaries can take any steps for 
withdrawing the executive order/notification of restoration of Judges, 
which otherwise is non-existent in view of the above judgment.  
8.  
  In the light of the above, we direct: -  
(i) All 
the 
constitutional 
and 
State 
functionaries 
and 
administrative heads in the country to ensure that no 
action qua initiation of proceedings concerning withdrawal 
of the executive order (order of “restoration of Judges”) 
dated 16.03.2009, status whereof has already been 
determined by this Court in its judgment in Sindh High 
Court Bar Association's case (supra), is taken, intentionally 
or otherwise, by any of the functionaries as noted 
hereinabove, and all the constitutional and administrative 
heads/ functionaries are restrained/refrained from doing 
so;  
(ii) The Government of Pakistan/Prime Minister to conduct an 
inquiry through an appropriate responsible functionary that 
if the statement of the former that no such action was 
being contemplated was true, then how this news in the 
print and electronic media was spread, and who was 
responsible for it because we feel that it is the primary 
duty of the Government to look into it and unearth such 
persons who are taking such steps or spreading such 
news, which are causing panic, sensation and anguish 
throughout the country, since last night. The members of 
the Bar Associations throughout the country have also 
started agitating the matter. The senior representatives 
have appeared in Court and have taken serious exception 
to the steps, which the Government was reportedly 
contemplating to take in this behalf;   
(iii) The Attorney General for Pakistan, present in Court, to 
communicate immediately this order to all concerned, and 
send compliance report to the Registrar of this Court in the 
course of the day. 
CMA NO. 2981 OF 2010 
IN CONST.P. 9 OF 2009 
11 
(iv) This report must be placed before the Court on the 
next date of hearing. We may point out here that it is 
already 1.37 p.m., when we are dictating this order in 
the Court, but no statement from the office of the 
Chief Executive/Prime Minister, denying the news 
items published in the print media and aired on the 
private TV channels has been placed before us.   
 
9.  
 
The case is adjourned for 18.10.2010, enabling the 
authorities/functionaries to put up report and statements, if desired, 
as has been pointed out by the learned Attorney General for Pakistan.  
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.  
 
 
JAVED IQBAL, J.   
 
 
 
 
MIAN SHAKIRULLAH JAN, J.  
 
 
 
TASSADUQ HUSSAIN JILLANI, J.  
 
 
NASIR-UL-MULK, J.  
 
 
 
 
RAJA FAYYAZ AHMED, J.  
 
 
 
MUHAMMAD SAIR ALI, J.  
 
 
 
MAHMOOD AKHTAR SHAHID SIDDIQUI, J.  
JAWWAD S. KHAWAJA, J.  
 
 
 
ANWAR ZAHEER JAMALI, J.    
 
 
KHILJI ARIF HUSSAIN, J.  
 
 
 
RAHMAT HUSSAIN JAFFERI, J.  
 
 
TARIQ PARVEZ, J.  
 
 
 
 
 
MIAN SAQIB NISAR, J.   
 
 
 
ASIF SAEED KHAN KHOSA, J.  
 
 
 
GHULAM RABBANI, J.   
 
 
 
KHALIL-UR-REHMAN RAMDAY, J. 
 
Islamabad,  
15 October 2010 
 
APPROVED FOR REPORTING